Hudgell Yeates & Company v Watson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BRIDGE,LORD JUSTICE WALLER |
| Judgment Date | 30 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1130-4 |
| Date | 30 November 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J1130-4
Lord Justice Megaw
Lord Justice Bridge and
Lord Justice Waller
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Order of His Honour Judge White - Woolwich County Court)
The APPELLANT (Mr. J.J. Watson, Defendant) appeared in person.
Mr. PETER IRVIN (instructed by Messrs. Hudgell Yeates & Co.) appeared on behalf of the Respondents (Plaintiffs).
Before we proceed to deliver our Judgments, in order to avoid any unnecessary suspense as to the ultimate result, I propose, not as a part of our judgments, to indicate what the decision will be.
By a majority, we shall grant a new trial on the issue as to the assessment of damages for such negligence as is found by the judge in the County Court.
By a majority, we shall dismiss the appeal as regards the question of the solicitor's practising certificate.
We shall unanimously dismiss the appeal on all other issues raised in the notice of appeal.
After we have delivered our judgments we shall hear argument on any questions that arise as to costs.
I shall ask Lord Justice Bridge to deliver the first judgment.
This is the defendant's appeal from a judgment given against him in the Woolwich County Court by His Honour Judge White on the 16th July, 1976, for £659.40. The plaintiffs are a firm of solicitors. In the action they sued to recover their costs incurred in conducting litigation on behalf of the defendant. The defendant had at one time been employed by the plaintiffs as a managing clerk. He left them and went to work for a body called the National House Owners Society, being an organisation which offered a cut- price conveyancing service to the public. At about the end of 1972 he fell out with the Society and ceased to work for them. The ensuing dispute led to litigation in which the defendant instructed the plaintiffs to act for him. A High Court action was commenced against the defendant by a Mr. Michael Hickmott (suing on behalf of himself and all other members of theNational House Owners Society) by writ dated 5th January, 1973. On the 9th April, 1973, the defendant served a defence and counter-claim, bringing in three additional parties as defendants to the counterclaim. These were Jacquie Hickmott and Basil Lambert Blower (sued as trustees of and representing the National House Owners Society) and Sydney George Carter (sued as president and representing the National House Owners Society alternatively as an individual person). The plaintiffs acted for the defendant in relation to these proceedings from their commencement until some time in December, 1973. They were initially paid by the defendant £50 on account of costs. They eventually ceased to act for the defendant because of his failure to make any further payment. On the 25th June, 1973, the plaintiffs delivered a bill of costs in the sum of £447.60. On the 23rd April, 1974, they delivered a further bill in the sum of £165. On the 29th May, 1974, the plaintiffs commenced the present proceedings in the Woolwich County Court claiming £575.10, being the aggregate of the two bills less the £50 paid on account. The defendant served a defence and counterclaim alleging that the plaintiffs had been negligent in the work they did for him. By way of defence he contended that by reason of the plaintiffs' negligence the litigation in which he had engaged had been wholly fruitless. He further sought to recover on his counterclaim damages in the sum of £750, presumably on the footing that if the litigation had been properly conducted this was the sum which he would have recovered in the High Court action on his counterclaim.
The hearing in the Woolwich County Court began on the 12th July, 1976, and occupied four days. The defendant conducted his case in person. On the 16th July, 1976, Judge White gave a careful judgment in writing. In the main he rejected the case of negligence advanced by the defendant. He did, however, find thatthe plaintiffs had been negligent in one respect at a certain point in the proceedings. He held that the amount included in the plaintiffs' claim for costs referable to the steps rendered abortive by this negligence was £49.70. He deducted this amount from the total of the plaintiffs' claim and gave judgment for the balance of £512.90. He also awarded interest on this sum at 10 per cent, per annum calculated from the respective dates when the two bills of costs were delivered. This brought the total amount of the judgment up to the figure already mentioned of £659.40.
