Mark Nieman v Withers LLP  EWHC 2237 was a professional liability claim by Mr Mark Nieman (“the Claimant”) against Withers LLP (“the Defendant”) arising from a financial settlement agreed by the Claimant and his ex-wife in the course of divorce proceedings. The case, which attracted the interest of the legal and tabloid press, is of interest to lawyers practicing in the fields of family law and professional liability for its consideration of both: (a) the underlying family law principles and their application to professional liability proceedings; and (b) the judicial commentary on the application of the new practice direction on the preparation of witness statements.
Amanda Savage KC of 4 New Square Chambers and Amber Sheridan of 29 Bedford Row Chambers represented the successful Defendant. The judgment of Mr Justice Andrew Baker is considered by Nicholas Broomfield of 4 New Square Chambers.
In 1997 the Claimant purchased 170 acres of farmland and four cottages in Kent (“the Farm”, “Cottages One – Three” and “Windy Corner”) using a loan of £100,000 from his father, a further £100,000 realised from his mother’s estate and a mortgage of £400,000. He met Jeanette in 1998 and in or about 2000 they acquired the main farmhouse associated with the Farm (“the Farmhouse”), which was registered with separate title at HM Land Registry and had no real land or garden. The acquisition of the Farmhouse was funded using the sale proceeds of Jeanette’s flat, a mortgage advance of £150,000 and further funds realised from the estate of the Claimant’s mother.
The Claimant and Jeanette married in June 2000 (after their acquisition of the Farmhouse) and the Farmhouse became their family home. It evolved over time, and by 2015 it had become a very different property: (a) the Claimant had sold his property in London for £800,000 and used the sale proceeds to redeem the Farm Loan and to extend the Farmhouse; (b) approximately 5.25 acres of the Farm had been converted into a large family garden and was treated as part of the Farmhouse (albeit without it being formally incorporated into the Farmhouse title at HM Land Registry) (“the New Garden”); and (c) some land on the edge of the New Garden and part of the Farm (including a cottage known as “Stable Cottage”) had also been incorporated into the Farmhouse.
In common with many married couples, assets owned by the Claimant and Jeanette were combined, or “intermingled” and new assets were purchased for the benefit of their life together. The couple had relatively few liabilities and had accumulated significant assets in addition to the Farmhouse, the Farm, Cottages One – Three and Windy Corner, including: (a) Jeanette’s shares in her successful company (which famously provided a swing for HRH Prince George) (“O&RCL”); (b) a five-bedroom house purchased by Jeanette in September 2016 (“2MB”); (c) their share of a property in Norway purchased jointly with Jeanette’s parents (“the Norway Property”); (d) various private pensions including the Claimant’s substantial pension from UBS (a substantial proportion of which was acquired during the marriage) (“the UBS Pension”); (e) their shares in a property investment company (“CPL”); and (f) the Claimant’s cash reserves of approximately £275,000.
The Claimant and Jeanette ultimately separated. Divorce proceedings were started in late 2015 and a claim for financial relief was issued in February 2017. The Claimant instructed the Defendant and experienced counsel (“Counsel”) to act on his behalf. However, the Claimant did not instruct the Defendant on a “wholesale” basis and instead kept the Defendant “in the background”, seeking piecemeal advice from time to time (often without providing the Defendant with up-to-date, or all relevant, information and correspondence), whilst he attempted to negotiate (and subsequently re-negotiate) a financial settlement directly with Jeanette “around the kitchen table” or with the assistance of a mutual friend acting as intermediary.
The Claimant hoped that any financial settlement would achieve a “clean break” (save for an ongoing obligation to pay school fees). It was therefore always likely that certain specific assets would not be shared. For example: (a) Jeanette was never going to transfer the Claimant any shares O&RC; and (b) it was always intended that the Claimant would receive the entirety of the Farmhouse. The question was how to divide the rest.
When negotiating, and advising upon, the Financial Settlement the Defendant did not have the benefit of final valuations of the parties’ assets and therefore advised on the bases of assumed valuations. Applying the principles established in White v White  UKHL 54 and Miller v Miller  UKHL 24 (of which the Defendant advised the Claimant), the Defendant opined that: (a) the use of the Farmhouse the Farm, Cottages One – Three and Windy Cottage collectively as a single “homestead” by the Claimant and Jeanette during their marriage meant that it would be treated as a “matrimonial” asset in any financial relief proceedings; and (b) the Claimant might achieve a more favourable than equal division of the parties’ total assets, but to no greater than 60/40 in his favour.
