Sandra Blower v GH Canfield LLP

This is an appeal from an order made by His Honour Judge Paul Matthews on 14 November 2024 dismissing the Appellant Mrs Sandra Blower’s claim in professional negligence against the Respondent firm of solicitors, GH Canfield LLP (“Canfields”). Mrs Blower brought the claim and brings the appeal in her own right and as assignee of her daughter, Kelly Blower’s rights, pursuant to a deed of assignment dated 31 January 2021. The judge dismissed the claim on the basis that Canfields had not been negligent and that even if he was wrong about that, causation and loss had not been adequately pleaded and, even on the basis set out in the closing submissions, there was no coherent claim for loss.

Permission to appeal was granted by Zacaroli LJ on 6 February 2025 on two grounds. The first was whether the judge erred in failing to consider or apply the law and applicable regulatory standard on conflicts of interest in the context of Canfields’ alleged negligence, or at all. The second was that the judge erred in finding that even if Canfields had been negligent, the claimant (Mrs Blower) had failed to plead a coherent case in relation to causation and loss; and even if there were some deficiencies, in relation to causation, the Court should have considered the issue because it was just to do so.

I take the background facts from the judgment below, the neutral citation of which is [2024] EWHC 2763 (Ch). Reference should be made to that judgment for the full details.

The claim in professional negligence is said to arises from a settlement reached at a mediation conducted on 9 December 2015. A settlement agreement was drawn up and signed on the same date. The mediation took place because Mrs Blower’s husband, John Blower, had been adjudged bankrupt on 22 May 2014 and the trustee in bankruptcy, Mr Paul Allen, commenced proceedings against Mr Blower and members of the Blower family and intimated other claims against them.

In particular:

In addition, on 30 January 2015, Mr Allen had applied for an order suspending Mr Blower’s automatic discharge from bankruptcy until certain conditions had been complied with including answering certain questions put by Mr Allen as trustee in bankruptcy.

Mr Blower retained Canfields to resist the bankruptcy petition and was accompanied to meetings by Mr Robert Whitehouse, a solicitor employed by Canfields. By late November or early December 2014, Canfields were also instructed on behalf of: Mrs Blower in relation to all matters relating to the trustee in bankruptcy which affected her; and Kelly Blower in relation to her alleged beneficial ownership of 201 Park Gate. Canfields were retained by the Turnbulls in March 2015 in relation to the payments which had been made to them.

In August 2015, Mr Crystal, a barrister, was instructed to represent the interests of the Blower family, at Mr Blower’s request. A conference with counsel took place on 28 October 2015, attended by Mr Blower, Mr Whitehouse and briefly by Kelly. The judge accepted Mr Whitehouse’s evidence that at the conference, Mr Crystal advised that a global settlement of all matters relating to the Blower family should be agreed. (Judgment at [79].)

As a result a mediation was arranged. At the same time that the trustee in bankruptcy agreed to the mediation, his solicitors stated that they had been instructed to issue the threatened claims against Mrs Blower and a draft form of the application was attached. The mediation took place on 9 December 2015. As at that date, the trustee in bankruptcy considered that the debts and expenses of Mr Blower’s bankrupt estate amounted to £4,810,566.

The mediation was attended by Mr Blower and Mr Whitehouse, Mr Allen and the trustee in bankruptcy’s solicitor. Mrs Blower, Kelly and Natalie were invited to attend if they wished to do so. Ultimately, none of them attended, although Kelly made herself available on the telephone. Mr Blower confirmed that he could speak for the members of his family and that he had authority to settle the litigation on the best terms available. Mr Whitehouse confirmed that he was authorised to sign any agreement on their behalf.

Once the terms of an agreement were formulated, Mr Blower tried, unsuccessfully, to reach Kelly on the telephone in order to discuss it and was successful in speaking to Nathan Turnbull. The judge records that Nathan told Mr Blower that he should do whatever was best for the Blower family ([86] of the judgment).

As I have already mentioned, the settlement agreement was dated 9 December 2015. It was signed by Mr Allen as trustee in bankruptcy, (without personal liability), by Mr Blower in his capacity as the bankrupt and by Mr Whitehouse “for and on behalf of each and all of the Respondents”. The “Respondents” were defined as Mrs Blower, Kelly, and the Turnbulls.

By clause 1A, subject to the terms of the settlement agreement, the trustee accepted £1.5 million in full and final settlement of all claims known or unknown whether previously notified or not, including costs arising on the bankruptcy whether as against the Bankrupt, (Mr Blower), the Respondents or any other third party. By clause 1B the trustee in bankruptcy released the Respondents (Mrs Blower, Kelly and the Turnbulls) and the Bankrupt (Mr Blower) and any third parties “to the fullest extent possible from any liability in respect of any such claims.” Clause 2 provided that the sum of £1.5 million was to be paid to the trustee in bankruptcy in cleared funds by 4pm on 30 September 2016. There was a provision for interest if the sum was not paid by that date and clause 2 also provided that the Bankrupt (Mr Blower) and the Respondents (Mrs Blower, Kelly and the Turnbulls) would be jointly and severally liable in respect of the sum, albeit that Kelly’s liability was limited to £150,000.

Mr Blower also agreed to use his best endeavours to procure the granting of charges over the property at 201 Park Gate, and three properties owned by the Turnbulls and the trustee in bankruptcy agreed not to oppose Mr Blower’s application for discharge from bankruptcy subject to certain conditions.

The judge summarised the effect of the settlement agreement at [89] of his judgment as follows:

“The effect of the settlement was to release the Blower family from the existing and any further claims, including any claim for the trustee’s costs (said to amount to £750,000 to date), to enable them to keep all their Spanish assets, to unfreeze flat 201 [the property at 201 Park Gate] which could now be relet, to enable the discharge of Mr Blower from bankruptcy, and to give Mr Blower nine months in which to raise £1.5 million to settle with the trustee, though it did involve security in the meantime being given to the trustee over flat 201 [the property at 201 Park Gate] and three properties belonging to Natalie and Nathan [the Turnbulls].”

On 15 December 2015, Mr Blower contacted Mr Whitehouse to explain that he no longer wished to be bound by the settlement agreement because the Turnbulls considered that the charge imposed on the properties registered in their names would affect their income. On 17 December 2015, Nathan Turnbull emailed Mr Whitehouse to complain about the terms of the agreement. He stated that only £900,000 had actually been received by the Turnbulls from Mr Blower, because £600,000 from the TorFX account represented the Turnbulls’ own borrowing converted into euros. Their properties were being used, nevertheless, as security for the £1.5 million debt. Kelly Blower also emailed Mr Whitehouse that day to ask what the effect of the settlement agreement would be on her.

In January 2016, Mr Whitehouse confirmed to Kelly that the effect of the settlement agreement in relation to her was that if she agreed to a charge of £150,000 over 201 Park Gate she would not be liable for the £1.5 million debt. At around that time, Nathan Turnbull confirmed that he intended to adhere to the terms of the settlement agreement rather than be involved in further litigation and that he would speak to Mr Blower about dropping the opposition to the settlement agreement.

