Just a Bit of Free Advice

Quite a long time ago (when I was really Coventry Man) I wrote a piece Mind What You Say on the dangers of solicitors giving free advice. It was based on the case of Padden v Bevan Ashford, and involved advice being given to a wife in relation to the giving of a charge over the matrimonial home to secure her husband’s liabilities. The advice took 15 minute or so, it was basically correct (“don’t sign it”) and there was no charge made, but the solicitors were still liable, or at any rate potentially liable as this was an appeal before the final trial of the action.

In that case the Court of Appeal made clear that if a solicitor (or other professional) accepts instructions to do something then they have to do it properly, and the fact that there is no fee does not remove their liability if they get things wrong.

The point that I made was that it is vital for the solicitor to keep a good note of the advice given, in case a disgruntled client comes back complaining up to 6 years later, and you need to be able to prove what happened perhaps 8 years later, when the solicitor has seen hundreds of other clients and can’t remember this one.

Well, there has been another case of this sort  – Jenkins v JCP Solicitors Ltd, and a useful note on it from the procedural giant Gordon Exall – so I am coming back to the subject.

The brief relevant facts (and there are lots of issues, such as suing the wrong entity that I won’t deal with here) are that Mr J, The Chairman and a major shareholder of Swansea City AFC, went to JCP for initial, free, advice on his divorce in April 2011. He was told that because of his level of indebtedness he was unlikely to achieve a clean break settlement, and he should delay matters. Subsequently Swansea City achieved promotion to the Premier League, the value of their shares soared, and in 2016 his wife petitioned for divorce and achieved a settlement of £2.25m. He  claimed that if he had been advised to start divorce proceedings in 2011 he could have avoided this result, and the solicitors should have realised that his financial position was likely to improve and advised accordingly.

Again, this is a preliminary decision on an application to strike the claim out, so all is still to play for. However from what I can see in the report it was not even argued that the solicitors were not liable because the work was free. So they have at the very least been involved in hundreds of hours of non-chargable work in preparing their defence, even if it succeeds in the end. And (if J had not mistakenly sued the new JCP Ltd instead of the JCP LLP that gave the advice) they would have had to fight (in 2019/20) on the basis of the attendance note, such as it was, of a free interview given in 2011.

The advice to take away with this is clear:

  • all advice had to be professional. It can be short, and preliminary, but this has to be made clear at the time, and the client advised to come back for more detailed advice before initial comments are relied upon;
  • take a good note (preferably typed and copied to the client) of any advice given, and keep it in your filing system so that it can be found 6 years later if necesary, after the solicitor involved has left;
  • this is especially important if the client indicates that they aren’t going to take your advice;
  • try not to give off-the-cuff advice, especially out of the office. If you do, follow it up with an email or short letter summarising what you said and emphasising its initial nature;
  • be especially careful on the telephone;
  • and in articles on the internet (this is journalism, not advice – see the box opposite);

Some people won’t advise informally at all. This is however difficult in practice, and most lawyers are prepared to have an initial chat with potential clients for 10-15 minutes. But it is vital not to give hard advice when you don’t know many of the details, and often better to insist on a formal meeting, or at least an exchange of emails, for anything that is important, or likely to become so.

Doctors are famous for trying to avoid advising on ailments at parties, with good reason. Lawyers need to take care too. Clients often don’t appreciate how complicated some questions are, and how qualified any advice has to be, and don’t really listen if you tell them of the limitations of what you can say. So if you are telling them something that matters, you need to do it properly, and preferably for a fee. At the very least, this will make it clear to both of you that you are putting your name on the line, as well as helping pay the rent..

Can You Assist Me Here? – The Problems with Litigants in Person

There has been quite a lot of fuss, in the legal press and elsewhere, about the proposed increases in the County Court small claims limits, the reductions in scope of both Legal Aid and recoverable legal costs, and the associated increase in the number of litigants who decide to represent themselves – Litigants in Person, or Participants without Lawyers (LIPs).

The current position is that all claims for less than £5,000, or less than £1,000 for personal injury or rental disrepair claims,  are “small claims” in the County Courts.. The significance of this is that the procedure is more straightforward, as you might imagine for the smaller and basically simpler claims. However, because of this, a litigant, Claimant or Defendant, who wins their case, can’t recover the cost of employing a lawyer, apart from some minor costs for issuing the claim, except in exceptional cases. Normally this means that for sensible economic reasons they represent themselves both in preparing the case, and at the hearing itself.

