David George Bond and Others v Livingstone & Company (A Firm)
| Jurisdiction | England & Wales |
| Judgment Date | 27 March 2001 |
| Judgment citation (vLex) | [2001] EWHC J0327-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No. HQ 9902140 |
| Date | 27 March 2001 |
[2001] EWHC J0327-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Christopher Bellamy QC
(Sitting as a Deputy High Court Judge)
Claim No. HQ 9902140
Mr Neil Hext, instructed by Messrs Kennedys, London, appeared on behalf of the Claimaints
Aisha Bijlani, instructed by James Chapman & Co, Manchester, appeared on behalf of the Defendents
This is an appeal against the order of Master Ungley dated 1 December 2000 whereby the Master gave summary judgment under CPR Part 24 in favour of the claimants against the defendants with damages to be assessed. The first claimant is Mr David Bond, the second claimants are Mr Bond's insurers under a legal expenses insurance policy, and the third claimants, whose trading name is 'CareAssist', are the claims handling agents of the second claimants. The defendants are a firm of solicitors in Manchester whom the claimants sue for negligence and/or breach of contract.
The claim against the defendants is based essentially on their alleged negligence in (a) failing to appreciate the limitation period applicable under section 11 of the Limitation Act 1980 to a claim for damages, including damages for personal injury, which Mr Bond had against a clinic in Manchester in respect of a treatment for baldness which went disastrously wrong; and (b) failing, in consequence, to commence proceedings within the limitation period against certain potential defendants, namely two credit card companies whose cards Mr Bond had used to pay for the treatment in question and who, it is said, were jointly and severally liable to him by virtue of section 75 of the Consumer Credit Act 1974.
Despite the wide ranging nature of the defendants submissions, I take the view (a) that the material facts are sufficiently before the court, in accordance with the test set out by May LJ in S v Gloucestershire County Council [2000] 3 All ER 347, at 373d; and (b) the legal issues thereby arising are relatively straightforward. In those circumstances it seems to me right that those issues should if possible be resolved now, so as to achieve expedition and save expense in accordance with the guidance given by Lord Woolf MR in Kent v Griffiths [2000] 2 WLR 1158, 1169E.
Having examined these issues, I have concluded that there is nothing wrong with Master Ungley's judgment of 1 December 2000, and will dismiss the appeal for the reasons given below.
The facts
The following facts are not seriously disputed.
In about July 1990, the first claimant, Mr Bond, visited the HTC Clinic in Manchester, apparently as a result of seeing advertisements, to enquire about a treatment offered by this clinic for male pattern baldness. The treatment offered was known as 'Interplant' treatment and involved implanting individual hair fibres into the scalp to give the appearance of natural growth.
On 31 July 1990, at the HTC Clinic, Mr Bond signed a contract with a company called Mitchell Research Limited ("MRL") consenting to this treatment and agreeing to pay the sum of £6,390. The HTC Clinic was in fact owned and operated by a company called NS Hair Treatment Clinics Limited ("NSHTCL"). Mr Bond's case is that MRL acted as agent for NSHTCL who in fact supplied the treatment in question.
It appears that Mr Bond paid for his treatment by credit card. On his Barclaycard he paid £2,165.10 on 15 August 1990 and £2,760 on 10 September 1990, totalling £4,925.10 (see the defence of Barclays Bank in action no MA 607195). It seems that he also paid £1,500 on his Midland Bank Access card on 22 August 1990 (see document H 122). Those sums total £6,425.10.
Mr Bond's first implant session was on or about 22 August 1990. This, he says, was painful and resulted in bleeding to his scalp.
Mr Bond's course of treatment finished in early 1991. At that stage some 5,000 fibres had been implanted in his scalp. However, according to Mr Bond, he began to lose these fibres at an alarming rate. He complained to the clinic about this. Mr Bond's various letters to NSHTCL are not available but by letters of 8 January 1991, 25 January 1991 and 30 January 1991, NSHTCL replied to Mr Bond to the effect that the matter was being investigated. According to an affidavit sworn by Mr Bond in earlier proceedings and dated 25 February 1998, the clinic then agreed to replace 500 fibres free of charge. Thereafter, Mr Bond unfortunately developed a scalp infection and sores on his head which he found painful and embarrassing. According to him, the 500 replacement fibres were eventually implanted when his head had recovered sufficiently.
