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Nuptial Agreements: Limiting the Family Lawyer’s Exposure to Negligence Claims

The authors consider whether family lawyers are assuming unlimited liability when advising upon or drafting nuptial agreements and look at the practicalities of limiting that liability.



Family Law barristers, Andrzej Bojarski, Head of the Family Law Team at 36 Bedford Row and Rhys Taylor of 30 Park Place, Cardiff, and 36 Bedford Row

The Importance of Legal Advice in Marital Agreements
The principles to be applied on an application for a financial remedy where the parties entered into a pre-nuptial agreement were stated by the Supreme Court in Granatino v Radmacheri and have been the subject of much commentary since, as well as being the subject of a Law Commission consultation and recent report. 

In the Granatino v Radmacher appeal the Supreme Court did not make it an absolute pre-requisite to giving decisive weight to a pre-nuptial agreement that the parties had legal advice prior to the agreement being signedii .  The test was whether the agreement was "freely entered into by each party with a full appreciation of its implications" [para 69]. In making it clear that legal advice was not a pre-requisite to the enforceability of the agreement the Supreme Court chose not to adopt the earlier suggestions on marital agreements made by the Home Office in its 1988 consultation paper 'Supporting Families'iii .  That paper stated that an agreement would not be binding where, amongst other factors, 'one or both of the couple did not receive independent legal advice before entering into the agreement'.  Notably, the recent Law Commission report on marital agreements, Matrimonial Property, Needs and Agreements recommends that independent legal advice for both parties should be a pre-condition to the validity of the proposed Qualifying Nuptial Agreement (as to which see infra).

Since the Radmacher decision Mostyn J has provided further guidance on marital agreements in Kremen v Agrestiv  (No 11). Despite the Supreme Court's reluctance to set formal prerequisites for giving an agreement decisive weightv  Mostyn J suggested that in practice the law would normally demand this.  He provided the following guidance as to what might be expected by way of disclosure and legal advice for a pre-nuptial agreement to be given decisive weightvi.

It seems to me that it will only be in an unusual case where it can be said that absent independent legal advice and full disclosure, a party can be taken to have freely entered into a marital agreement with a full appreciation of its implications. After all, almost every common law country that has legislated in this field has as a key pre-condition these requirements as well as a safety-net where the agreement is judged to be "unfair" (e.g. British Columbia) or "unjust" (e.g. New Zealand) or "unconscionable" (e.g. Australia). It would surely have to be shown that the spouse, like Mr Granatino, had a high degree of financial and legal sophistication in order to have a full appreciation of what legal rights he or she is signing away.

The emphasis is the judge's own.  This is a significant passage because it suggests that independent legal advice and full disclosure are not merely part of the assessment as to whether the agreement is 'fair' (which is the way many had read the decision in Granatino v Radmacher) but a 'key pre-condition' to the agreement being taken into account.

What is Expected of the Lawyer Advising a Party to a Nuptial Agreement?
All matrimonial lawyers will have noted an increased interest in and use of nuptial agreements since the decision in Granatino v Radmacher.  The dicta of Mr Justice Mostyn are an important reminder that lawyers will normally need to be involved in the process of preparing and agreeing such agreements because, if the Kremen v Agrest guidance is widely adopted, it will only be in very unusual cases that a 'DIY' agreement put together over the kitchen table will meet the 'key pre-condition' set by Kremen v Agrest.

The decision discussed above is a clear indication that in most cases concerning nuptial agreements there will be an expectation that both parties will have had independent legal advice prior to signing the agreement (i.e. any lawyer advising one party to the agreement may be negligent if he or she does not advise the client to ensure that the other party also takes independent legal advice or at least has a reasonable opportunity to do so). However, the nature of that advice and the adviser's duties are not spelt out in the matrimonial case law decided to date.  Assistance may be found in other comparable areas of law.

The requirements of independent legal advice have received considerable judicial consideration in the course of the development of the doctrine of undue influence, especially in the context of commercial loans and mortgages to which husband and wife are both partiesvii.  In Smith v Cooperviii  the Court of Appeal defined independent legal advice as:

'advice to and for the benefit of the one party alone given by an adviser whose duty it is to consider the position of that party and to advise her (it would usually be a female) so that she can given thought, free of any influence or dependence on the other party, as to whether she really does want to enter into the transaction, bearing in mind its full implications from her point of view'.

