Anna Christie v Mary Ward Legal Centre

Hearing dates: 14 th, 15 th 16 th, 17 th 20 th and 21 st January 2025

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HHJ

Issues

This is a professional negligence claim by Claimant-in-person (‘C’) against Mary Ward Law Centre (D1) and Mr Dymond, a barrister (D2) about possession proceedings. It raises questions about: a barrister's duty to plead weak arguments; reliance on counsel by a Law Centre in a Legal Aid context; causation of damage where a defence is argued unsuccessfully by a litigant-in-person after disinstructing the lawyers; limitation and valuation of a lost asset. There have already been two interlocutory appeals – on reliance on counsel in Christie v Mary Ward Legal Centre (No.1) [2023] EWHC 1814 (KB) and on limitation: (No.2) in [2023] EWHC 1994 (KB) (reported [2024] PNLR 2).

The dispute arises from possession proceedings in 2012–13 by Southwark LBC against C as leaseholder of Flat 28, Pallant House, Tabard Street, Southwark, London (‘The Flat’). Southwark claimed forfeiture for non-payment by C of a judgment of £7,815.09 for service-charges plus interests and costs. C claims she was negligently advised by the Defendants to sell her Flat and did on 30 ^th July 2013 after a possession order was made on 28 ^th June 2013, when she claims she actually had good defences to possession, including that Southwark had waived its right to forfeit the lease on various grounds. She says that if she had been advised properly, she never would have sold her Flat. Whilst the parties' expert surveyors agree the actual sale price of £290,000 was its market value in July 2013, C has not found an appropriate alternative property. She claims for the lost value on the basis she would have kept the Flat: her expert Mr Dunsin values it now at £440,000 but the Defendants' expert Mr Harris values it at £425,000. There is also a pending application for permission to appeal on quantum evidence.

This claim was issued on 15 ^th July 2019 (a fortnight short of six years after sale) with self-drafted Particulars which Turner J described in Christie (No.1) at [53(i)]:

“The Particulars of Claim is badly drafted. It contains a hotch-potch of allegations many of which appear to be of dubious relevance. Others are very broadly and vaguely drafted and would benefit substantially from further particularisation. I indicated to the claimant that there is a limit to the extent to which ‘catch-all’ drafting can be deployed as a vehicle through which otherwise unparticularised allegations may later be introduced. Obviously, any application to amend must be judged upon its merits and it would be premature for me to comment on the prospects of success.”

A list of issues was endorsed by HHJ Roberts at PTR on 13/12/24 (which I re-order):

(a) D2 Negligence: was D2 negligent in not advising C:

i. C eligible for loan from Southwark in Service Charge Regs?

ii. C entitled to ESA rent contribution from Southwark?

iii. C could transfer claim for Judicial Review?

iv. C had defence that Southwark's Notice of Forfeiture invalid?

v. C had defence that Southwark had waived right to forfeit as it: (1) accepted her £20 weekly payments from Jan 2012; or (2) discontinued a previous forfeiture claim (‘Waiver Argument’)

(b) D1 Negligence:

i. Did D1 reasonably rely on D2's advice?

ii. If not, did D1 negligently fail to advise C to defend Forfeiture Claim on following bases: (i) a loan from Southwark under SCR; (ii) rent contribution under EASR or (iii) Judicial Review?

(c) Causation

i. If C so advised, would she have defended on those bases and run those arguments for relief from forfeiture?

ii. If so, are her counterfactual prospects of success to be assessed on balance of probabilities or loss of a chance?

iii. If balance of probability, has C proved she would have kept Flat

iv. If loss of chance, was there a real and substantial chance of her defending the forfeiture claim and/or obtaining relief?

(d) Limitation:

i. Did C's cause of action against D1 accrue prior to 15/07/13?

ii. Did C's cause of action against D2 accrue prior to 15/07/13?

(e) Damage and Loss

i. Did C suffer any loss by sale of Flat at market value?

ii. Is C entitled to damages by reference to increase of value in Flat from 2013 to 2024? If so, what?

iii. Is C entitled to other miscellaneous costs?:

iv. Permission to Appeal Master Armstrong on Quantum Evidence.

(f) Apportionment of any damages as between Ds.

Prior to trial, in May-June 2024, C disclosed some invoices from Southwark which are highly relevant to this case. The first is dated 1 ^st April 2011 and covers the service charge for April 2011 to March 2012 of £1,014.57, but also levies ground rent at the annual rate in the lease of £10 (‘the 2011 Rent Invoice’). The second is dated 8 ^th March 2012 and covers the service charge for April 2012 to March 2013 of £1,190.79 and again levies ground rent of £10 (the ‘2012 Rent Invoice’). The third is dated 12 ^th February 2013 and similarly levies a service charge for 2013–2014 of £1,173.12 and £10 ground rent (the ‘2013 Rent Invoice’). (Fourthly, there is also a ‘major works’ invoice for £2,465.13 dated 12/02/13 but that is less critical). The relevance of the three Rent Invoices (especially the 2012 one) is that – as I shall explain below – they arguably gave C a defence to Southwark's forfeiture claim on the basis it had waived the right to forfeit by charging rent (as opposed to service charges) after C's breach of covenant for which it sought forfeiture. That breach was C's failure to pay the service charges of £7,815.09 once confirmed by the Leasehold Valuation Tribunal (‘LVT’) in April 2011 ( after the 2011 Rent Invoice: which is why the 2012 and 2013 Rent Invoices are more important) — as ordered with interest and costs by the County Court in January 2012. Moreover, C paid Southwark £3,000 on 22 ^nd April 2013, but that appears to have been attributed to the existing debt on the service charges, rather than being allocated to rent.

This argument is not on list of issues approved by HHJ Roberts at Pre-Trial Review, but Mr Petts (who is lead Counsel for D1 assisted by Mr Lipson and Mr Erridge) and Mr Maxwell (Counsel for Mr Dymond) concede that C pleaded this point in part. Paragraph 15 of C's Particulars of Claim allege the Defendants were negligent in their: “Failure of D1/D2 to determine and advise the Landlord waived its right to forfeit in accordance with the Lease… it served demands for ground rent / service charges ….continuously from 24/04/2005”. That paragraph went on to a separate point about the validity of notice of forfeiture (which is on the List of Issues at (a)(iv)). However, C pleaded that the Defendants ‘failed to determine and advise’ about waiver due to the Invoices, not that they failed to investigate those invoices. However, I permitted that point to be added as a late but minor amendment which did not unfairly prejudice Ds, particularly as they said the argument lacked merit (although I considered it had realistic as opposed to fanciful prospects of success). So, I add the following issues: were the Defendants negligent in failing to investigate or determine and advise whether waiver of right to forfeit on grounds of levying ground rent in the 2011–2013 Rent Invoices?

Procedural History

I can set out the procedural history with this helpful table in the Skeleton of Mr Petts:

Evidence