England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand. London. WC2A 2LL
		10/11/2008

Mr Justice Field:

Introduction

1. On 26 October 2000 the decision of the House of Lords in White v White [2001] 1 AC 596 was handed down. Their Lordships held that when making orders for financial provision on divorce under section 25 of the Matrimonial Causes Act 1973^[1] equality of division of the available assets should only be departed from if, and to the extent that, there is good reason for doing so. They disapproved of the approach that had grown up in the courts below whereby a claimant wife's reasonable requirements were treated as a determinative, and limiting, factor on the amount of the award which should be made in her favour. Assessment of financial needs was only one of the several factors to which the court should have regard. Thus in so-called "big money cases," where the value of the available assets exceed the parties' financial needs, a claimant wife might well be entitled to a sum that exceeds her financial needs.
2. On 9 August 2000, almost 3 months before the decision in White, the claimant in this action, Mrs Carol Williams, signed an agreement ("the settlement agreement") detailing the financial provision her husband, John Williams, was to make upon their divorce. Mrs Williams was advised by the first defendants ("TL"), a firm of solicitors based in Reading, and by the second defendant ("Mr Francis") who also negotiated the terms of the settlement agreement. Mr Francis had additionally advised Mrs Williams in Conference on 3 March 2000.
3. In 2000, Mr Francis was an experienced junior counsel specialising in "ancillary relief," viz the financial aspects of divorce. He was appointed Queen's Counsel in 2002.
4. The terms of the settlement agreement were embodied in a consent order made by District Judge James in the Reading County Court on 7 November 2000. Under the settlement agreement, Mrs Williams received £550,000 in September 2000 and a further £730,000 in November 2001, on terms that upon payment of these sums there was to be a full clean break both as to capital and income. Mrs Williams also became the sole owner of a house at 68 Dedmere Road, Marlow, valued at £150,000 but subject to a mortgage of £30,000, and was given a LandRover she had been using since leaving her husband. In addition, Mr Williams paid Mrs Williams' costs and undertook to use his best endeavours to ensure that she remained covered by his company healthcare scheme, but at no financial cost to himself.
5. Mr Francis advised Mrs Williams on the basis of the law as it existed before the decision in White. By mid June 2000, he was aware that both parties in that case had been given leave to appeal to the House of Lords; and on 9 August 2000 he knew that the appeals had been argued. However, he made no reference to the possible implications of White when advising Mrs Williams on 9 August 2008.
6. In this action, Mrs Williams claims against Mr Francis that he was negligent in failing to appraise her of the possible implications of White, including the fact that it was likely that White would lead to a change in the law in her favour. He thereby prevented her from making an informed decision whether to wait until after White had been decided before settling her claim. She alleges that if she had been given such advice she would not have settled her claim before the decision in White and would have ended up with a settlement or judgement which gave her significantly more than she received under the settlement agreement.
7. Against TL, Mrs Williams claims that following the House of Lords decision in White, TL ought to have: (a) taken steps to withdraw the application for a consent order in the terms of the settlement agreement; (b) advised Mrs Williams on the implications of the White decision and to have advised her that the settlement agreement was not binding on her and/or that negotiations could be re-opened and/or that her claim could be pursued before the Court; (c) alternatively, to (a) and (b), sought the advice of Mr Francis on the implications of the White decision.
8. Mrs Williams alleges that had these steps been taken she would not have settled on the terms contained in the settlement agreement but would have obtained a greater sum from her husband either by way of a fresh settlement, or in contested proceedings.

The issues to be decided

Williams v Francis

9. (i) Was Mr Francis negligent in failing to advise Mrs Williams as to the possible implications for her claim of the White appeal to the House of Lords, including the fact that a change in the law in her favour was likely; (ii) if so, would Mrs Williams have waited for the White decision before either settling with her husband or pursuing a claim in the courts; and (iii) if so, by how much, if at all, would Mrs Williams' recovery from her husband have exceeded what she received under the settlement agreement.

Williams v TL

10. (i) Were TL negligent in: (a) not withdrawing the application to have the settlement agreement made a consent order after the White decision was handed down and (b) not advising Mrs Williams that the settlement agreement was not binding on her and/or that negotiations could be re-opened and/or that her claim could be pursued before the Court; (ii) alternatively to (a) and (b), not taking advice from Mr Francis on the implications of White; (iii) if TL were negligent under (i) or (ii), would Mrs Williams have declined to settle on the terms contained in the settlement agreement but instead obtained a greater sum from her husband either by way of a fresh settlement, or in contested proceedings.

