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Family Law

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29 FEB 2008

BANKRUPTCY/ANCILLARY RELIEF/NEGLIGENCE: Burke v Chapman and Chubb [2008] EWHC 341 (QB)

(Queens Bench Division; Plender J; 29 February 2008)

A bankruptcy order made against the husband shortly before the ancillary relief hearing prevented the making of a property adjustment order in the wifes favour. The husband died shortly afterwards. The wife claimed damages from her ancillary relief solicitors, on the basis that they had negligently failed to protect her from the effect of the husbands bankruptcy.

A competent solicitor should have foreseen a risk that the insolvency of the husband might adversely affect the wifes claim to ancillary relief and the solicitors in this case ought to have warned the wife of that risk and advised her. However, advice as to the risk would not have prevented the loss, unless there had been some specific action the wife could have taken. The wife was very far from showing that if she had been advised as to the consequence on her claim of the husbands bankruptcy she would have achieved a settlement of that claim; on the evidence, the prospects of a negotiated settlement were no more than fanciful. Only an earlier hearing of the case in the county court, culminating in an immediate or early property adjustment order would have secured the wifes interests before the intervention of the bankruptcy petition; there had been no appreciable chance of the solicitors achieving that by any efforts that they could reasonably have been expected to undertake.

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