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Williams v Fairbairn & Ors [2006] EWHC 1723 (Ch)

This is an application by two of the defendants, both counsel, for striking out of, or summary judgment in, claims against them arising out of the drafting of a consent order in ancillary relief proceedings.

The claimant had alleged that a consent order, which had been converted from counsel's agreed minutes, and which they had not seen before it was submitted to court, did not match a previously agreed heads of agreement.
Mr Justice Rimer found that the claim against the first defendant, the claimants counsel in the proceedings, had been arguable but no suitable application had been made. The claim against the second defendant failed as counsel has no duty of care to the opposing litigant.

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Case No: IHC44/06

NEUTRAL CITATION NUMBER: [2006] EWHC 1723 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday, 26 April 2006

BEFORE:

THE HONOURABLE MR JUSTICE RIMER

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BETWEEN:

CHRISTOPHER WILLIAMS Claimant

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(1) REBECCA FAIRBAIRN

(2) RICHARD TYSON

(3) JOHN STEVENS Defendant

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The Claimant, Mr Williams, appeared in person, with McKenzie Friend, Mr Branch

MS AMANDA SAVAGE (Instructed by Messrs Thompson Snell & Passmore) appeared on behalf of the First Defendant

MS ANNELIESE DAY (Instructed by Messrs Thompson Snell & Passmore) appeared on behalf of the Second Defendant

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Approved Judgment

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Wednesday, 26 April 2006

JUDGMENT

MR JUSTICE RIMER:

1. The matters before me are two applications issued by each of the first and second defendants for the striking out of, or summary judgment in, the claims against them. The claimant is Christopher Williams. The matter arises out of events in relation to ancillary relief proceedings in the course of his divorce proceedings against his former wife, Mrs Lesley Williams. The two defendants, Rebecca Fairbairn and Richard Tyson, have been represented before me by Ms Savage and Ms Day respectively. Mr Williams has appeared in person, assisted by Mr Branch, an accountant, as his McKenzie friend. Mr Williams explained to me that he is not a well man and would have difficulty in formulating and presenting his case to me, and so he asked me to permit Mr Branch to speak for him. In the circumstances I have exercised my discretion to permit Mr Branch to represent Mr Williams, and I should like to express my appreciation of the very clear way in which he identified the essence of Mr Williams' case, which is not easy to understand from his Particulars of Claim.

2. I should explain that it appears that, because of some procedural oversight, sealed copies of the two application notices have not been served on Mr Williams, although he was of course long ago provided with unsealed copies of them. Shortly before this hearing, he had raised that point in correspondence, in which he suggested that he did not in fact propose to attend today's hearing. In fact, of course, he has. I asked him whether he did wish to take any point that the application notices had not been served, and he made it clear that he did not and that he waived such service. In the circumstances, I propose to make an order under CPR Part 6.9(1) dispensing with formal service of the application notices.

3. I come therefore to the background to the case, which is as follows. The ancillary relief proceedings came before Bournemouth County Court on 13 January 2005. Mr Williams was represented by Laceys, solicitors, and by the first defendant, counsel instructed by Laceys. Mrs Williams was represented by Battens, solicitors, and by the second defendant, counsel instructed by Battens. Also present, although unrepresented by anyone, was the claimant's mother, Mrs Irene Williams. The claimant says that she was there to assist him in the circumstances that he suffers from medical problems, although, as it happens, she also had an interest in the subject matter of the dispute, since she had, or claimed to be entitled to, the benefit of a charge over the former matrimonial home, 7 Ravine Road, Canford Cliffs, Poole ("the property").

4. On the face of things, what happened on 13 January 2005 was as follows. There were negotiations between the parties and their respective representatives, at the end of which some heads of agreement were signed by the parties, by their respective counsel and also by Mrs Irene Williams. They ran to three pages. Mrs Irene Williams was a signatory because clause (2) recited that her charge over the property was to be set aside. A rider was also included on a fourth page, that being signed only by the two parties and their respective counsel. It did not affect Mrs Irene Williams.

5. I do not need to detail the contents of the heads of agreement, which are not without their complications, but their essence, and this is something of an over-simplification, was that various charges on the property were to be cleared off, the property was to be sold and its net proceeds were to be divided between the parties in equal shares. Mrs Williams was also to pay the claimant either half the net proceeds of, or half the value of, certain shares she held in Weight Watchers International Incorporated.