Events leading up to the settlement agreement

11. Following a 5 year period of co-habitation Mrs Williams married Mr Williams on 29 October 1977. She left him on 1 April 1999. There were three children of the marriage, Jonathan, Emma and Laura. Mrs Williams also had a daughter, Tara, from a previous marriage whom Mr Williams adopted. In the period March to September 2000, Emma was 17 years and Laura 14 years. The family home was Arrewig Farm in Buckinghamshire. When Mrs Williams left on 1 April 1999 she left all the children behind.
12. For a number of years prior to leaving her husband, Mrs Williams had been unwell. She had had silicone implants which had produced serious side effects. She also suffered a form of breakdown and was emotionally very low. She continued to suffer from silicone poisoning well into 2000.
13. Mr Williams was a shareholder in and employed by Jencons (Scientific) Limited ("Jencons"), a family company that manufactures scientific and laboratory equipment. Prior to November 1999, the other principal shareholder was Mr Williams' brother, Rob. Both John (Mr Williams) and Rob had inherited their shareholdings in the company from their father. In 1997, Jencons acquired Prior Laboratory Services from Mr Mark Prior who became Jencons' UK Sales Director and was engaged to Tara.
14. Sometime before 13 July 1999, Mrs Williams instructed Ms Marian Lynch, a partner in Leuty & Lynch, solicitors, to act for her following the breakdown of her marriage. In a letter dated 13 July 1999 to Ms Lynch, Mrs Williams wrote: "...a woman is attempting to blackmail me and to inform my husband that I have a new partner. Do I go along with this temporarily, or do I go to the police and run the risk of John being informed?" At this time, Mrs Williams was taping numerous telephone conversations, including in particular conversations with her husband.
15. In a letter dated 12 November 1999, Ms Lynch warned Mrs Williams that a new relationship could affect her divorce settlement.
16. Sometime before leaving her husband, Mrs Williams began taking singing lessons from a Mr John Rogers. She continued to see Mr Rogers until the end of 2001. By mid 2000, if not before, she was planning to earn money by singing professionally with Mr Rogers.
17. In about mid-November 1999, Mrs Williams ended Marian Lynch's retainer and instructed instead, TL. The two partners concerned were the senior partner, Mr John Thompson, who did little divorce work, and Mr Martin Lambert, who had a reasonable amount of experience in handling divorce cases. Mrs Williams was persuaded to instruct TL by a gentleman known as Mr Jan Alexander, whose real name is apparently Jan Ratip. Jan Alexander held himself out to be an experienced financial adviser and Mrs Williams relied on him for his financial expertise. Indeed, he attended virtually all the meetings she had with her solicitors and on occasions dealt with TL direct on Mrs Williams' behalf.
18. When Mrs Williams first instructed TL she was concerned that her husband was attempting to raise £2 million to buy Rob's shareholding in Jencons and thereby was dissipating assets that would otherwise be available to satisfy an order for financial provision in her favour. Acting on the advice of counsel (not Mr Francis) she obtained from a District Judge at Reading County Court a without notice injunction under section 37 (2) of the Matrimonial Causes Act 1973 restraining her husband from using any of the matrimonial assets to finance the purchase of Rob's shareholding. In paragraph 5 of her first supporting affidavit, Mrs Williams deposed that she did not obtain legal advice until 18 November 1999 when she was advised that she had an interest in the matrimonial assets. This statement was untrue. As Mrs Williams well knew when she swore the affidavit she had been seeking and obtaining advice on her position vis a vis her husband from Marian Lynch since at least July 1999. Indeed, Marian Lynch had only recently written to her by letter dated 12 November 1999 on the subject of her husband's assets.
19. In a reply affidavit, Mr Williams explained that his brother had decided to give up his involvement in Jencons for family reasons and that if he, John, did not buy him out, Rob would sell his shares to a third party, a situation which concerned John because his position in the company would be seriously undermined. In paragraph 19 of his affidavit, Mr Williams said: "The acquisition of Rob's share holding by me will place the company on an even more secure footing and will pave the way, in due course, for an extremely attractive sale."
20. Mr Williams was furious with his wife for having obtained the injunction and her children told her that they were not going to speak to her again. In the event, pursuant to Mrs Williams' express instructions, the injunction was not served on any third parties, including in particular Mr Williams' bankers, but was instead replaced by undertakings leaving Mr Williams free to raise the necessary money to purchase Rob's shareholding. This he proceeded to do for a consideration of £2.8 million, plus his interest in Glass Precision Engineering Ltd (valued at £300,000) which he transferred to his brother. The £2.8 million was financed by loans: (a) to the company (which bought in 34,542 of Rob's shares out of a total of 56,650 at £60.80 per share); (b) from Mr Williams' pension fund; and (c) Jencons' bankers.
21. Mrs Williams was also concerned that if her husband took sole charge of Jencons, the company's financial position would seriously deteriorate. Thus in a draft witness statement dated 18 November 1999, she related how Mark Prior had confidentially intimated to her that when her husband took control of Jencons "it will all go down the tubes."
22. Mrs Williams' petition for divorce was served on 22 November 1999.
23. By letter dated 21 December 1999 to Mr Williams' solicitors, Kingsley Napley ("KN"), TL requested full disclosure of Mr Williams' personal and company interests. KN's reply was dated 12 January 2000. It concluded with a suggestion that there be a round table meeting as soon as possible. Mr Williams' assets were listed as follows: (i) Arrewig Farm: worth £1.1 million, mortgaged for £510,000; (ii) 68 Dedmere Road (jointly owned with Mrs Williams): valued at £130,000 with a mortgage of £30,000; (iii) Jencons: 50% of the share capital to be increased to 100% once Rob's shares had been acquired; the accounts for 1996-1998 showed turnover between £8.1 million and £8.5 million and profits before tax in 1996 of £82,000, with Mr Williams receiving emoluments (including pension contributions) ranging from £208,000 to £286,000; (iv) pension valued at £2.24 million from which £1.115 million was to be lent for the purchase of Rob's shares; (v) bank account: overdrawn in the sum of £71,458; (vi) share options: 312,500 share options in a Finnish company, Biohit Oyj, exercisable before 30 September 2002; and (vii) income: approximately £70,000 pa.
24. Also on 12 January 2000, Mr Williams offered through KN to settle on the basis of £350,000, plus £20,000 to cover the costs of refurbishing and furnishing a new house for Mrs Williams, plus a new car up to the value of £20,000, plus £25,000 pa for two years, plus £390,000 in two years' time. Mr Williams also agreed to pay Mrs Williams' costs to date, the costs of obtaining a final financial order and the costs of attending a round table meeting.
25. By letter dated 21 January 2000, Mr Thompson instructed Mr Peter Ringrow of Chantrey Vellacott to provide a forensic accountant's report to support Mrs Williams' claim for ancillary relief.
26. On 1 February 2000, Mr Thompson wrote to Mrs Williams to tell her that Mr Ringrow's preliminary view was that unless Jan Alexander could work out an arrangement whereby Mr Williams could make funds available immediately, she would do better by waiting until Mr Williams retired and took his pension and/or Jencons had been sold. Mr Thompson went on to say that one had to balance a bird in the hand against the risk that things might go wrong with Jencons. He concluded: "Whilst I think it is in your interest to have a clean break nevertheless I would not wish to see your affairs prejudiced by moving too soon if there is a better settlement to be reasonably obtained by doing things in stages."
27. On 2 February 2000, TL arranged a Conference with Mr Francis which, as we shall see, was held on 3 March 2000.
28. At a meeting on 10 February 2000 attended by Mr Thompson, Mrs Williams and Jan Alexander, there was a discussion as to the proposals that Jan Alexander thought he could come up with to demonstrate that Mr Williams was going to be able to afford something like £2-£2.125 million without having to sell the family home and dispose of his business.
29. On 29 February 2000, Mr Lambert informed Jan Alexander over the telephone that the Conference with Mr Francis was to take place on 3 March and explained the fee would probably be £300 or £400, which in the whole scheme of things was not much since "we are claiming over £2,000,000 from the husband."
30. TL's instructions to Mr Francis to advise in Conference were very full. The enclosed documents included the pleadings and affidavits in the ex parte injunction proceedings, documents relating to Jencons and Mr Williams' pension scheme, Mr Williams' tax return dated 5 April 1998, documents relating to Arrewig, 68 Dedmere Road and a house Mrs Williams wished to buy at 14 Dedmere Road, and 11 letters Mrs Williams had written variously to Mr Williams and a friend throughout 1999 concerning Mr Williams' behaviour and plans. Mr Francis was asked to advise on Mrs Williams' financial entitlement upon her divorce.
31. On 18 February 1999, the House of Lords gave leave to both parties in White to appeal. Mr Francis learned of this sometime later but in evidence could not remember precisely when. In my judgement, he is not to be taken as knowing this development in White by the time he advised in Conference on 3 March 2000.
32. At the Conference Mr Francis produced a detailed agenda covering such topics as Arrewig Farm, Mr Williams' assets and liabilities, Mr Williams' pension fund, Mr Williams' income, Mrs Williams' capital needs, and tactics, including Hildebrand disclosure. The Conference lasted two hours and twenty minutes. It was attended by Mrs Williams, Jan Alexander, Mr Lambert and Mr Thompson. Mr Francis worked through his agenda. He said that his approach was to take a reasonable and balanced view of what it is thought the court is likely to award rather than asking for too much which could eventually show Mrs Williams and her legal team to be naive and slightly silly. He advised that the present offer of £780,000 was plainly insufficient, but provided a starting point for a lump sum on top of Mrs Williams' housing needs. Mrs Williams had to remember that she needed to fund the purchase of a car and completely furnish a new house. Mrs Williams was "a fully entitled wife". She needed to look at her resources and her needs in light of her age and future likely health problems. As for her accommodation needs, she was probably looking at having to spend between £400,000 and £600,000 which would provide her with a four bedroom house and a garage in Marlow so that she could entertain her children and her parents. On top of £500,000 for a house, Mr Francis' preliminary view was that there should be a lump sum which perhaps could be deferred for two years until Mr Williams retired to provide the annual income she was going to need which could be up to £45,000 pa. Mr Francis explained the Duxbury approach whereby with the use of tables a capital sum could be arrived at to meet the income needs of a divorced wife for the rest of her life. He specifically asked Mrs Williams whether she wanted a clean break and Mrs Williams confirmed that she certainly did, which Mr Francis thought was very sensible. Mr Francis suggested a list of tasks to be undertaken before any settlement meeting was held. Included on this list were: valuing Arrewig; establishing the likely cost of a new house; seeking Mr Ringrow's opinion on the real value of Jencons and whether it would prove attractive to investors if offered for sale over the next two years; and drawing up a budget of likely future annual expenditure. Mr Francis advised that there should be no settlement meeting until all the available information had been obtained. Mr Francis formed the view that Mrs Williams was fragile and suggested that she set out in a document her own history of the marriage. He also dealt with the subject of Hildebrand disclosure, namely disclosure of documents such as tapes of conversations acquired surreptitiously to show what the husband's true wealth was. He advised that disclosure had to be made before the questionnaire was filed but, at the moment, it was too early to make such disclosure. He said that Mrs Williams need have no disquiet about giving this disclosure and Jan Alexander confirmed that no illegal conduct had been involved in obtaining the surreptitious information in question.
33. In cross-examination, Mrs Williams claimed that she did not know what Hildebrand documents were until just before the start of this trial. She said that until that point she thought that such documents referred to shares. This was deliberately false evidence. As I have recorded, Mr Francis dealt with Hildebrand disclosure at the Conference and I am quite satisfied that, if not before the Conference, then thereafter, Mrs Williams well understood that if there were to be proceedings she would have to disclose documents and tapes containing the surreptitiously obtained information she and Jan Alexander had gathered, together with her bank statements.
34. On the Monday following the Conference (6 March 2000), Mrs Williams told Mr Lambert that she was pleased with the approach being taken by Counsel as she did not want to be seen to be trying to take every penny from her husband but wanted a fair settlement. Three days later Mr Lambert sent Mrs Williams a follow up letter dated 9 March 2000 dealing with things that had to be done following the Conference. In the fourth paragraph he said:

I think something that is emerging quite clearly is that your husband has in fact been engaging in a scheme of disguising from you, his real wealth, by pretending that some of his extravagancies are linked to something which only the company can provide, whereas in truth of course, he and his brother can decide exactly what monies are spent on their lifestyle and that in reality he is making the decisions.

35. By letter dated 5 April 2000, Mrs Williams wrote to Mr Francis thanking him for the time he spent on 3 March and saying that his obvious knowledge, air of authority and the fact that he had gone through all the paper work so thoroughly gave her great confidence. Mrs Williams enclosed with this letter a detailed account of her life with her husband in which she portrayed her husband as being very controlling and described many humiliations she suffered at his hands. She wrote: "He has the power, the strength - and my children." "Once again, Mr Williams is controlling my choices. What I need now is the right to a bit of dignity." "Mr Williams stripped me of everything before I left - including my dignity." Mrs Williams also related an incident when her husband had spoken to her in a frightened way of having been involved in insider trading for which he could go to prison.
36. On 11 May 2000, Mr Thompson and Mr Lambert met with Mrs Williams, her father and Jan Alexander at which Jan Alexander put forward some proposals for a way Mr Williams could raise £2 million. These involved a further mortgage on Arrewig of £500,000 and further borrowings of £1.5 million supported by an annual income of £400,000. Four days later, Mrs Williams told TL over the telephone that she wanted her offer to be in excess of £2 million and asked TL to put down in writing how they thought Mr Williams could raise £2 million plus.
37. On 1 May 2000, Jan Alexander produced a written "Funding Proposal for John Williams" suggesting that Mr Williams could raise £2 million by: (i) borrowing £600,000 against Arrewig and £500,000 against a freehold factory unit; (ii) Mrs Williams lending £1.2 million to Mr Williams' pension fund at 2% over base rate; and (iii) the transfer of 68 Dedmere Road to Mrs Williams free of the outstanding mortgage. The annual cost of this borrowing would be £183,000 and could be serviced out of Jencons' profits. It is abundantly clear that this document was predicated on there being a clean break between Mrs Williams and her husband.
38. On 22 May 2000 Mr Lambert wrote to Mrs Williams saying, inter alia, that he had not put forward her proposal to receive from her husband an amount in excess of £2 million. The letter continued: "I want to work through the mechanics of this before we do put this offer forward. Counsel in conference explained that you should be looking for somewhere in the region of £1.2 -£1.4 million."
39. On 8 June 2000, Mr Ringrow produced his first draft report on Mrs Williams' divorce settlement. He valued Mr Williams holding in Jencons at £3,050,000, Mr Williams' pension at £2,457,065 and Arrewig at £590,000 (£1.1 million less the total mortgage of £510,000). His value of the total assets available (excluding the pension) was £4,118,542, of which £3,998,452 related to Mr Williams and £120,000 related to Mrs Williams.
40. Also on 8 June 2008, the proposed three room meeting was fixed to be held on 15 June 2000 and the next day, 9 June 2008, TL sent Mr Francis instructions to advise at this meeting. Amongst the documents sent to Mr Francis were Jencons' financial statements to 31 December 1998; a draft report on the value of Jencons by Mr Ringrow; private health documentation; an estimated annual expenditure of Mrs Williams; a schedule of contents required by Mrs Williams; and correspondence and attendance notes from TL's file, including Jan Alexander's "Funding Proposals for John Williams". The Instructions recorded that Jan Alexander and Mrs Williams were seeking over £2 million, whereas Mr Francis had advised in Conference that Mrs Williams should be looking somewhere in the region of £1.2 -£1.4 million. If Mrs Williams instructed TL to seek in excess of £2 million they would put forward that proposal but they awaited counsel's advice on this point.
41. On 14 June 2000, Mr Ringrow signed off the final version of his report. In this version he valued Arrewig at £940,000 and valued the total available assets at £4,618,542 and the deferred assets (the pension) at £2,457, 065. He recorded in paragraph 1.2 that his instructions were to evaluate the assets....and calculate a suitable sum for a clean break on the dissolution of [Mrs Williams'] marriage to Mr Martin John Anthony Williams."
42. Also on 14 June 2000, KN cancelled the meeting that was due to take place the next day stating that Mr Williams wanted to meet his pension advisers and also wanted a proposal from Mrs Williams before such a meeting started. It was eventually agreed that the meeting should take place on 9 August 2008. Mrs Williams was very upset at the cancellation of the meeting.
43. Mr Francis "speed read" the Instructions some time between their receipt and 14 June 2008 to see if there were any questions he needed to deal with to be able to advise as instructed. Following this rapid perusal of the Instructions he made no suggestion that the three room meeting be postponed until after the House of Lords' decision in White.
44. By letter to KN dated 20 June 2008 which drew heavily on Jan Alexander's document "Funding Proposal for John Williams", TL proposed that Mrs Williams receive £1,385,562 to provide an income of £60,000 pa and capital of £1,082,000, plus a deferred award in respect of the pension in the sum of £728,787.
45. Mrs Williams telephoned Mr Lambert on 13 July 2000 to say that two days previously she had had a long conversation with Mr Williams. She told Mr Lambert that she felt like she was robbing her husband because she was after quite a bit of money and felt guilty and uncomfortable. She could not stand up to Mr Williams; she had been brainwashed over the years and felt awkward about talking to him over the telephone.
46. By letter dated 19 July 2000 to KN, TL stated that this was a clean break case and reiterated that Mrs Williams was seeking £2.1 million made up of a lump sum to provide an income of £60,000 pa and a deferred award amounting to 30% of the pension. KN replied on 21 July 2000 offering £450,000 for a house (inclusive of the value of Dedmere Road ~ £150,000), £25,000 for furnishings, furniture and refurbishment, £15,000 for a car, and maintenance at £32,500 pa. KN said that the sum sought by Mrs Williams was "truly in excess of the Claimant's entitlement.... Unfortunately, our client is not in a position to be able to offer your client a clean break settlement of her income claims."
47. On 21 July 2000, Mr Lambert wrote to Jan Alexander comparing Mrs Williams' position with KN's offer. He stated: "We are leagues apart." On 24 July 2000, he sent the recent correspondence with KN to Mr Francis.
48. On 28 July 2000, Mr Lambert sent Mrs Williams a draft two page letter of even date to KN. On the second page various examples of Mr Williams' behaviour were set out, including inappropriate share dealings, having a mistress, and trying to put Mrs Williams in a psychiatric hospital whilst at the same time doubling her life assurance. This draft letter was replaced by a second draft dated 3 August 2000 which omitted any reference to Mr Williams' conduct, but in the event this replacement letter was not sent to KN. In cross-examination, Mrs Williams at first adamantly denied ever having received the second page of the first draft letter. In response to a request from myself that she show the court just what she did receive she produced Mr Lambert's covering letter dated 28 July 2000 and the second draft letter dated 3 August 2000 and she persisted in denying that she saw the second page of the first draft letter. Mr Howard QC for Mr Francis then showed her a letter she had written to Mr Lambert on 29 July 2000 in which she said: "I read the letter we are proposing to send to Mr Williams - I had a hot flush before I reached the end of page one!! No, it can't go - I agree with you." Faced with this letter Mrs Williams accepted that she had indeed seen both pages of the first draft letter dated 28 July 2000. In my judgment, Mrs Williams knew all along that she had received both pages of this letter and in denying that she had received the second page she was trying to deceive the court.
