David Jackson (Claimant/Appellant) v Thompsons Solicitors (A Firm) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 08 March 2016 |
| Neutral Citation | [2016] EWCA Civ 138 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 2016 |
| Docket Number | Case No: A2/2015/0720 |
[2016] EWCA Civ 138
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Simon
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
and
Lady Justice Gloster
Case No: A2/2015/0720
Mr. Patrick Green Q.C. and Mr. Matthew Bradley (instructed by Maitland Walker LLP) for the appellant
Mr. Michael Pooles Q.C. and Mr. Andrew Moran (instructed by Reynolds Colman Bradley) for the respondents
Hearing date : 19 th January 2016
Introduction
This is the judgment of the court to which both members have contributed. The matter comes before the court by way of an application by Mr. David Jackson as assignee of a firm of solicitors called Greene, Wood and McLean LLP ("GWM") for permission to appeal against the order of Simon J. (as he then was) dismissing his claim against Thompsons Solicitors ("Thompsons"). It has come before us for determination pursuant to the order of Longmore L.J., to whom it was referred for consideration on paper. In view of the number and complexity of the grounds of appeal, he directed that it be the subject of an oral application before two judges of the court. Since the applicant sues as the assignee of GWM it is convenient to approach the matter as if GWM themselves were the claimants.
Factual and procedural background
The origin of the dispute which has given rise to the appeal lies in the administration of the British Coal Health Compensation Schemes ("the BCHCS schemes"), under which compensation was paid to miners in respect of industrial injuries in the form of respiratory disease ("COPD") and 'vibration white finger' ("VWF"). British Coal had been found liable for both COPD and VWF in various judgments and, following the assumption by the Department for Trade and Industry ("DTI") of the liabilities of British Coal, the DTI set up compensation schemes to deal with the large number of claims that were expected. One of these was the British Coal Respiratory Disease Litigation ("BCRDL") scheme. From 1995 Sir Michael Turner acted as the judicial administrator of the BCRDL scheme.
Various firms of solicitors acted for individual miners in their pursuit of compensation under the BCRDL scheme. Most, if not all, of the miners were members of one or other of the mining trades unions, which traditionally supported claims by their members against employers for compensation for industrial injuries. It was the practice of the unions in accordance with the agreements with their members to retain a small part of any award of damages in order to support claims made by other members that ultimately failed. It was a feature of the BCRDL scheme that miners whose claims were unsuccessful would not be expected to bear any costs.
Miners who made claims under the scheme were represented by a number of different unions and a large number of different firms of solicitors. The DTI entered into detailed claims handling agreements ("CHAs") with the miners' solicitors, the purpose of which was, as far as possible, to settle the claims without recourse to the courts. The claimants' solicitors set up a 'Claimants' Solicitors Group' ("CSG") as a body to represent them, which was in turn led by a much smaller 'Co-ordinating Group' ("CG"). The CHAs provided that the members of the CG were six firms of solicitors: Irwin Mitchell, Hugh James, Towells, Nelson and Co, Ross & Co and Thompsons, England. In practice most of the work of the CG was carried out by five individuals: Andrew Tucker (Irwin Mitchell), Roger Maddocks (at the material time with Irwin Mitchell), Lawrence Lumsden (Thompsons, Scotland, but who, at all material times, had a connection with Thompsons, England), Gareth Morgan and Peter Evans (Hugh James). Membership of the CG was individual rather than as a representative of the firm.
Although Andrew Tucker of Irwin Mitchell acted as secretary of the CG, and in that capacity sent out letters on its behalf, Mr Lumsden and others had a significant role in drafting those letters. Mr. David Allan Q.C. and Mr. Ivan Bowley were instructed by the CG as counsel.
In December 2003, and during 2004, questions were raised publicly about whether it was legitimate for solicitors to make deductions from amounts paid to miners under the BCRDL scheme in respect of trade union charges. During the course of 2004–2005, Thompsons itself had been the subject of three complaints to the Law Society made by clients in relation to the lack of information about deductions. These led the firm (at least by the beginning of 2006 and, in the case of many of the partners, earlier) to conclude that their practice of making contractual deductions in favour of their union clients was open to regulatory challenge on the grounds that they had failed to advise miners themselves that they could be represented in their claims under the CHAs by solicitors who would not make deductions from damages recovered under the scheme.
On 16 th January 2005 an article was published in The Sunday Times alleging that deductions from compensation awarded to miners had been improperly made by or on behalf of the trades unions of which they were members by solicitors acting on their behalf. It appears that a number of Members of Parliament for mining constituencies had already become concerned about such deductions and were encouraging miners to seek redress from their unions and from the solicitors who had acted for them in presenting their claims. The DTI advised miners to contact the Law Society if deductions had been made from their compensation payments and they had not been made aware that other representatives were processing claims without making any deductions.
The Sunday Times article was circulated internally within Thompsons with the following message:
"Raleys are highlighted. I'd guess that we clearly have had/have a lot of similar cases. Do we make the same payments?"
When the article was brought to his attention at a hearing on 2 nd February 2005, Sir Michael Turner asked Mr. Allan to look into the allegations and provide him with a report.
Mr Lumsden, together with Mr Firth at Raleys, and with the assistance of other members of the CG, was responsible for compiling the report for Sir Michael. There was clearly concern at Thompsons that not too much should be revealed to the judge about the details of the different funding arrangements.
In February 2005 the DTI published a newsletter in relation to Coal Health Claims headed "Speeding up the respiratory disease claims process". It included on its first page the following message:
"If your solicitor is making deductions from your compensation via an additional fee or a union fee and did not advise you that other representatives are processing claims without making any deductions, you should contact the Law Society to make a complaint on 0845 608 6565 or you may wish to speak to your MP."
This clearly alarmed Mr Lumsden and his colleagues at Thompsons.
Against this background, and after various discussions within the CG, a report was compiled by Mr. Lumsden, with the assistance of other members of the CG, which was submitted to Sir Michael under cover of a letter dated 23 rd March 2005 from Mr Lumsden. At that stage the letter and report were not copied to other members of the CSG or to the DTI. The report effectively sought to justify the deductions which were made by solicitors in order to make payments to the relevant unions. The appellant says that it was materially misleading in a number of respects.
Sir Michael replied to Mr Lumsden by letter dated 24 th March 2005, in which he expressed himself satisfied that there was nothing in the article which, in the light of the report, required him to take any further steps or to report the matter to the Law Society. He said that he was content for the report to be released to other members of the CG. Sir Michael's letter read as follows:
"Dear Mr Lumsden,
National Union of Mineworkers, Allegations in the "Sunday Times" — 16 January 2005
Thank you for your letter dated 23 March and the report which accompanied it. As so often happens, a full investigation has shown a balanced picture which is, sadly, not always the case with a poorly researched article. Your report explains the well understood relationship of any trades' union to its members where they may have suffered personal injury in the course of their employment. It would not appear that the relationship between the (locally based) NUM and the individual claimant is any different in principle from that which obtains in other fields. There is nothing in the article which, in the light of your thorough report, requires either to be considered by me or referred to the Law Society. If the Audit Office has decided to undertake its own investigation, it would be surprising if it came to conclusions other than your own.
From my point of view, the issue having been raised, I can see no objection to the release of your report to other members of the CG. It might serve to allay doubts which may have arisen in regard to conduct of the NUM, which as I have said, appear to be groundless."
Although Sir Michael did not consider that any further action was required on his part, the Law Society had by this stage initiated investigations against Thompsons and another of the firms involved, Raleys, as a result of complaints it had received about deductions. Sir Michael...
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