6. What happened once the heads had been signed was that both counsel went before the judge, who was District Judge Weintroub. I presume, and I do not understand it to be disputed, that they were accompanied by their respective instructing solicitors, as one would expect, although it appears to be agreed that the parties themselves did not go before the judge. An order of the court dated 13 January 2005 records that the judge approved the heads of agreement "as the basis of the Order". The "Order" there referred to is that which is the subject of a preceding, although inaccurately drawn, recital to the effect, as is agreed, that the second defendant, Mr Williams's counsel, would submit the final order by 4pm on 27 January 2005.

7. What then happened is that a so-called "Minutes of Consent Order" was drawn up and agreed between and signed by both counsel. Once it was so agreed and signed, the second defendant, in discharge of his undertaking given to the court on 13 January, sent it direct to the court. The copy of that document which is in the papers gives the title of the proceedings and it is headed as being "Before District Judge Weintroub on 13 January 2005". It also bears what Mr Branch told me, and which I did not understand to be disputed, was Judge Weintroub's own manuscript amendment on the first page, being one by which he added the words "Upon decree absolute". The document also bears an undated stamp of Bournemouth County Court. I presume that that was the court's way of converting counsel's agreed minute of order into a perfected order of the court.

8. The course of events I have just described was not in any way out of the ordinary. It follows the procedure expressly approved by the Court of Appeal in Xydhias v Xydhias [1999] FLR 683: see, in particular page 696A-C, per Thorpe LJ. That shows that there was no need for the parties themselves to sign the minute of order as well as the prior heads of agreement, although I should myself have thought that it was a counsel of prudence for them at least to be shown the final draft before it is submitted to the court. Unfortunately that did not happen in this case.

9. The claimant appears to have developed a rapid dissatisfaction with the outcome. On 29 September 2005 he issued a claim for damages in the Chancery Division against three defendants, although I am today only concerned with that against the first two. He accused those defendants of deception, dishonesty and bad faith and makes a large, unparticularised claim for damages against each of them. It is not easy to follow the nature of the claim, which is expressed in intemperate and imprecise language. A material part of its thrust seems to be that Mrs Irene Williams was railroaded into signing the heads of agreement under duress. She, of course, is not a party to this claim, although the Particulars assert that she is starting one of her own. The Particulars assert further that the heads of agreement are a nullity because they are not in Tomlin form and contain no liberty to apply. The proposition that either of those points results in the heads of agreement being a nullity is simply wrong and right at the outset of the hearing before me, that is before Mr Branch had taken up the argument on behalf of the claimant, the claimant himself expressly accepted that it was and is wrong and he agreed that I could and should strike out paragraphs 10 and 11 of his Particulars of Claim as not forming part of any cases that he wishes to make. Whatever his mother's attitude towards the heads of claim may be, the claimant also accepted that he was a willing signatory to them, and he did not and does not suggest otherwise. Mr Branch accepted that it followed from these concessions by the claimant, which seemed to me to have been inevitable, that paragraph 12 of the Particulars must be struck out, and with it the first six somewhat emotive words of paragraph 13.

10. The focus of the Particulars then turns to the "Minutes of Consent Order", which I propose simply to call "the consent order", since that is what it appears to be. Paragraphs 14 and 15 of the Particulars assert that this document is not an order of the court at all, relying, as I follow it, on the point that it is described as being the "Minutes" of an order. That appears to me, with respect, to confuse form with substance. Draft orders are commonly described as "minutes" of order, although that word will not usually feature in the perfected order of the court which is drawn on the basis of such minutes. But if, as has happened here, the word is retained, I disagree that it means that the order that the court has purported to perfect as an order is not in fact an order at all.

11. The Particulars then make the point that the consent order is void and is a nullity because it contains no liberty to apply and because Mrs Irene Williams did not sign it. There is nothing in the former point any more than there was in relation to the heads of agreement. As to the latter point, recital 5 records Mrs Irene Williams had agreed to that part of the order and counsel no doubt felt justified in saying that because recital 5 reflected that to which she had earlier agreed when she signed the heads of agreement. It can, however, be said to be a formal deficiency that the consent order itself does not provide any self-contained support for Mrs Irene Williams' agreement to it. It is signed by counsel for the two parties, but neither had apparently sought or been given authority also to sign for her. That appears to me to be a formal deficiency in the drafting of the minute of the consent order, but it is not one that makes the perfected order either void or a nullity.