No doubt based on the collective experience of those undue influence cases in the context of commercial lending, many of the commercially available precedents for nuptial agreements, to date, include a certificate to be completed by each party's adviser, along the following lines:

Prior to [  ] entering into this Deed I have provided to [  ] independent legal advice as to the following matters:

1. The effect of the agreement on his/her rights;

2. Whether, at the time my advice was given, it was to his advantage, financially or otherwise to enter into the agreement;

3. Whether, at that time, it was prudent for him to enter into the agreement; and,

4. Whether, at the time and in the light of such circumstances which were reasonably foreseeable, the terms of the agreement were fair and reasonable.

This formulation may have its origin in the Australian legislation on Binding Financial Agreements. The Australian experience was considered by the Law Commission during its consultation and report on Matrimonial Property, Needs and Agreementsix.  In its originally enacted form this legislation required independent legal advice for such an agreement to be valid and binding.  The legal advice was required to go beyond explaining the effect of the agreement but also as to whether the agreement was financially advantageous and one that it was prudent for that party to make.  While most lawyers will find sub-paragraph 1 of the above declaration palatable enough, sub-paragraphs 2, 3 and 4 provide a much greater challenge, whether one is advising the economically stronger or the economically weaker party.  Prior to taking a deep breath and signing a certificate in these terms the lawyer may wish to pause and consider the consequences of assuming this duty of care.

Paragraphs 2 and 3 of the above formulation of the legal advice certificate almost certainly go beyond the qualifications or expertise of a family lawyer. Those are matters which may even extend beyond the scope of a family lawyer's indemnity cover as they stray into the arena of financial or commercial advice rather than legal advicex .  The Australian experience of the Binding Financial Agreements legislation was that many family lawyers refused to offer such advice and provide a suitable certificate.  As a result, the law was amended so that the legal advice requirement is now satisfied by providing a certificate that the lawyer had advised on 'effect of the agreement on the rights of [the party] and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement.'  Even this formulation can be a challenging duty to meet.

Taking on board the Australian experience, the Law Commission's recommendation for the legal advice requirement for the proposed "Qualifying Nuptial Agreement" was for a statement to be signed by both the lawyer and the client to the effect that the client has been advised:

(i) That the agreement is a qualifying nuptial agreement that will prevent the court from making financial orders inconsistent with the agreement, save so far as financial needs are concerned;

(ii) Of the effect of the agreement on the rights of the party being advised.

Even in this more limited form, the requirement is likely to be for more than merely formulaic advice.  The lawyer will be expected to evaluate the particular circumstances of the case and consider what the consequences of the agreement might be for the client in the future not only based on what is known at the time the agreement is entered into but also anticipating foreseeable changes in circumstances in the future.  This remains a demanding task which the lawyer undertakes.

The family lawyer's duty of care must be discharged to the standard of the reasonably  competent practitioner undertaking the type of work in questionxi . The standard is the 'reasonable average'xii The standard expected of the reasonably competent practitioner will be determined by reference to what was competent at the time the work was undertaken. In the area of pre-nuptial agreements, there have been significant developments in recent years, making it a sometimes complex question as to when a reasonably competent service has been performed.  What should a family lawyer have advised a client 3 months before the Radmacher decision in the Supreme Court? What advice should now be given, after the Law Commission report, pending any further statutory enactment (bearing in mind that the Lord Chancellor's response to the report appears favourablexiii )? What is the status of the commonplace certificate provided by family lawyers on signing off a pre nuptial agreement, given that the Law Commission now suggests a leaner certificate, based upon Australian experiences? It is clear from the case of Williams v Thompson Leatherdale (A Firm) [2008] EWHC 2574 (QB), [2009] PNLR 15, [2009] 2 FLR 730xiv  (in the context of advice negligently not given 3 months prior to the decision of the House of Lords in White v White [2001] 1 AC 596) that there may be a duty upon lawyers to anticipate and explain to clients possible (falling short of certain) significant future changes in the law. It is suggested by the authors that it would be unwise to simply ignore the contents of the Law Commission report on the basis that it may never be implemented. Further, the guidance as to the content of legal advice at 7.59 of the Law Commission report may well prove to be adopted as a statement of current good (i.e. reasonably  competent) practice in any event.

The Indeterminate Scope of The Lawyer's Assumption of Risk
Of course, while nuptial agreements produce a new area of work for family lawyers, they also carry new risks.  The liability for negligent advice in relation to a pre-nuptial agreement could be massive, particularly as (i) these agreements are most common in cases where the assets are substantial and (ii) the wealth may grow very significantly between the making of the agreement and the date of divorce, making the precise liability impossible to determine at the point of preparing the agreement.