On 15 January 2016, Mr Whitehouse emailed the trustee in bankruptcy’s solicitors to inform them that Canfields were no longer instructed by Kelly or the Turnbulls. On 3 February 2016, the trustee in bankruptcy applied for charging orders over the properties owned by the Turnbulls and over 201 Park Gate.

The sum of £1.5 million was not paid to the trustee in bankruptcy on 30 September 2016. As a result: Mrs Blower says that she was forced to sell a villa in Spain in order to raise money to go towards paying the £1.5 million; the Turnbulls’ property was also sold and £842,115 was paid to the trustee in bankruptcy; and Kelly had to raise finance in order to pay the £150,000 charged upon 201 Park Gate.

These proceedings were commenced by a claim form issued on 12 November 2021. The claim is made in relation to losses allegedly suffered by Mrs Blower and Kelly which are alleged to have been caused by the negligence of Canfields in relation to the settlement agreement. At paragraph 38 of the Amended Particulars of Claim it is stated that in breach of the implied terms of Canfield’s retainers and its concomitant duty of care in tort, Canfields: failed to exercise the care and skill to be expected of reasonably competent solicitors in the performance of its duties pursuant to the respective retainers; failed to carry out both Mrs Blower’s and Kelly’s instructions with reasonable diligence; and failed to act in the best interests of Mrs Blower, Kelly and the Turnbulls.

In summary, the particulars of the breaches of contract and duty alleged included the following:

At paragraph 48 of the Amended Particulars of Claim it is pleaded that had Canfields properly advised her, Mrs Blower would not have agreed to the settlement agreement and “would not have agreed to settle the TiB’s [trustee in bankruptcy’s] claim for the sum to which she was committed by the Defendant [Canfields] or in any sum at all.”

At paragraph 51 it is alleged that by reason of Canfields’ breaches of contractual and tortious duties, Mrs Blower has suffered loss and damage for which Canfields are liable. It was stated that a fully particularised schedule of loss would be provided but that the best particulars of loss at the time were £4,890,089. That sum was broken down under five heads of loss in an amended schedule as at 19 January 2023. The first head was that as a result of the £2 million trust fund or the trust which allegedly arose at the sale of The Chantry (the Blowers’ former matrimonial home), Mrs Blower had a complete defence to the trustee in bankruptcy’s claims. This was stated to be £1,342,109 plus interest and costs of £51,270 being £1,393,379 in total. The second head allegedly arose as a result of the obligation upon the Turnbulls to raise £1.5 million to pay the trustee in bankruptcy. It is said that as a result, Mrs Blower, Kelly and Natalie Turnbull were obliged to raise monies on the security of their respective properties and that Mrs Blower had to sell her villa in Marbella by way of a forced sale and was obliged to take a loan from a moneylender. These losses allegedly came to £1,812,291 in total. The third head allegedly arose as a result of advice taken to determine whether the settlement agreement could be set aside and amounted to £1,800. The fourth head is expressed as the difference between the sale of the villa in Marbella on a forced sale basis for 1.4 million Euros and its alleged true value of 2.6 million Euros. The fifth and last head is in respect of rent for accommodation since leaving the villa in Spain in September 2018 being 2,200 Euros x 36 months. The total of the losses claimed on behalf of Kelly are £165,353.

The judgment includes numerous detailed findings of fact with which we are not directly concerned. It is necessary, however, to set out the way in which the judge approached the various claims made by Mrs Blower and Kelly and his findings in relation to the way in which the proceedings were approached by the Blowers.

First, it is important to note that at [84] of the judgment, the judge found that: the Blower family trusted Mr Blower to negotiate the best terms possible to settle the claims against them; he pointed out that Mrs Blower’s own evidence was that she trusted her husband to look after her interests; and that Nathan Turnbull had told Mr Blower on the telephone when asked about the potential settlement agreement that he must do whatever was best for the family. The judge went on: “[I]f any of them had wished to impose limits or “red lines” on what could be agreed, they could have done so. But they did not. I also find that his clients impliedly authorised Mr Whitehouse as their solicitor to sign on their behalf any deal which Mr Blower was satisfied was in their interests.”

At [85] the judge stated that, eventually, the trustee in bankruptcy agreed not to pursue any of the family’s assets in Spain and to allow Mr Blower to obtain an immediate discharge from bankruptcy. He recorded that Mr Whitehouse considered these concessions to be important. The first was important because the family were all now resident in Spain, Mr Whitehouse suspected that there were further assets there and at the time which was pre-Brexit, an order of the English courts could be enforced in Spain with relative ease. The second was important to Mr Blower because it would enable him to re-engage openly with his business activities within a short time.

At [86] the judge repeated that when Mr Blower telephoned Nathan Turnbull to discuss the proposed settlement agreement at 11pm on the night of the mediation, Mr Turnbull had told him that he should do whatever was best for the Blower family. Mr Blower had earlier made clear to Mr Whitehouse that he (Mr Blower) had Mrs Blower’s authority to settle the litigation on the best terms available.

Having set out the relevant law, the judge turned to the application of the law to the facts. He made a number of preliminary points which are relevant to us. The first is at [107] at which the judge pointed out that there was limited, and in some cases, no documentary evidence to support the family’s defences to the trustee in bankruptcy’s claims. The defences would depend upon oral evidence being accepted at trial. In relation to Mrs Blower’s alleged trust fund, Mr Blower had told Mr Whitehouse that he had dissipated the entire funds, that Mr Whitehouse knew that Mr Blower would make a poor witness at trial and that Mrs Blower had made clear that she would not appear as a witness on Mr Blower’s behalf. At [109] the judge accepted that Mr Blower could have given relevant evidence and could have been cross-examined extensively and that there was no sufficient explanation for his absence from the trial. He concluded that he could properly and should draw an adverse inference from his failure to tender himself for cross-examination which strengthened Canfields’ case.

The judge considered the merits of Mrs Blower and Kelly’s various claims and defences at [110] – [120]. At [110], the judge analysed Kelly’s claim to the beneficial interest of 201 Park Gate. He stated that it was not necessary for him to find that Kelly’s claim would have failed although “( . . . in closing the claimant [Mrs Blower] seems to have accepted that it would, and on the material before me I agree)”. He concluded that it was sufficient to say “that it would have been very difficult for her to succeed, and that it was therefore sensible to settle the claim for the best terms available.”

The judge addressed the issue of the beneficial ownership of the proceeds of the sale of The Chantry at [111]. He noted that Mr and Mrs Blower each had an equal interest in the proceeds of sale and that he had found that Mrs Blower had, at least impliedly, consented to the distribution of the bulk of the proceeds of sale to Mr Blower to enable him to deal with it as he thought appropriate. He also noted that arguments as to whether Mr Blower had obtained the entire beneficial interest would be exploited by the trustee in bankruptcy.

At [112] he addressed the trust deed of 2009 which related to two deposit accounts and, without deciding the point, recorded numerous doubts about the validity of the trust. He went on at [113] to observe that if Mr Blower was settling his own money on Mrs Blower, that would have been a transaction at an undervalue within the relevant window. He also found that “at least £500,000 of the £2 million “trust fund” must have been a gift by Mr Blower”. He observed that “these weaknesses (amongst others) would undoubtedly have been exploited by the trustee in any litigation.”

