Parties in divorces may often be left feeling a sense of injustice if ordered to pay a lump sum to their former spouse which is higher than they believe on the evidence they should be paying. But is the result and sense of injustice just a case of “sour grapes” or has the paying party been let down by their solicitor in terms of advice and representation provided through the divorce?
The High Court in Manchester was recently asked to strike out a professional negligence claim brought by Mr Riaz Ahmad against the solicitor he alleged mishandled his divorce – Riaz Ahmad v Clive Graham Wood (1) and Clive G Wood & Co (A Firm) (2).
It was alleged by Mr Ahmad that his solicitor’s negligent handling of the divorce resulted in him being ordered to pay his ex-wife a lump sum of £465,000 and in the absence of the negligence the lump sum payment would have been restricted to £150,000.
The allegations were summed by the HH Judge Ayre QC as:
“First, there are alleged failures of advice with the First Defendant negligently having stated that the matter was straightforward; that a lump sum was unlikely to be awarded because the Claimant’s liabilities exceeded his assets; that a witness statement was not needed; and that there was no need to engage counsel to represent the Claimant. Second, there are failures of preparation with the First Defendant being alleged to have been at fault in failing to cause the Claimant to obtain further detailed evidence of his assets and liabilities and supporting evidence from his creditors. Additionally, in this regard, the witness statement prepared by the First Defendant is said to have included inaccuracies originating from the First Defendant and not from the Claimant. Third, the First Defendant’s advocacy on behalf of the Claimant is said to have been negligent. It is alleged that he failed to explain to the District Judge that the procedural breaches were the result of his inaction and/or advice to the Claimant rather than being the responsibility of the Claimant. The Claimant’s case is that the “litigation conduct” which had been a factor in the District Judge’s conclusions as to the Claimant’s credibility had been the result of the First Defendant’s actions and not voluntary conduct on the part of the Claimant. It is also said that at the hearing the First Defendant failed to ensure that the District Judge appreciated the true reason for the reduction in mortgage payments which occurred in 2009. The reduction occurred because the arrangements for some of the properties changed to interest-only payments on the mortgages in place of repayment mortgage arrangements.”
In essence it was argued by the Defendant that the claim was an abuse of process as it was a “collateral attack” on the District Judge’s decision in the divorce proceedings.
The result in the High Court was that the application to strike out the professional negligence claim was dismissed. HH Judge Eye QC concluded:
“It follows that parts of the claim are to be struck out and that the damages claim must be reformulated but there remains a claim which has a real prospect of success and in respect of that the summary judgment application fails.”
This case illustrates that it is possible to claim against an allegedly negligent solicitor who has mishandled divorce proceedings to the detriment of their client. It should not be viewed as a means of challenging a perceived unfair judgment but must be based on a breach of duty by the solicitor in the divorce proceedings causing the client a loss which is recoverable at law. Commonly this may be the difference between a lump sum the client is ordered to pay on the basis of incomplete evidence put before the Court by the solicitor.