Gabriele Shaw v Leigh Day (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] EWHC 825 (QB) |
| Court | Queen's Bench Division |
| Date | 11 April 2017 |
| Docket Number | Case No: A90YJ671,M15 Q161 |
[2017] EWHC 825 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
ON APPEAL FROM
MANCHESTER COUNTY COURT
Manchester Civil Justice Centre
1 Bridge Street, Manchester M60 9DJ
The Honourable Mrs Justice Andrews DBE
Case No: A90YJ671
Appeal No M15 Q161
David Berkley QC (instructed by Pearson Solicitors and Financial Advisors LLP) for the Appellant
Elizabeth Boon (instructed by Bond Dickinson LLP) for the Respondent
Hearing date: 6 April 2017
This appeal is brought by the Claimant, Mrs Gabriele Shaw, against the part of the Order of District Judge Hovington dated 18 May 2015 striking out her personal claim for damages for professional negligence against the Defendant solicitors pursuant to CPR 3.4(2)(a) and/or pursuant to CPR 24.2(a)(i). The District Judge granted permission to appeal, very fairly identifying three grounds on which the Claimant stood a realistic prospect of successfully overturning his decision. After hearing counsel's arguments on 6 April 2017, I indicated that I would allow the appeal, but that I would give my reasons for doing so in a reserved judgment.
The background to the claim was described in some detail in paragraphs 3–13 of the judgment below. It began with the death of Mrs Shaw's elderly father, Mr William Ewan, on 26 September 2007 following a surgical procedure to implant a trans-aortic valve (known as a TAVI procedure). This was a relatively new procedure. The post-mortem reports revealed physical trauma to the aorta at the site of the placement of the prosthetic valve, which had been followed by haemorrhage and severe blood loss, leading to his fatal cardiac arrest.
Mrs Shaw strongly suspected that there had been clinical negligence on the part of the surgeon, the hospital, or both. She initially instructed the Defendant in April 2008 to advise in relation to, and to represent her at, an inquest into her father's death ("the Inquest"). By June 2009 the family had found out that the valve which had been used during the TAVI undertaken on Mr Ewan had been the subject of a recent clinical trial. After that information came to light, the Coroner ruled that the Inquest would be an Article 2 Inquest (with a jury) to include an enquiry into the circumstances of Mr Ewan's death and any systemic failings which may have contributed to it.
The Inquest was held over thirteen days in January 2011, resulting in a finding that the catastrophic blood loss and resulting death of Mr Ewan were the unintended outcome of a therapeutic medical procedure. No adverse findings were made against the University Hospital of Leicester NHS Trust ("the NHS Trust") or against the consultant cardiologist who performed the operation, Dr Kovac. Mrs Shaw sought to challenge the verdict by bringing judicial review proceedings, and obtained permission, but Burnett J rejected the claim, and permission to appeal was refused by the Court of Appeal at an oral hearing on 11 February 2014. On Mrs Shaw's pleaded case in the professional negligence action, one of the reasons why judicial review was refused was that certain of the complaints she made could and should have been articulated by her legal representatives at the Inquest itself.
A claim for damages for clinical negligence against the NHS Trust and Dr Kovac was issued on behalf of Mr Ewan's Estate on 23 September 2010, and particulars of claim were served in March 2011. The claim was stayed pending the outcome of the judicial review proceedings.
It appears that there was no separate written contract of retainer in respect of the clinical negligence proceedings, although Mrs Shaw had instructed the Defendant to act in respect of the claim for damages for clinical negligence as early as September 2009. There was, or should have been, an obvious overlap between the work to be done in conjunction with preparing for the Inquest, and the work to be done in preparation for bringing the clinical negligence claim. In both sets of proceedings, the focus of the solicitors' industry should have been on ascertaining what documentary and other evidence could be obtained, and from which sources, to establish whether Mr Ewan's death had been caused by negligence on the part of the NHS Trust and/or Dr Kovac.
The Claimant became increasingly dissatisfied with the service that she was receiving from the Defendant, as well as with its cost. She became very critical of its handling of the Inquest and such of the clinical negligence claim as it dealt with. Her complaints centre on the alleged failure by the Defendant to procure sufficient documents and other evidence about the clinical trials on the valve, to enable leading counsel to put all relevant facts before the Coroner and the jury at the Inquest, and to support the claim for clinical negligence. The relationship between solicitor and client became increasingly fractious during the early part of the judicial review proceedings, and eventually broke down altogether. The Defendant ceased acting for the Claimant and the Estate. It came off the record in the clinical negligence proceedings in February 2012.