In relation to those two bank deposits which were allegedly the subject of the trust deed, the judge stated that the evidence before him tended to establish that the money had all been spent by Mr Blower as he instructed rather than on the instruction of Mrs Blower and that that was accepted in cross examination by Mrs Blower [114]. He went on:

“ . . . If that is indeed so, then, even if the trust were genuine and created on the date that it bears, it would not avail the claimant, because Mr Blower as trustee for the claimant would have employed the trust funds in breach of trust in dealing with third parties, who on the face of the material before me would have been purchasers of the legal interest in good faith for value without notice, and thus would take free from the trust. The claimant’s claim, if any, would lie against her husband. Once again, the trustee in bankruptcy would have been able to exploit these points in any trial of his claims. The disposal of the “trust fund” also disposes of the allegation of potential conflict of interest between the claimant and her husband.”

The judge went on at [116] to address the submission made in closing that the trust was capable of restoration. He dealt with the matter in this way:

“. . . The mere fact that a defaulting trustee, who has caused loss to the trust fund by paying it away irrecoverably to a third party, happens at that time to have other beneficial assets with which that loss could be compensated, does not without more mean that a constructive trust is imposed on those other assets for the benefit of the beneficiaries of that trust fund. If the claimant had sued her husband to judgment for breach of trust, the court could have ordered a reconstitution of the trust fund by the trustee, using his own assets then available, but that is very different. The remedy would be personal and not proprietary.”

At [118] the judge addressed Mrs Blower’s assertion that she was entitled to the repayment of an alleged loan of £900,000 made to the Turnbulls out of her “trust fund”, in the following way:

“. . . I have already explained how the first payment (of £500,000) was made, not to Natalie and Nathan, but to the bank, to reduce their borrowing. That money simply disappeared, consumed in the reduction of the debt. The bank was plainly a purchaser for value without notice. As to the second payment (of £400,000), this was executed by the bank itself using its security powers, and went to pay down the debt further. Again, the money was simply consumed. There is no contemporary evidence that there was a loan by Mr and Mrs Blower, and the trustee was thus able to make his claim. I do not need to decide whether it would have succeeded.”

In relation to the claim by the trustee against Mrs Blower in relation to Mr Blower’s half share in the Spanish bank account and his half share in the proceeds of sale of the property at Camino de Angel and three payments made from Mr Blower’s TorFX account in January and March 2012 which amounted to £107,263.86, the judge noted that Mrs Blower accepted that over £500,000 (relating the bank account and the proceeds of sale of the property) was due and would have had to have been paid over.

Lastly, at [120], the judge rejected Mrs Blower’s claim to set off the claims of the trustee in bankruptcy against claims which she could make against her husband in relation to his alleged breaches of trust. He held that they did not represent mutuality of dealing for the purposes of section 323 Insolvency Act 1986 and that there was nothing in the claim for set off.

Having noted at [121] that counsel had advised that the trustee’s claims against the family should be settled, the judge concluded also at [121] that: “bearing in mind the apparent weaknesses of the family’s defences to the claims, the lack of documentary support and the risks inherent in allowing Mr Blower to give evidence, the reasonably competent and diligent solicitor would also have advised settlement rather than trial of these claims.” He went on as follows:

“122.

The question therefore is whether the defendant’s advice concerning the settlement and its terms was negligent. Those terms were in fact negotiated by Mr Blower himself, together with Mr Whitehouse. As I have said, the members of the family trusted Mr Blower to negotiate the best terms possible. Mr Blower was a businessman, used to negotiating business deals involving large sums of money. The family faced claims with an apparent money value of more than £2 million, together with a potential costs liability already said to be £750,000. He settled these potential liabilities for an agreed sum of £1.5 million, to be paid within about nine months. He was confident that he could borrow that sum in that time. Mr Whitehouse was careful to advise Mr Blower not to enter this agreement if he had any doubt about his ability to raise the finance. Because the settlement sum need not be paid for some months the trustee required security in the meantime. But once the settlement sum was paid, the need for security would disappear.

123.

Mr Blower telephoned Jonathan Crystal of counsel and informed him of the proposed agreement. Mr Whitehouse read out the proposed terms of the settlement to Mr Crystal. He raised no objection to them, and said it would save trouble and expense for the family. Mr Whitehouse reasonably took that as confirmation of his own view and advice. Mr Blower telephoned his son-in-law Nathan, who at that stage did not object to the terms of the settlement. He also attempted to telephone his daughter Kelly, who had said she would be available by telephone, although without success. The defendant accepts (as do I) that Mr Whitehouse did not directly advise his clients to accept the terms of the settlement, but only indirectly, through Mr Blower as their agent. Certainly, he must impliedly have been of that view, or else he would not have signed on behalf of his clients. In taking that view, he was obviously taking into account both the approval of Mr Blower and the non-objection of both counsel and Nathan.

124.

In my judgment his advice in this respect was not negligent. The reasonably competent litigation solicitor would have advised settlement on terms similar to those actually achieved. He was also not negligent in taking Mr Blower’s instructions as those of his clients. He had asked his clients to tell him of any “red lines”, and they had told him of none. They did not attend the mediation, and had left the negotiations to Mr Blower and Mr Whitehouse. The family were content to trust Mr Blower, as indeed Nathan confirmed in his telephone conversation with Mr Blower.”

None of the findings of fact which these paragraphs contain is challenged on appeal.

The judge went on to address the issue of causation at [125] – [134] of his judgment. He set out paragraph 48 of the Amended Particulars of Claim which is referred to at [22] above, at [125]. As much turns upon it, it is helpful to set it out in full:

“48.

Had the Defendant properly so advised the Claimant, she would not have agreed to the settlement comprised in the Settlement Deed (as indeed she did not) and/or would not have agreed to settle the TiB’s claim for the sum to which she was committed by the Defendant or in any sum at all.”

The judge set out what he saw as the inadequacies of the pleading at [126]:

“This pleads an initial step following proper advice, namely, that the claimant would not have agreed to the terms of the settlement. But the pleading of that first step does not show that the claimant would have ended up in a better position than under the settlement. It leaves open the question as to what would have happened next. This is not a case where the claimant has pleaded loss of a chance. Indeed, in her closing (at [113]), she confirmed that that was what the claim was not. So, would the claimant have settled the trustee’s claims on more favourable terms (and if so, what)? Or would she have defended the trustee’s claims at trial (and if so, with what result)? Since these points have not been pleaded, they cannot have been relied upon at trial, and the defendant has not defended them. As things stand on the pleadings, there is no coherent case on causation of loss.”

