Hickman v Blake Lapthorn
| Jurisdiction | England & Wales |
| Judge | HON MR JUSTICE JACK,The Hon. Mr. Justice Jack |
| Judgment Date | 17 January 2006 |
| Neutral Citation | [2005] EWHC 2714 (QB),[2006] EWHC 12 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ04X03551 |
| Date | 17 January 2006 |
[2005] EWHC 2714 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Hon Mr Justice Jack
Case No: HQ04X03551
Simon Dyer (instructed by The Roland Partnership) for the Claimant
Julian Picton (instructed by Beachroft Wansbroughs) for the First Defendant
Graeme McPherson (instructed by Richards Butler) for the Second Defendant
Hearing dates: 11 October—14 October 2005
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.
Mr. Justice Jack:
Introduction
The claimant, Maurice Hickman, claims damages against his solicitors, Blake Lapthorn, and counsel, Mr David Fisher, for their alleged negligence in connection with the settlement of an action which he had brought against Joseph Brame and the Motor Insurers Bureau.
On 27 September 1995 when Mr Hickman was just past his seventeenth birthday, Mr Brame came into the Bricklayers public house in Swanmore near Southampton. He suggested to Mr Hickman who was there with his father that he accompany him on the short journey to Bishops Waltham, about two miles away. His father agreed to him going, and he and Mr Brame set out in a Ford Fiesta van which Mr Brame had recently acquired. After a short distance Mr Brame lost control of the vehicle. It left the road and collided with a telegraph pole. Mr Hickman was not wearing his seat belt. He sustained severe head injuries and did not regain consciousness for a number of days. He continues to be disabled. Mr Brame was later convicted of dangerous driving. He had previously been prosecuted in respect of driving offences including driving without insurance and was subject to a period of disqualification from driving, which was still in force on 27 September 1997.
On 21 November 1997 the defendant solicitors, Blake Lapthorn, were instructed on Mr Hickman's behalf. The case was handled by Mrs Clare Howard, a solicitor in the firm's office in Fareham. As Mr Brame was uninsured, she found herself dealing with the Motor Insurers Bureau, which nominated Lombard General Insurance Company Limited to act on its behalf. It appeared at first that the MIB would accept liability and would make an interim payment. However by letter of 8 April 1997 the MIB stated that Mr Hickman was excluded from the benefit of the Uninsured Drivers Agreement 1988 by reason of clause 6 of the agreement, he being a person 'who knew or ought to have known that the vehicle was being used' without valid insurance. On 16 April 1997 Mrs Howard instructed the second defendant, Mr David Fisher, to advise on the strength of Mr Hickman's case—which meant, in effect, on the strength of the clause 6 defence, and to settle particulars of claim. For this purpose he was provided with copies of the medical reports which Mrs Howard had secured the previous year and which had been disclosed to the MIB. In his opinion dated 25 April 1997 Mr Fisher advised that Mr Hickman had a 60/40 chance of succeeding on liability against the MIB. His opinion was accompanied with draft particulars of claim. The particulars referred to the reports of Dr Paul Lewis, a neurologist, and of Dr Freda Newcombe, a neuropsychologist. Proceedings were commenced in the Portsmouth County Court on 28 May 1997.
The medical advice had been that any improvement in Mr Hickman's state would occur in the first two years after his accident. Dr Newcombe had advised in the autumn of 1996 that it was vital to appoint a case manager to ensure that Mr Hickman received appropriate help and made such progress as he was able to. But money was required for this and there was none available. The MIB would not pay. To deal with this situation Mrs Howard decided that the way forward was to get a decision on liability as soon as possible. If successful, that would enable her to obtain an interim payment from the MIB, which would pay for a case manager and rehabilitation. Following the completion of that, further reports dealing with the permanent effects of the accident would be obtained. The quantum of Mr Hickman's claim could then be agreed or determined by the court. As the first step, on 13 August 1997 an order was obtained for a split trial. The date for the trial of liability was fixed as 27 November 1997. On 5 November Mr Fisher advised in conference. Mr Hickman and his parents attended with Mrs Howard. The note of the conference records that Mr Fisher advised that the case on liability, that is the clause 6 defence, was 'finely balanced'.