49. On 2 August 2000, TL sent Mr Francis a further set of Instructions to conduct a three room meeting at KN's offices on 9 August 2000. The documents enclosed included the recent correspondence between solicitors and the Instructions themselves stated that, in view of the recent offer by KN being substantially lower than the offer by Mrs Williams to settle, TL had been instructed to commence ancillary relief proceedings on a number of occasions but were reluctant to do so in view of the forthcoming meeting.
50. Mr Francis prepared for the meeting of 9 August 2000 two to three days before it took place. The meeting was held at the offices of KN. Mrs Williams and Mr Williams and their respective legal teams and supporters occupied separate rooms and a third room was used for negotiations between Mr Francis, and Mr Williams' counsel, Mr Philip Marshall, who had appeared for Mrs White in White in the House of Lords. Mr Francis had available a schedule of assets he had prepared which was based on the values contained in Mr Ringrow's report. Mrs Williams was attended by her father, Jan Alexander and Mr Thompson. The meeting lasted seven hours. During the first hour, Mr Francis discussed the position generally with Mrs Williams. He began with the question whether Mrs Williams wanted a clean break. He outlined the shortcomings of maintenance agreements and other on-going arrangements. Mrs Williams made it entirely clear that she wanted a clean break and Mr Francis supported her in this. Mrs Williams agreed that there was to be no deal if there was no clean break. Mr Francis then itemised four heads of claim: a mortgage free house; a car; capitalised income; and costs. He advised that the approach must be that of the court which looks at assets, income and the factor to which greatest regard must be given ~ Mrs Williams' needs. Mr Francis warned Mrs Williams that she might not get out of this case what she had asked for. Mrs Williams and Jan Alexander said that for Mrs Williams to buy a house that she really wanted would cost £500,000 to £550,000. Mr Francis said that the capital needed under the Duxbury approach for an income of £60,000 pa was £1 million. He thought £1.5 million was about the right total amount; there could be a penalty in costs in refusing what the court was likely to award. If there was no settlement, Mr Francis recommended instructing a forensic accountant called Mr Tim Lawrence. Mr Francis testified that he chatted to Mr Marshall about White and recollected discussing the White appeal with Mrs Williams but accepted that he did not advise her to adjourn the meeting until the appeal had been decided. Mr Thompson had no recollection of any mention of White and no mention is made of the case in his attendance note. On the evidence before me I find that Mr Francis' recollection is faulty and that he did not mention White to Mrs Williams or any of her team. In the course of the day, Mr Williams made a number of offers which Mr Francis reported back to, and discussed, with Mrs Williams. Save for the last offer, he advised Mrs Williams against acceptance. Thus Mr Francis advised against accepting an offer worth £1.33 million. Finally, Mr Williams offered: (a) a lump sum of £500,000 payable on or before 8 September 2000 and a further lump sum of £730,000 on or before 1 November 2001, the second whereof to be charged against Arrewig and upon payment of both sums, there was to be a full clean break both as to income and capital; (b) the transfer of his equity in 68 Dedmere Road, worth about £120,000; (c) to use his best endeavours to transfer to Mrs Williams the LandRover Discovery but with a new number plate; (d) to use his best endeavours that Mrs Williams remains covered by his company health care scheme, but at no cost to himself; and (e) to pay Mrs Williams' costs. Mr Williams' counsel and solicitor also gave an assurance that this offer would remain open for acceptance for seven days. The value of the offer was slightly in excess of £1.4 million. Mr Francis advised Mrs Williams that this was Mr Williams' last offer and that it was an offer he was prepared to advise her to accept. He told her, however, not to make a decision there and then but to think carefully about the offer; she had seven days in which to accept. It had been a long and tiring day. Mr Thompson also advised Mrs Williams to think about Mr Williams' final offer and not to sign it there and then, for the same reasons that Mr Francis had advised her to take her time before coming to a final decision.
51. Mrs Williams decided to accept the offer there and then and a document recording the terms of the resulting agreement was signed by the parties.
52. Mrs Williams was pleased with the outcome of the meeting. This was clear to Mr Francis and Mr Thompson and she said as much in a letter to Mr Thompson dated 14 August 2000 in which she wrote: "Thank you so much for all your work on my behalf. I'm still wandering around half-dazed and can't seem to get my head together. I'm sure it's the "just out of prison thing", and it feels really scary.......Just once again John, thank you so much for all your help and support over the last few months. It was a very difficult time - and your support, time and concern were invaluable. Thank you."
53. In the witness box Mrs Williams claimed that she was not pleased at all with the outcome of the meeting. According to her she was seeking £2 million, private health care, a car to replace her Mercedes sports car and a mortgage-free house and she complained that she was not being offered all four of these items. She testified that her attitude to what she should obtain from her husband changed fundamentally once she had received Mr Lambert's letter of 9 March 2000 in which Mr Lambert said that Mr Williams had been disguising his wealth (see paragraph 34 above). Referring to a letter to Mr Lambert dated 26 March 2000, she repeatedly said that she made it clear to TL that she would be guided by them. I decline to accept this evidence. As is plain from Mr Thompson's attendance note of 19 November 1999, Mrs Williams realised as of that date that she had been naive when her husband had made out that he did not have as much money as it appeared because it was all perks of the company. Indeed, she admitted in cross-examination that she had been told by Jan Alexander that her husband had considerable wealth before 19 November 1999. Moreover, the letter of 26 March 2000 was specifically concerned with whether she should purchase a particular property, not the level of her financial entitlement.
54. I also reject Mrs Williams' evidence that she was not pleased with the settlement negotiated on her behalf by Mr Francis. She well understood that merely because TL had claimed over £2 million on her behalf she was not necessarily going to achieve such a sum in negotiations or in contested proceedings. This had been made clear to her by Mr Thompson and by Mr Francis whose evidence that she was well pleased with the settlement I unreservedly accept.
55. I also reject Mrs Williams' evidence that Mr Francis told her at the three room meeting that there was no point in her waiting before accepting her husband's final offer. On the contrary, I find that Mr Francis quite strongly advised her not to sign that night but to take her time before deciding whether to accept Mr Williams' final offer. This was another example of Mrs Williams giving untruthful evidence.