These limits are going up to £10,000 in April this year, with the possibility of a further increase to £15,000 in the future. There are also consultations going on with a view to increasing the PI etc limit to £5,000, although this is by no means certain. To most people a claim involving £10,000, let alone £15,000, is a very long way from being a small claim in their eyes.

As well as this, Legal Aid has been virtually abolished in civil cases, and although you can at present recover the success fee on a no-win no fee agreement (CFA) this is also being restricted in various ways. And lawyers are getting more wary of entering into too many CFAs in these difficult economic times because they are risky, and very bad for the cash-flow. So somebody can have a claim that is over the small claims limit – say £25,000 – and still have to represent themselves.

Now there has been a lot written about this. It has largely concentrated on PI claims and the problems that people without legal training have in trying to get their evidence organised, find suitable expert medical witnesses, assess the value of injuries and so on, against a professional and hard-nosed insurer as Defendant. I’m not a PI lawyer any longer, although I’ve done a lot of it in my time, and I will leave that argument to others. What I will deal with is the problems that arise when cases with one or often two LIPs come on for trial.

The Judge in the Middle

The English legal system is an adversarial one. In other words, the parties fight the case, choose the tactics and evidence, and the judge merely maintains order and picks a winner. This contrasts with the Continental system which is basically inquisitorial. and the judge decides how to investigate the problem that has been put before him by the parties. It applies to criminal and civil cases, although this article is limited to civil disputes.  It is a very basic part of English legal training, and accepted by all lawyers without many questions. Of course, keeping order includes not letting one party behave unfairly to the other by say springing new evidence upon them at the last minute, or devoting vastly excess financial clout in an unfair way. The Civil Procedure Rules (CPR) which govern how civil cases are handled are full of procedures to maintain a level playing field, and to ensure that evidence and legal arguments are put forward in a fair and efficient way, so that the case can, in the normal course of events, be settled on appropriate terms some way before trial, when both parties know the evidence that will be presented, their relative chances, and come to a sensible compromise, saving everybody the significant cost, and risk, of a fought trial.

LIPs don’t generally understand the rules, or the procedure. They often aren’t very good at assessing their chances. They don’t realise that the whole reason that you issue proceeding is normally to compel the other party to come to the negotiating table.They often haven’t gathered the best evidence and so when the other party sees it they don’t recognise its strength. So far more cases involving LIPs, and far, far more involving LIPs on both sides, come to trial.

This causes considerable problems for the trial judge. Not in the truly small claims. If you are arguing over a faulty fridge the procedure is going to be rough and ready, with both sides having their say and a quick decision. But remember, this might involve up to £10,000 as a small claim before very long, and sometimes considerably more in what would normally be a full county court trial, on the fast or even the multi-track. These are trials where the judge and any lawyers appear in robes, witnesses are sworn, and complicated factual disputes, and awkward points of law, are relatively common.

Look at it from the point of view of a judge. I’m not a judge, and I haven’t had any direct input to this piece from any serving judges, but I’ve seen a lot of judging in my time, and you can see the difficulties from miles off.

The first is that, without legal assistance to the parties, the judge will often have a lot of difficulty in working out from the court papers exactly what the dispute is about, what the legal issues are, and hence what important factual points need to be established. The various Statements of Case, such as the Particulars of Claim and the Defence, are meant to draw out the relevant facts and legal arguments on which the various parties rely. The procedure of Disclosure, where the parties show each other all the relevant documents, and the exchange of witness statements long before trial, are all intended to mean that there are no real surprises on the day, and that all that ought to be needed from the judge is a decision on whether they prefer the witness evidence of Smith or of Robinson, and whether they decide the legal point in accordance with authority A v B or with authority C v D. Judges are busy people and only have a short time to look at the papers before a hearing. If the papers don’t set things out clearly there is no time to look up any doubtful points before hand. Especially as there is very little chance that the parties will lodge lists of authorities, or a skeleton argument, or even a clear chronology. The judge will use what little time they have to trying to work out what on earth is going on, and then do their best on the day.

