Family Law Hub

Mulcahy v Castles Solicitors & Hextalls Solicitors [2013] EWCA Civ 242

  • Neutral Citation Number: [2013] EWCA Civ 242

    Case No: B2/2012/1233




    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Wednesday, 23rd January 2013



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    MULCAHY (Appellant)

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    (DAR Transcript of

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    The Appellant appeared in person.

    The Respondent did not appear and was not represented.

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    (As Approved by the Court)

    Crown Copyright(c)Lord Justice Hughes:

    1. Mrs Mulcahy sued her erstwhile solicitors. She alleged professional negligence in their handling of her matrimonial legal affairs in the period 2002 to 2004. The judge held that her action failed. She seeks permission to appeal. Lewison LJ considered the application and he read all the papers, but he concluded that there were no realistic prospects of success. Mr Mulcahy is entitled to renew her application orally, and she has done so. The test remains the same, whether there are reasonable prospects of success.

    2. Mr Mulcahy has conducted the case herself, both in the court below and here. She has very properly asked both courts to take into account her chronic condition. Since the time of her dealings with the solicitors she has been diagnosed as affected by Asperger's Syndrome. That does not affect her obviously excellent intellect, but it does need to be remembered when courts are considering her presentation, which if I may so has been excellent, and her ability to understand. One of the complaints that she seeks to make by way of appeal is that the trial judge did not take it into account, or though he professed to do so he did not successfully do so. It is plain that he was well aware of it, although the solicitors at the time of their dealings with her were not, any more than she then was. By the time of the trial everybody was, and the judge did take it into account. She makes, as many litigants do, the observation that at times the judge was terse, but then the management of hearings necessarily involves obliging litigants on both sides to concentrate on the issue which is material.

    3. I have read the judgment and I have read some very clear additional grounds and submissions made today in writing by Mrs Mulcahy, and I have to say that I do not have the slightest doubt that there is no prospect of succeeding in this court on the basis either of bias or of failure to take into account the known condition of Mrs Mulcahy. She still had to establish her case, and it was necessary to ensure that her presentation did not simply take entirely her own course, but was concentrated on the issue in hand.

    4. There are, however, other important aspects of Mrs Mulcahy's present application, and to those I now come. The solicitors acted for her in the presentation of a divorce petition, and the making of applications for ancillary relief, interim and final. The outcome was, after some initial dispute from the husband, an undefended divorce, with decree nisi pronounced in June 2003. Then there ensued ancillary relief proceedings. They resulted in a hearing in December 2003, at which the claim was settled on terms embodied in a consent order. That is very common, of course. The exact terms of the consent order were subsequently very slightly reworded, but only to move the provision of the payment of school fees from an order to the more suitable format of an undertaking by the husband. There is no doubt that that is how the husband's obligation in relation to school fees was much better expressed. That very small alteration in wording made no difference at all, either to the obligations of either of the two parties or to what had been agreed. Once that had been done, the solicitors applied for decree absolute, which was granted at the end of February 2004. It was at that point that the relationship between Mrs Mulcahy and the solicitors broke down, and it broke down because the locum solicitor then handling the case made the application for a decree absolute without Mrs Mulcahy's explicit instructions to do so, and that has coloured everything that has happened since. It was also the occasion of the rupture in the relationship.

    5. However, the action which Mrs Mulcahy brought was very considerably wider than that complaint. It contained a catalogue of allegations of negligence. They were made, initially, first against the solicitors -- there were actually two firms but nothing turns on that, that simply was the consequence of a reorganisation of the practice -- and, secondly, were made against counsel who had conducted the ancillary relief application which had resulted in the consent order. However, it is very important to appreciate that the claim against counsel was withdrawn. With that withdrawal necessarily went the complaint that the consent order had been negligently advised on the day of the hearing, and, subject to one matter which I will come to later, that is the end of any complaint that the finances could have turned out differently. It was counsel, and not the solicitors, who had the conduct of that day's events. In passing, I should say that it looks to me to have been very wise to abandon the allegation that the settlement was ill-advised; of course, it might not have been the very maximum that Mrs Mulcahy could, theoretically, have obtained, but settlements normally are not. They necessarily involve each side giving way a little, rather than take the risk of coming out worse; that is well understood.

    6. The principal complaint against the solicitors was that they had committed Mrs Mulcahy to divorce proceedings when, as a devout Roman Catholic, she had a particular view of divorce, which she has explained it to me today in some detail. Her own observation to me is that it is not necessarily the common understanding, even amongst those who, as she puts it, inhabit the pews of the Catholic Church, but I set it out so that it is clear that she has explained it and that I have understood it. This was a mixed marriage; her husband was not a Catholic, although he had been baptised as an infant. Subsequently, he had professed atheism; and that meant that, in her mind, she held the sole responsibility for preserving the sanctity of the marriage. She did not hold, any more than the Catholic Church as a whole does, a rooted objection to civil divorce. She took the view that civil divorce was properly available to those of her faith, to the extent that it could provide a financial remedy when married people were no longer able to live together amicably. I say in passing that the law is very clear and that the financial remedies available to couples who are no longer living together amicably are exactly the same, in all material respects, in the absence of a divorce as there are in the presence of a divorce, so that there is a fundamental misunderstanding about that, but never mind. Because Mrs Mulcahy took the view that she had the sole responsibility for preserving the remaining sanctity of the marriage, despite the separation of the parties and any legal order that might be made, she took the view, as she explains it to me, that among those responsibilities went her responsibility for not making available to her husband the possibility of remarriage, which would destroy the sanctity of the marriage.

