Joanne Dunhill (by her Litigation Friend Paul Tasker) v W. Brook & Company (A Firm)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt,Lord Justice Underhill,Sir Brian Leveson P |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] EWCA Civ 505 |
| Date | 15 March 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/0934 |
[2018] EWCA Civ 505
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
The Hon. Mrs Justice Elisabeth Laing D.B.E.
78M A91442
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Underhill
and
Lord Justice Leggatt
Case No: A2/2016/0934
and
Marc Willems Q.C. and Jonathon Boyle (instructed by Potter Rees Dolan) for the Appellant
Jamie Smith Q.C. and Glenn Campbell (instructed by Mills & Reeve LLP) for the First Respondent
Anneliese Day Q.C. and Cara Guthrie (instructed by Weightmans LLP) for the Second Respondent
Hearing date: 27 February 2018
This appeal represents the latest round in litigation that originates out of a road traffic accident that occurred as long ago as 25 June 1999 when a motor cycle ridden by Shaun Burgin struck Joanne Dunhill as she was seeking to cross the A635 adjacent to a roundabout in Goldthorpe (between Doncaster and Barnsley in South Yorkshire). What started as a comparatively commonplace incident led to litigation against Mr Burgin involving no fewer than two contested hearings before the High Court, one appeal to the Court of Appeal and further appeals (including a leapfrog appeal from the second of the High Court decisions) to the Supreme Court. Following the conclusion of that litigation, Ms Dunhill continued the pursuit of a claim against her former legal advisers which has led to a further hearing in the High Court and this appeal.
In short, Ms Dunhill retained the First Respondent, W. Brook and Co. (hereafter referred to as “the solicitors”) to act for her. County Court proceedings were commenced on 13 May 2002 (i.e. just before the usual three year limitation period expired) seeking general damages for pain, suffering and loss of amenity and special damages (totalling £2,262.92) for travelling expenses and 10 hours' care a day for six months followed by one hour a day for two years. The total claim was limited to £50,000 but quantum was clearly considered to be uncertain and, on 3 September 2002 at Barnsley County Court, District Judge Mort ordered a split trial of liability and quantum.
Counsel originally instructed to advise was not available for the trial window and, in December 2002, Justin Crossley (a member of the bar experienced in personal injury litigation) was briefed to conduct the trial of liability only which, in the event, was then listed for two days commencing on 7 January 2003. The first half day was spent in discussions between the parties and the upshot, conveyed to the court shortly before lunch, was that the entire litigation was compromised (with Ms Dunhill's apparent consent) by a payment of £12,500 and costs.
Within a week, Ms Dunhill expressed dissatisfaction with the way in which her case had been resolved and, in June 2003, she consulted other solicitors. That led, in December 2006, to further proceedings brought by Ms Dunhill, then acting by a next friend, seeking to rely on Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889, [2003] 1 WLR 1511) to set aside the settlement on the basis that she “did not have capacity at the time of the purported settlement of the matter on 7 January 2003”.
In February 2011, that action came before Silber J who decided that the presumption that she had capacity had not been rebutted: [2011] EWHC 464 (QB). Ms Dunhill then successfully appealed to the Court of Appeal ( [2012] EWCA Civ 397) which remitted the question whether the compromise and consent order required the approval of the court under CPR 21.10. That issue was decided by Bean J in Ms Dunhill's favour with the result the settlement was held to be void and had to be set aside: [2012] EWHC 3163 (QB); [2012] 1 WLR 3739. Thereafter, the decisions of the Court of Appeal and Bean J were further litigated in the Supreme Court which dismissed appeals from both: see [2014] UKSC 18, [2014] 1 WLR 933.
As a consequence of the judgment being set aside, Ms Dunhill was free to pursue her proceedings against Mr Burgin. These were eventually compromised as to liability in her favour to the extent of 55% of its full value. Quantum of damage was also compromised but that figure remains confidential although, having regard to the figures placed before the Supreme Court as representing the contentions of the parties, it is clearly very substantially in excess of the figures ever remotely considered and far greater than the upper limit placed on the claim before the County Court hearing.