Counsel’s advice on the likely division of the parties’ assets was more pessimistic than the view expressed by the Defendant who advised, following a directions hearing on 4 May 2017, that the Claimant was more likely to achieve a 55/45 split of the couple’s assets.
A financial settlement was agreed in or about July 2017 (“the Financial Settlement”). The precise distribution of assets (and the Judge’s assessment of the value of the assets distributed) pursuant to the Financial Settlement is set out in detail in paragraphs 49 – 51 of the judgment, but crucially it included a pension sharing order in favour of Jeanette pursuant to which she was entitled to 46.14% of his UBS Pension (which had a CETV of £850,000).
The Claimant issued professional negligence proceedings against the Defendant. There were numerous allegations of negligence but in essence he alleged that the Defendant had misapplied the relevant case law and legal principles, and failed to properly distinguish between “matrimonial” and “non matrimonial assets” and advise accordingly. He said that (a) if he had been properly advised he would have successfully negotiated, or secured at a contested hearing, an alternative financial settlement pursuant to which Jeanette received the Cottages, the Norway property and (potentially) £100,000 (but no more, and no Pension Sharing Order) (“the Alternative Financial Settlement”); or (b) he lost a real and substantial chance of obtaining the Alternative Financial Settlement.
The Claimant’s claim, both as to the alleged breaches and causation and loss shifted during the trial. In closing, the Claimant sought to (a) argue a new (unpleaded) claim that the couple’s assets should have been divided on a “balance sheet” basis (paragraphs 162 – 178 of the judgment); and (b) advance a new case on causation, namely that the Claimant would (if properly advised) have concluded an agreement reached with Jeanette (from which the Claimant had reneged) in March 2016 (“the March 2016 Agreement”) (paragraph 182 of the judgment).
The Defendant denied the Claimant’s claim in full on the basis that the Claimant had been properly advised on both the relevant law and the application thereof (based upon the information available to the Defendant). Further, the Defendant pursued a counterclaim for unpaid professional fees in the sum of £35,730.39.
The Judge noted that the law applicable to financial relief in divorce cases is found in Part II of the Matrimonial Causes Act 1973 (“MCA 1973”). The guiding principle for the court in considering financial relief is fairness, and when conducting its assessment there should be no discrimination between the parties’ contribution during the marriage: White v White and Miller v Miller. The court achieves fairness by considering all the circumstances of the case with particular regard given to the factors set out at section 25 of the MCA 1973, which include the parties’ needs and resources, and by sharing the parties’ assets. Accordingly, whilst some family practitioners might refer colloquially to “sharing” and “needs” cases, all cases are both “sharing” and “needs” cases.
There is a presumption of equality and that “matrimonial” property (i.e. assets acquired during the marriage or pre-marital property that has been treated as or recognised as marital property during the marriage: K v L  EWCA Civ 550 at ) should be shared equally unless the reasonable needs of one party would not be met. The court’s powers also extend to non-matrimonial assets (i.e. the wealth that each spouse brings with them to the marriage) and depending upon the circumstances of the case and the needs of the parties, the court may decide to share non-matrimonial assets equally, unequally or not at all: White v White at 610; Miller v Miller at ; and K v L. In those cases, the origin of the property or assets carries little weight.
Despite the presumption of equality, the circumstances of any case may justify a departure from equality. Historically, there had been judicial and academic debate over the precise process that should be adopted in cases involving non-matrimonial assets, namely the extent to which the court should approach the identification of non-matrimonial assets with a forensic degree of particularity as opposed to a “broad brush” approach. However, this debate was resolved by the Court of Appeal in Hart v Hart  2 WLR 509 in which it was ruled that a “broad brush” approach (in which a percentage adjustment was made) or a “formulaic” approach (in which the court excluded specific assets or property from the computation) were simply alternative methodologies applied to achieve the same outcome and merely reflected the “degree of particularity or generality appropriate in the case” as assessed by the trial judge.
In paragraph 17 the Judge gave a stern warning against the temptation to elevate factual conclusions reached by the court in any particular case to statements of principle. As set out above, the court retains a necessarily wide discretion when applying the provisions of the MCA 1973 and that discretion is unfettered by the approach adopted by other courts at first instance.
