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Posts Tagged ‘Padden v Bevan Ashford

Mind What You Say

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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.

 

Written by Coventry Man

23/01/2012 at 19:05