Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd
| Jurisdiction | England & Wales |
| Judge | Hodge |
| Judgment Date | 29 September 2022 |
| Neutral Citation | [2022] EWHC 2275 (Ch) |
| Docket Number | Case No: BL-2019-002077 |
| Court | Chancery Division |
[2022] EWHC 2275 (Ch)
His Honour Judge Hodge KC
Sitting as a Judge of the High Court
Case No: BL-2019-002077
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice,
Rolls Building.
Fetter Lane,
London, EC4A 1NL
PROFESSIONAL NEGLIGENCE — Solicitors — Loss of opportunity to pursue claim to trial — Damages — Defendant's application to strike out and for summary judgment — Whether claimant's conduct putting fairness of trial in jeopardy — Contractual interpretation — Whether damages for breach of contract to be assessed on the counter-factual basis that the party in breach would have exercised a contractual right to terminate the contract when they had not done so — Waiver and forbearance — Whether provision for interest on overdue invoices at 2% every 14 days a penalty — Whether claim for interest on damages at judgment debt rate of 8% pa bad in law
The following authorities are referred to in this judgment:
Ahjua Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch)
Arrow Nominees Inc v Blackledge [2001] BCC 591
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20
British Gas Trading v Shell UK Ltd [2020] EWCA 2349
Cavendish Square Holding BV v Makdessi [2015] UKSC 67, [2016] AC 1172
Collier v P & M J Wright (Holdings) Limited [2007] EWCA Civ 1329, [2008] 1 WLR 643
Crema v Cenkos Securities Plc [2010] EWCA Civ 1444, [2011] Bus LR 943
D & C Builders Ltd v Rees [1966] 2 QB
Durham Tees Valley Airport Ltd v BMI Baby Ltd [2010] EWCA Civ 485, [2011] All ER (Comm) 732
Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)
E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472
Gilbert v Shanahan [1988] 3 NZLR 528
Harris v Bolt Burdon [2000] C.P. Rep. 70
Harrison v Bloom Camillin (No 2) [2000] Lloyd's Rep PN 404
Holyoake v Candy [2017] EWHC 3397 (Ch)
Lavarack v Woods of Colchester [1967] 1 QB 278
( Logicrose Ltd v Southend United Football Club Ltd unrep., The Times 5 March 1988)
Long v Farrer [2004] EWHC 1774 (Ch)
Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72, [2016] AC 742
Masood v Zahoor [2009] EWCA Civ 650, [2010] 1 WLR 746
Merricks v Mastercard Inc [2020] UKSC 51, [2021] Bus LR 25
Midland Bank v Hett, Stubbs & Kemp [1979] Ch 384
Navig8 Inc v South Vigour Shipping Inc [2015] EWHC 32 (Comm)
Pinnock v Wilkins & Sons The Times, 29 January 1990
Perry v Raleys Solicitors [2019] UKSC 5, [2020] AC 352, and [2017] EWCA Civ 314
Redbourn Group Ltd v Fairgate Developments Ltd [2018] EWHC 658 (TCC)
Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 887
Swain v Hillman [2001] 1 All ER 91
Vivienne Westwood Ltd v Conduit Street Development Ltd [2017] EWHC 350 (Ch)
Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch)
Watts v Morrow [1991] 1 WLR 1421
Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173
Re ZM v JM (Children) [2008] EWCA Civ 1261
Ms Rebecca Page and Ms Emily Gailey (instructed by RPC) for the Defendant/Applicant
Mr Richard Bowles (instructed by Acuity Law Limited) for the Claimant/Respondent
Hearing dates: 13–15, 19 and 20 July 2022
Draft Judgment circulated: 5 September 2022
Further written submissions received: 8, 16 and 20 September 2022
Judgment formally handed down: 29 September 2022
This judgment will be handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on the National Archives caselaw website. The date and time for hand-down will be deemed to be 10.00 am on Thursday, 29 September 2022.
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.
His Honour Judge Hodge KC:
Introduction
This is my reserved judgment on an application by the defendant solicitors, Coupe Bradbury Solicitors Limited, issued as long ago as 30 March 2021, to strike out (pursuant to CPR 3.4 (2) (a), (b) and/or (c) and/or the court's inherent jurisdiction), and/or for summary judgment (under CPR 24.2) on, all or part of a Part 7 claim issued by the claimant, Harrington Scott Limited, on 8 November 2019 seeking damages for professional negligence by the defendant whilst acting as the claimant's litigation solicitors. One of the bases for the strike out application is that it would be an affront to the court to allow this claim to proceed to trial. In addition to this overarching issue, however, there are no less than 11 individual (but, in some instances, related) issues which the court is required to consider.
