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Woman sues lawyers for failing to advise that divorce would end her marriage

Claim against former solicitors fails

The Independent reports that a woman has unsuccessfully sued her former lawyers for failing to advise her that a divorce would terminate her marriage.
According to The Independent the claim was made against two firms of solicitors on the basis that, since she was a Roman Catholic, who believed in the sanctity of marriage, she should have been advised to pursue judicial separation proceedings. The claim was rejected.

The appeal is reported as Mulcahy v Castles Solicitors [2013] EWCA Civ 1686. The judgment, given by Briggs LJ, is concerned with other aspects of Mrs Mulcahy's action against her former solicitors. However, in respect of the above, he said:

"Much the most striking of Mrs. Mulcahy's many allegations of negligence against her solicitors was that, having regard to her Roman Catholic faith, Mrs. Boots had failed to give her the advice which was requisite in view of her firmly held belief in the sanctity of marriage, either in terms of the alternative of judicial separation, or about the impossibility of pursuing divorce proceedings to a clean break settlement, without thereby inevitably bringing about the final termination of her marriage, which she wished to avoid. This lay at the heart of the substantive issues which, in paragraph 25 of his reserved judgment, Judge Wood said that he had to decide. Mrs. Mulcahy's grievance at his rejection of that central part of her case formed a major plank in her grounds of appeal ... Nonetheless, it formed no part of the matters argued before the court on this appeal, because permission to do so was refused both by the judge, by Lewison LJ on her written application, and by Hughes LJ on its oral renewal."

The proceedings before the Court of Appeal concerned three other matters. The first was that the judge had wrongly rejected Mrs Mulcahy's case that her solicitors had been negligent in failing:

"…to pass on to counsel attending the ancillary relief hearing the information provided by the claimant that her income had fallen significantly since the completion of her Form E."

The second matter was that the judge had failed to take into account the fact that she suffered from Asperger's Syndrome, the adverse consequences of which for a litigant in person amounted to a disability, the full effects of which had not been recognised either by the judge or by Hughes LJ, with the consequence that the conduct of both involved discrimination against her on account of a protected characteristic. The third matter consisted of Mrs Mulcahy's attempt to resurrect, as a ground of appeal, and for an adjournment of the hearing, her challenge to the order made by the judge for an interim payment on account of her costs liability to Hextalls in the sum of £35,000, payment of which had, she said, inhibited her from obtaining legal advice or representation for the conduct of this appeal.

All three grounds of appeal were dismissed.

The judgment is here and The Independent report is here.

12/1/14 (and augmented 13/1/14)