This leads to the next problem: the judge gets very little help from the parties. Now when a judge is trying a case they normally depend to a very large extent on the advocates before them to raise the relevant issues, ask the relevant questions, and come prepared with the relevant arguments. Remember that it as an adversarial system. They haven’t investigated anything. They say things like “please help me Mr Smith?” or “what are the authorities Mr Jones?” or “how do you deal with the sanity clause?” and know that, because the parties are under strict duties of disclosure of documents, and the advocates are under professional duties to deal with all the relevant points of law, whether they assist or harm their clients’ case, they will get a professional answer that they can rely on. Indeed, giving answers that your local judges can rely on is one of the first things that young advocates need to cultivate, or they won’t go far. With a lawyer on only  one side it isn’t  easy. It takes a particular sort of lawyer who will set out their opponent’s legal arguments at their best. With LIPs on both sides the availability of assistance in this way doesn’t exist.

So the judge has to determine what both sides’ cases are, what legal aspects arise, and how they need to be decided. All without help or prior warning.

Whose side am I on?

Most advocates will have met the situation when their opponent, legally but badly represented, fails to put forward some important part of their case. This might be failing to give an important part of their evidence, or to ask essential questions to one of your witnesses, or it might be omitting some key legal argument, or crucial authority.  As the other party is legally represented most opposing advocates take a hard line. It isn’t your job to help the other side out of a hole (unless there is something in it for your client) and you only need to draw the judge’s attention to key authorities, not argue them. So your client gets an unexpected advantage. But this is one of the factors of the adversarial system, and it does mean that your client knows that he has somebody exclusively fighting their corner.

For a judge however it’s a bit more complicated. Their obligation is to do justice between the parties, and although sometimes they take the view that if one lawyer messes up the case the client can claim against them, if the fault is serious enough the judge feels obliged to weigh in. They might ask the party at fault how they propose to deal with the problem, or they might ask the witness some questions themselves, for clarification. They may even suggest that the party consider an adjournment (with penalties in costs) to supply some missing evidence, or to take some formal step that they had failed to take previously.  And they will often argue a point of law with the other advocate. This is usually bad news for the other party because you are exchanging a poor advocate for an extremely good and successful one, who has been good enough to be appointed to the bench, and who, naturally enough, thinks that points the he or she makes are very good. So you have to persuade the judge that they are mistaken, which isn’t easy. Nor indeed, in an adversarial system, very fair on your client. If you lose your client will often think, and say, that the judge was against them, and they didn’t have a fair trial, and sometimes, despite the judge’s best efforts to be impartial, the client is right.

Now the Court of Appeal has said time and time again that judges must be very careful before descending into the arena themselves, and giving the impression, if not the reality, of bias. But they also say that judges are there to achieve justice, and so some intervention is inevitable. Everybody agrees that the problem is an awkward and virtually unsolvable one.

Matters are far worse if one party is unrepresented. Although technically all the procedural rules in the CPR apply equally firmly to unrepresented parties, in practice they are normally treated as guidance rather than matters of obligation. As an opposing lawyer you have to be ridiculously fair to your opponent, warn them of problems they are making for themselves, and can expect little chance of a technical knockout except in the clearest of cases. And you can guarantee that the trial judge will intervene, cross-examine your witnesses with vigor, argue the law with enthusiasm, and generally give you a hard time. If you win then you will know that you certainly deserved to win, and most advocates would prefer to take on a represented party every time.

So the situation with one unrepresented party is difficult. However, with skill from both the opposing lawyer and the judge, plus sense and some intelligence from the LIP, the situation can be managed. It isn’t ideal, but is possible. And in some areas, such as housing possession cases, lack of representation is the norm , and this can be worked into the system, with simplified procedure, advice if not representation at court, and so on.

Silence in Court!

Things change completely when both parties are unrepresented. A very large number of small claims are now between two, or indeed more, parties all representing themselves. And more of the larger cases, that have been allocated to the next grade up in the court system, the Fast Track, involve LIPs as well. These can be quite substantial cases, involving up to £25,000 or even more, heard in ordinary courtrooms, not in the District Judge’s office, and can last up to a day, and not just the hour or two given over to small claims. They are also frequently allocated to Circuit Judges, or deputy Circuit Judges (Recorders) who have far less experience in dealing with LIPs than the District Judges and their deputies who meet them every day. It gives a lot of scope for things to go wrong.

