6 December 2023

To Advise or Not to Advise? Timothy Evans and Olivia Longrigg write for Financial Remedies Journal

Family Associates, Timothy Evans and Olivia Longrigg, have written a piece for the Financial Remedies Journal providing commentary following the case of Lewis v Cunningtons Solicitors [2023] EWHC 822 (KB) which concerned a professional negligence claim against the claimant’s matrimonial solicitors.

In particular, the claim concerned a failure to advise in respect of a pension, which was the primary asset of value in the matrimonial proceedings.

The case provides guidance on the use of limited retainers and waiver letters, and also restates the jurisprudence surrounding a solicitor’s duty to advise. The article also raises questions as to procedural best practice in respect of pensions at an early stage of the retainer.

Timothy and Olivia highlight that:

  • Cunningtons had enough knowledge (absent full and frank disclosure) to know of the importance of and therefore advise upon the pension asset;
  • A public sector defined benefit scheme is one which should be a red flag for practitioners, as the attributable CE value is likely to be much less than the pension’s true worth;
  • Pensions remain one of the main potential sources of negligence litigation against family law solicitors. They are often an overlooked part of the divorce process, in part because of their complexity, in part because some clients do not want to engage with them and, sometimes, because in high net worth cases the pensions are dwarfed by other assets.

Read more here.

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