The application is supported by a witness statement from the defendant's litigation solicitor, Ms Karen Morrish (of RPC), dated 30 March 2021 (and extending to some 94 pages). Evidence in answer to the application is provided by Mr Trevor Vickers in the form of a witness statement (of some 85 pages) dated 22 October 2021. Mr Vickers is the sole director of the claimant (Harrington Scott Limited) and also of a company registered in the British Virgin Islands (the BVI company) bearing a similar name (Harrington Scott Ltd) and apparently dissolved in November 2017, after having been struck off the register of companies for non-payment of registration fees. Mr Vickers variously describes himself as either the sole, or the majority, shareholder of both companies: contrast paragraph 1 with paragraphs 25 and 57 of Mr Vickers's first witness statement. Mr Vickers states that the only other person who has ever been a director of the claimant is Mr Mike Williams, who was a director until he resigned in October 2009 (although he is said to have continued working as the claimant's accountant until he sadly passed away in 2019). There is a short (13 page) witness statement in reply, dated 3 December 2021, from Mr Paul Lever who had the conduct of the claimant's litigation whilst employed by the defendant as an assistant solicitor. Mr Vickers has responded to this in a second witness statement (of some 8 pages) dated 10 December 2021. Mr Vickers was present in court throughout the five days of this application.
At paragraph 30 of his first witness statement, Mr Vickers explains that the claimant
… is a small company. Essentially, it is just me. I used to have support from Mike [Williams] but he stopped being a director in 2009 and … he sadly passed away in 2019. Over the years when I have needed some more support to carry out large contracts, I have hired some short-term contractors.
At paragraph 37, Mr Vickers relates that although “… other people have worked for [the claimant] over the years, essentially, I am [the claimant].” At paragraph 39, he clearly states that he does all his work for the claimant from the UK.
This application was first listed for hearing before Deputy Master Arkush on 13 December 2021. The defendant (and applicant) was represented by Mr Thomas Grant QC, leading Ms Emily Gailey (of counsel). The claimant (and respondent) was represented by Mr Richard Bowles (of counsel). The Deputy Master took the view that the time allotted to the case (of 2 1/2 days) was insufficient, and that the issues raised on the application were suitable to be heard by a High Court Judge. He therefore adjourned the application and transferred it for hearing by a High Court Judge, to be relisted at the first available date, with a time estimate of 4 to 5 days, to include 1 day of judicial pre-reading, and with additional time of at least one day required for preparation of the judgment. The costs were reserved.
In the event, the matter was re-listed before me and was heard (after one day's pre-reading) at an attended hearing extending over some five days, on 13 to 15, and 19 and 20 July 2022. Ms Rebecca Page (of counsel) now appeared for the defendant (in place of Mr Grant QC), leading Ms Gailey. Mr Richard Bowles again appeared for the claimant. Counsel addressed me on an issue-by-issue basis (with certain related issues being addressed together). The hearing bundle extended to some 2,500 pages. This had been assembled by reproducing the contents of the original, and lengthy, exhibits to the witness statements, without any attempt to reduce these to any chronological order, so it was frequently necessary to traverse many hundreds of pages to follow a sequence of emails and related documents chronologically. This has made the task of counsel (and the court) unnecessarily complicated. The combined authorities bundle extended to almost 1,400 pages, and several additional authorities were placed before the court as the hearing progressed.
I have been considerably assisted by counsel's lengthy and detailed skeleton arguments (extending to some 66 pages for the defendant and 79 pages for the claimant), supplemented by their oral submissions. Both the written and the oral arguments focussed on the relevant issues and represent advocacy of a very high order. Ms Page wishes the court to acknowledge the part played by Mr Grant QC in co-authoring the defendant's skeleton argument prepared for last December's hearing, much of which she has adopted for the purposes of the present hearing. I am happy to do so.
Since these are applications for strike out and/or summary judgment, I do not propose to recount or address all of the many individual points raised, or submissions advanced, before me. Rather I will focus upon those points that are essential to my decision on each of the issues addressed by counsel. But that does not mean that I have overlooked any of the other submissions advanced before me.
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Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd
...jurisdiction of the court. On Michaelmas day 2022 I handed down my reserved judgment, which bears the neutral citation number [2022] EWHC 2275 (Ch). I had originally circulated the draft judgment on 5 September but that had generated further written submissions, initially from the defendan......