Now I have already mentioned the problems that happen before the hearing starts – the court papers that are meant to set out the parties’ legal positions are often confusing and incomplete, so the judge has little chance of reading his way in to the case in the way that they would normally do. And the parties will not be in a position to guide the judge on what he needs to study, or to summarise what the case is about. But once the hearing does start there are a number of other difficulties.

The first is often just maintaining order and keeping control of the court. In a small claim the hearing will be in the District Judge’s office, round a table, with no court staff present. There are no outside lawyers present to dilute the atmosphere if everybody is an LIP . The judge has the parties, their witnesses and supporters, most of whom have never been in a court before and all will be very nervous.The parties are generally on poor terms with each other before they come in, because otherwise things shouldn’t have got this far. They don’t know the procedure, and are often poor at managing the time needed to present their case. But they are determined to have their say in court and can make up in enthusiasm for what they lack in skill and direction. They can be very hard to handle, and will often not be prepared to accept what the judge says at first saying. Although all judges get training for this, and are indeed chosen for their skill at managing a courtroom, it isn’t easy. There are incidents of violence, and lots of raised voices. It makes it very difficult for the judge to concentrate on the legal points to hand.

The next problem is the taking of evidence. Normally a large part of the case will involve questioning the parties’ witnesses on their statements, sometimes quite vigorously. This is a skill that many LIPs do not have, and the matter is made worse if the statements themselves have not been well drafted. So the judge will have to step in, putting the questions himself. He may have to do this to both sides, or maybe only one, while maintaining an air of complete fairness and impartiality. And all on the hoof, if the court papers have not given enough information to allow him to work up the questions before hand, as an advocate would expect to do. It is far from easy, and makes for some very muddy decisions.

And the third problem is extracting the legal issues and determining them when they have been sprung on the judge without adequate warning, and when the parties can often only have the haziest idea of their legal rights and duties. The judge will often have to argue the legal issues with himself. No judge is an expert on everything, and they certainly don’t keep themselves fully up to date on every subject that might appear before them. They keep some of the standard textbooks on their desk, talk to colleagues and if all else fails reserve their judgment and send it out to the parties after they have had a chance to look things up. It is a possible, but it isn’t a very good way to decide things, and certainly not suited for the more complex cases that are going to be pushed into the unrepresented system.

And the answer is?

There can be no easy answer. This article is intended to point out some of the problems that are largely hidden from professional lawyers. Because every time I appear in court at least one of the parties is legally represented, and the same applies for all my colleagues. We are all used to the conventions, the order of speaking, the deference to the judge, the need to prepare, the “without prejudice” rule  and so on that are a complete mystery to some laymen. It is only when you look behind the scenes, and speak to the judiciary, that the full extent of the problem appears.

It is however clear that we can’t go back to the old days when virtually everybody was legally represented by expensive lawyers at hearings. At the end of the day a system that meant that it cost £10,000 to argue about £5,000 makes no sense. There is also no public appetite to spend the enormous amounts that used to be spent on a Rolls Royce of a Legal Aid system so everybody who couldn’t afford to pay got a subsidised lawyer. Those days have gone for ever.

So what is the answer? It probably lies in the area of a simplified procedure, an increasingly interventionist approach to the management of cases, so they get to court in a better-prepared state, and more assistance from case workers, who are not lawyers but have enough knowledge to help on the day. Or a return to the days when lawyers would take on advocacy only, for a limited and fixed fee. Together with more training for the judges, and a more realistic attitude to listing by the court service. It almost certainly means the end of the adversarial approach to law that has lasted for so many centuries in favour of the inquisitorial approach better known to our continental neighbours, certainly in the smaller sort of cases. I don’t really know – as I said, this article is meant to raise the question, not  provide the answer.

And I understand from my friends who handle family cases that this is an increasingly serious problem there, with both parties engaging in serious custody or financial disputes while representing themselves. That raises further questions that will need different answers.

The powers that be need to address the issue, because it will only get worse as larger cases are handled as small claims, and as more people decide to represent themselves in courts. Those at the head of the legal professions never see this: I doubt if there have been any cases in the Supreme Court where nobody was legally represented, and it must be extremely rare in the Court of Appeal. And of course, all lawyers are lawyers when they are in court. So they don’t see the results.

But they are very real, and somebody ought to think about them. Perhaps you will now.

