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Williams v Fairbairn and Others [2006] EWHC 1723 (Ch)

Claimant’s action in damages, against own and former wife’s counsel in ancillary relief proceedings, summarily dismissed.

Williams v Fairbairn and Others [2006] EWHC 1723 (Ch)

Chancery Division: Rimer J (26 April 2006)

Claimant's action in damages, against own and former wife's counsel in ancillary relief proceedings, summarily dismissed.

This case arose out of ancillary relief proceedings between the claimant and his former wife. At a hearing in January 2005, there were negotiations between the parties and their respective representatives, at the end of which some heads of agreement were signed by the parties and their counsel. An order of the court recorded the heads of the agreement as the basis of an order, and a so-called 'Minutes of Consent Order' was drawn up and agreed between both counsel; subsequently, the document was converted, by way of a manuscript addition by the judge and a court stamp, into a perfected order of the court.

On this present application, the claimant had accused the first and second defendants, who were counsel for himself and his wife respectively, of deception, dishonesty and bad faith, and made a claim for damages of £50,000 against each of them, without any breakdown of how that sum was calculated; in response, the first and second defendants applied for the striking out of, or summary judgment in, the claims against them.

The judge reviewed and dismissed a large number of points in the claimant's Particulars of Claim; he then considered in detail the complaint that, in three respects, the consent order did not follow the heads of agreement, and these points were said to be adverse to the claimant's interests.

The judge dismissed two of the three points made but considered the third, namely the recital in the order stating erroneously that the applicant (ie claimant) would 'keep paying' the mortgage on the former matrimonial property until sale, when in fact the parties had agreed that it was the wife who would continue with that obligation.

The judge suggested that this innocent mistake should have been put right under rule 40.12(1) of the Civil Procedure Rules 1998 ('the slip rule'), but that had not happened, and there was no evidence of the wife asserting that the claimant was responsible for the mortgage payments.

In considering the claim against the first defendant, the judge stated that, since she was the claimant's own counsel, she owed him a duty of care and, in failing to notice the error in the document, she arguably breached that duty. Also, the breach could have caused the claimant loss, if he had been put to the expense of correcting the error by way of an application under the slip rule, and he could reasonably have claimed to recover that expense from her. However, the claimant did not allege that he had suffered any loss and, indeed, he had not suffered any loss. It followed that the claim could not succeed.

As regards the claim against the second defendant, the judge referred to Connolly-Martin v Davis [1999] PNLR 826 which established that, except in exceptional circumstances, counsel owes no duty of care to his opponent's client. Since there were no special circumstances in this case, this claim also failed.

Accordingly, the judge entered summary judgment for each of the first and second defendants against the claimant.

Read the full text of the judgment