The limitation period for negligence flows from the date upon which loss is sustained as a result of the negligence.  Is that the date upon which the agreement is entered into (thereby limiting liability for 6 years or so after the work on the agreement is done) or is it the date upon which the court determines that the pre-nuptial agreement did not serve its intended purpose as a result of negligent advice or drafting (which could be many years hence)?  The answer to that question is not entirely clear and may depend on the specific facts of individual cases. 

The Latent Damages Act 1986 added s.14A to the Limitation Act 1980.  This extends the period within which an action can be brought for negligence which causes 'latent' damage very considerably.  Section 14A extends the usual 6 year period for bringing a claim for negligence to 3 years after the date when all the material facts about the damage which is the subject of the claim are known or should reasonably have been known.  There is a 'long-stop' limitation date barring claims after the expiration of 15 years from the date of the negligent act or omissionxv .  It is certainly conceivable that a marital agreement could contain a clause (or fail to contain a vital clause, as the case may be) which may reveal its negligent nature only at the stage when advice is taken by a spouse at the point of marital breakdown many years after the agreement was entered into by the parties..

What if the same negligent clause was used by the same lawyer in 50 pre-nuptial agreements?  Aside from the regulatory issue of informing past clients of the negligence, a cohort of this size is likely to contain parties who will divorce. Those former clients may have suffered loss as a result of the negligent clause and seek redress. The same could arise where the same negligent advice is given to a number of clients prior to their signing of nuptial agreements.   Is any professional person truly brave (or casual?) enough to simply shrug the risk off and continue to churn out marital agreements regardless?  Anecdotal experience suggests that many family lawyers are content to do so.   In all the circumstances, it is, worth pausing to consider the ways in which the family lawyer's exposure to liability might be limited.

Limiting the Liability
Of course, the easiest way to avoid liability for negligence in preparing marital agreements is to decline to either draft them or to advise clients in relation to them. So far as the self-employed bar is concerned, since 1 March 2007 it has not been a breach of the "cab rank" rule to decline instructions, "… where the potential liability for professional negligence in respect of a case could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for him to accept."  A few practitioners choose to take this cautious approach, but if the law permits marital agreements to influence the outcome of financial remedy applications it is inevitable that many lawyers will wish to satisfy the requirements of clients who desire the benefit of such agreements.

The following seem to be possible options which can be considered when embarking on drafting pre-nuptial agreements:

• Take out adequate professional indemnity insurance;

• Require a waiver or indemnity from the client and/or limit liability by contractual terms.

The issue of securing appropriate indemnity insurance is of general concern to parts of the solicitors' profession. Whilst major firms of solicitors may have cover up to £500M or more, in many cases insurance is becoming harder to secure for High street firms. At the Bar, basic insurance and 'top-up' insurance is more cheaply available, because in most cases members of the Bar do not currently seek to conduct litigation. However, for both the everyday High street practice and member of the Bar, appropriate insurance needs to be in place before advisory work with potentially unlimited liability is undertaken and it must be continued for a 'run-off' period for as long as claims remain possible.

It may be easily foreseeable that a couple in their twenties, with a small, growing business, may become both (a) very wealthy and, (b) divorced. The issue is even starker for members of the self-employed Bar who, at the time of writing, are unable to shield themselves with a corporate structure to limit their personal liability (raising the spectre of the pre-action letter on the doormat, post-retirement). It is one thing to have the appropriate insurance in place to cover everyday risks of litigation when the scope of the litigation is understood but quite another to anticipate the prudent level of insurance for advisory work whose mettle may not be tested until the chickens come home to roost many years in the future.

Waiver or contractual limitation clauses
Contractual clauses which limit or exclude liability are common in many areas of commerce.  To the best of the authors' knowledge, it would appear that solicitors acting in the family law field do not commonly include such clauses in their terms of retainer.  Some of the larger 'full service' law firms do use them, often as a result of their experience of such limitation clauses in other areas of practice, but it appears to remain rare for High street solicitors or niche family law specialists to use them. It is likely that barristers (other than specialist fields such as the Revenue Bar), many of whom have only recently adopted contractual terms as their standard terms of business with professional clients, use contractual limitation or exclusion clauses.