Mind What You Say

I feel sorry for Bevan Ashford (as was) the West Country solicitors.  One afternoon in 2003 their small Tiverton office was visited by a distraught wife asking for advice and she was seen by a newly qualified solicitor who I won’t name here for reasons that will become apparant.

It seems that the wife had been told by her husband, a financial consultant, that he was in serious trouble, had been accused of taking some £200,000 from a client, and that the only way to avoid being prosecuted was to charge their jointly owned house, and their shares,  in favour of the client. Otherwise she and the children would see him going to prison.

In order for the charge to be valid the wife would have to get independent legal advice, and this is what she wanted. She had been given a letter from the husband’s solicitors explaining the situation very briefly and saying that she needed to get advice right away. Hence the visit to Bevan Ashford.

The meeting was a very short one – possibly less than 15 minutes as the wife had to collect the children from school. The solicitor gave excellent advice: don’t sign or agree to anything, don’t go ahead, the husband isn’t worth it. However, the wife was deperate to go ahead and left saying she would do so. No charge was made for the interview.

So far so good. However, things then started going seriously wrong:

  • It would appear there was no attendance note. For a 15 minute meeting that was understandable but not very clever, and probably reflected the solicitor’s inexperience.
  • Bevan Ashford sent a fax to the husband’s solicitors saying the wife would be going ahead, “having taken advice from them as to the consequences”. In fact the consequences had hardly been discussed.
  • A few days later the wife had a meeting in Bevan Ashford’s larger Exeter office with an associate who witnessed her signature to the charge and other legal documents, and certified that she had “had the consequences of the deed explained to her by a solicitor… and understood its meaning and effect.”  The associate had (it appears) not explained this himself – he relied on the advice given in Tiverton. And he hadn’t seen a note of this because there wasn’t one. He didn’t notice that the amount covered had gone up from £200,000 to £860,000. And he didn’t raise a bill either.

The rest of the sorry tale is rather inevitable. The husband had not stolen £860,000 as he had said but more than £2,000,000 and was inevitably prosecuted and sent down for 6 years. The parties divorced. The victim enforced the mortgage and the house was sold. So the wife sued the solicitors.

Now when the case came on for trial in Bristol there was the first bit of good news for Bevan Ashford – the Judge stopped the trial on the first day after hearing the wife’s evidence and dismissed the claim, saying there was no case to answer.  The initial advice was all you would expect in a 15 minute free interview and if the wife had wanted more she should have come back later for a proper appointment.  And no advice was given at the Exeter meeting. So the case failed.

However the Court of Appeal had a different idea and in December 2011 they allowed the appeal and ordered a retrial before a different judge.  So they all go back and the matter continues. Because the defendants  did not get as far as giving evidence the conclusion had to be tentative on the facts, and there wasn’t enough to make a final decision. The cost of two trials and a visit to the CA won’t be cheap to whoever loses in the end.

The CA made some pretty obvious comments:

  • Once a solicitor accepts instructions they have to do a proper job, whether there’s a fee or not.
  • If a solicitor certifies that somebody understands a transaction then they either have to explain it themselves or be satisfied that somebody else has done so, and the Exeter associate seems to have done neither.
  • There is little point in just telling a client not to enter into a transaction. You have to explain why not, and what will happen if they do. And in this case it should only take a moment for a solicitor (although perhaps not a newly-qualified one) to see that if somebody has stolen as much as £200,000, let alone £860,000 (or £2m) then they are going to be prosecuted even if they give it back.  So it was a scheme that was doomed to failure , however much the wife loved her husband at the time, and if she had been told this she would probably not have gone ahead.
  • And if a solicitor can’t give a client adequate advice they mustn’t certify they have, or they take the consequences.

So the case goes back for a retrial, or negotiation. And what can we learn, in addition to the CA’s points?

  • That  newly qualified solicitors know a lot of law and little of life, and are dangerous (even if “very gentle, and young” as the wife described her here.)
  • And that independent advice of this sort is serious work that needs doing properly, and at a fee that reflects the risks.

But most of all, that it doesn’t matter what happened, what matters is what you can prove happened. If you make and keep a good note then it is still there 8 years later when the oral witnesses have forgotten everything. And although one must always tell the truth, do remember that Winston Churchill said that he would come out of the history of the war very favourably because he would write the history of the war, and there must be some of that in all of us.

The case is Padden v Bevan Ashford [2011] EWCA Civ 1616.