Hurst v Leeming
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LIGHTMAN |
| Judgment Date | 09 May 2002 |
| Neutral Citation | [2002] EWHC 1051 (Ch) |
| Court | Chancery Division |
| Docket Number | HC02C00120 |
| Date | 09 May 2002 |
[2001] EWHC 1051 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Mr. Justice Lightman
HC02C00120
THE CLAIMANT appeared in person.
MR. P. HESLOP Q.C. and MR. A. TWIGGER (instructed by Messrs.
Reynolds Porter Chamberlain) appeared on behalf of the Defendant.
(As approved by the Judge)
The claimant, Mr. Hurst, a solicitor, was a partner in the later dissolved firm of Martin Janus. Disputes arose between Mr. Hurst and his former partners, and this led to proceedings by Mr. Hurst against them. Mr. Hurst acted in person in those proceedings until a few days into the trial, when, through solicitors he had retained, Messrs. Penningtons, he instructed the defendant, Mr. Ian Leeming Q.C.
Amongst the many claims made by Mr. Hurst in that case was a claim for the taking by the court of an account.
Mr. Hurst failed in his claims in that action, both at first instance, on appeal to the Court of Appeal, and in the House of Lords. Orders for costs were made against him. The failure in those proceedings led to his bankruptcy. He is practically ruined. Mr. Hurst attributed the failure in the proceedings and his subsequent ill-fortune to the legal advice and representation in those proceedings. He could not sue
Mr. Leeming under the law as it stood until the decision of the House of Lords in Arthur J.S. Hall & Co. v. Simons [2000] 3 W.L.R.543, which I shall refer to as " Hall". Prior to that date counsel were believed to enjoy immunity from suit for negligence in the conduct of proceedings.
Mr. Hurst accordingly, to get round the consequence of this immunity, sued Penningtons in the Chancery Division in effect as vicariously liable for the negligent conduct of the proceedings by Mr. Leeming. The actions was struck out as hopeless by Mr. Justice Pumfrey, and the Court of Appeal refused permission to appeal. Mr. Hurst, undaunted, then commenced fresh proceedings against Penningtons in the Queen's Bench Division. Master Rose struck out that action as an abuse of process.
With the decision of the House of Lords in Hall removing Mr. Leeming's immunity, Mr. Hurst then sued
Mr. Leeming for negligence. I have before me applications for summary judgment in that action, both by Mr. Hurst and by Mr. Leeming. Mr. Hurst appears in person, Mr. Leeming is represented by Mr. Philip Heslop Q.C.
When Mr. Hurst opened his application, he and I had a frank exchange of views on the merits of the case, and this exchange led us both to conclude that the action had no merit and must be dismissed. I must make it clear beyond any doubt that there is no ground for any criticism of Mr. Leeming. For what it is worth, on the material before me I would have reached the same conclusion that he did, and acted in exactly the same way. Mr. Hurst is to be commended for his fair and sensible decision in this regard at the hearing. This decision, namely that the action had to be dismissed, left outstanding the single issue of the costs of the action.
In the ordinary way, Mr. Leeming would, without question, be entitled to his costs, but Mr. Hurst submits that no such order should be made because both before and after the commencement of the proceedings he invited Mr. Leeming to proceed to mediation, but Mr. Leeming refused.
It is unnecessary to examine in detail the correspondence between the parties; it is sufficient if
I state the following as the material facts.
1. Mr. Hurst's claims were of professional negligence by Mr. Leeming.
2. Mr. Leeming vehemently denied those claims.
3. The claims in fact lacked any substance or merit.
4. Mr. Leeming gave full and detailed answers to each and every allegation made against him, explaining fully his actions and refuting those allegations.