Solicitors acting as professional trustees often have the benefit of an exclusion clause in the trust deed or within their terms of appointment as trustee, excluding or limiting their liability for negligence or gross negligence.  Such clauses are not contrary to public policy even though the Court of Appeal has said that 'the view is widely held that these clauses have gone too far, and that trustees who charge for their service and who, as professional men, would not dream of excluding liability for ordinary professional negligence should not be able to rely on a trustee exemption clause excluding liability for gross negligence.'  xvi

Despite the obiter words of Millet LJ (as he then was), many professionals do more than dream of limiting their liability for negligence.  It is relatively common for accountants to apply limitation clauses in their contracts for the provision of professional services to large corporations and organisations.  Likewise, commercial solicitors regularly include limitation clauses in their standard terms of business to reflect the enormous value of the transactions upon which they advise.  In reality, it is inevitable in a commercial environment where numerous professionals advise a single client and potentially assume joint and several liability for negligent acts that as soon as one advisor has a clause which limits liability every other advisor needs to adopt similar terms to avoid carrying virtually all the liability risk.

The "averagely" competent  family lawyer's concern may be less to avoid liability for "gross negligence" but to secure protection from potentially indeterminate liability for negligent advice or acts in a developing area of law and practice, where it is not always obviously clear what the averagely competent lawyer should be doing.

When considering whether to seek a contractual limitation of liability clause as part of a retainer for instructions to advise upon and draft a nuptial agreement, the family lawyer will need to comply with the provisions of Unfair Contract Terms Act 1977 ("UCTA") and, in many instances, the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"). A brief summary of some of those considerations follows:

Unfair Contract Terms Act 1977

• Sections. 2 to 7 of UCTA apply to business liability i.e. liability for breach of obligations done in the course of a business. "Business" includes a profession (s.14 UCTA) so the liability of a solicitor or a barrister in providing such advice is clearly covered.

• By s. 2(2) of UTCA it is not possible to exclude or restrict liability for negligence, "…except in so far as the term or notice satisfies the requirement of reasonableness."

• s.3 of UCTA applies to parties contracting parties, where one contacting party deals as a consumer (i.e. lay client) or on the other's standard terms of business. Here, it is not possible to "render a contractual performance substantially different from that which was reasonably expected…" except so far as the contract term satisfies the requirement of reasonableness.

• s.11 of UCTA is at the heart of these provisions, requiring the person claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does so (s.11(5)). By virtue of s.11(1) "the term shall have been a fair and reasonable one to be included having regard to the circumstances which were or ought reasonably to have been, known to or in contemplation of the parties when the contract was made."

• s.11(2) refers to Schedule 2 to UCTA for limitation clauses in the context of  sale of goods and hire purchase cases. However, these factors are frequently cited by the courts as having general application. These guidelines include

o the strength of the bargaining positions of the parties relative to each other,

o whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term,  and

o whether the customer knew, or ought reasonably to have known, of the existence and extent of the term.

As already noted, to the best of the authors' knowledge, most family lawyers do not currently routinely seek to limit their liability. This makes it very likely that there will usually be "a similar contract with other persons" available to the client which does not include such a limitation clause. It seems for those now seeking to limit their liability in this context, the practice of the family profession as a whole, to date, has made this a more difficult step to take.  It is likely that when seeking to impose such a term in an agreement the client ought to be advised that there are other lawyers who may be prepared to carry out the work for them without such a term being required.

What Level of Limitation of Liability Is Reasonable?
By s.11(4) of UCTA the ability to meet a liability out of resources or insure for the liability is an express ingredient of reasonableness. When considering the reasonableness of a liability cap in this context it appears that the relevant question is the extent to which it "was open to him to cover himself by insurance" and not merely the actual level of insurance which had been taken. In this respect the court may take into account what was reasonable insurance to be taken out given, the nature of the instructions and the fee charged for the work.

For barristers, the Bar Mutual Indemnity Fund ("BMIF") and others have advised that the "reasonably conservative" level of insurance for a member of the self-employed Bar is 50 times the previous year's fee income and that to be insured less than 30 times fee income might be considered to be "provocatively underinsured." xvii

The case of Killick v Price Waterhouse Cooper [2001] PNLR 1 provides an example of how the courts have approached UCTA in the context of an exclusion clause relating to professionals. There, Neuberger J (as he then was) listed a number of factors in determining whether a clause was reasonable, including:-

• the way in which the term came into being and was used generally;

• the strength and bargaining position of the parties relative to each other;

• whether the client had an opportunity of entering into a similar contract with other persons without having to accept a similar term;

• how far it would have been practical and convenient to go elsewhere;

• the size of the limit compared with other limits and widely used standard terms;

• the availability of insurance for the professional; and

• the possibility of allowing for an option to contract without the limitation clause but with a price increase in lieu.