However, according to Mr Bond, by December 1991 he had lost between 70% and 80% of the fibres implanted. Following further complaints by Mr Bond about this, by a letter of 11 December 1991 NSHTCL accepted that Mr Bond had "experienced much higher fibre loss than average" and agreed to replace 1,000 fibres without charge, although "we are not admitting or accepting responsibility". A further letter from NSHTCL of 10 January 1992 indicates that a Mr Lubetzky, who apparently had responsibility for Mr Bond's treatment, would discuss the problem with Mr Bond on his next visit "so as to establish a level of replacement needed that meets with your approval". In his affidavit of 25 February 1998 Mr Bond states that the clinic later agreed to replace 1,400 fibres.
However, Mr Bond complained again about his treatment in November 1992, and by letters of 21 December 1992, 25 January 1993, 14 February 1993 and 22 February 1993 the chief executive of NSHTCL replied to the effect that the matter was again being investigated and requested samples for 'batch cross checking' which Mr Bond supplied. On 26 February 1993 in a letter headed 'without prejudice' the chief executive of NSHTCL asserted that they could find nothing wrong but that, without accepting liability or admitting responsibility, NSHTCL were prepared to replace 3,000 fibres without charge. By now, says Mr Bond, in his affidavit of 25 February 1998, he had completely lost faith in the treatment as it was apparent that it had failed completely.
Mr Bond apparently then requested a refund, but that request was refused by NSHTCL by letters of 15 April 1993 and 6 May 1993. Mr Bond also states, in his affidavit of 25 February 1998, that by now he had found it necessary to buy a hair piece in order to cover up his scalp, which had become very unsightly, covered in sores, marks and scars. The broken ends of fibres could be seen as black dots leaving the broken skin open to infection.
Mr Bond consulted the defendant firm of solicitors on 21 June 1993 when he saw a Mr A Davidson. Mr Davidson's attendance note of that date includes the following:
"Mr Bond had attended at the HTC Hair Treatment Clinic in Manchester and had paid some £6,390 for 5,000 fibres of hair.
Since that time he had lost significant amounts of the fibres and has been in contact with the Clinic on many occasions and has been offered a further 3,400 fibres in an attempt to replace the ones which have fallen out, but they continue to do so and [he] is not satisfied.
He has followed the instructions of the Clinic in using a special brown coloured shampoo to wash his hair. However, he developed sores on his head quite quickly and he was given cream by the Clinic to clear up the sores. He also had to have an injection to stop this infection and also the rejection of the fibres.
He has spent a significant amount of money on shampoos, tablets and injections etc and obviously time spent trying to obtain recalls from the Company.
He also showed me an article from the Manchester Evening News in which Mr Alan Turner had treatment at the Clinic and given a full refund because his treatment had failed. I told him that I would write to the Company on his behalf and ask for a full refund plus further compensation.
Fuller details from this sequence of events can be seen from my hand written notes and correspondence from Mr Bond to the Clinic."
On 28 June 1993 Mr Davidson wrote to Mr Bond in these terms:
"In our opinion, the fact that the treatment given to you has patently failed and that you have not breached any other terms of the contract signed with the Clinic would suggest that your claim for damages would most likely succeed.
We also refer to the information provided to us by you that another party whose treatment similarly failed was given a full refund by the Clinic.
We have written an initial letter to the Clinic asking for their proposals to fully compensate you for the failure of the treatment together with other expenses you have incurred, but if this approach does not meet with any success, we would propose to commence proceedings against the Clinic for damages.
We trust that our approach is appropriate to your requirements and wishes."
A letter was written to NSHTCL by the defendants on 8 July 1993 which sets out the facts and continues:
"We therefore feel that Mr Bond is entitled to a full refund of the payment he has made to you, as quite clearly the treatment has failed.
Further, because of the extensive loss of fibres, Mr Bond has been forced to purchase a hair piece in order to cover bald patches on his head, the cost of which was £1,000.
In addition, Mr Bond informs us that very soon after the treatment, he developed sores on his head and was given cream by your clinic in order to clear up the infection. This obviously caused him distress and inconvenience and we would be looking to you to compensate Mr Bond for this also.
Mr Bond has also paid out approximately £100 to yourselves for the shampoo recommended for the fibres. He has also incurred approximately £30 in bus fares travelling to and...
To continue reading
Request your trial