Notwithstanding this, the judge went on to set out a lengthy extract from the closing submissions on behalf of Mrs Blower at [127] in which a new case on causation was set out. He noted that, save for the first half of one paragraph, the matters set out had not been pleaded. He went on to refer to a passage from Levicom International Holdings BC v Linklaters [2010] EWCA Civ 494 at [284] upon which the Mrs Blower’s counsel had placed reliance. He stated, however, that:

“The claimant relies on this to submit that, once the court finds that advice was given, then the evidential burden shifts to the defendant to show that the advice was not causative of the loss. But, in the Levicom case, the claimant pleaded that, had it not been for the negligence of the defendant, the claimant would have settled at an earlier stage and on better terms. In other words, there was a complete case on causation. That is not this case. The amended particulars of claim set out the allegations of what would not have happened, but not of what would. Shifting the evidential burden does not assist a party who has not set out what needs to be proved (or disproved).”

(No reliance has been placed upon the Levicom case before us.)

The judge went on to conclude at [130] that the only thing which was pleaded was that Mrs Blower would not have agreed to the settlement. However, even if the reversal of the evidential burden meant that Canfields had to disprove that on the evidence before him, he was satisfied that neither Mrs Blower nor Kelly would have defied Mr Blower and refused to agree to the terms that he had negotiated.

Lastly, the judge addressed the matters that had been raised in the closing submissions, albeit not pleaded, in the light of the evidence and made further observations. First, he stated at [131] that he did not agree that it was “surpassingly unlikely” that the trustee in bankruptcy would have spent money on litigation. He held that there was no basis for supposing that that was so. Secondly, at [132] he disagreed with the submission that “it was likely that the trustee in bankruptcy would have done a deal for a lesser sum”. He stated that although it was possible that the trustee would have reduced his claim further, he did not accept that it was more likely than not that he would have done so. Thirdly, the judge stated that if the submission was that the trustee in bankruptcy would have taken 201 Park Gate or its value and abandoned everything else, he did not accept it. He pointed out that “[T]he trustee’s claims were significantly over £2 million in value, whereas flat 201 [201 Park Gate] was worth about £130,000. The claimant [Mrs Blower] by then had admitted over £500,000 worth of claims against her.”

The judge concluded at [134] that “even if the defendant had been negligent in the advice given to the claimant [Mrs Blower] and to Kelly about settling the claims made against them by the trustee in bankruptcy, on the pleaded case any such negligence would not have caused any loss.”

As I have already mentioned, permission was granted in relation to two grounds of appeal only. They are that the judge erred: (i) by failing to consider or apply the law and applicable regulatory standards on conflicts of interest in the context of Canfields’ alleged negligence or at all; and (ii) in finding that, where Canfields were negligent, Mrs Blower had not pleaded a coherent case on causation of loss and as a result, correctly apply the legal principles in relation to causation; and even if there were some deficiencies in Mrs Blower’s case on causation, in accordance with established legal principles, the Court should have considered the issue of causation because it was just to do so.

By a Respondent’s Notice, Canfields contend that the judge’s decision that there was no conflict of interest should be upheld for a number of additional reasons. In summary, they are that: (i) Mrs Blower was content to leave all affairs to Mr Blower and to make him her agent despite being aware of her potential personal claims against him for the alleged dispersal of her trust fund. No conflict arose, therefore, or was of no consequence because Mrs Blower had already indicated that she was content with how matters were being managed, as shown by her appointment of Mr Blower as her agent. Mrs and Mrs Blower had the same interest which was to pay as little as possible to the trustee in bankruptcy and to protect their assets in Spain; (ii) Mrs Blower alleged that she had loaned £900,000 to the Turnbulls. As a result, the claim against her interests was in excess of £1.5 million, since if the trustee in bankruptcy had been able to recover £900,000 from the Turnbulls, they would have been unable to pay it to Mrs Blower. Accordingly, there was no conflict of interest in advising a global settlement at £1.5 million which protected other assets and did not include costs and allowed time for Mr Blower to raise the funds to prevent Mrs Blower from having to liquidate assets; (iii) the case on conflict of interest was contingent on the argument that Mrs Blower was entitled to set off against the trustee in bankruptcy’s claims or had a proprietary interest which would extinguish his claims; (iv) any personal claims which Mrs Blower might have had against Mr Blower were insufficient to create a conflict of interest because these claims would rank after all other debts owed by Mr Blower by virtue of section 329 Insolvency Act 1986 and as a result, she would never have received a dividend and therefore, there could be no conflict of interest; and (v) in the absence of a set off, any sum due from Mrs Blower would, on her own case, have required her to liquidate assets. The settlement gave time for funds to be found and did not create a conflict of interest.

In her written submissions, Ms Pope-Williams, who appeared before us together with Mr Goldblatt, on behalf of Mrs Blower (neither of whom appeared at the trial), pointed out that as a matter of general common law where a solicitor accepts actual or potentially inconsistent engagements, this could constitute a breach of duty in tort, a breach of contract and/or a breach of fiduciary duty: Jackson & Powell on Professional Liability 9th Ed at 11-021. She also noted that solicitors acting for two parties to a transaction with actual or potential conflicting interests have frequently been condemned by the courts. She says that it was not appropriate, therefore, for Mr Blower, Mrs Blower, Kelly and the Turnbulls to be represented by the same solicitor unless each of them had given their clear, express and unequivocal consent and waiver after the conflict had been explained to them.

Conflicts of interest is addressed in the Solicitors’ Regulatory Authority Code of Conduct at Chapter 3. The version of the Code of Conduct which was current at the time stated that the proper handling of conflicts of interest is “a critical public protection”. In relation to a conflict between two or more clients, defined as “client conflict” it provided that:

“[I]f there is a conflict, or a significant risk of conflict, between two or more current clients a solicitor must not act for all or both of them unless the matter falls within the limited exceptions set out at Outcomes 3.6 and 3.7. In deciding whether to act in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risk.”

The relevant “Outcomes” are as follows:

“. . .

Systems

O(3.1)

you have effective systems and controls in place to enable you to identify and assess potential conflicts of interest

…

O(3.5)

you do not act if there is a client conflict, or a significant risk of a client conflict unless the circumstances set out in Outcomes 3.6 or 3.7 apply:

O(3.6)

where there is a client conflict and the clients have a substantially common interest in respect of a matter or a particular aspect of it, you only act if:

(a)

you have explained the relevant issues and risks to the clients and you have a reasonable belief that the clients understand those issues and risks;

(b)

all the clients have given informed consent in writing to you acting;

(c)

you are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests; and

(d)

you are satisfied that the benefits to the clients of you doing so outweigh the risks to the clients.

O(3.7)

where there is a client conflict and clients are competing for the same objective, you only act if:

(a)

you have explained the relevant issues and risks to the clients and you have a reasonable belief that they understand those issues and risks;

(b)

the clients have confirmed in writing that they want you to act, in the knowledge that you act, or may act, for one or more others clients who are competing for the same objective;

(c)

there is no other client conflict in relation to that matter;

(d)

unless the clients specifically agree, no individual acts for, or is responsible for the supervision of work done for more than one of the clients in that matter; and

(e)

you are satisfied that it is reasonable for you to act for all the clients and that the benefits to the clients of you doing so outweigh the risks.”

The phrase “substantially common interest” used on O(3.6) is defined as “a situation where there is a clear common purpose between the clients and a strong consensus on how it is be achieved”.