12. That takes the Particulars down to paragraph 16, in which the claimant asserts that neither he nor Mrs Williams nor Mrs Irene Williams saw or signed the consent order and that none of them agreed or consented to it. Paragraph 17 then asserts a claim for damages of £50,000 against each of the first two defendants although no attempt is made to break down how that sum is calculated.

13. I have to say that my reading of the Particulars in advance of this hearing left me completely confused as to the basis and nature of Mr Williams' claim against the two defendants. It is full of intemperate language and bad points, the claim form having accused them of deception, dishonesty and bad faith in the generation of the consent order. Mr Branch accepted that there was no justification for emotive and extreme allegations of this sort against the two defendants, and he helpfully explained what this case is really about, which is one which is nowhere to be found in the Particulars.

14. It comes down to the point that in three respects the consent order is said not to follow the heads of agreement. These are points which are said to be adverse to the claimant's interests. The first and main point is in relation to recital 9 which reads:

"9. The Applicant agrees to keep paying the Abbey National mortgage and the current insurances on Ravine Road until sale."

15. It is common ground that no such provision was in the heads of agreement, but that the parties had in fact agreed a term to that effect, although what they had agreed was that the respondent, that is Mrs Williams, would assume the obligation referred to in clause 9. The reference in it to "The Applicant", that is the claimant, is simply a mistake.

16. The history of this is explained in the evidence given by Ms Burden, a solicitor with Laceys. She gave that evidence in a different action that the claimant has commenced against Barclays Plc, the Department of Constitutional Affairs, Laceys and Battens. She there acknowledged that the reference to "The Applicant" in clause 9 was a mistake and should have been to "The Respondent". She said that it was agreed at court on 13 January 2005 that Mrs Williams would pay the mortgage and council tax on the property until sale, although that term was not incorporated into the signed heads of agreement. The second defendant's first draft of the proposed consent order, contained no reference to this. He sent his draft to the first defendant, who in turn sent it to Laceys for their consideration. She proposed to Laceys that she should suggest to the second defendant that he should include a provision relating to mortgage payments, saying in her note to Laceys:

"They accept they will carry on paying so I see no problems."

17. Ms Burden agreed with this suggestion and instructed the first defendant accordingly. That led to a further draft from the second defendant, which he sent to the first defendant saying he had had added a new recital 9, his accompanying note making it clear that he himself understood it as referring to Mrs Williams and not to the claimant. Laceys did not in fact see the document again until after it had been sent by the second defendant direct to the court for sealing. I infer that the first defendant did not pick up the mistaken reference in clause 9 to the claimant rather than to Mrs Williams any more than had the second defendant when drafting recital 9. That is all I need to say for the moment about clause 9.

18. The second respect in which Mr Branch said the consent order did not mirror the prior heads of agreement was in relation to the way it provided for the claimant, one way or the other, to receive half the value of Mrs Williams' Weight Watcher shares. I do not propose to elaborate on this point since I could not myself see in what respect the consent order did not faithfully follow the heads of agreement in this particular respect. I also understood Mr Branch to share that view.

19. The final respect in which Mr Branch said the consent order did not follow the heads of agreement was in relation to clause 1, which dealt with the proposed sale of the property. Clause 1.3 committed the conduct of sale to Mrs Williams' solicitors and clause 1.5.2 provided for their costs to be paid out of the gross proceeds. I accept that that represents a departure from the heads of agreement, which does not deal with who was to have the conduct of the sale at all, and Mr Branch tells me that the claimant would anyway have not agreed that Mrs Williams' solicitors should have such conduct. Mr Branch accepted, however, that that aspect of the matter has evaporated as a problem since it has been agreed with Mrs Williams that some independent firm of solicitors is to have conduct of the sale. No loss has therefore arisen out of clause 1, even if it involves any error which should not have been committed in the first place.

20. In those circumstances, the only head of complaint about the consent order that I can identify is that relating to recital 9, which it is agreed correctly reflects what had in fact been agreed on 13 January 2005, although it mistakenly refers to the claimant rather than Mrs Williams, a mistake which was obviously an innocent error on the part of the second defendant, which went unnoticed by the first defendant. One might have thought that that mistake could and would have been put promptly right by an application to the Bournemouth County Court under CPR Part 40.12(1) (the so-called "slip rule") although that has not happened. There is no evidence that Mrs Williams has sought to take advantage of the error in clause 9. On the contrary, the claimant has put before me a statement signed by her on 12 August 2005 in which she, in effect, repudiates the consent order as being a document with which she wishes to be associated in any respect, although on what basis I do not understand.