On the facts of Nieman, the Judge found that the Defendant had given reasonable, careful, considered advice on the approach that a family court would take to the financial settlement in contested proceedings, taking into account the length of the marriage and the parties’ treatment of their assets as the joint fund from which they intended to live. The Defendant gave reasonable advice (a) on the applicable law and its application; (b) that (based upon the information provided by the Claimant) the majority of the assets owned by the Claimant and Jeannette would be considered to be matrimonial assets; and (c) on the drafting of the Financial Settlement.
The Judge rejected the Claimant’s case that if properly advised he would either have entered into the Alternative Financial Settlement and his new case that he would have finalised the March 2016 Agreement. He held that the Alternative Financial Settlement and the March 2016 Agreement would not have been made by the Claimant, would have been rejected by Jeanette and would not have been regarded as a fair settlement by the court.
The Judge rejected the Claimant’s new argument that a financial settlement should have been negotiated on a “balance sheet” basis. As the Judge explained in paragraphs 165 and 166, this approach was over simplistic and ignored (a) the material and non-material contributions made over 15 years of marriage, to which a family court would have had regard; and (b) that on the facts of this case the Claimant and Jeanette had largely retired to the countryside to live from their collective assets and wealth.
Finally, the Judge considered the recent decision of Mr Justice Butcher in Devonshires Solicitors LLP v Elbishlawi et al  EWHC 173 (Comm) and granted the Defendant’s counterclaim for its professional fees. The Claimant had only pleaded a bare and unqualified entitlement to an assessment of the Defendant’s fees and he had therefore failed to establish that was some plausible ground for challenging the claim upon assessment.
The judgment in Nieman provides a helpful analysis of the law applicable to financial relief under the MCA 1973 and the manner in which those principles are to be applied in professional liability cases. A lawyer advising on the division of a couple’s assets upon separation needs to consider how the court would apply the principles established in the leading cases of White, Miller and Hart. If the assessment of those principles when applied to the facts of the case (including both the length and nature of the parties’ relationship and the extent and nature of the assets available for distribution) is reasonable, it is insufficient for a claimant to pursue a claim solely on the grounds that a court may, exercising its wide discretion, have made an alternative order.
Nieman is also worthy of note because of the Judge’s comments as to the correct approach to be adopted when preparing a witness statement for trial (see paragraphs 122 – 124 and 127 – 132 of the judgment) The Judge said, at paragraphs 122 and 123:
“122. [The Claimant’s] witness statement was unacceptable. It ran to 108 pages, substantially comprising argument with much commentary upon and quotation from correspondence and other documents. I structured the trial to provide a break between opening statements and [the Claimant’s] evidence to give [counsel for the Claimant] an opportunity to identify, as he then did by highlighting, how much of the statement he sought to adduce as witness evidence. I directed that although, when called, [the Claimant] could be asked in the normal way to identify and verify the statement as a whole, I would accept as his evidence in chief only the highlighted text, save for a lengthy final section (paragraphs 372 to 389, under a heading “Why I allege negligence and loss against Withers”) that [counsel for the Claimant] had highlighted but which comprised either argument or repetition or both. The highlighted text without that excluded section still contained much argumentative or otherwise inappropriate content, but it would not have been proportionate, tempting though it was to do so, to engage in an exercise of scrutiny paragraph by paragraph so as to make further exclusions
- The service of a trial witness statement that, unless otherwise ordered, will stand as a factual witness’s evidence-in-chief, is both an obligation and a privilege. It is an obligation out of fairness to the other party to the litigation and in the interests of the efficient administration of justice to disclose well ahead of trial the evidence by way of witness testimony that a party intends to adduce. It is a privilege because it saves the party from having to conduct an examination-in-chief. The obligation is not properly discharged and the privilege is abused if what is served does not represent the honest testimony that the court would receive from the witness if examined properly if chief without leading questions, except with the agreement of the opposing party or the leave of the court, and subject to the strictly limited scope at common law for refreshing memory (as to which, for a succinct statement of the common law rule, see Phipson on Evidence (20th edn) paragraph 12-09).”
The Judge’s comments on the Claimant’s witness statement (and his worked example in paragraphs 127 – 130) will act as a helpful reminder of the permissible content of, correct approach to preparing, witness statements for trial. As the Judge acknowledged in paragraph 124 of the judgment, CPR PD57A applies to trials in the Business and Property Court only. However, the Judge held that the principles set out in paragraph 2.1 of CPR PD57A were “a truism not limited to the [Business and Property Courts]” and were therefore equally applicable to claims in the Kings’ Bench Division.