Ms Pope-Williams submits that on the balance of probabilities there was a clear conflict between the interests of Mr Blower and the other members of his family and that O(3.6) applied. That conflict was not explained by Mr Whitehouse to Mrs Blower, Kelly or the Turnbulls and there was no evidence that Mr Whitehouse took any of the steps referred to in Solicitors’ Regulatory Authority Code of Conduct.

She says that the conflict was clear at the time of the retainers but that the settlement agreement itself also gave rise to a conflict of interest between Mr and Mrs Blower irrespective of any right of set off in relation to the alleged £2 million trust fund. Mrs Blower was being held liable for £1.5 million when the trustee in bankruptcy’s claim against her amount to only £667,112.96 odd and Kelly was liable for £150,000 when the maximum claim against her, on Mrs Blower’s case was £65,000. Mr Blower’s interest was to avoid liability for £4,819,566 and be discharged from bankruptcy.

Canfields did not obtain either Mrs Blower’s or Kelly’s informed consent to act, nor did they provide disinterested advice about the merits of the trustee in bankruptcy’s claims against each of them. This failure, it is said, cannot be absolved by a legal analysis which results in the conclusion that the alleged £2 million trust fund no longer existed and Mrs Blower had no real prospect of recovery as against Mr Blower.

Mr Seitler KC, who appeared with Mr Lucan-Wilson on behalf of Canfields, on the other hand, submitted that, as one might expect, the judge dealt with the conflicts point in the way in which it had been pleaded. That was solely in relation to Mrs Blower’s alleged trust fund; other than that, an alleged conflict of interest was not pleaded. At [114], he held that the monies in the two deposit accounts had been dissipated at Mr Blower’s instruction and that even if the trust were genuine and had been created on the date it bears, it would not have assisted Mrs Blower because the monies had been dealt with in breach of trust and on the evidence before him, it appeared that the recipients were purchasers of the legal interest in good faith for value without notice. Mrs Blower’s claim would lie against her husband (a bankrupt). The judge concluded that that analysis disposed of the allegation of potential conflict of interest between Mrs Blower and her husband. Mr Seitler added that the dividend for unsecured creditors was small and it is wrong to say that the increase in a deficiency in a bankruptcy is to the detriment of the bankrupt.

The judge also held at [120] that there was nothing in Mrs Blower’s claim to set off the claims of the trustee in bankruptcy against claims which she could make against her husband in respect of his alleged breaches of trust pursuant to section 323 Insolvency Act 1986. Ms Pope-Williams accepts that that is correct.

Mr Seitler also submits that the judge did not deal directly with the conflicts issue in relation to Kelly because paragraph 38A of the amended particulars of claim contains merely a bald assertion that a potential conflict arose but did not descend to any details. In any event, he submitted that there was no conflict between Mr Blower and Kelly in relation to 201 Park Gate. The trustee in bankruptcy’s claim was against Mr and Mrs Blower in respect of Mr Blower’s beneficial interest in the property and it was Kelly who successfully applied to be joined in those proceedings in order to seek a declaration that the beneficial interest was hers.

He also says that the conflicts point is now put in five new ways which were not pleaded by Ms Pope-Williams’ predecessor. They are: (i) that the liability under the settlement agreement was greater than the maximum of the liabilities of Mrs Blower and Kelly; (ii) that there was always a conflict of interest because Mr Blower wanted to achieve his discharge from bankruptcy and his family wanted to pay as little as possible; (iii) at the time of the mediation and settlement agreement it was considered that Mrs Blower and Kelly had good claims against Mr Blower and that the trustee in bankruptcy’s claims against them were significantly lower than those he had against Mr Blower personally; (iv) that the judge did not consider the impact and/or relevance of conflict of interest represented by Mr Blower’s status as a bankrupt vis-à-vis his immediate family and Mrs Blower, in particular, where that status caused financial and emotional turmoil and potentially gave rise to in personam claims by Mrs Blower against her husband; and lastly, (v) that Mr Whitehouse conceded in cross examination that the SRA Code of Conduct in relation to conflicts applied in the circumstances.

In relation to the first new way of putting the conflicts issue, Mr Seitler points out that it was pleaded, albeit not as a conflict and was not put to Mr Whitehouse in cross examination in that way. Mr Seitler entered into a detailed analysis of the merits of the claims against Mrs Blower and their value. In short, he says that once one takes account of the £900,000 purported lent by Mrs Blower to the Turnbulls, the claims were in the order of around £1.3 million and not just a sum in excess of £666,000 which Mrs Blower accepted in cross examination. He also points out that by a letter of 4 November 2025, the trustee in bankruptcy had intimated various further claims against Mrs Blower totalling in excess of £1 million. In addition, he pointed to [107] of the judgment at which the judge had set out claims totalling £2.2 million odd plus costs and had noted that: there was limited and in some cases, no documentary support for the family’s defences to the claims; Mr Blower had admitted that he had dissipated the entirety of the trust fund; Mr Blower would have made a poor witness at trial and Mrs Blower had stated that she would not appear as a witness on Mr Blower’s behalf.

In relation to Kelly, he submits that it cannot be said that the liability under the settlement agreement was greater than her maximum liability. If her claim to the beneficial interest in 201 Park Gate failed, it would be lost altogether and half of the beneficial interest would fall into Mr Blower’s bankrupt estate. The settlement agreement enabled her to retain or obtain the beneficial interest in 201 Park Gate and in the circumstances which arose, gave her the opportunity to raise funds to pay off the charge of £150,000. It also avoided any requirement to account for half of the rents received in relation to 201 Park Gate and to address issues in relation to tax liabilities in relation to those rents.

Mr Seitler submits, therefore, that all these matters were “bought off” by the settlement agreement and that by virtue of a joint settlement the pain was shared by the family. Mrs Blower ended up paying only £535,000 odd, less than the amount which she had acknowledged was due.

Mr Seitler says that the second new way of putting the conflicts issue is brand new. It was not put to Mr Whitehouse in cross examination and was not raised at all at the trial. He says that Mrs Blower should not be allowed to rely upon it now because the trial would have been conducted differently if the matter had been raised earlier, different evidence would have been called and the judge would have made further findings of fact. He says, for example, that Mr Whitehouse would have given detailed evidence about the knowledge he had in relation to the claims at the relevant time or times. Mr Seitler relies in this regard upon Rhine Shipping DMCC v Vitol SA (the Dijilah) [2024] EWCA Civ 580 per Poppelwell LJ at [23] – [31].

In relation to the third new way of putting the conflict, Mr Seitler submits that the point is misconceived. There were no claims against Mr Blower at all. All of the claims were against members of the family.

In relation to the fourth new way of putting the conflict issue, Mr Seitler submits that the bankruptcy and the claims by the trustee did not bring the trust claim (upon which Mrs Blower relied in relation to conflict) to a head. The judge found at [58] of his judgment that Mrs Blower already knew that the whole of the alleged trust fund had already been spent by Mr Blower.

In relation to the fifth and final new way of putting the conflict of interest issue, which arose only in oral submissions before us, Mr Seitler says that the transcript of the cross examination must be read as a whole. Although Mr Whitehouse accepted that the regulations applied as a “formal proposition” he was not conceding that there was a conflict of interest. He went on to say that he did not miss the conflicts point “because my understanding, the reality, the situation was there was no conflict among the family members. They acted together. They wished to have a global settlement to get rid of the litigation.”