21. Of more significance, however, is that she has also continued to pay the mortgage in respect of the property, just as she has always done, and I have not been shown a single piece of paper from her suggesting that the effect of recital 9 is that the claimant is now responsible for the mortgage payments. I am told that there is in fact no such piece of paper, but I am also told that she has made various oral suggestions to that effect over the telephone in abusive conversations. I am further told that Mr Williams has also sued her in the Queen's Bench Division in relation to her mortgage obligations, although I am unclear as to the nature of the relief he is seeking in that action.

22. I come, therefore, to the question of whether there is any arguable claim for damages against either of the first two defendants. The claims are necessarily brought in tort and so it is necessary for the claimant to advance an arguable case that each defendant owed him a duty of care in relation to the drafting of the consent order, that each breached that duty and that the breach by each caused him damage.

23. As regards the first defendant, she was his own counsel, and so she plainly owed him a duty of care in considering and in approving on his behalf the minute of order prepared by the second defendant. She reflected a proper sense of that duty by proposing that a clause along the lines of recital 9 should be included, but it is in my view at least arguable that, in failing to notice the error in recital 9 as drafted, she breached that duty. It appears to me also that that breach could arguably have caused the claimant loss. If, for example, he had then been put to expense in correcting the error by way of an application under the slip rule, I cannot see in principle why he could not claim to recover that expense from her.

24. The claimant, however, did not choose to take that course, although I do not understand why. He has instead engaged in issuing proceedings against at least eight different defendants arising out of the events of 13 January 2005 and the making of the subsequent consent order. He is acting in person in those claims and it may be that that has caused him some expense, but he cannot claim the expense in the present claim as damages recoverable in it, and the Particulars of Claim make no attempt to assert or suggest that the costs of the various other sets of proceedings he has issued form foreseeable heads of loss flowing from any breach of duty committed by the first defendant. I comment that at least the claim against Laceys was struck out earlier this year. Nor, in my view, is it even arguable that the costs of such proceedings were the type of loss from which the first defendant had a duty to save the claimant harmless. That type of loss might well, as I have said, have included the costs of an application under the slip rule, which might, had it been defended, have been considerable. But no such application has been made.

25. In my judgment, the difficulty that the claimant has as regards his claim against the first defendant is that not only has he not alleged the suffering of any loss that might arguably have been recovered from her, he has not even suffered any loss. It follows that, if the matter were to come to trial tomorrow, he could not prove a penny of loss. It follows, in my view, that the claim against the first defendant cannot succeed.

26. Nor, in my judgment, can the claim against the second defendant. The problem here is even more fundamental. The second defendant was counsel for Mrs Williams. It is well settled law that, save in exceptional circumstances, none of which applies here, counsel owes no duty of care to his opponent's client. Ms Day referred me to the decision of the Court of Appeal in Connolly-Martin v Davis [1999] PNLR 826 in which, at page 834, Brooke LJ said this:

"Miss Smith submitted, and Mr Richardson did not dispute, that as a general principle counsel owes a duty to his lay client to do for him all that he properly can, with due care and attention. Counsel owes no such duties to those who are not his clients. He is no guardian of their interests, and indeed what he does for his client may be hostile and injurious to his opponents. In the ordinary course of adversarial litigation counsel or solicitor owes no duty to the lay client's adversary.

These general propositions of law are, in my judgment, well settled. See Orchard v South Eastern Electricity Board [1987] 1 QB 565 at 571F-G and 581B-C; Business Computers International Ltd v Registrar of Companies [1988] 1 Ch 229 at 239F-240G; Al-Kandari v Brown [1988] 1 QB 665 at 672A-F and 675E-676B; White v Jones [1995] 2 AC 207 at 256D-E; and Elguzouli-Daf v Commissioner of Police [1995] QB 335 at 348C-F and 352A-C."

Mummery and Beldam LJJ both agreed with Brooke LJ.

27. It follows that, as against the second defendant, Mr Williams does not even have an arguable case that counsel owed him a duty of care. Mr Branch did his level best to say that in the special circumstances of this case it was arguable that counsel did owe such a duty. I disagree. There were here no such special circumstances and the contrary is not arguable.

28. The result is that I propose to enter summary judgment for each of the first and second defendants against Mr Williams.

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