The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to settlements made under court approval and once there has been any intervention of the court.
Butler-Sloss LJ said: ‘Although it is possible for the parties, after the dissolution of their marriage to agree a settlement without recourse to the courts it is a widespread practice to embody the agreement in a court order with the advantages of court enforcement of the provisions of the order if not complied with.’
Judges:
Butler-Sloss LJ, Pill LJ, Judge J
Citations:
Times 20-Aug-1997, Gazette 28-Aug-1997, [1997] EWCA Civ 2081, [1998] 1 FLR 996, [1998] 3 WLR 246
Jurisdiction:
England and Wales
Citing:
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Thwaite v Thwaite CA 1981
The failure of one party to complete a conveyance as part of the ancillary relief order rendered the order executory, and therefore subject to the court’s jurisdiction to amend it. The court discussed the principle in de Lasala and saying that the . .
Cited – Peacock v Peacock FD 1991
The court considered its ability to vary a consent order, made in 1982 on the divorce, which provided for the sale of the matrimonial home ten years later in 1992 and for the equal division of the proceeds of sale. Periodical payments were to be . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Harris v Manahan CA 1997
Application to vary ancillary relief order made by consent. Promptitude is required. Ward LJ considered substantial restraint on a judge hearing appeals against his own decisions. . .
Cited – Watson v M’Ewan 1905
. .
Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
Cited by:
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Family
Updated: 09 November 2022; Ref: scu.82703