Events subsequent to the settlement agreement

56. The first lump sum in the amount of £550,000 was paid on time.
57. An agreed consent order embodying the terms of the settlement agreement was made by District Judge James at Reading County Court on 7 November 2000, having been lodged with the court on 4 October 2000. Even before the consent order was made, correspondence began over how the second payment of £730,000 was to be secured.
58. Within a few days of judgement being given by the House of Lords in White v White on 26 October 2000, the case received prominent coverage in the national press. Mr Thompson was on holiday in Portugal in the last week of October 2000 and did not read any of these reports. He first became aware of White well after the appeal was decided.
59. Mr Lambert was off sick in the period 26 October to 7 November 2000. He did not appear as a witness and there is no direct evidence as to whether he became aware of the White decision in the House of Lords before the consent order was made on 7 November 2000 embodying the settlement agreement.
60. Mrs Williams testified that once she had received the £1.1 million due in cash under the settlement she invested it with Jan Alexander in a number of buy-to-let properties. These properties were subsequently re-possessed and there was litigation between Mrs Williams and Jan Alexander, the latter claiming that they had gone into the buy-to-let investment as partners. It appears that the position now is that the whole of the £1.1 million has been lost and Mrs Williams' home has been sold or charged to finance the claim she brings in this action.

The witnesses of fact

61. The factual witnesses were Mrs Williams, her solicitor in these proceedings, Mr Robert Cook, Mr Thompson and Mr Francis. As I have already recorded, Mr Lambert did not give evidence. He left TL in 2003. Mr Cook, Mr Thompson and Mr Francis were honest witnesses who did their best to give accurate evidence and I have no hesitation in accepting their evidence, save in respect of Mr Francis' recollection that he discussed White with Mrs Williams. Mr Thompson was a particularly impressive witness.
62. Regrettably, I am obliged to record that I found Mrs Williams to be a profoundly unreliable witness. Her evidence was often self-serving, evasive and, on occasion, knowingly untruthful. The untruths she told included: (a) her assertion that she made known her displeasure with the settlement agreement; (b) her assertion that Mr Francis told her that there was no point in her taking time in deciding whether to accept the proposed settlement; (c) her assertion that there was a fundamental shift in her approach to her financial entitlement in the wake of Mr Lambert's letter of 9 March 1999; (d) her assertion that she had never before seen the second page of the draft letter dated 28 July 2000; (e) her assertion that she was not concerned at the time of the three room meeting about Mr Williams being involved in insider dealing; and (f) her assertion that did not know what Hildebrand documents were until shortly before the start of the trial.
63. Much of Mrs Williams' evidence about her relationship with her singing teacher, John Roger, was also untruthful. She lied when she said in cross-examination that: (a) she lived with Mr Rogers for six weeks from March 2001 and had a sexual relationship with him from March 2001 to the end of the year; and (b) Mr Rogers lived with her at Christmas 2000. She was also untruthful when she insisted that the new partner she was referring to in her letter of 13 July 1999 to Marian Lynch was her singing partner and not a sexual partner. In my judgement, it is plain on the evidence that Mrs Williams was in a sexual relationship with Mr Rogers in the latter part of 1999 down to at least the three room meeting on 9 August 2000 and that Mr Rogers had been spending considerable periods of time at Mrs Williams' home during this period as her sexual partner.
64. Her casual attitude to her responsibility to give truthful evidence is exemplified by her defiance of my clear and repeated instruction not to talk to anyone about the case whilst she was giving evidence. This happened before court on 11 July 2008 when she telephoned John Rogers to ask him when he said he had lived with her.
65. I also have grave suspicions about Mrs Williams' involvement in the production and/or use of a forged letter on TL's letter head dated 1 November 2000. This letter was not in TL's file. Its existence was discovered when in the course of the trial Mrs Williams handed over to TL's solicitors a file of documents she had referred to in evidence. The letter used Mr Thompson's reference (MJT) but Mr Thompson denied ever having produced it and the telephone numbers on the letter head were the wrong numbers. In addition, the font was different from all the other many TL letters in the bundles. The thrust of the letter was that KN had advised TL that Mrs Williams was co-habiting with a third party and that this would allow Mr Williams to vary maintenance payments. The letter stated that Mrs Williams needed to contact TL's office as a matter of urgency to prepare a statement regarding this matter. Mrs Williams denied having any part in the manufacture of this letter but was constrained to accept that she had received it because it was in her file. She said that she thought that she must have contacted TL about the letter but had no explanation for the absence of any attendance note dealing with such contact. She disagreed with Mr Wise's suggestion in cross-examination that if she had a boyfriend who was pressing her to cohabit with him or if she had wanted him to stop cohabiting with her, the letter might be a good way of persuading him that he needed to go. She said she disagreed because she had photographs of Mr Rogers lying drunk and injured on her front lawn, and showing him these would have been perfectly adequate to stop him behaving in this fashion.
66. Such was the unreliability of Mrs Williams' evidence that I decline to accept any part of it unless it is corroborated by contemporaneous documents or by the evidence given by the other factual witnesses.

Was Mr Francis negligent in failing to advise Mrs Williams as to the possible implications for her claim of the White appeal to the House of Lords, including the fact that it was likely that the law would change in her favour?