On 27 November 1997 Mr Hickman attended with his parents at the Portsmouth County Court as did Mr Fisher and Mrs Howard. The MIB intended to call Mr Brame as a witness, but he did not attend. Mr Fisher felt that this was not in fact to Mr Hickman's advantage because by cross-examining Mr Brame he had hoped to establish that he was essentially dishonest, in contrast with Mr Hickman. There was some delay while they waited to see whether Mr Brame would arrive. The MIB then made an offer to settle the case for £50,000 and costs. That was refused. There was then probably a further offer of £60,000 which was also refused. Finally the MIB offered £70,000, or, as Mr Hickman and his parents say it was reported to them, £75,000. These offers were discussed between Mr Fisher, Mrs Howard and Mr Hickman and his parents. I will return to the detail of that. At some point Mrs Howard had noted down some figures relating to the valuation of the claim. A value of £144,000 before a deduction for contributory negligence for not wearing a seat belt was recorded. Mr Hickman decided to accept the sum offered. The parties then went into court and the judge was told that the case had settled. She was not told the amount.
On 2 December 1997 Mrs Howard wrote to Mr Hickman referring to the settlement of the action after lengthy negotiations for £70,000 and the need to repay recoupable benefits—which were likely to be of the order of £8–10,000. Mr Hickman received the balance. Some went into a house which his parents purchased jointly with him. The balance has been spent. No case manager was appointed. Mr Hickman did not undergo any rehabilitation. Mr Hickman got his first job as an adult in February 1998. He has tried to work on a number of occasions. He has not succeeded for any length of time. He has not worked for some years, and has given up hope of being able to work. For a period he suffered from recurrent ear infections. He was operated on and it appears that this problem is largely resolved.
On 14 June 2000 Mr Hickman's present solicitors wrote to Blake Lapthorn saying that they had been asked to consider the file relating to his claim. The action was commenced on 25 November 2003. It was just within the six year period of limitation.
The case in summary
In his closing submissions on behalf of Mr Hickman Mr Simon Dyer put Mr Hickman's case on the single basis that Mr Fisher and Mrs Howard had advised that the claim had been settled for too low a sum primarily because they had not taken account of the very real possibility that Mr Hickman would be incapable of work and that on that basis his claim would be worth £500,000 or more (less a deduction of 25 per cent for contributory negligence for not wearing a seat belt). He submitted that Mr Hickman should have been advised of the potential size of his claim on that basis, and that if he had been he would not then have accepted the offer made by the MIB.
I have said 'primarily' in the previous paragraph because Mr Dyer said that Mr Fisher should have stuck with his assessment made in his opinion of 25 April 1997 that Mr Hickman had a 60 per cent chance of winning on liability—that is, on the clause 6 issue. At the pre-trial conference on 3 November he assessed the chances as 'so close' meaning it was a fifty-fifty case. That was also his view at court on 27 November. The issue was whether Mr Hickman ought to have known that Mr Brame was still disqualified when he drove him and was uninsured. That was very clearly an issue which could go either way. I am quite satisfied that Mr Fisher was not negligent in the view finally he took. I have dealt with the point at this stage so it can be put aside.
In his closing submissions Mr Dyer abandoned the allegation that Mr Fisher had been negligent in not raising the point much later decided by the House of Lords in White v White [2001] 1 WLR 481 based on the terms of the Second EEC Motor Insurance Directive 84/5/EEC.
There was also a subsidiary point that Mr Hickman and his parents asserted that they had been told that the final offer was £75,000 and not £70,000. I am satisfied that they were correctly told that the offer was £70,000. There is no reason why they should have been told it was £75,000 when it was not. Mrs Howard referred to the figure of £70,000 in her letter of 2 December 1997. Mr Hickman and his mother said that the letter was not received by them. It is plain from the attendance note made by Mrs Howard of Mrs Hickman's telephone call to her on 9 December 1997 that the letter had been received. The payments received by Mr Hickman were based on a settlement figure of £70,000, and no complaint was made. This issue also can be aside.
The issue whether Mr Fisher and Mrs Howard were negligent in connection with advice that was given to Mr Hickman at court on 27 November 1997 involves an examination not only of what happened on that day but of preceding events which are relevant to their knowledge. It is necessary therefore to revisit the history in rather greater detail than outlined so far.
The events in detail
— Mr Hickman first saw Mrs...
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