    7. Her case to the judge was broadly along those lines, though she may not have explained it in exactly the same way. What she maintained was that she was well aware that she was proceeding with a divorce petition and well aware that the result would be a decree nisi. But she always wanted to maintain the option to use the divorce proceedings simply to obtain the financial relief and to keep open the option to abandon the divorce once she had done so, and she called that, in a vivid phrase, "ring-fencing" the divorce in her own mind. That is a very particular view of divorce. It does not accord with the legal realities of ancillary relief, for the reasons that I have just explained. But if those very particular views had been communicated to the solicitors, it is no doubt right that they would have been under a professional duty to approach the advice that they gave in a very different way from the rather straightforward and conventional way in which they did approach it when asked by a client to handle a divorce.

    8. The principal question which the judge had to resolve in this case was not whether Mrs Mulcahy had explained those views to him in 2012, but whether she had made them clear to the solicitors back in 2002; that was the issue. He heard all the evidence on both sides, and he concluded it was quite clear that whatever Mrs Mulcahy may or may not have had in her own mind, as she may well have done, nothing at all was ever said to the solicitors to indicate that she had this particular view of the purpose of the divorce proceedings. Of course she was known to be Roman Catholic, but that by itself would not, as she has told me this morning, have imported this particular and rather complex view of the role of divorce. As Lewison LJ has said, this finding of the judge, that that was never made clear to the solicitors, was a finding of primary fact, and there is simply no prospect of this court being able to upset it. The judge heard the witnesses. It is often thought by litigants who do not know how the English legal system works that an appeal is a rehearing, but it is not; it is an inquiry into whether something has gone wrong with the mechanics and procedure of the trial in the court below, or with the law. This court does not hear the witnesses again; you only get one chance to get that right, otherwise litigation would go on forever. Here the judge asked himself the right questions and he reached an answer which was perfectly open to him. It is disappointing, no doubt, to Mrs Mulcahy, but I am afraid it is unre-openable. And indeed, given what she did and wrote, such as telling the solicitor that she wished "to move towards final dissolution of her marriage by way of divorce proceedings" and many similar observations, and by taking the many active steps that were necessary, it would have been very difficult for the judge to have found otherwise.

    9. So on the principal point the judge's finding, which was open to him, is an end to most of the case against the solicitors. There is only one respect in which I think it is not, but I ought just to deal with some other aspects of the case as it has been made to me today. First, it is very important not to overlook that Mrs Mulcahy pointed out, correctly, that the solicitor on certainly one and I think it may be two occasions told her that it would be open to her if she wished not to pursue the divorce proceedings if she chose not to do so. That was certainly said at an earlier stage, and that would be correct. It was also said at a time after the decree nisi but before the ancillary relief application had considered and resulted in a consent order. There is no doubt that the solicitor then advised in writing to Mrs Mulcahy that it might be tactically wise not to make an application to make the decree absolute until the finances had been sorted out. She sensibly included the observation that, until then, financially Mrs Mulcahy might be better off, as she put it rather graphically, with the possibility of being her husband's widow than being his divorcing spouse. However, the same letter made it clear that the husband could himself make an application to make the decree absolute. It certainly said, correctly, that such an application would not automatically be granted, at least if the ancillary relief questions were still outstanding. But the judge was perfectly entitled to conclude, as he clearly did, that there was nothing negligent in that advice. It was in fact accurate and sensible. The point which it may be Mrs Mulcahy has not entirely grasped is that that position clearly changed once the ancillary relief application had been dealt with and a consent order arrived at, because after that there really was no possible basis for denying either party the decree absolute if they asked for it.

    10. That is the key to the remaining part of the judge's judgment, which I am sure to this extent is correct. It is very difficult to see how most of Mrs Mulcahy's financial claims against the solicitors could ever have succeeded. Her principal financial claims in the action were to the effect that she had got less by way of ancillary relief than she would have done if the solicitors had acted differently. But that is simply not made out; the ancillary relief available on judicial separation is almost identical to that available on divorce, and there is simply no reason to think that if there had not been a decree absolute there would have been a different ancillary relief order, except on one point, to which I will come in a moment. She would not, for example, as it seems to me, have been likely to have obtained additional lump sums to reflect her complaints that the husband had not made a big enough contribution to the family since the separation or that he had overspent anticipated resources. Those are considerations which can occasionally form the background to an order for ancillary relief, although very rarely, but they are first of all exactly the same considerations both on divorce and judicial separation, and secondly would not normally make a significant difference. Since the consent order reflected agreement between husband and wife, it would almost certainly have been the same in any event.