The relevant standard of care

67. The relevant standard of care is that expected of a competent barrister of Mr Francis' seniority in 2000 who holds himself as being an expert in ancillary relief. A mere error of judgment does not give rise to liability in negligence. As Lord Diplock said in In Saif Ali v Sydney Mitchell & Co. [1980] AC 198, at p 220 D:

No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made.

At what stage in Mr Francis' involvement in Mrs Williams' case can it be said that he was under the alleged duty to advise Mrs Williams as to the implications of White in the House of Lords?

68. I have already concluded that Mr Francis is not to be held to have been aware that the House of Lords had given leave to appeal to both parties in White when he advised in Conference on 3 March 2000. It follows from this that there can be no question of his being subject to the alleged duty when he advised at that conference.
69. Mr Francis received the first set of Instructions to advise in respect of a three room conference on or about 9 June 2000 and "speed read" those Instructions some time before 14 June 2000, on which date the conference set for the following day was adjourned to August. Mr Francis was under no duty to prepare for the 15 June 2000 Conference prior to 14 June 2000 and in my view he was under no duty to consider whether White had a potential impact on Mrs Williams' case when he "speed read" the papers to check if there were any questions that needed to be answered before he could advise as instructed.
70. It follows that if Mr Francis were under a duty to advise Mrs Williams with respect to the potential impact of White, this duty only arose in connection with the Instructions to conduct a three room meeting on 9 August 2000. Further, if there were such a duty, the duty arose only after Mr Francis had carefully read all the papers and considered what his advice should be. Mr Francis said in evidence that he prepared for the meeting two to three days before 9 August 2000, from which I think it can be fairly inferred that he had completed his preparation by Tuesday, 8 August 2000.

Was Mr Francis negligent as alleged?

71. Mr Le Grice argued that in early August 2000, the prospect of White bringing about a more favourable approach to determining an applicant wife's financial entitlement was foreseeable. He relied on the decision of Bracewell J in S v S [2002] 1 FLR 992. There the question was whether an ancillary relief consent order made in September 2000 should be set aside on the wife's application on the ground that the House of Lords' decision in White was a subsequent material or unforeseen change of circumstances within the principle enunciated in Barder v Caluori [1988] AC 20. In the course of ruling against the wife's application, Bracewell J said:

[51] I am satisfied that what happened in White v White [2001] AC 596 was foreseeable, and indeed in the words of Balcombe LJ in Chaudhuri v Chaudhuri [1992] 2 FLR 73 it was "an obvious possibility."

[52] By the time of the consent order, Mrs White's cross-appeal had been heard with judgment reserved. This was common knowledge among family lawyers, and the outcome was eagerly awaited. In Cowan v Cowan [2001] EWCA Civ 679 Thorpe LJ states that it was open to either party to invite the judge at first instance to reserve judgment until after the House of Lords had ruled, as was done in Dharamshi v Dharamshi [2001] 1 FLR 736, para [7]. Thorpe LJ stated:

" the prospect that their Lordships might disapprove the methodology developed by this court was obvious."

[53] In July 2000 an article was written by Wildblood and Eaton in a family law publication:

"Is change afoot ... it is anticipated that the House of Lords will carry out a thorough review of the case law under s 25 in White. The appeal was heard in July 2000 and their Lordships' opinions are likely to be delivered in the autumn.

[54] I am satisfied that White v White [2001] AC 596 , was a landmark decision and anticipated to be so, and that the wife and her advisors knew or ought to have known that. The wife could have suspended negotiations pending the decision, but instead she pressed in the summer of 2000 for the conversion of the agreement into an order of the court and even threatened the husband with Xydhias application. I find the event was foreseeable and the impact avoidable.

72. Mr Le Grice also submitted that Mr Francis must have been aware of the judicial reservations over the wife's reasonable requirements approach. Examples of such reservations are to be found in the judgments of Peter Gibson and Butler-Sloss in Dart v Dart [1996] 2 FLR 286.

But the statutory discretion, it seems to me, might have been differently interpreted by the courts to allow a more generous approach to the applicant in a big money case, so that the award was not in effect limited by the applicant's reasonable requirements. Paragraph (b) is but one of the paragraphs to which particular regard is to be had, and both parties' reasonable requirements must be taken into account. Other paragraphs refer to matters which have had nothing to do with the applicant's financial needs, for example para (d) with its reference to the duration of the marriage and para (g) with its reference to conduct. And I come back again to the width of s 25 (1). I entirely accept that in a big money case it is a relevant and important consideration whether the wealth of the respondent is largely attributable to his inheritance and whether the applicant contributed to that wealth. I also accept that once one goes beyond the reasonable requirements of the applicant, the exercise of discretion becomes more difficult to explain in a way that can ensure consistency of approach by the courts. Nevertheless standing back and looking at the position overall, were I unconstrained by authority I would have to say that I regard an award of £9m to a good wife in a marriage of 14 years and a good mother to the respondent's children out of the respondent's resources of £ 400 m as on the low side.

However, for the reasons given by Thorpe LJ and in the light of the authorities to which he refers, I do not think it open to this court to hold that the "millionaire's defence" is wrong in law or that an award based on the wife's reasonable requirements can be impugned. Preston v Preston [1982] Fam 17 ... Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) [1986] Fam 1 ....and O'Neill v O'Neill [1983] 2 FCR 297 seem to me to be particularly significant decisions of this court binding on us. [Peter Gibson LJ at p 302]

.... I am glad to see that a consultation process is proposed to reconsider the existing criteria laid down in s 25. I am sure that any change in the way in which the courts should decide money cases ought to be by legislation. The practice in ancillary relief has become settled. It is well known among practitioners and clear principles are essential in order to assist large numbers of spouses and their legal advisers who make post-divorce financial settlements and apply for consent orders. The Court of Appeal must not set the cat among the pigeons.

I should, however, like to feel that within the consultation process the views expressed by Peter Singer QC in 1992 were carefully considered. I share the doubts raised by Peter Gibson LJ in his judgment. I wonder whether the courts may not have imposed too restrictive an interpretation upon the words of s 25 and given too great weight to reasonable requirements over the other criteria set out in the section. On the present state of the law as interpreted in the authorities Johnson J's order is clearly right. If this appeal was not bound by authority I would not wish to make an order of a kind suggested by Mr Munby, but as the sums with which the courts are asked to deal become very large indeed, it may be that we are now perhaps somewhat over -modest in our awards.[Butler-Sloss LJ at p 305]

73. In paragraph 62 of his first witness statement Mr Francis says:

The forthcoming decision in White was very much in my mind at this time [9 August 2000]. I can recall at around this time that I had recommended to a number of clients (usually wives) that they delay the resolution of their case pending the decision and to a number of other clients (usually husbands) that they make all possible haste to secure a deal ahead of White. I am quite sure that I would have mentioned the case to the Claimant but I could see no reason, on the facts of her case, to delay progress towards settlement. Her overriding desire was to settle, on clean break terms, as quickly as possible.

