Hannah Evans (by her litigation friend Benjamin Hillman) v Betesh Partnership (A Firm)

JurisdictionEngland & Wales
JudgeSir Geoffrey Vos,Lord Justice Peter Jackson,Lady Justice Nicola Davies
Judgment Date30 July 2021
Neutral Citation[2021] EWCA Civ 1194
Docket NumberAppeal No: B3/2020/1306
CourtCourt of Appeal (Civil Division)

[2021] EWCA Civ 1194

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION

CARDIFF DISTRICT REGISTRY

The Honourable Mr Justice Marcus Smith

ON APPEAL FROM DISTRICT JUDGE MORGAN

Cardiff Civil Justice Centre

2 Park Street

Cardiff CF10 1ET

Before:

Sir Geoffrey Vos, MASTER OF THE ROLLS

Lord Justice Peter Jackson

and

Lady Justice Nicola Davies

Appeal No: B3/2020/1306

Case No: D90CF109

Between:
Hannah Evans (by her litigation friend Benjamin Hillman)
Appellant/Claimant
and
(1) Betesh Partnership (a firm)
(3) Harry Lipson
(4) Sefton Kwasnik
(5) Jairam Ramsahoye
(6) The Estate of Lee Lipson, Deceased
(7) Robert McGinty
Respondents/Defendants

Mr Robert Weir QC (instructed by Hugh James) for the claimant/appellant

Mr Howard Elgot (instructed by BPS Law LLP) for the 1 st, 3 rd, 4 th, 5 th and 6 th defendants/respondents

Mr Julian Picton QC (instructed by Clyde & Co LLP) for the 7 th defendant/respondent

Hearing dates: 20 and 21 July 2021

Sir Geoffrey Vos, Master of the Rolls:

Introduction

1

Ms Evans was the front seat passenger in a vehicle driven by Mr Gregory Clancy (the driver) when it left the road and hit a tree on 11 July 2009. Ms Evans sustained a traumatic brain injury, although the ramifications of that injury were not immediately evaluated. In March 2010, Ms Evans instructed the solicitor defendants (together the firm) and the 7 th defendant counsel (the barrister) to make personal injury claims against the driver. In early November 2011, Ms Evans instructed the firm to accept a CPR Part 36 offer of some £100,000 in damages to settle her claim (the settlement). An appointment that had already been booked for her to see Professor Rodger Wood, a consultant neuropsychologist, on 15 November 2011 was cancelled. Had Ms Evans seen him, her prognosis would have been better evaluated and it would, at least on Ms Evans' case, have become clear that the sum she had been offered was inadequate. Her pleaded case is that, if that had happened, she would not have accepted the offer. In short, Ms Evans claims that her lawyers negligently under-settled her personal injury claim. In the events which actually occurred, it was not until 7 December 2017 that Ms Evans saw Professor Wood, and on 7 November 2019, she initiated these proceedings against the firm and the barrister for professional negligence.

2

In April 2019, the barrister and then the firm applied for summary judgment alternatively to strike out the claim. The defendants' argument before District Judge Morgan was that: “because [Ms Evans] does not have the capacity to litigate and probably did not at the time of the accident in 2011”, the limitation period had not expired under section 28 of the Limitation Act 1980, and she could re-open the settlement which was, on that analysis void. Accordingly, she had not, at least yet, suffered any loss. The District Judge rejected that argument on the basis that there was no evidence that Ms Evans's original conditional fee agreement could be novated, nor that her after the event insurance would be reinstated, and on that basis, Ms Evans would be prejudiced if her claim were struck out or stayed. He held that there was a genuine and serious dispute as to whether she had suffered economic loss due to the defendants' negligence.

3

Mr Justice Marcus Smith (the judge) allowed the barrister's and the firm's appeals and struck out Ms Evans's professional negligence claims. He held that Ms Evans's claim contained within it unequivocal but inconsistent averments regarding the status of the settlement of the personal injury proceedings. There was, the judge said, “an uncertainty at the very heart of the Particulars of Claim that [rendered] it embarrassing in the technical sense of that term”. He held that the particulars of negligence implicitly asserted that she had no capacity when she settled the case, whilst the particulars of loss implicitly asserted that she had such capacity because she had been deprived of the opportunity to claim greater damages from the driver. Accordingly, having given Ms Evans an opportunity either to accept a stay of the proceedings or to cure the defect, which she declined, he struck out her claim in its entirety.