It is quite clear that the judge did not consider the many facets of the conflicts of interest point as they have been presented to us. He was not asked to do so. He approached the question of potential conflict between Mr and Mrs Blower through the lens of the merits of her “trust fund” claim and the merits of Mrs Blower’s other claims and defences. That was how it had been pleaded at paragraph 38A of the amended particulars of claim. In the absence of a detailed pleading, he dealt with the issue in relation to Kelly in the round. His approach, therefore, was to determine whether there was a conflict of interest in the sense of meritorious claims or defences upon which Mrs Blower and Kelly could have relied.

Since the trial, this issue has taken on a much greater significance and as I have already mentioned, it has been put in a variety of ways some of which are entirely new. In particular, whilst the fact of the Code of Conduct was put to Mr Whitehouse, he was not cross examined about the systems and controls in place at his firm which would have enabled him to identify and assess potential conflicts of interest as is required by Outcome O(3.1) and which, on the case now put, would have identified a clear conflict of interest. Once such a conflict, if present, had been identified, Mr Whitehouse would, before he could properly have acted, have satisfied O(3.6) by complying with the ‘appropriate safeguards’ set out in that Outcome.

I agree with Mr Seitler in relation to the first additional way in which the issue is put. It seems to me that it is not necessary to conduct a detailed analysis of the values of the various claims. As Mr Seitler pointed out, there were further claims estimated at around £1million which had been intimated against Mrs Blower and it was necessary for Kelly to prove her beneficial interest in 201 Park Gate and to navigate the difficulties in relation to the rent and the tax due. Furthermore, the judge noted the weakness in the Blowers’ position at [107] of his judgment which is not appealed. There was little or no documentary support for the claims and defences, Mr Blower would make a poor witness and Mrs Blower would not appear as a witness on his behalf. Accordingly, if conflicts of interest are to be approached on the basis of the merits of potential claims and defences, I consider that Ms Pope-Williams’ approach was too simplistic. There were many factors in play. This was not a purely arithmetic exercise based only on the claims which had been made. There were claims and intimated claims against Mrs Blower and Kelly and the other factors to which I have referred, which, overall, outweighed the basis on which all claims were settled. I will return to consider whether this is the correct approach below.

I also agree that the second way of putting the conflicts matter is not open to Mrs Blower at this stage. It was not raised by Ms Pope-Williams’ predecessor at trial in this way and was not put to Mr Whitehouse in cross examination. As Mr Seitler says, had the point been raised, Mr Whitehouse would have dealt with additional matters in his witness statement and the judge would have made further findings of fact. In the circumstances, therefore, it seems to me that the concerns explained in the RhineShipping case arise and Mrs Blower should not be allowed to rely on this way of putting the conflicts issue on appeal.

I also agree that the third way of putting the conflict issue is misconceived. As Mr Seitler submitted, there were no claims against Mr Blower (although there was an application for an order for sale of 201 Park Gate in order to realise what appeared to be Mr Blower’s beneficial interest in that property). The claims were against members of the family. In addition, I agree that the fifth way of putting the matter must fail. If the transcript is read as a whole, it is clear that Mr Whitehouse was not conceding that he had failed to approach the conflict issue appropriately. He accepted the terms of the Solicitors’ Regulatory Authority Code of Conduct but denied that there was a conflict on the facts of this case because the family were as one and wanted a global settlement.

That leaves the fourth way in which the matter is now put. It too was not before the judge, at least in the way in which it is now formulated. It seems to me, however, to be a broader way of expressing the trust claim point which was pleaded and which the judge addressed. Furthermore, as Mr Seitler pointed out, the trust fund claim was not new. The judge found at [58] of his judgment that Mrs Blower already knew that the whole of the alleged trust fund had already been spent by Mr Blower.

In my judgment, therefore, the judge dealt with the issue of conflicts of interest in the way in which it had been pleaded and presented to him and came to a conclusion in relation to the merits of the trust claim and Kelly’s position in relation to 201 Park Gate which he was entitled to reach. He cannot be criticised for doing so. The further ways in which the conflicts issue has been put were not before the judge. Furthermore, they are either not available to Mrs Blower and Kelly at this late stage or they take the matter no further.

I should add that I have found this ground of appeal somewhat curious. Even if the conflicts of interest point had been pleaded and presented differently and the judge had found that there was a conflict of interest , there is no appeal as to the judge’s findings in relation the trustee in bankruptcy’s various claims against Mrs Blower and Kelly and, in particular, there is no challenge to the judge’s analysis of Mrs Blower’s trust claim and the lack of effect which it would have had as against Mr Blower’s bankrupt estate. Nor is there any challenge to the judge’s findings that: the family trusted Mr Blower to negotiate the best deal for them [judgment at [84]]; neither Mrs Blower nor Kelly would have defied Mr Blower and refused to agree to the terms he had negotiated [judgment at [130]]; and that a reasonably competent litigation solicitor would have advised settlement on terms similar to those actually achieved [judgment at [124]]. It seems to me therefore, that the judge’s unchallenged findings of fact result in a situation in which even if there is a conflict of interest, it would not have caused loss. It would have made no difference.

Ms Pope-Williams did suggest that the judge might have found differently had he taken a broader view of conflict rather than confining it to the question of whether Mrs Blower did have a valid claim in relation to the alleged trust. All that is said, in fact, is that had Mrs Blower and Kelly been separately advised, they would not have entered into the settlement agreement which is contrary to the judge’s findings, having had the benefit of hearing the evidence. In effect, it is suggested that had the claim been pleaded and presented differently, there may have been a different outcome. As Lewison LJ stated in different circumstances, in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114], the trial is not a dress-rehearsal. It is the final and last night of the show.

On the facts of this case, the way in which it was pleaded and in the light of the findings of fact, therefore, this appeal cannot succeed.

I should add, however, that it is not clear to me that alleged conflicts of interest should be approached in the way it was. A solicitor is required to have effective systems and controls in place to enable them to identify and assess potential conflicts of interests. Where there is client conflict between two or more clients, they should not act for all or both, unless the matter falls within the limited exceptions in Outcome (3.6) or (3.7). Mr Whitehouse does not appear to have approached the issue of conflict through the lens of the Code of Conduct, but rather proceeded on the basis that so far as he was concerned, the family were united and there was, therefore, no conflict.

It seems to me that even where clients profess to want a “global settlement”, as it appears was the case here, the terms of O(3.6) at chapter 3 of the Solicitors’ Regulatory Authority Code of Conduct apply where client conflict has arisen. The fact that they may have a “substantially common interest”, (a clear common purpose and a strong consensus on how it is to be achieved) as defined in chapter 3, does not preclude a conflict from arising in the first place. If there is a conflict and the clients have a substantially common interest in relation to a matter, the steps in O(3.6) come in to play.