74. In the witness box, Mr Francis said that, having consulted his professional diary, the only concrete example he could find where he had advised a wife to delay pending the decision in White was one where the wife and husband had owned and run a very successful kitchen business which was possibly going to be the subject of a purchase or takeover. Mr Le Grice submitted that where, as here, resources exceeded needs, the advice that Mr Francis should have given to Mrs Williams ought to have included the option of suspending the negotiations until the House of Lords' decision was available.
75. Mr Howard QC for Mr Francis accepted that the reasonably competent barrister must weigh any possibility of a favourable change in the law against the possibility of an adverse change in the factual matrix. However, in his submission, Mr Francis would only have been under a duty to advise Mrs Williams to suspend the negotiations if the prospect of such a change was so great that it overrode the factors militating in favour of settlement and the risk of an adverse change to factual circumstances then in Mrs Williams' favour. Mr Howard stressed that in White in the Court of Appeal: (i) the parties had been involved in a farming partnership and there was no such business relationship between Mrs Williams and Mr Williams; (ii) there was no challenge to Dart where, despite the observations of Peter Gibson and Butler-Sloss LJJ quoted above, the Court of Appeal had re-affirmed the reasonable requirements approach, it being the view of Thorpe and Butler-Sloss LJJ that any change could only come from the legislature; and (iii) the view was expressed that the law in big money cases had been settled for over a decade and that certainty had enabled practitioners to negotiate settlements in a large number of cases.^[2]
76. In evidence, Mr Francis said that his judgement that there was no reason to advise Mrs Williams to await the decision in White was based on: (a) his view that Mrs Williams' case was unlikely to be affected by White because, in contrast to the facts in White, there was no pre-existing business relationship between Mrs Williams and Mr Williams, whether in the nature of a partnership or otherwise; (ii) there was no more money to be secured from Mr Williams, save by compromising Mrs Williams' desire for a clean break: Arrewig would be heavily mortgaged and was the family home; Mr Williams had already borrowed heavily to finance the purchase of Rob's Jencons shares; and Mr Williams' pension was not due to accrue for two years and earmarking was only possible if there were periodical payments; and (iii) Mrs Williams' strong desire for a clean break.
77. In cross-examination Mr Francis said: "I accept that it was foreseeable that there was going to be a change in the law. It might have got better. It might have got worse. It might have stayed the same. The parties might have settled." This concession was well made. Once the House of Lords had given leave to Mrs White to cross-appeal and that appeal had been heard, it is plain in my view, that there was a real possibility that the law was going to be made more favourable to wives, whether or not they had been in business with their husbands or had contributed to the creation of the husband's wealth, particularly in big money cases where the available assets exceeded the wife's reasonable requirements. Further, there was virtually no possibility that the law was going to be made less generous to wives. That said, I am firmly of the view that no reasonable competent junior barrister of Mr Francis' experience and expertise would have concluded that a change in the law favourable to wives was "likely" i.e. more likely than not, as alleged by Mrs Williams. There was a real possibility but the chances were no greater than that.
78. In my opinion, given there was a real possibility that the law would change in favour of applicant wives, especially in big money cases, and given that the total value of the joint assets was £4,582,730, and the pension was worth £2,448,733, Mr Francis was under a duty on 9 August 2000 to explain to Mrs Williams the potential implications of White so that she had the opportunity of deciding whether to suspend negotiations to await the decision in the House of Lords. Mr Francis' failure so to advise Mrs Williams was negligent: it was not a mere error of judgement. It was for Mrs Williams, not Mr Francis, to decide whether she would go for a clean break given this real possibility. The fact that it might have appeared unlikely that she would opt to postpone negotiations and decide no longer to go for a clean break was no reason not to advise her of the potential implications of White. What Mr Francis ought to have done was to advise Mrs Williams that there was a real, but far from certain, possibility that the decision in White would benefit her and she should weigh this upside against the downside in abandoning the negotiations which included: (i) having to remain dependent on her husband for making future payments in the form of maintenance and/or periodic payments and/or deferred lump sums over what might be a considerable period of time because of Mr Williams' lack of liquidity; (ii) the likely hostile reaction of Mr Williams that could lead to Mrs Williams having to litigate the dispute in court with attendant costs implications and the further alienation of her children; and (iii) the risk that the assets, instead of increasing in value, would fall in value in the time it would take to enter into a settlement or obtain a judgement post White.
79. In my judgement, given the upside uncertainties and the potential importance of the downside factors, Mr Francis was under no duty to go further and to advise Mrs Williams that she ought to suspend the negotiations. His duty was to go through the pros and cons of suspending the negotiations and then to leave the final decision to Mrs Williams. If Mrs Williams had asked him what she ought to do, he would have been entitled to say that it was a matter for her. If he had said that his estimation of the pros and cons was that she ought to continue with the negotiations and not await the White decision, such advice would not in my view have been negligent. Whether it would have been negligent to conclude that the balance was in favour of suspending negotiations and to have advised Mrs Williams accordingly is a more difficult question. It is not, however, necessary to express a view on this point, and I decline to do so.

If Mr Francis had advised Mrs Williams as he should have done, would Mrs Williams have abandoned the negotiations until after the decision in White, or would she have carried on, thereby achieving the settlement terms she did achieve on 9 August 2000?