At the same time as the capacity proceedings were progressing through the courts, in December 2008, Ms Dunhill, again acting by a next friend, sued the solicitors and Mr Crossley of counsel for settling the action in the first place. That action was initially stayed pending the determination of the ongoing litigation but, after its conclusion, it was put on the basis that, as a result of that settlement (alleged to have been negligently advised), Ms Dunhill has suffered loss including both unrecovered costs, and loss of the opportunity to obtain treatment for her injuries earlier than has been the case.
Again, the case has proceeded first to resolve the issue of breach of duty. Causation and quantum of any such loss has been separated off. Thus, between 2–8 December 2015, the issue of breach of duty was tried by Elisabeth Laing J. By a reserved judgment, delivered on 1 February 2016, the judge rejected the claim, dismissing the allegations of negligence against both the solicitors and counsel: see [2016] EWHC 165 (QB). An appeal against that decision is now mounted with the leave of Gloster LJ (such leave having been refused on paper by Hallett LJ).
I have explained the history of this litigation on the basis that the public is entitled to understand why a traffic accident in 1999 is still being litigated in 2018. Although each step taken can be explained, I am afraid that it does not show the civil justice system in good light and it is a matter of real regret that the pace of this litigation has been such that so much time has passed, undeniably causing considerable stress to all the parties involved. Having set out that background, however, the issues ventilated in the appeal now fall to be decided on their merits.
The Accident
This appeal turns not on the circumstances of the accident as might, in theory, have been proved but, rather, on the evidence and the risks which the solicitors and Mr Crossley had to consider on the morning of 7 January 2003. That includes the material which they had believed would be available at trial but which was not: such weaknesses in Ms Dunhill's position as might result obviously played into the assessment of risk which had to be made. It also includes the evidence served or available to Mr Burgin's insurers all of which played an important part in Mr Crossley's consideration of the merits when it came to the question of settlement. What follows is summarised with that in mind.
At about 17.50 on 25 June 1999, Ms Dunhill was crossing the A635 with her son and his girlfriend. The road is not a dual carriageway, but on the approach to a roundabout, it widens in order to facilitate two lines of traffic, and bends slightly to the left. There is a traffic island at the mid-point of the widened lane and it was roughly in that position that the three pedestrians sought to cross the road, initially from the kerb to the traffic island, at a point where the kerbs dropped to enable pedestrians to cross the road safely. There were a number of vehicles queueing to enter the roundabout in the nearside lane and Ms Dunhill emerged from between two vehicles.
Witness statements made at the time referred to the appearance of the pedestrians as very merry and joyful. They were said not to be paying much attention to where they were going. Meanwhile, Mr Burgin, on a motorbike, came up the road in the outside lane, passing the stationary traffic and into their path. Ms Dunhill's son was able to move his girlfriend out of the way, and as such they both avoided injury. A collision between Ms Dunhill and Mr Burgin's motorbike followed.
Ms Dunhill was removed to hospital having suffered a closed head injury involving a fractured skull, visible brain damage, resulting brain injury, and soft tissue injuries to her legs. She also suffered anosmia i.e. loss of sense of smell and taste. The accident was investigated by the police who do not appear to have gone further than interviewing Mr Burgin (subsequently deciding to take the investigation no further). There was, for example, no sketch plan, measurements or assessment of sight lines. On the other hand, the details of a number of the drivers of the stationary vehicles were obtained by someone as Mr Burgin's insurers later obtained and served statements from two of them; the statements formed part of the trial bundle and so could be assessed by Ms Dunhill's legal team.
Given that Ms Dunhill had no recollection of the accident, the starting point was what Mr Burgin said to the officer in question and answer which was in these terms:
“Q. Can you tell me what happened?
A. I was approaching the traffic island heading towards Barnsley. There was a line of about six or seven cars in inside lane. I came down the outside. I was slowing down and could see that there was no traffic on the roundabout. I went to pull out onto the roundabout and they came out from between the stationary vehicles waiting to enter the roundabout.
Q. Who came from between the cars?
A. There were three people.
Q. What was there ( sic) action?
A. She just walked straight out I think...
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