As Ms Pope-Williams submitted, the obligation to consider whether there is a conflict of interest naturally arises first at the time of, or even before, the formal retainer is agreed and is thereafter is a continuing obligation. It is not enough to wait for a determination of the merits of the claims and defences. The position must be kept under review throughout. Having said that, when initially considering whether a significant risk of conflict arises, it is neither necessary nor appropriate for a solicitor to conduct a detailed analysis of the claim. At that stage, the instructions given to the solicitor by the client against the background of the surrounding circumstances and context, will often be enough for the solicitor to make a judgment call as to whether there is a conflict or a significant risk of a conflict. Once matters have progressed and there are counter claims and defences which are more than fanciful, it may be that, a significant risk of conflict becomes apparent and is identified and acted upon by the legal advisers.

As I have already explained, however, in this case, the conflicts issue was pleaded narrowly and dealt with on that basis and the judge’s unchallenged findings of fact in relation to the family dynamics result in a situation in which even if there was a conflict of interest, it would have made no difference.

This brings one to the second ground of appeal for which permission was granted which is concerned with causation and loss. In view of my conclusion that the first ground of appeal must fail, this ground does not arise directly, but for completeness I set out my conclusions.

It is said that had Canfields not been negligent, Mrs Blower would not have signed the settlement agreement or would not have settled the claims brought against her by the trustee in bankruptcy for the sums set out in the settlement agreement. There is no express pleading, however, as to what would have happened next. Ms Pope-Williams accepted that CPR rule 16.4(1)(a) provides that particulars of claim must include “a concise statement of the facts on which the claimant relies”. She submitted, however, that it was implicit in the pleading at paragraph 48 of the amended particulars of claim, that it would be necessary to deal with what the trustee in bankruptcy would have done had Mrs Blower been separately advised and as a result had not signed the settlement agreement.

It seems to me that that cannot be implied. I agree with the judge that the pleading of causation and loss was insufficient. The amended particulars of claim set out the allegations about what would not have happened but do not state what it is alleged would have happened had the alleged negligence not occurred. It is not pleaded, for example, that the claims would have been settled for a particular sum or that they would have been successfully defended at trial and that Mrs Blower would also have suffered the legal costs which were irrecoverable in doing so. To put it another way, the positive counter-factual is missing. CPR 16.4(1)(a) was not complied with. It is not possible to make up that deficiency by implication, especially where there is no indication of what it is alleged would have happened. It is a mere matter of speculation.

In her written submissions, Ms Pope-Williams submitted that the judge should not have accepted this pleading point which was raised at the beginning of the trial and it should have been dealt with at an earlier stage in the proceedings with costs consequences for the amending party. She did not press this point before us. It is unnecessary, therefore, to consider this in any detail save to say that I do not consider that the judge can be criticised for the way in which he approached this issue. It was up to Mrs Blower and her representatives to decide whether the pleading was sufficient and, if not, whether to make an application to amend. They did not do so. The point about causation had been raised in opening on behalf of Canfields. Although it would have been preferable if Mrs Blower’s advisers had sought to amend their pleadings long before the case came on for trial, they did not do so, nor did they seek to do so when the point was made at the beginning of the trial. That course was not adopted and Canfields cannot be blamed for it.

Ms Pope-Williams did submit, however, that the question of causation and loss should have been determined outside the pleadings because it was just to do so: Charles Russell Speechlys LLP v Beneficial House(Birmingham) Regeneration LLP [2021] EWHC 358 (QB). That was a case in which the issue on appeal was whether the judge had been correct to find that an implied retainer existed for work done during a certain period. Neither the claim form nor the amended reply contained an express reference to an implied contract or a claim in quantum meruit but it was mentioned in submissions. The defendant objected and the judge went on to hear the evidence without having made a ruling on the matter and ultimately, decided that the defendant was bound by an implied contract. Cotter J held that the pleading failed to comply with CPR PD16 para 7.5 and that the defendant was taken by surprise by the argument and was unprepared for the alternative case which simply should not have happened ([51]). Cotter J went on to consider the options available to a judge when faced with an inadequate pleading. The relevant passage, is as follows:

“61.

When faced with an inadequate pleading, the available options are ordinarily as follows:

i)

If the other party takes no point, the court may proceed to consider the case beyond or outside the pleaded case. As Lord Phillips observed in Loveridge and Loveridge v Healey [2004] EWCA Civ173 at [23]:

“Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point.”

ii)

If an application to amend is made, it must be determined on its merits;

iii)

If a point is taken that the pleading does not cover the case to be advanced, and no application to amend is made, the court should consider what the issues are in the case are and specifically whether the issue said not to be covered is one that falls for determination. This is necessary so that the parties know where they stand. To do so, it is first necessary to determine whether and to what extent the departure may cause prejudice. As Lord Phillips further observed in Loveridge:

“Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded.”

62.

As Richards LJ observed in UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370, a judge may in appropriate circumstances allow a party to depart from its pleaded case where it is just to do so, although it is always good practice to amend pleadings, even at trial. However, I accept Mr Barclay’s submission, set out above, that the prejudice threshold is a low one and a party need only show that a departure from the pleaded case “might” cause prejudice before an application to amend is required. If that threshold is met, it would ordinarily not be just to allow a party to depart from the pleaded case advanced up to trial. Context is important. A party who has prepared for trial not anticipating that a particular point will arise may not have the ability at the outset of the trial to fully assess the implications of a point, whether evidential or in terms of applicable law, without time, something that an adequately pleaded case would have afforded him. What Mummery LJ referred to as the orderly progress of the case in Boake Allen has been disrupted and to require more than the potential for prejudice would be unfair.

63.

The court should also bear in mind that a litigant in person may be at a greater disadvantage than a represented party in this regard. In the present case it is not surprising that Mr Stockler sought to reserve his position until he had chance to assess the factual and legal basis of the new case to be advanced.”

In the circumstances, of this case, I cannot see how this argument can succeed. There is no need to analyse the dicta in the Charles Russell Speechlys case in any detail in order to come to this conclusion. The issue of causation was addressed in what the judge described as an expanded form in closing. He set out the relevant parts of that closing at [127] of his judgment and went on to address the points which were raised but had not been pleaded at [130] – [133]. He did not accept those submissions. In the circumstances, it seems to me that it is not possible now to criticise the judge for failing to consider the issue outwith the pleadings. He did so. Nor is it possible to seek to criticise him for failing to consider wider submissions which were not made.

Ms Pope-Williams submitted that the judge failed to address the additional issues in the right way. She says that it would have been different if he had approached those matters through the lens of a conflict of interest between Mrs Blower and Kelly on the one hand and Mr Blower on the other.

I am unable to accept this argument. It seems to me that the judge addressed the matters which were put before him despite the fact that they had not been pleaded and rejected them. He dealt with the further matters raised in the written closing on behalf of Mrs Blower. He cannot have been expected to formulate other submissions and determine issues which were not made or raised. The conflict of interest issue had been pleaded and formulated before him on the basis of Mrs Blower’s alleged trust fund alone and he had dealt with it on that basis.

In any event, the additional submissions which the judge recorded at [127] of his judgment proceeded on the premise that “proper conflict advice had been given”. He addressed the additional matters on that basis and his findings at [131] – [133] of his judgment are not challenged on appeal.