80. Nowhere in her witness statement or in her oral evidence in chief did Mrs Williams say what course she would have adopted if Mr Francis (or TL) had advised her of the potential implications of White in the House of Lords. She was asked in cross-examination by Mr Wise what she would have done if she had been told that when the White decision was handed down in October or November 2000, it might help her. She answered that she would have put off the negotiations if it had been explained that White was the reason her husband was rushing. Her husband had subsequently told her that this was indeed why he had rushed to get a settlement. She would not have wanted to sort out her claim immediately if this was at the expense of one of the four things she wanted - £2 million, private health care, a car to replace her Mercedes sports car and a mortgage-free house.
81. In the course of re-examination, Mrs Williams said that if she had been told other wives were being advised to await the decision in White and were prepared to wait, that would have given her confidence about waiting. Asked if she agreed that if Mr Francis had told her about White, she would have been faced with a difficult weighing exercise, she said that Jan Alexander would have insisted she wait since it was totally in his interests for her to have as high a settlement as possible. However, the main thing would have been knowing that other women like her were waiting. If she had been told of White she would have understood why her husband was rushing and would have been very angry with him because he had told her not to rush.
82. I do not accept Mrs Williams' evidence that she was told by her husband that he had been advised to rush to get a settlement because of White in the House of Lords. This is because Mrs Williams' assertion is not supported by contemporaneous documents or by other evidence. Indeed, the facts that: (a) Mr Williams cancelled the meeting due to be heard on 15 June 2000 and proposed that it be adjourned to August 2000; and (ii) was in no hurry to finalise the order or see that it was lodged, suggest that he was not in a rush to achieve a settlement.
83. In my judgement, if Mrs Williams had been advised as I have held she should have been, she would not have postponed the negotiations but would have been happy to conclude the settlement agreement she concluded on 9 August 2000. I say this for the following reasons. First, Mrs Williams was very keen to get on with starting a new life and wanted her financial provision to be finalised as quickly as reasonably possible. In particular, she wanted to get on with buying a house she had spotted in Marlow. Second, the evidence is overwhelming that Mrs Williams was determined to have a clean break from her husband who had controlled and humiliated her over many years, and yet if she were to receive more money than she settled for, she would have to remain dependant on her husband for three to four years, if not longer. Third, in her eyes, her husband was ruthless and she knew that if she postponed the negotiations he would be furious and likely to fight her every inch of the way, a prospect she was very anxious to avoid because of the inevitable stress, the costs implications of a disputed hearing, and the real fear that her children would be persuaded by their father never to speak to her again. Fourth, she feared that Jencons would founder once her husband was in sole charge of its management. As she said in a letter to Marian Lynch: "if John goes down, I go down". Fifth, she wanted to have a full relationship with John Rogers and understood that if her husband learned that Mr Rogers was co-habiting with her, he could seek to reduce the level of her financial provision. Sixth, she wanted to begin a professional singing career with Mr Rogers and appreciated that her husband could use this as an excuse for paying her less. Seventh, she was reluctant to disclose her bank statements, which she would have to do if there were a contested hearing. Eighth, she was worried that Mr Williams might be facing difficulties over insider trading allegations which could impact on his ability to fund a settlement. Ninth, she was concerned not to take too much money from Mr Williams who was supporting Emma and Laura in Arrewig. She told Mr Lambert on 6 March 2000 that she did not want to take her husband's every penny but wanted a fair settlement and on 13 July 2000 she told him that she felt she was robbing her husband which made her feel guilty.
84. I do not accept that Jan Alexander would have persuaded Mrs Williams to wait until the White decision. On 9 August 2000, Mr Alexander did not try to persuade Mrs Williams to hold out for more than Mr Williams' final offer and having seen Mrs Williams in the witness box for many hours, I have no doubt that she would not have subordinated her own judgement (which would have been not to await the decision in White) to that of Mr Alexander. Further, if Mrs Williams had asked Mr Francis about the cases where he had recommended awaiting the decision in White, Mr Francis would have been at pains to distinguish those cases from Mrs Williams' case and would have sought to steer her away from postponing the meeting.
85. Thus, although Mrs Williams has succeeded in establishing that Mr Francis was negligent in not advising her as to the potential implications of White, she has failed to prove that she suffered any recoverable loss by reason of such negligence. It follows that it is unnecessary to consider whether Mrs Williams would have recovered more than she did if she had postponed negotiations until after the White decision.
86. (i) Were TL negligent in: (a) not withdrawing the application to have the settlement agreement made a consent order after the White decision was handed down and (b) not advising Mrs Williams that the settlement agreement was not binding on her and/or that negotiations could be re-opened and/or that her claim could be pursued before the Court; (ii) alternatively to (a) and (b), were TL negligent in not taking advice from Mr Francis on the implications of White.
87. The relevant standard of care is that expected of a reasonably competent solicitor who carries on family law work, including ancillary relief work.
88. In my judgement, there cannot have begun to be a duty on TL to withdraw the application for a consent order and advise Mrs Williams on White, or to instruct Mr Francis to advise thereon, unless either Mr Thompson or Mr Lambert was aware before 7 November 2000 of the House of Lords' decision. This is because: (a) TL were entitled to rely on Mr Francis' advice on Mrs Williams' claim given on 3 March and 9 August 2000 and on neither occasion did he alert Mrs Williams or TL to the pendency of White in the House of Lords; (b) TL were under no obligation in my opinion to operate a system that alerted Mr Thompson or Mr Lambert to any appellate judgement concerned with family law.
89. Mr Lambert was absent from the firm due to illness when White was decided and for some time thereafter. In their written closing submissions, Counsel for Mrs Williams submitted that if Mr Lambert had given evidence he would have been closely cross-examined on whether he was aware of the House of Lords' decision in White before 7 November 2000 and would not have had any adequate answer to the questions. In short, it is submitted on behalf of Mrs Williams that I should infer that Mr Lambert was aware of the Appellate Committee's decision before 7 November 2000. This I decline to do. Mr Lambert was sufficiently unwell to be absent from work from at least 26 October to 7 November 2000 and it is clear that he did not inform anyone at TL prior to 7 November 2000 that he had learned of the White decision. In my judgement, there is a sufficient chance that he was unaware of the decision for me to be unable to find that Mrs Williams has proved on the balance of probabilities that he was aware of the decision before 7 November 2000. I should add that I do not think that either Mr Thompson or Mr Lambert was under a duty to scrutinise the press for significant changes to family law when they were absent from the office.
90. If Mr Lambert was aware of the decision before 7 November 2000, TL's duty in my opinion was to seek the advice of Mr Francis; they were not obliged themselves to advise Mrs Williams on the implications of White or to seek the withdrawal of the consent order application without first having sought Mr Francis' advice.
91. Mr Francis testified that if TL had consulted him between 26 October and 7 November 2000 he would have recommended that the draft consent order be withdrawn so that he could have an opportunity to consider the matter. Then, in conference with Mrs Williams, he would have explained that, having signed the settlement agreement, the onus lay on her pursuant to Edgar v Edgar [1980] 1 WLR 1410 to show why she should be free to escape from the consequences of the settlement agreement. He would also have advised Mrs Williams that: (a) her husband was likely to apply for her to show cause why an order should not be made in the terms agreed; (b) even if she were able to defeat such an application, for example by showing that the value of Mr Williams' assets had risen since 9 August 2000, White did not materially affect the fairness of the settlement agreement and therefore made no difference to her case; (c) it was open to Mrs Williams nonetheless to fight the matter in the court but if Mr Williams succeeded in holding her to the settlement agreement, he would have had "a pretty good argument in costs."
92. In evidence on the 5^th day of the trial, Mr Francis said: "My view even now is that it [White] would not have made any difference to this case because of the particular circumstances of this case." I accept this evidence of Mr Francis. Indeed, it was not suggested to him in cross-examination that he would have given any other advice.
93. If, post White, Mrs Williams had been advised by Mr Francis as he testified he would have advised her, would she have stayed with the terms of the settlement agreement, or would she have sought to walk away from the agreement and seek a higher award in a fresh negotiation or contested proceedings? In my judgement, Mrs Williams would have stayed with the agreement. My reasons for this conclusion are the same as those I have given in paragraph 84 for finding that even if Mrs Williams had been advised as to the potential implications of White, she would not have postponed the negotiations but would have been happy to reach the settlement she did reach on 9 August 2000.

Conclusion

94. The claims against Mr Francis and TL fail. As against Mr Francis, Mrs Williams has failed to prove that if she had been advised as she says she ought to have been by Mr Francis, she would have postponed any settlement negotiations until after the White decision. As against TL, Mrs Williams has failed to show that the firm was negligent, and also failed to show that she would have repudiated the settlement agreement if TL had acted as she alleges they should have acted. There should accordingly be judgement for both defendants.

Note 1   25 (1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24. 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2) As regards the exercise of the powers of the court under section 23(l)(a), (b) or (c), 24, 24A or 24B above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;(c)the standard of living enjoyed by the family before the breakdown of the marriage;(d)the age of each party to the marriage and the duration of the marriage;(e)any physical or mental disability of either of the parties to the marriage;(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(3)....

(4)....     [Back]

Note 2   See Thorpe LJ at p 302    [Back]