Dunhill v W Brook and Company and another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 01 February 2016 |
| Neutral Citation | [2016] EWHC 165 (QB) |
| Docket Number | Case No: TLQ/15/1381 |
| Court | Queen's Bench Division |
| Date | 01 February 2016 |
[2016] EWHC 165 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Elisabeth Laing DBE
Case No: TLQ/15/1381
and
Mr M. Willems QC and Ms K Ballinger (instructed by Potter Rees Dolan Ltd) for the Claimant
Mr J. Smith QC and Mr G. Campbell (instructed by Mills and Reeve LLP) for the First Defendant
Ms A. Day QC and Ms C. Guthrie (instructed by Weightmans LLP) for the Second Defendant
Hearing dates: 2 – 8 December 2015
Introduction
This is a claim for damages for professional negligence. It is brought by the Claimant against the firm of solicitors ('the solicitors') and against the counsel, Mr Crossley, who represented her in a claim for personal injuries against Mr Burgin. At the hearing, the Claimant was represented by Mr Willems QC and Miss Ballinger, the solicitors by Mr Smith QC and Mr Campbell, and Mr Crossley by Miss Day QC and Miss Guthrie. I am grateful to all counsel for their helpful written submissions and to leading counsel for their oral submissions. I am also grateful to all of the representatives for the hard work which has evidently gone into the preparation of this case for trial.
The issues
Counsel helpfully agreed a list of issues. The main issue is whether the Defendants breached their duties in providing legal services to the Claimant. A case management decision made before the hearing precludes me from dealing with the question whether any breach of duty caused any, and if so, what, loss to the Claimant.
There are legal and factual sub-issues. The sub-issues which raise questions of law or mixed questions of fact and law are
i) what duties the Defendants owed the Claimant;
ii) whether the Defendants breached those duties in
a) (to the extent they did so), advising her to settle for £12,500;
b) (to the extent they did so) advising the Claimant to settle the whole action with or without any mechanism for provisional damages,
given that
i) the trial was listed for a hearing on liability only;
ii) the medical evidence was incomplete;
iii) the medical evidence indicated a risk of epilepsy; and/or
iv) the claim had a much higher value than pleaded.
iii) whether the fact that the solicitors relied on Mr Crossley (generally and in this case) absolved them from any duty to advise independently of Mr Crossley.
There are two issues of fact. They are whether Mr Crossley was provided with medical reports dated
i) 16 August 2000 by Dr DW Zawadski, a clinical psychologist; and
ii) 13 December 2002 by Mr Nick Morton, a consultant neuropsychologist.
Mr Willems helpfully narrowed down the issues on the first day of the hearing. He withdrew the pleaded claim in so far as it was based on an alleged failure to appreciate that the Claimant lacked capacity. The 'nub' of the claim, as he put it, is as described in paragraph 4.1 of his opening submissions. That is, that the Defendants advised the Claimant, on 7 January 2003, to settle her whole claim, for £12,500, and on a full and final basis, rather than on the basis of a percentage of the full value of the claim, with damages to be assessed (and/or without provisional damages).
That breach of duty is said to rest on six background factors:
i) overstating the risk of failure to establish liability;
ii) overstating the likely levels of contributory negligence;
iii) failing to realise the potential size of the claim or future heads of claim and to advise the Claimant on those;
iv) failing to realise that there was a potential claim for provisional damages and that further expert evidence would be needed on this head of claim alone;
v) advising that only two options were available; that is, applying for an adjournment, or settling the whole claim.
I heard evidence from Mr Burton, a mental health advocate who had been helping the Claimant for some time in 2002, and was present at a meeting at the solicitors' offices on 20 December 2002, and at court on 7 January 2003. I also heard evidence from Mr Brook, the partner who had conduct of the case from December 2002 (when Mr Squires, the solicitor who had had conduct unexpectedly left the firm), from Mr Marsh, the trainee who worked on the claim under the supervision of Mr Brook, and from Mr Crossley. Two witness statements from Mr Crossley's clerk, Ms Hartley, which dealt with the arrangements in Mr Crossley's Chambers for receiving faxes, were agreed.
The facts
I have not made any detailed findings about the accident on 25 June 1999. It did not seem to me that I needed to do so. Instead, I have made some general findings about it, and recorded the evidence about it which was available to the Defendants. I have summarised the main documents that are important to the Claimant's personal injuries claim, and made findings about the history of the claim. Those findings are mainly based on contemporaneous documents. I have also had to decide some issues about which those documents are silent or ambiguous. I have read the witness statements which deal with those issues, and heard the witnesses cross-examined about them.