First, the judge addressed paragraph 94 of the closing submissions on behalf of Mrs Blower. The paragraph was as follows:

“C’s case is that once proper conflict advice had been given, Mr Blower would either have been separately represented or a position would have been agreed on the basis outlined above. The former would have made any deal impossible because, whatever Mr Blower said, C, [Kelly] Natalie and Mrs Blower would have prevented any such agreement. The latter would have either led to a settlement that acknowledged the factual reality. Or to no settlement being reached. Given the facts of the case, it is surpassingly unlikely that the TiB would have ventured his money on litigation: he was insured against the Blowers’ costs, but would have had to account for his own. Commercially, the case was defensible on the merits and would have been costly to run.”

At [131] of his judgment, he stated that he did not agree that it was “surpassingly unlikely” that the trustee in bankruptcy would have spent money on the litigation. He pointed out that the trustee had already issued two claims and had paid for another to be drafted, even before a mediation was proposed and that he was insured against an adverse costs order. He also pointed out that some of the claims, including an unissued one were strong enough that Mrs Blower had been prepared to accept them. He concluded that “. . . frankly, there is no basis for supposing that the trustee in bankruptcy would have refused to spend money on the litigation.” That finding is not challenged on appeal.

At [132] of his judgment, he addressed the submission, at paragraph 118 of the closing submissions, that the trustee in bankruptcy would have done a deal for a lesser sum than was agreed in the settlement agreement. He referred to the fact that over a 12 hour mediation, the trustee had reduced his claim by at least one third and more if one included potential costs liability. He stated that although it was possible that the trustee would have reduced his claim further, on the material before him, he did not accept that it was more likely than not. Once again this finding is not challenged on appeal.

At [133] of his judgment, the judge addressed paragraph 134 of the closing submissions which was in the following form:

“It is submitted that, C being properly represented at Mediation, TiB would nonetheless have continued to assert that Mr Blower had a half share in 201 Parkgate, and his claim would defeat Kelly’s position, such that the TiB would be entitled to £65,000 together with the costs of those proceedings from Mr and Mrs Blower (initially); and latterly, from Kelly. In the circumstances, there was a deal to be done with the TiB that involved the sale of 201 Parkgate (even if Mr and Mrs Blower needed to account back to Kelly for the loss of this property). This was achievable without putting significant assets at risk, and without putting any of the Blowers’ homes at risk. On the balance of probabilities, this was where the deal lay.”

The judge stated that paragraph 134 was not clear. Nevertheless, he rejected the suggestion that the trustee in bankruptcy would have taken 201 Park Gate or its value and abandoned everything else, his claims being significantly over £2 million in value whereas the flat was worth about £130,000 and Mrs Blower had admitted claims worth over £500,000 against her. It seems to me that in this respect, the judge may have missed the point which was being made. In any event, this conclusion is not challenged on appeal.

Furthermore, and fundamentally, as I have already mentioned, having heard the evidence, the judge found at [130] that neither Mrs Blower nor Kelly would have defied Mr Blower and refused to agree to the terms of the settlement agreement which he had negotiated. This is a finding of fact which is not appealed.

Ms Pope-Williams also submitted that there was sufficient evidence to have determined the causation issue on a loss of a chance basis and that we should remit the matter so that it can be dealt with on that basis and Canfields can have an opportunity to address the matter. She took us to Perry v Raleys Solicitors [2020] AC 352 in this regard. It was concerned with professional negligence proceedings in which it was claimed that by reason of Raleys’ negligent failure to give him appropriate advice, the claimant had lost the opportunity to claim a service award. In response, Raleys denied any breach of duty and separately denied that any breach (if proved) would have caused the claimant loss. They also alleged that the claim was statute barred. Breach of duty was admitted shortly before the trial and the judge rejected the limitation defence on its merits. After a two day trial, the judge decided that the claimant had failed to prove that the admitted negligence had caused him any loss.

Lord Briggs JSC with whom the other members of the Supreme Court agreed, addressed the law in relation to the assessment of causation and loss in cases of professional negligence at [15] – [40]. At [20] he stated, as follows:

“20.

For present purposes the courts have developed a clear and common-sense dividing line between those matters which the client must prove, and those which may better be assessed upon the basis of the evaluation of a lost chance. To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities. To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation.”

I cannot see that there is any basis for suggesting that the judge should have proceeded on the basis that this was a loss of chance case. That was not pleaded. Furthermore, the possibility that this was a loss of a chance case was expressly disavowed in unequivocal terms by counsel on behalf of Mrs Blower and Kelly in closing. In those circumstances, even if the judge had been in a position to approach the matter on that basis (which I doubt) it would not have been appropriate for him to do so. That was not the way in which the case was put and it seems to me that the evidence might well have been different if it had been. It is too late to seek to do so now or to seek to argue that the judge was wrong in not doing something which he was not asked to do.

This is made crystal clear by a passage in the judgment of Dyson LJ, as he then was, and with whom, Brooke and Tuckey LJJ agreed, in Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041. That was a case in which the claimant had been injured in the course of her employment. The particulars of negligence contained an express statement that it was a Mr Braich who had failed to secure the wrapping paper which had fallen on the claimant. The judge, however, raised the issue of whether the wrapping paper had been put in place by someone else. This was referred to as the “third man theory”. Counsel for the claimant seems to have adopted the theory in her closing although it had not been pleaded. Dyson LJ stated as follows at [21]:

“In my view the judge was not entitled to find for the claimant on the basis of the third man theory. It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.”

It seems to me that that is what the judge did here. Counsel who appeared for Mrs Blower at trial expressly disavowed any suggestion that loss of a chance was relevant. The judge had no alternative but to respect that decision. His function was solely to adjudicate upon the issues before him which he did. It appears that Ms Pope-Williams would like the matter to be remitted so that it can be re-heard on an entirely different premise from the one which was pleaded and dealt with by the judge. That cannot be correct.

For all of the reasons set out above, I would dismiss the appeal.

I agree with my lady, Lady Justice Asplin, that this appeal should be dismissed.

I would wish to pay tribute to Ms Pope-Williams’ submissions on behalf of the appellant, and the thoughtful way in which she acknowledged, and endeavoured to deal with, the difficulties that she faced, particularly in relation to causation. But, no matter how attractively those submissions were presented, what Ms Pope-Williams really had to do was to focus first on an issue that had never been front and centre in the presentation of the appellant’s case before the judge (the conflict of interest point); and then rewrite the whole case on causation by ignoring i) the absence of a proper pleading of counterfactuals, ii) the appellant’s express disavowal of a loss of a chance case at the trial, and iii) the factual findings of the judge which she would seem to need to overturn, but which were not covered by the limited grant of permission to appeal. This was all in the hope that this court would remit the case, so that there could be a second trial (at least on causation and loss) at which Ms Pope-Williams could advance her entirely new case built round the alleged loss of a chance. In my view, for the reasons given by Lady Justice Asplin, such a course would be entirely unjustified.

I agree that the appeal should be dismissed for the reasons given by my lady, Lady Justice Asplin and my lord, Lord Justice Coulson.