Ion Manda v Bird & Lovibond (A Firm)
| Jurisdiction | England & Wales |
| Judge | Master Stevens |
| Judgment Date | 10 June 2022 |
| Neutral Citation | [2022] EWHC 1427 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004156 |
and
[2022] EWHC 1427 (QB)
Master Stevens
Case No: QB-2019-004156
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Watson (instructed by Anthony Gold Solicitors) for the claimant
Heather McMahon (instructed by Clyde & Co LLP) for the first defendant
Hearing date: 19 th January 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.
INTRODUCTION
This is my judgment on the first defendant's application dated 19 th May 2021 for summary judgment to be entered against the claimant in respect of certain paragraphs in his Particulars of Claim pursuant to CPR 24.2(a) (i) and (b) because those parts of the claim are time barred such that the claimant has no reasonable prospect of success and there is no other compelling reason why the claims should be disposed of at trial. In the alternative, the first defendant seeks a strike out of the same paragraphs under CPR 3.4 (2) (a) and/or (b). Due to various listing difficulties the matter could not be heard until January 2022. Furthermore, whilst an original listing before the Assigned Master was for the agreed time estimate of 4 hours, by the time it came to be listed before me it was in the diary for just half a day, such that submissions had to be somewhat condensed, and judgment reserved. The authorities bundle alone contained almost 400 pages.
Background to the Professional Negligence claim
The claimant commenced proceedings on 21 st November 2019 for damages in respect of losses caused by alleged professional negligence on the part of his former solicitors, (the first defendant) and his former barrister (the second defendant), on or around 22 nd November 2013 and /or September 2014. Both advisers had represented the claimant in an employment tribunal claim (solicitors came on record after the ETI had been issued on or around 26 June 2013 but counsel was not instructed until 14 th October 2013, pursuant to instructions dated 11 th October 2013 (according to his Defence) and the claim was eventually dismissed on withdrawal. I was told that there is no claim in professional negligence for any compensation for the loss of the employment tribunal claims, rather the claim is brought on the basis that the dismissal or strike-out of the tribunal proceedings prevented the claimant from being able to bring his subsequent personal injury claim in the county court.
The same professional advisers who had acted in the tribunal proceedings, were also retained for the subsequent county court action, which failed when the claim was struck out as an abuse of process. This resulted in not only a failure to recover damages, but also adverse costs consequences above and beyond the level of legal expenses insurance cover. The second defendant states he was only instructed in respect of this claim from around December 2013. This professional negligence claim is for the loss of the chance to bring a successful claim in the county court is valued at in excess of £2 million. It is immediately notable that the current application is brought on behalf of the first defendant only.
Background to the causes of action raised in the Tribunal and County Court
There is a somewhat unhappy factual history, at least as pleaded by the claimant, which gave rise to the need for him to seek legal assistance in the first place. I should make it plain that I have not seen responses or pleadings from the claimant's former opponent employer as to their defence. The documentation before me correctly focussed on defaults by the claimant's legal representatives in the handling of the two previous claims against the claimant's employer.
The claimant, a university graduate, now aged 47, was employed for over 6 years from August 2006, as a quantitative analyst in a risk management team by the bank UBS AG. It is pleaded that he received a six-figure salary, with a significant 6 figure bonus on top and company benefits. Despite this high achiever status, by 2013 he felt he had no choice but to resign which he did on 10 th April 2013 when he was just 38 years old. This was because he said he had been bullied and harassed by others, particularly his line manager, from about 2 years after starting this employment (i.e., from early 2008) and that as a result he had suffered psychiatric injury, from which it was not possible to recover, or at least not whilst in that environment. The bullying was said by the claimant to involve race (he was born in Romania) and disability discrimination. He served a medical report within the earlier proceedings. That referred to earlier psychiatric assessments going back to 2010 when suffering with a clinical depressive episode associated with work-related stress for which he was off work. In fact, 2010 was the last full year in which he worked, as he never achieved a sustained remission after that, although there was a brief attempt to return to work in both 2011, and in January 2013. He was diagnosed with Major Depressive Disorder from about February 2011. During much of the sick leave period there is reference in the medical report, to an ongoing grievance procedure, then an appeal from that and finally “negotiations” with his employers. His medical history contained no record of any previous mental health disorders.