Unfair Terms in Consumer Contracts Regulations 1999
Consideration must also be given to the terms of UTCCR which apply between a seller, supplier and a consumer. A lay client would be a "consumer" if acting for purposes outside his trade, business or profession.  An unfair term will not be binding on the consumer.

• By regulation 5, "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations under the contract, to the detriment of the consumer" (our italics).

• By regulation 5(2) "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term." By regulation 5(4) the burden of proving that the term was individually negotiated falls upon the supplier.

• Even if individually negotiated the term may still be unfair and Schedule 2 to the regulations contain a non-exhaustive list of terms which may be regarded as unfair, which includes:- 

• "… b) inappropriately excluding or limiting the legal rights of the consumer viz-a-viz the seller or supplier or another party in the event of  … inadequate performance by the seller or supplier of any of the contractual obligations."

• By regulation 6 the unfairness of a contractual term shall be assessed taking into account the nature of the service contracted for at the time of the contract and all the circumstances attending the conclusion of the contract.

Practical Considerations When Considering  Limiting Liability
It is suggested that a lawyer seeking to limit his liability should consider three questions:-

• Is this an appropriate case in which to consider the taking of a defensive measure such as a limitation of liability clause?

o Not all cases require limitation of liability to be requested and the particular facts of a case will need to considered, including whether the potential liability can easily be covered by insurance. For the reasons already stated in this article (and particularly for high net worth client cases) the authors consider that many legal professionals should be giving thought to the potential unlimited liability flowing from advising on or drafting nuptial agreements.

o Lawyers will want to be sure that the lay client is properly advised as to the implications of a limitation of liability clause.

• If so, what protection is it reasonable to seek in all the circumstances of the case?

o It is tentatively suggested by the authors (for which we accept no liability!) that clauses which seek to limit liability below the range of 30 to 50 times net fee income for barristers would be unwise.  Indemnity cover, for the prudent barrister, at least, is likely to be set at the recommended 50 times net fee income. The prudent lawyer will also ensure that his insurer is fully aware of the proposed arrangement because use of a limitation clause linked to the level of insurance cover is likely to be a matter which the insurer will wish to consider when assessing the insured risk.

o The burden being on the lawyer to satisfy the test of reasonableness, he or she must be able to show the logic behind, and fairness of, the restriction. Notes of the thinking behind a proposed clause, discussions with clients, and correspondence on the issue should be made and retained.

o When considering reasonableness the court is likely to consider the strength of the parties' bargaining positions, whether the client had the opportunity to enter into a similar contract with other persons but without a similar term, whether client knew about the existence and extent of the term, the insurance available to the lawyer, and the reasons for the level of restriction selected. The rationale and reasonableness for the barrister's level of insurance cover will have to be established.

o For barristers, since the amendment to the "cab rank" rule on 1 March 2007, the fact that instructions can be turned down on the grounds of reasonable insurance not being available, may impact upon the question of reasonableness. It might be argued that barristers not willing to accept the risk should simply turn the instructions down.  The counter-argument would be that it is not unreasonable to seek a limitation of an otherwise indeterminate liability, especially if the client is fully aware that he or she has the option of going elsewhere to have the work done by someone who does not insist on such a limitation.

• How is the lawyer going to implement the measure?

o The clause will have to be clearly drafted (see Kudos Catering (UK) Limited v Manchester Central Convention Complex Limited [2013] EWCA Civ 38.). It is suggested that any limitation of liability clause is given prominence by way of bold type in the body of any retainer/terms and conditions document with the client and that an additional certficate is signed by the client at the end of that document, noting that the client is fully aware of the limitation of liability provision.

o For barristers acting upon instruction from a solicitor in this context care should be taken to ensure that both the professional and lay client are bound by the term. The solicitor can be asked to consent not only on his or her behalf but also on behalf of the lay client and to confirm his or her authority to do so.

The use of counsel to limit a solicitor's liability
Nuptial agreements in anything other than straightforward cases are classically an area where solicitors instruct counsel, particularly at the final drafting stage.  There is a sense that at least part of the motivation for doing so is to seek some further protection from potential liability, or at least to share that liability. 