Before turning to the matters of substance it will be convenient to refer to certain peripheral matters raised by the defendant's grounds of appeal. In ground (9) of his notice of appeal the defendant complained that: "Contrary to natural justice Judge White conducted the whole 4-day hearing in an extremely hostile prejudiced unfair and rude manner towards the defendant".
This is a complaint of a kind which it is easy to make but which it would require wholly convincing material to substantiate. The defendant has signally failed to put any such material before the Court. He relies on three particular matters. First, it appears that when the case was called on the judge refused to allow the defendant an adjournment to go and move his motor car. This is a matter of no substance whatsoever. Secondly, the defendant complains that when he sought to intervene whilst counsel for the plaintiffs was addressing the Court or one of the plaintiffs' witnesses was giving evidence he was repeatedly told by the learned judge to sit down. It not infrequently happens that litigants in person who do not appreciate the constraints of Court procedure and think that they may speak whenever they choose must be repeatedly brought to order by the court. Here again there is no substance in the complaint. Thirdly, the defendant invites us to infer bias against him on the part of the learned judge from the way in whichhe approached the assessment in favour of the defendant of damages flowing from that negligence of which he had found the plaintiffs to he guilty. The complaint that the judge erred in his assessment of these damages is the subject-matter of a separate ground of appeal which will need to be separately examined. But, if it be the case that he fell into error in this respect, it affords no possible ground for inferring any bias against the defendant. It is right to add with respect to this ground of appeal that, so far from conducting the proceedings in any way unfairly towards the defendant, all the indications are that the learned judge allowed the defendant in conducting his case a far greater degree of latitude than would ever have been allowed to a party professionally represented, perhaps indeed an excessive degree of latitude. He certainly permitted him to stray far beyond the ambit of the pleadings.
Ground (7) of the notice of appeal complains that: "Judge "White wrongly held that the plaintiff solicitors had not acted illegally contrary to section 18 of the Solicitors Act 1957 by the plaintiff solicitors permitting the whole of the work to be carried out by one Mr. Frost who was an unqualified person".
The Mr. Frost referred to in this ground was the plaintiffs' managing clerk, who had the day-to-day conduct on behalf of the plaintiffs of the defendant's litigation in 1973. The point raised under section 18 of the Solicitors Act, 1957, was allowed to be taken although it had never been pleaded. The defendant also raised a related complaint that Mr. Frost had been inadequately supervised in his work by Miss Griffiths, the partner in the plaintiff firm who was responsible for litigation.
The learned judge dealt with these two matters in the following passages: "This leads me to a defence Mr. Watson bases on section 18 of the Solicitors Act, 1957. This section provides in generalterms that no unqualified person shall act as a solicitor or as such shall send out any writ or process or commence, carry on or defend any action suit or other proceeding in the name of any other person or in his own name in any court, or act as a solicitor in any cause or matter civil or criminal to be heard in any court. Any person acting in this way not only commits an offence but cannot obtain his costs. Mr. Watson has argued that Mr. Frost was doing just this in the handling of his case. There is no doubt that Mr. Frost as the plaintiffs' litigation managing clerk was handling the day-to-day running of the cases. If for example there was a summons to be issued or a judgment to be signed he would go to the Court Office to do it. Further he had his partner's implied authority to take running procedural decisions. Mr. Watson argues that as it is his mind behind the running decisions the reality is that he is actually acting as a solicitor. He has referred me to the case of Re A Solicitor's Clerk (1956) 2 All England- Reports 243. I reject this submission. Mr. Frost at all times was acting as his employer's litigation managing clerk and no more. It would indeed cause a revolution not only in this field but in every field where employees are used and in the course of their employment given authority to take decision on behalf of their masters if in so doing they become principals".
Later in the judgment he says: "Mr. Watson contends in this case that Miss Griffiths did not exercise any or sufficient supervision over Mr. Frost and I have heard evidence on this issue. I find she did exercise proper supervision over Mr. Frost. The system was that although the day-to-day running of the action was delegated to Mr. Frost she kept a constant eye on the steps being taken. All incoming and outgoing letters in the case were seen by her with the file, which of course had the attendance notes. She in...
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