David John Frosdick v Nigel Ian Fox and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Birss,Birss J |
| Judgment Date | 11 July 2017 |
| Neutral Citation | [2017] EWHC 1737 (Ch) |
| Docket Number | Case No: HC2017-000294 |
| Court | Chancery Division |
| Date | 11 July 2017 |
[2017] EWHC 1737 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Honourable Mr Justice Birss
Case No: HC2017-000294
The Claimant David Frosdick in person
Joseph Curl (instructed by Clyde & Co LLP) for the Defendants
Raj Arumugam (instructed by the Government Legal Department) for the Official Receiver
Hearing dates: 21 st June 2017
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.
This is an application by the Defendants to strike out these proceedings pursuant to CPR 3.4. The claim is also said to be totally without merit.
The Claimant, Mr Frosdick, is a former bankrupt. He was made bankrupt at the petition of his former solicitors Cobbetts on 25th May 2011 on the order of District Judge Sanghera in the Coventry County Court. The First Defendant Mr Fox was appointed as the trustee in bankruptcy on 20 th September 2011. Before that time the Official Receiver was the trustee. The Second Defendant was the employer of the First Defendant.
The Defendants' case is that this action is yet another attempt by Mr Frosdick to re-litigate issues which have already been the subject of claims that he has brought before which have all been struck out or stayed.
It is clear that Mr Frosdick has brought a number of claims and applications before various courts over the years since his bankruptcy began and, as I shall explain, it is also clear that the issues to which this claim relates were the subject of some of these earlier claims. However a practical difficulty arises before me in that although various of Mr Frosdick's claims and applications have failed, no record of the reasons why the judges have done what they have done is available. No doubt that is because the judges gave their reasons orally at the time and no one subsequently has sought a transcript of those reasons. Moreover some of the orders which were made may have contained reasons but those orders have not been found and are not available. For this reason among others the Defendants ask that the court gives a reasoned written judgment of this application in order to set out in writing the reasons why Mr Frosdick's claim should be struck out.
A very similar claim to the one now brought by Mr Frosdick against the Defendants was brought by Mr Frosdick against the Official Receiver in action HC-2016-001660. In that action the Particulars of Claim were dated 24 th June 2016. Mr Hochhauser QC sitting as a Deputy Judge at the High Court heard an application by the Defendants in that action (that is the Official Receiver and the Secretary of State for Business Energy and Industrial Strategy) to strike it out. In a judgment dated 23 rd November 2016 ( [2016] EWHC 3008) Mr Hochhauser QC struck out that action against those Defendants on the basis that there were no reasonable grounds for bringing the claim.
At the start of the hearing before me there was an application by Mr Frosdick to join the Official Receiver as a Co-Defendant in this action. The effect of Mr Hochhauser QC's judgment in rejecting what was essentially the same claim brought against the Official Receiver that is now brought against Mr Fox and Baker Tilly, was that the Official Receiver was going to argue that on the Henderson v Henderson basis it would be an abuse of process, regardless of the merits of the claim against Mr Fox and Baker Tilly, for the Official Receiver to be joined into these proceedings. That submission would not require any detailed examination of the merits of the claim against Mr Fox and Baker Tilly, it would simply require a comparison between the allegations made in this action and the claim dismissed by Mr Hochhauser QC. In any event that matter does not arise because over the lunchtime adjournment discussions took place and Mr Frosdick agreed to withdraw his application against the Official Receiver. So the representatives of the Official Receiver left the court and took no further part in the proceedings.
I turn to consider the claim against Mr Fox and Baker Tilly. For this I can borrow some of the history which was set out by Mr Hochhauser QC.
On 28 th August 2007 the Claimant was involved in a car accident and sustained personal injuries. On 13 th August 2008 he instructed the solicitors Cobbetts on the basis of a Conditional Fee Agreement (CFA) to pursue his personal injury claim.