5. Mr. Leeming gave a series of reasons for refusing to proceed to mediation, first, the legal costs already incurred in meeting the allegations and the threat of proceedings; secondly, the seriousness of the allegations of professional negligence; thirdly, the total lack of substance of the claims made; fourthly, the lack of any real prospect of a successful outcome to the mediation proceedings, having regard, in particular, to the plain object of Mr. Hurst in proposing mediation of obtaining a substantial financial payment from Mr. Leeming when in fact there was no merit in the claim; and fifthly, the character of Mr. Hurst as revealed by the actions he commenced and his response to the explanation of Mr. Leeming's conduct already provided. That character, Mr. Leeming says, was of a man obsessed with the notion that an injustice had been perpetrated on him, who would not be able or willing to adopt in the course of a mediation the attitude required if a mediation was to have any prospect of success.
The professional negligence pre-action protocol lays down that in proceedings for professional negligence, if one party offers to proceed to mediation, the other party, if he refuses, should state his reasons. Implicit in that protocol, and explicit in two decisions of the Court of Appeal, Frank Cowell v. Plymouth City Council and Dunwich v. Railtrack, is the proposition that a party who refuses to proceed to mediation without good and sufficient reasons may be penalised for that refusal and, most particularly, in respect of costs. Mediation is not in law compulsory, and the protocol spells that out loud and clear. But alternative dispute resolution is at the heart of today's civil justice system, and any unjustified failure to give proper attention to the opportunities afforded by mediation, and in particular in any case where mediation affords a realistic prospect of resolution of dispute, there must be anticipated as a real possibility that adverse consequences may be attracted.
I have according to consider whether Mr. Leeming was justified in refusing to proceed to mediation. I do not think that the fact that heavy costs had already been incurred was afforded any...
To continue reading
Request your trial
-
Halsey v Milton Keynes General NHS Trust
...v Plymouth City Council [2001] EWCA Civ 1935, [2002] 1 WLR 803, Dunnett v Railtrack plc [2002] EWCA Civ 303, [2002] 1 WLR 2434 and Hurst v Leeming [2001] EWHC 1051 (Ch), [2003] 1 Lloyds Rep 379. 9 We heard argument on the question whether the court has power to order parties to submit th......
-
PGF II SA v OMFS Company 1 Ltd
...strength of its case, in the Halsey case at paragraph 26, rejecting as too narrow the purely objective approach applied by Lightman J in Hurst v Leeming [2003] 1 Lloyds Rep 379. 37 Secondly, a failure to provide reasons for a refusal is destructive of the real objective of the encouragement......
- Shirayama Shokusan Company Ltd v Danovo Ltd (No 2)
-
R (on the application of Paul Crawford) v The University of Newcastle Upon Tyne
...to show that there was a reasonable prospect that mediation would have been successful." 55 At [23], Dyson LJ referred to the case of Hurst v Lemming [2003] 1 Lloyd's Rep 379, a case upon which Mr Speaight QC relied in his oral submissions. At [26], Dyson LJ disagreed with Lightman J's view......
-
The Importance of Considering ADR
...of hand" the chance of ADR†when suggested by the court, they may†have to face "uncomfortable costs†consequences". In Hurst v Leeming [2002] EWHC 1051 and†EWCA Civ 1173, Mr Hurst brought a claim†against his counsel, Mr Leeming QC,†alleging negligence in respect of a previous†unsuccessful pie......
-
A Reasonable Refusal to Mediate
...in costs (see Litigation e-bulletin - Issue No. 2). This has been further highlighted by the judgment of Lightman J in Hurst v Leeming [2002] EWHC 1051. Background The claimant, Mr Hurst, was a partner in a firm of solicitors was later dissolved. Disputes arose between Mr Hurst and his form......
-
A PERSISTING ABERRATION: THE MOVEMENT TO ENFORCE AGREEMENTS TO MEDIATE
...The United Kingdom too has seen an increase in interest with regard to commercial ADR, so much so that the court in Hurst v Leeming[2003] 1 Lloyd’s Rep 379 described ADR as being at the “heart of today’s civil justice system”. 60 Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 407: [I]f a ......