No, you can’t have a full service without paying for it

Family Law|November 19th 2015

Since the abolition of legal aid for most private law family matters in 2013 it has become commonplace for parties to family proceedings who cannot afford full legal representation to do as much of the work as they can themselves, and only pay a lawyer for the things they can’t do themselves. For example, in financial remedy cases the parties will often reach an agreed settlement between themselves and only then instruct a solicitor to draw up a consent court order, to give effect to the agreement.

Aware of the need for ‘cheap’ legal solutions many firms of solicitors are offering limited ‘packages’ of services of this type. This has been referred to as the ‘unbundling’ of legal services.

Whilst I’m sure the government is more than happy to see such arrangements fill some of the gap left by the abolition of legal aid, it would be quite wrong to suggest that the parties are not disadvantaged by the lack of full representation. Partial representation does not give the parties the same protection as they would have with full representation, as was clearly demonstrated by the Court of Appeal decision in Minkin v Lesley Landsberg (Practising As Barnet Family Law), handed down on Tuesday.

Now, for the sake of this post I’m going to be a bit economical with the details of the case. Essentially, it concerned the scenario I mentioned above, with a wife agreeing a financial settlement with her husband, then instructing solicitors to draw up a consent order. An order was drawn up, and approved by the court.

The wife then came to regret having entered into the consent order. She blamed the solicitors for their lack of advice, which had resulted in the consent order being made. In those circumstances, she commenced proceedings against the solicitors for negligence.

The judge at first instance found that the solicitors had acted under a limited retainer, namely to embody the matters agreed between the husband and the wife in a consent order which the court would approve. The retainer did not extend to advising the wife upon the merits of the agreement. Accordingly, the solicitors were not negligent.

The wife appealed to the Court of Appeal. The Court of Appeal agreed with the judge’s findings and dismissed the appeal.

As I said, that is a very brief summary of the case, missing out a number of details. However, it does show how the case demonstrates the dangers of partial representation. It is not the same as full representation and, as Lady Justice King pointed out in the Court of Appeal, it would not be fair for solicitors to offer limited services at a reduced price, only to find that they still owed their clients the same duty that they would if they were offering a full service.

In short, those who seek cheap legal solutions are disadvantaged compared to those who can afford full representation. There is no substitute for full legal representation, as was available to all prior to the abolition of legal aid.

The full judgment in Minkin v Lesley Landsberg can be read here.

Author: Stowe Family Law

Comments(4)

  1. Russell says:

    Aw poor woman, she didn’t get to screw as much money out of the man as she thought she could then?

  2. Luke says:

    “There is no substitute for full legal representation, as was available to all prior to the abolition of legal aid.”
    =================
    .
    Once again, deliberately or otherwise, John Bolch shows a breathtaking lack of awareness about the lives of real people – you only get legal aid if you have virtually no money at all – the likes of John are quite happy to see people financially ruined due to paying lawyer fees defending in court against what are quite often spurious claims by people on Legal Aid. Holding the legal aid card is a massive advantage, so many people simply have to surrender in court to prevent the haemorrhaging of their monies to the legal profession.
    .
    You call that justice ? I call it a scandal – but of course these are “little people” and perhaps they don’t count with you John…
    .
    I’ve seen how financial ruin happens in Family Court, the defendant can be dragged back into court again and again – then mediation multiple times and after all that a few months go by and you may have to start the whole process again – all the time having to pay your own costs. Year after year after year. The court will entertain any BS claim by a vengeful ex-spouse because they are all getting employment out of it at exorbitant rates. In the end you have to capitulate just to financially save yourself.
    .
    The answer is simple – remove the adversarial system in Family Court and adopt the inquisitorial approach – and educate children about what will happen to you if you are foolish enough to marry and then get divorced.
    .
    Now I don’t expect the likes of John to advocate for this, lawyers will have a lot less to do and make a lot less money – and ultimately, like all professions (I am not singling out lawyers as being better or worse than anybody else) that’s what it is all about for most of them.
    .
    So my answer to John can be summed up as :-
    NO, you shouldn’t have Legal Aid back because your profession abused it and the legal system is not fit purpose, the general public simply aren’t rich enough to keep you in the style to which you have become accustomed…

  3. Nordic says:

    Of course, if our process for financial relief actually contained some real law, such as a legally binding regime fior division of matrimonial assets, there would be no issue of legal aid and legal representation, partial or otherwise.

  4. A personal view of the year in family law, part two | Oxford Observer says:

    […] instructed on a limited retainer do not have a broader duty of care to their clients. The ruling in Minkin v Lesley Landsberg came as good news to solicitors who offer limited or ‘unbundled’ services, something that has […]

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