4

Ms Evans challenged these conclusions. She submitted that she had nowhere pleaded that she did not have capacity in 2011, merely that the firm and the barrister ought to have investigated her capacity before allowing her to settle. Whilst she did rely on Professor Wood's opinion (dated 1 March 2018) that she probably would not have had capacity in 2011, and, for that reason, would not plead affirmatively that she did then have capacity, that did not undermine the sustainability of her claim. It was unjust and inappropriate for Ms Evans to be forced to engage in hotly contested and perhaps costly litigation with the driver to seek to re-open the settlement, when the firm and the barrister had caused the difficulties she faced. Ms Evans noted that both the firm and the barrister had declined her offer, in pre-action correspondence, to seek to re-open the settlement if she were indemnified by them against the costs of so doing.

5

Before us, the barrister and the firm supported the judge's reasoning, and argued that there was simply no sustainable pleaded claim. Ms Evans had not suffered any loss of the chance that she might have recovered more damages from the driver, because it was still open to her, on her own case, to do so. We were told that this would be the first case of which counsel for the defendants were aware in which a professional negligence claim had been allowed to proceed in such circumstances. The “normal practice” was for the professional negligence claim to be stayed 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 the outcome of these proceedings, Ms Evans would still, in theory, be able to seek to re-open the settlement at any stage in the future, since no limitation period applies to such an application. That possibility made it all the more crucial for the question of Ms Evans's capacity as at November 2011 to be decided before these proceedings were concluded.

6

Towards the end of these submissions from Mr Howard Elgot, counsel for the firm, the court suggested that the logic of his argument pointed towards the need for these proceedings to be stayed so that Ms Evans could attempt to re-open the settlement with the driver on account of her incapacity; the only way that could happen would be if the defendants indemnified her against the costs of so doing. After a brief adjournment, both the firm and the barrister made Ms Evans an open offer to do so on certain terms that are not material to this judgment (the indemnity). Mr Robert Weir QC, counsel for Ms Evans, responded by saying that she could only accept that offer if the court gave judgment allowing the appeal (so that the proceedings were reinstated) and if the defendants agreed to pay or the court determined the costs of the strike out hearing and appeals. Thereafter, Mr Elgot completed his oral submissions. The court then announced that: (i) it did not need to hear Mr Weir in reply, (ii) the appeal would be allowed for reasons to be given in writing in due course, (iii) the parties were to file written submissions on the costs of the strike out hearing and appeals in writing by 4pm Friday 23 July 2021, (iv) the parties were to agree the terms of the indemnity and submit it to the court in the same timescale, and (v) the court would determine the costs of the strike out and of the appeals at the same time as it gave judgment. The parties duly complied with these directions, save that the terms of the indemnity were not agreed until Thursday 29 July 2021.

7

Against that background, I will now summarise the essential factual background, the main features of the Particulars of Claim and the judge's reasons before turning to deal with Ms Evans's appeal and the Respondent's Notices, which make the point that Ms Evans has simply not yet sustained any loss of the chance of recovering additional damages.

Essential factual background

8

I emphasise first that this case is at a very early stage. The defendants have not even pleaded their cases. Moreover, it seems likely that many of the facts will be disputed. Nothing that I say in this judgment should, therefore, be taken as foreclosing any factual argument at a later stage. The judge held that he should assume the correctness of the factual assertions in Ms Evans's Particulars of Claim for the purpose of the application. That approach has been contested insofar as it affects the position between Ms Evans and the driver, but is otherwise obviously right.

9

As I have said, the accident occurred on 11 July 2009, and in March 2010, Ms Evans instructed the firm. On 25 March 2011, the driver's solicitors made their first Part 36 offer to settle the personal injury litigation. On 12 April 2011, the barrister advised the firm and Ms Evans (who attended with her mother) to reject that Part 36 offer, which the firm did on her behalf on 24 May 2011. On 20 October 2011, the driver's solicitors made their second Part 36 offer. On 2 November 2011, the barrister advised the firm and Ms Evans (who attended with her boyfriend) that he could not really assess the second Part 36 offer at that stage, but that Ms Evans was “at risk”, and Ms Evans should...

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