In February 2014, when the stay was lifted following the Court of Appeal's refusal of permission to appeal in the judicial review proceedings, the Claimant instructed her current solicitors to act in place of the Defendant in the clinical negligence action, and the claim against the NHS Trust and Dr Kovac was re-amended.
The claim form in the professional negligence action against the Defendant was issued in Manchester County Court as a precautionary measure (to preserve time) on 8 April 2014. It was allocated to the multi-track on 30 December 2014. The claim was quite properly brought in contract for breaches of the contract of retainer, as well as in tort, for breaches of the parallel duties to take reasonable care in and about the provision of professional services under the contract. The Defendant strongly denies any actionable wrongdoing, and intends to fight the claim if it is allowed to proceed.
Initially that claim was issued by Mrs Shaw in her personal capacity alone. When the District Judge struck out the claims brought by Mrs Shaw in her personal capacity, he allowed her application to amend the claim form to join her as the personal representative of the Estate of her late father, thereby preserving the pleaded claims for certain heads of damage that were properly characterised as recoverable by the Estate instead of by Mrs Shaw. The professional negligence claim was then stayed to abide the outcome of the clinical negligence claim brought by the Estate, which had recommenced and was progressing towards trial.
At the hearing of this appeal, Mrs Shaw sought to adduce fresh evidence that was not available at the time of the hearing before the District Judge. That application was not opposed by Miss Boon on behalf of the Defendant, and I was satisfied that the test for admission of further evidence on appeal was met and that it would be in the interests of justice to admit it. The fresh evidence provided an update on important matters that have occurred since the professional negligence claim was struck out in May 2015. Following three specific disclosure orders made against the cardiologist and the NHS Trust on 15 October 2014, 18 December 2014 and 20 January 2015, despite strong resistance, and a non-party disclosure order made against the valve manufacturer in April 2015, the NHS Trust submitted to judgment on the amended claim on 25 June 2015. Dr Kovac initially sought to resist the claim against him on the basis that judgment had been obtained against the NHS Trust, but he eventually submitted to judgment on the amended claim on 22 October 2015.
Although there was no formal admission of liability, by consenting to judgment both defendants to the clinical negligence proceedings accepted that they were negligent in the manner alleged in paragraphs 9–15 of the re-amended particulars of claim. This included an allegation that those defendants failed properly to care for Mr Ewan once it was realised there was damage to the aorta.
On 28 October 2015, an assessment of damages hearing took place before HH Judge Platts. In his judgment, Shaw v Kovac and another [2015] EWHC 3335 (QB), the Judge referred to the prolonged history of the litigation, which he attributed to " the family's understandable desire to know what has happened to their much-loved father". He awarded damages to the Estate totalling £13,686.17, but refused to grant freestanding damages for the failure to obtain Mr Ewan's informed consent to the procedure. However, on 2 August 2016 the Court of Appeal granted permission to appeal that aspect of his judgment.
It was common ground before me that if and to the extent that the Estate recovers from the defendants to the clinical negligence proceedings damages that would otherwise form the basis of the Estate's claim for damages in the professional negligence proceedings, there can be no double recovery.
In the light of an agreement between the parties to the clinical negligence proceedings recorded in paragraph 41 of his judgment, Judge Platts directed that a claim made in respect of the costs of the Inquest should be considered as costs incidental to the claim following the decision in Roach v Home Office [2010] QB 256, and therefore would have to be considered within the costs proceedings. He refused to entertain an application by Mrs Shaw to be joined as a party to the proceedings in her own right, in case it was argued by the NHS Trust and Dr Kovac that the costs of the Inquest were a loss that she had incurred personally and not a loss incurred by the Estate, but only on the basis that the application was premature. He made it plain that...
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...be small or nominal is not itself enough to strike out a claim or to grant summary judgment in respect of it – see Shaw v Leigh Day [2017] EWHC 825 (QB) at [36], [42] and [45]–[47]. (3) Other Alleged Grounds for Summary Judgment 155 In his oral submissions Mr Chapman stated that his client......