In deciding the issues, I have borne in mind the passages to which Mr Smith referred me (in particular, Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) paragraphs 15–17, and 22 per Leggatt J). The witnesses' written statements and oral evidence dealt with events which happened nearly 13 years ago. Mr Burton's witness statement was made in 2008, but the other witnesses' statements are much more recent. In short, in assessing their evidence I have given due weight to the contemporaneous documents and to the inherent probabilities.
The accident
On 25 June 1999, the Claimant was crossing the A635 close to a roundabout, with her son, Mr Sam Tasker, and his girlfriend, Miss Carole Rogers. They are about five foot four, five foot nine, and five foot five inches tall respectively. The road is not a dual carriageway, but on the approach to the roundabout, level with a roughly triangular traffic island, the road widens into two lanes in order to enable two lines of traffic to approach the roundabout. The road bends to the left shortly before it approaches the roundabout. It is likely that the group was crossing from the kerb to that traffic island at a point where the kerbs are dropped to help pedestrians to cross. Mr Burgin, who was riding his motorbike, collided with the Claimant. She was emerging from between the first and second vehicles which were queuing in the nearside lane. Mr Tasker was able to yank Ms Rogers out of the way. There must have been at least four vehicles in the queue, as Mr Burgin's two witnesses were in the third and fourth vehicles.
The Claimant suffered a serious closed head injury, and soft tissue injuries to her legs. She has no memory of the accident. The police investigated the accident, but Mr Burgin was not prosecuted.
The witness evidence about the accident
There were five witness statements in Mr Crossley's instructions for the trial which were relevant to what had happened. Mr Tasker's and Miss Rogers' (for the Claimant) were signed in July 2001. Those of Mrs Empringham and of Mr Rich (for the Defendant) were signed in March 2000. From their statements, it seemed that they were both very experienced drivers. Mr Burgin's was signed in February 2000. There was also a witness statement for the Claimant from Mr Hall. He did not see the accident happen, but he arrived shortly afterwards. He had known the Claimant before the accident and expressed opinions about whether Mr Tasker had been drinking, and whether the Claimant drank at home. He also gave an opinion about the likely speed of the motorbike from its position in the road and the Claimant's position in the road; she was still lying there when he arrived on the scene.
Mrs Empringham's evidence was that she was in the third vehicle in the queue. She saw the motorbike in her rear mirror and that it was travelling along the offside. 'The cyclist appeared to be driving sensibly'. The pedestrians were not walking straight. They were very merry and joyful and were not watching where they were going. As the pedestrians moved out between the stationary cars, the motorbike passed her, but was not going fast. The pedestrians moved out, still talking and not paying attention. She braced herself as she knew a collision was inevitable. After the collision, the other female pedestrian said to the motorcyclist, 'Sorry love, it's not your fault, we just didn't see you'. Mrs Empringham could clearly smell alcohol on her breath and 'it was obvious she had been drinking'. A number of other drivers who had seen the accident agreed that it was not Mr Burgin's fault.
Mr Rich's evidence was that when he was stationary, he saw the motorbike pass about one metre on his offside. He must have been in the fourth vehicle in the queue. The motorbike was 'not travelling at speed and being ridden correctly'. He saw three pedestrians who 'seemed full of the joys of spring, appeared to be oblivious as to what was going on, and not taking account of the traffic on the roundabout or road. From the way they were crossing the road it was inevitable that a collision was going to occur…the pedestrians walked straight out into the path of the motorbike. The cyclist was given no opportunity to avoid the collision'. A policeman told him that he could smell alcohol on the breath of the pedestrian(s). There is no apostrophe in the relevant part of Mr Rich's statement. From the context it is likely that one pedestrian is intended, but it is not clear which one.
Mr Burgin's evidence was that he had been riding a motorbike for 20 years. The speed limit on the road was 60mph, but he was slowing down...
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Joanne Dunhill (by her Litigation Friend Paul Tasker) v W. Brook & Company (A Firm)
...1 February 2016, the judge rejected the claim, dismissing the allegations of negligence against both the solicitors and counsel: see [2016] EWHC 165 (QB). An appeal against that decision is now mounted with the leave of Gloster LJ (such leave having been refused on paper by Hallett LJ). 9 ......
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...whilst the application to re-open the personal injury settlement took place, as had happened in Dunhill v. W Brooks & Co (a firm) [2016] EWHC 165 (QB), [2018] EWCA Civ 505 and Dunhill v. Burgin [2014] 1 WLR 933. Indeed, the firm pointed to the unsatisfactory possibility that, whatever th......