In generalxviii  it is a good answer to a claim for negligence that the defendant solicitor relied upon the advice of counsel: see Locke v Camberwell Health Authority [1991] 2 Med LR 249 at 254 where the Court of Appeal stated that:-

• In general, a solicitor is entitled to rely upon the advice of counsel properly instructed.

• For a solicitor without specialist experience in a particular field to rely upon counsel's advice is to make a normal and proper use of the Bar.

• However, the solicitor must not do so blindly, but exercise his own independent judgment. If he reasonably thinks counsel's advice is obviously or glaringly wrong, it is his duty to reject it.

In Ridehalgh v Horsefield [1994] Ch 205 at 237G the Court of Appeal qualified the guidance which was set out in Locke by adding a fourth proposition:-

• A solicitor does not abdicate his professional responsibility when he seeks the advice of counsel. He must apply his mind to the advice received. But the more specialist the nature of the advice, the more reasonable it is likely to be for a solicitor to accept and to act upon it.

There is some limited support in the dicta of Ridehalgh (see 244C) that a solicitor is not always obliged to consult counsel on points of law, even where the answer to the question is not straightforward.  Flenley & Leech suggest,xix    "It will not take much, however, for a solicitor to come under a duty to offer his client the opportunity of instructing counsel."

Concluding Thoughts
As previously stated, The Law Commission's proposal for a statutory recognition of Qualifying Nuptial Agreements includes a mandatory requirement for independent legal advice for such an agreement to be valid .Whilst it remains to be seen whether the Report's recommendations actually reach the statute book and, if so, in what form, nonetheless it is likely that its clear steer on the issue will increase the importance the courts attribute to the adequacy of legal advice when considering whether an agreement is fair under the Radmacher test.

One of the present authors asked a senior practitioner  reputed in this area, what his approach to the limitation of liability was. His reply was "to hope for the best." A leading silk in the field has stated that he declines to accept instructions to draft nuptial agreements because of all the uncertainties and risks involved. The authors suggest that both branches of the legal profession may, to date, have been too casual in their approach to the attendant risks of undertaking this kind of work with the associated risk of unlimited liability. We hope that this article may stimulate debate on the issue and encourage further positive development in this area generally.


i [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900
ii Indeed, on the facts of that case, Mr Granatino had not received any independent legal advice but was held to the terms of the agreement in any event.
iii In the Court of Appeal Wilson LJ had suggested that statutory reform of the law might well require independent legal advice as a condition to an agreement being binding 'in the interests of simplicity' (at 141).
iv [2012] EWHC 45 (Fam), [2012] 2 FLR 414
v It is, of course, worth noting that Mr Granatino had not received any legal advice in respect of the agreement which was given decisive weight in that case.
vi Ibid para 73
vii Most notably in Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 22, [2002] 2 AC 773.
viii [2010] EWCA Civ 722 at [56]
ix Law Comm  No 343 HC 1089.  See paragraphs 6.105 to 6.159 and 7.59 to 7.63.
x In the recent case of Gabriel v Little & Others [2013] EWCA Civ 1513 the Court of Appeal held that a solicitor instructed on a commercial transaction was under a duty to provide information to the client to enable the client to decide what commercial course of action to take.  There was no duty on the lawyer to advise the client as to which course of action he should take or as to the commercial risks inherent in the transaction. However, the court was clear that the extent of the lawyer's duties in each case would be a factual question governed by the circumstances of the particular case.
xi See e.g. Midland Bank Co Limited v Hett, Stubbs & Kemp [1979] Ch 384, Matrix Securities v Theodore Goddard and Another  [1998] PNLR 290 and West Wallasey Car Hire v Berkson & Berkson [2009] EWHC 839
xii Solicitors' Claims: A Practical Guide, Sweet & Maxwell, Ann Crew, 4.8
xiii Telegraph, 28 March 2014, (last visited  22 April 2014)
xiv See also "Negligence and the Family Barrister". Fam Law [2009] 515, Paul Pavlou
xv Limitation Act 1980 s. 14B
xvi Armitage v Nurse [1998] Ch 241 at 256B per Millett LJ.
xvii See e.g. Barrister's Professional Indemnity – Top Up Insurance, TLO/Hugh Wodehouse, 1 March 2010.
xviii Summary from "Solicitors' Negligence and Liability" (Flenley & Leech) 2nd edition
xix Ibid