Before Mr Hochhauser QC it appeared that there was a further claim which the Claimant also wished Cobbetts to pursue. That appeared to be so because in later documents the Claimant claims that Cobbetts had behaved negligently relating to a claim for €782,000 losses evidenced by back to back contracts between himself and ZEST Gaming SPA and himself and Stanley Casinos Ltd. In the way the matter has been explained before me, as opposed to before Mr Hochhauser QC, Mr Frosdick states that the claim for €782,000 is not to be seen as a separate claim he wished Cobbetts to pursue but rather as part of his personal injury claim. Mr Frosdick says the contract or contracts referred to related to poker software for which he would have earned that sum in profits but those contracts were breached by being cancelled as a result of his injuries in the car accident. So Mr Frosdick's position is that this is part of the personal injury claim in the sense that the €782,000 sum of money represents damages which could be claimed as a result of the personal injury. The damages also included a further sum estimated by Mr Frosdick to reach €18million. That much larger sum would have been future losses arising out of the failure of the poker software business and is put by Mr Frosdick on the basis of a loss of a chance.
In any event at some time prior to 4 th June 2009 Cobbetts indicated that they would no longer handle his claim and, as Mr Hochhauser QC notes in paragraph 6 of his judgment, on 4 th June 2009 Mr Frosdick wrote to Cobbetts in response to the notice terminating the CFA. Mr Frosdick alleged professional negligence against Cobbetts. One of the critical elements of the professional negligence alleged was Cobbetts' alleged failure relating to the €782,000 losses and the €18m losses. That letter does refer to failing to file a protective claim and so it is clear that another way of looking at that protective claim is that it would have been separate proceedings.
Before me the significance of whether the larger losses claimed were part of separate proceedings or were part of the claim for damages is not of great importance. But the point is being laboured because in the past there arose a question of whether it was obvious for the face of the CFA that the €782,000 claim could not possibly be covered by the CFA because it was a separate claim from the personal injury claim or whether it was part of the personal injury claim. I do not have to decide that issue in this judgment.
The next relevant event was some years later, on 18 th April 2011. At this point Cobbetts presented a bankruptcy petition against Mr Frosdick, as I have mentioned. A bankruptcy order was made on 5 th May 2011. Pursuant to section 306(1) of the Insolvency Act 1986 the Claimant's estate immediately vests in the trustee on his appointment taking effect or in the Official Receiver when the Official Receiver becomes trustee.
On 18 th August 2011 the Claimant wrote to the Official Receiver, who had stated 14 th July 2011 he was Trustee, asking him to litigate or to assign back to the Claimant the alleged causes of action against Cobbetts for breach of contract arising from their professional negligence. The first paragraph of that letter is as follows:-
"This letter is to ensure you protect, you litigate, or you assign back to me under 31.9.116 the right of action and to sue Cobbetts LLP under breach of contract for between €782,000 and €17,782,000 being sums due to myself when trading as Parallel during the time I was victim of personal injury 27 August 2007 when liability was admitted and Stanley Casinos Ltd the party in breach of contract admitted their breach causing €782,000 loss was in direct consequence of the personal injury."
The letter is four pages long. Although much of it is not easy to follow, included within the letter is a suggestion that there are third party funds available which are expressly being offered to the Official Receiver to purchase from the Official Receiver the ability to sue Cobbetts. The price offered is £75,000.
On 25 th August 2011 the Claimant issued a claim against Cobbetts in the County Court. In the bundles there is a Claim Form issued in the Leicester County Court action no. 1IR69849 and Particulars of Claim in that action as well. As I understand it, based on the skeleton argument from the Official Receiver, that action ended on 21 st December 2011 when Coventry County Court dismissed the claim against Cobbetts. It is not possible to identify in the bundles whether I have a copy of the order making that happen and I am certainly unaware what the reasons are. Nevertherless one can imagine that since Mr Frosdick had by then been declared bankrupt the action could not proceed in that manner.
In the meantime on 15 th September 2011, following a nomination by a majority of creditors, the Official Receiver appointed the First Defendant Nigel Fox as the Claimant's trustee with effect from 20 th September 2011 and on 11 th October 2011 the Official Receiver wrote to the Claimant to inform him of that appointment.
On 9 th January 2012 the Claimant wrote to the new...
To continue reading
Request your trial
-
David John Frosdick v The Official Receiver
...6 July 2018 at [2018] EWHC 1714 (QB). That refers back to the earlier judgments of Birss J (as he then was) dated 11 July 2017 at [2017] EWHC 1737 (Ch) and Andrew Hochhauser KC, sitting as a Deputy High Court Judge, dated 23 November 2016 at [2016] EWHC 3008 (Ch), all of which I have 4 Mr ......