Practice and Procedure


PUBLISHED January 2, 2004

Claims against two law firms, alleging negligent representation in connection with a deed of cohabitation made between two parties in a master/slave sexual relationship, had no prospect of success.The defendant law firms, ('M') and ('G') respectively, applied for summary judgment under CPR Part 24 or for the action of the claimant ('S') against them to be struck out under CPR 3.4. S had entered into a master/slave relationship with a Swedish national ('Y') who was originally a client of S's when he worked as a male prostitute. In 1997 S and Y jointly instructed M in connection with the drafting of a deed of cohabitation designed, according to the deed, to "create legally binding arrangements as to financial and other matters" for the duration of S and Y's cohabitation and in the event of termination of the arrangement. Both S and Y accepted liability for repayment of a bridging loan for an apartment bought in S's name. S and Y had intended to cohabit in the apartment, but Y never went to live with S and the relationship broke down. S instructed G in relation to negotiations with Y's solicitors. A separation deed was concluded by which S agreed to transfer the apartment to Y but was entitled to continue living there up to a certain date. S was also released from all liability in connection with the bridging loan and was to retain the benefit of all gifts made to him in the course of the relationship. It was agreed that the cohabitation deed was void. S claimed that M was in breach of duty by failing to advise that he could only act for S, by negligently drafting the cohabitation deed and by failing to ensure that Y provided certification of the fact that he had obtained independent legal advice before entering into the cohabitation deed. In relation to G, S alleged that it had failed to advise him properly as to the claims of the bank providing the bridging loan and had failed to explore or exploit in negotiations the argument that he had beneficial ownership of the apartment. M and G submitted that the cohabitation deed was unenforceable because there was no intention to create legal relations and/or if there was a contract it was illegal on the ground of public policy or was liable to be set aside for duress, undue influence, unconscionability and/or misrepresentation.HELD: There was nothing contrary to public policy in a cohabitation agreement governing the property relationship between adults who intended to cohabit or were cohabiting for the purposes of enjoying a sexual relationship. However, it was difficult to suppose that the instant cohabitation deed could ever have withstood an attack on one or more of the grounds of lack of intention to create legal relations, undue influence or misrepresentation. Both M and G were therefore correct in the advice they had tendered to S about the probable unenforceability of the cohabitation deed. S had no prospect of success against M or G because neither was negligent in any material respect. In so far as the cohabitation deed was inappropriately drafted, it was not rendered unenforceable for lack of certainty. The case against M was hopeless and there was no "other compelling reason" within the meaning of CPR Part 24 for allowing the trial to proceed. The case against G was equally as hopeless as that against M.Judgment accordingly.

[2003] EWHC 3166 (Ch)