Claim against family law firm over alleged negligence reinstated by High Court

A Chancery Lane firm that brought a claim for unpaid invoices totalling £91,000 could now face a potential negligence action after its former client’s counterclaim was reinstated by the High Court.

The judgment in Jenifer Evans v Hughes Fowler Carruthers Ltd acknowledged that the appeal arises from 'unusual facts'. Hughes Fowler Carruthers Ltd, a family practice specialising in ultra-high net worth and international cases, acted on behalf of Jenifer Evans in divorce proceedings in 2011. HFC found itself in a position of conflict when, while representing Evans before Mr Justice Mostyn, it emerged that the firm, as well as leading counsel Charles Howard QC, was also acting for Lady Mostyn in her divorce proceedings against the judge.

A possible ground of challenge to Mostyn’s judgment arose in April 2012 when Mr Justice Mostyn sent emails to Lady Mostyn ‘in which he made disparaging comments about HFC and Mr Howard QC’, the judgment states. 

Mr Justice Adam Johnson said: ‘There was a serious issue for HFC and Mr Howard QC in advising her: they had access to the emails via their client Lady Mostyn, and on the face of it were under a duty to provide them to their other client Ms Evans, because they were relevant to her position. But at the same time HFC and Mr Howard QC were bound by a duty of confidence to Lady Mostyn, and so could not disclose the emails to Ms Evans. They were in an obvious position of conflict.’

The firm flagged the issue and Evans instructed others for assistance. The Mostyn judgment was set aside in 2012. HFC and Howard continued to act for Evans ‘as long as they did not breach any ongoing duty of confidence owed to Lady Mostyn’.

During the ‘final’ phase of the litigation, HFC acted in making applications to vary financial orders. It raised invoices totalling £91,000 and issued a claim for the unpaid monies. Evans challenged the claim. In her counterclaim she argued she had a ‘substantial’ claim for £500,000 in damages for negligence arising from HFC’s handling of proceedings before Mostyn in 2011 and 2012.

Her counterclaim was summarily dismissed. Evans appealed that decision.

The appeal judgment said the judge’s reasoning was ‘too fragile to support the conclusion that there was not even a real prospect of Ms Evans showing at trial that HFC ought to have known there was a significant risk their earlier conduct had been negligent’ and ‘she did not have legitimate and proper grounds for reaching the decision she did’.

It continued: ‘The idea that the possibility of a claim should have been obvious to Ms Evans, a lay person, seems to me inconsistent with the idea that HFC, a firm of solicitors, cannot reasonably have been expected to know about it themselves. If HFC did know as much as Ms Evans, then arguably they were under a duty to advise, and could not escape it by saying that Ms Evans was equally aware of the facts giving her cause for complaint.’

Referring to Evans’ case, the judge said: ‘The idea that a solicitor may owe a duty to advise about his own negligence is not confined to cases where the negligence is in some way latent, and where the question is whether something which happens later was enough to prompt the original advice or conduct to be reconsidered.

‘I see no principled reason why the duty should not also apply to cases where the potential problem is known about to begin with.'

The appeal was allowed and Evans’ counterclaim reinstated.