ASPECTS OF THE PROFESSIONAL NEGLIGENCE CLAIM WHICH THE FIRST DEFENDANT SEEKS SUMMARY JUDGMENT UPON
Initially, 11 paragraphs in the Particulars of Claim were the subject of the application, but by the time of the hearing those paragraphs that remained in issue were as follows:
Allegations concerning negligence in allowing the claimant's Disability Discrimination claim to be struck out in the Employment Tribunal
Paragraph 21.1 (in contract and tort) “Failing in good or any time before 22 November 2013 to recognise and advise the Claimant that his claims for disability discrimination were improperly formulated”
Paragraph 21.2 (in contract and tort) “Failing, in good or any time before 22 nd November 2013 to advise the Claimant to apply to amend the ET Claim so as to formulate the claims for disability discrimination properly”
Paragraph 21.3 (in contract and tort) “Alternatively, failing to advise the Claimant that the claims for disability discrimination were without merit and should be withdrawn (but not dismissed or struck out)”
Paragraph 21.4 (in contract and tort) “In the circumstances, causing or permitting the Claimant's said claims for disability discrimination to be struck out”
Allegations concerning negligence in allowing the County Court Personal Injury claim to be commenced out of time in respect of some injury and loss
Paragraph 21.5 (in tort) “Failing to issue or cause to have issued the Civil Claim against UBS AG within the three-year limitation period for a personal injury claim when they knew or ought to have known that the Claimant had first become ill in or around July 2010”
Paragraph 21.6 (in tort) “Failing to advise the Claimant adequately or at all in respect of the limitation period for personal injury claims”
Paragraph 21.7 (in tort) “Thereby causing the Claimant's claim for any injury suffered prior to 30 July 2011 to become statute-barred”
Allegations concerning loss of the chance to bring a civil claim subsequent to the Tribunal one
Paragraph 21.10 (in contract and tort) “Failing to make an application under Rule 52 of the Employment Tribunals Rules of Procedure 2013 for the Tribunal claims not to be dismissed on 9 September 2014 on the ground that the Claimant wished to reserve the right to bring the Civil Claim”
Allegations concerning loss of a chance to protect the claimant from adverse costs
Paragraph 21.12 (in contract and tort) “Failing to advise the Claimant not to continue with the Civil Claim after the ET Claim was dismissed on 9 September 2014”
“Catch all” allegations
Paragraph 21.13 (in contract and tort) “In the premises, failing to take sufficient care in the conduct of the ET Claim”
ISSUES AT THE HEART OF THE APPLICATION
The application, it was submitted, requires me to determine the latest dates by which certain steps should have been taken by the claimant's former legal advisers, in both the employment tribunal and subsequent civil claim, in order to determine when time started to run for mounting this professional negligence action. If any of those steps occurred before 21 st November 2013, then parts of this action have been brought out of time and I am asked to order summary judgment on that basis, or alternatively strike the paragraphs out.
BASIC LIMITATION LAW FOR CLAIMS IN CONTRACT AND TORT
It was agreed between the parties that any cause of action in contract would accrue from the date of the breach of duty, and it was not in dispute that any claim for such breaches occurring prior to 21 November 2013 (i.e., more than 6 years before the professional negligence claim form was issued) are statute barred pursuant to s.5 of the Limitation Act 1980 (“the Act”).
Similarly in tort, it was agreed that any claim for damage accruing prior to 21 st November 2013 is statute barred under s.2 of the Act. The claimant advised additionally that they did not seek to rely upon s.14A of the Act which permits longer time periods in certain circumstances.
SUBMISSIONS AS TO THE TIMING OF ACTIONABLE DAMAGE IN TORT
The first defendant submitted that a cause of action in negligence accrues at the date when the loss first causes legally recoverable loss and relied on the authority of Lord Nicholls in Nyekredit Mortgage Bank Plc v Edward Erdman Group Ltd (No.2) [1997] 1 WLR 1627. They...
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