    11. I should deal with a particular submission which Mrs Mulcahy has made, which is based upon the proposition that counsel previously instructed had recognised and alerted the solicitors to her misunderstanding of the law. That is based on a very brief email to be found at page 215 of the bundle from counsel to the solicitors dated 1 December 2003. He was addressing the precise terms in which open and Calderbank offers were being drafted to be made on behalf of Mrs Mulcahy in the ancillary relief proceedings, and he said this:

    "They are all fine with one small exception. In the Open statement you said that the interests of the children are 'overriding'. When I used the phrase 'first consideration' I was adopting the phrase set out in S.25 MCA 1973. It does not require the interests of the children to be regarded as 'overriding' or 'paramount'. I don't want the judge to think that our open statement is based on a misconception of the law, and would therefore be grateful if you would remove the words '(and overriding)'."

    That is, in a sense, a lawyer's quibble, but it is a sensible lawyer's observation because he did not want the judge to think that those drafting the order did not understand the law, which makes a considerable distinction between those cases which relate to where the children are going to live, in which their interests are "paramount", and other questions such as ancillary relief, where their interests are plainly the first consideration but they are not "paramount". It is a matter of pure technicality. It did not amount to counsel alerting the solicitors to Mrs Mulcahy not understanding the law, and when Mrs Mulcahy asserts that it does, I understand why she does, but she simply misunderstanding it; she has got it wrong.

    12. Next, Mrs Mulcahy would seek to assert that the judge made an error of law extending a lower standard to the defendant, because she was, and is, if I may say so plainly, a highly intelligent woman. That is not capable of being made out here. The judge did not do that; he certainly referred to the fact that the solicitors were dealing with a highly intelligent woman, and indeed it is an obviously relevant factor for any professional acting to deal with the person they are dealing with, rather than with some abstract concept of an individual. But that is all that he meant, and he is plainly right about it.

    13. I do not propose to trawl through the details of the remaining arguments advanced, because I think they are all covered by what I have said, save for one point, which has only emerged clearly today, but which seems to me to warrant limited leave to appeal. Whether it will succeed or not I have no idea, but I think it might, and it is this. Counsel who was instructed to deal with the ancillary relief hearing, and who negotiated the settlement, went into it with instructions which contained, of course, the financial circumstances of both parties. So far as Mrs Mulcahy was concerned, they were set out in her Form E in the usual way. In one respect, Mrs Mulcahy's case is and was before the judge that the Form E was no longer accurate; her own income had fallen very considerably, she asserts. She asserted specifically to the judge that she had told the lady solicitor of that change in her means. She asserted specifically to the judge that that was not passed on to counsel, and she has produced to me this morning some handwritten notes of counsel which, on the face of it at least, are capable of suggesting that counsel worked on the figures from the Form E rather than on the updated information that her income had very substantially fallen. The judge did not deal with this in the principal part of his judgment; he sent out his draft judgment in the usual way to the parties, and he got back, perhaps rather more than he bargained for from Mrs Mulcahy, a very long additional set of submissions. That was not what he asked for, but they were made, and one of the additional submissions that he received from her he dealt with at paragraph 74 of his judgment by way of an addendum, and it was this point precisely. He simply said that:

    "A conference was arranged with counsel [...], and the purpose of the conference was to ensure that he was fully informed. He could make his own enquiries. There is nothing in the material which is available to the ancillary relief hearing suggests that he was in any way misled by the Form E."

    That may or may not be a justified finding, but it warrants investigation because it does not deal with the allegation that although, of course, counsel was perfectly capable of making his own enquiries, there was a clear duty on the solicitor, on the face of it at least, to pass on the information that she had been given that, in one respect at least, it was no longer up-to-date.

    14. That, as it seems to me, warrants argument. I have the gravest doubts whether it could ever succeed in establishing the very large claims for loss which Mrs Mulcahy makes, because frankly, even if this information had been clearly given to counsel, there is a very large question about what difference it would have made to the settlement. But that is capable of argument; nothing else, I am afraid, in Mrs Mulcahy's carefully formulated grounds is.

    15. I propose, therefore, to give leave on that point alone. It is limited to this, and I make it clear because it is not set out in concise terms anywhere in the proposed grounds: the only ground on which I give leave is to challenge the judge's finding at paragraph 74 of his judgment that there was no error on the part of the solicitors in not passing on information about Mrs Mulcahy's full income, or if there was, it had no effect. That is the only point. The hearing should be for a day. Apart from anything else, I am bound to say that I would have thought it is very much in the defendant's interests that Mrs Mulcahy is represented on the hearing of any appeal.

    Order: Appeal allowed in part.

Published: 27/03/2013


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