Kamran Naqvi v Harris Cartier Ltd ((in Liquidation))
| Jurisdiction | England & Wales |
| Judge | Heather Williams |
| Judgment Date | 15 November 2019 |
| Neutral Citation | [2019] EWHC 3042 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ18X03863 |
| Date | 15 November 2019 |
[2019] EWHC 3042 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Heather Williams QC,
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: HQ18X03863
Mr Philip Jones (instructed by Croft Solicitors) for the Claimant
Mr Matthew Bradley (instructed by Kennedys LLP) for the Second and Fourth Defendants
Ms Siân Mirchandani QC (instructed by DWF Law LLP) for the Third Defendant
Hearing dates: 17 October 2019
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.
Heather Williams QC
Heather Williams QC:
The Claimant brings an action for damages for professional negligence against the solicitors and barrister who acted for him in his unsuccessful race discrimination claim against his former employer, Lloyds Banking Group (‘Lloyds’). The Fourth Defendant, Mr Brian Levy (“D4”), was instructed by the Claimant from September 2011 to December 2013, initially in relation to Lloyds' internal disciplinary proceedings and then to act in his Employment Tribunal (“ET”) claim. At the beginning of this period D4 was employed by Harris Cartier LLP and then from 22 August 2012 by the First Defendant, Harris Cartier Limited (“D1”). D4 continued to act for the Claimant when he moved to the Second Defendant, Richard Slade & Co (“D2”), on or about 5 November 2012. Mr Jeffrey Bacon, the Third Defendant (“D3”) is a barrister who was instructed by D4 for the period 2 February 2012 – 18 January 2013 and again from 24 July 2013.
In summary, the Claimant alleges that the Defendants failed to adequately formulate and advance his claim for race discrimination (“the liability allegations”) and failed to properly quantify the discrimination claim by reference to his loss of career (“the quantum allegations”).
The following are before the court:
i) Applications by D2, D3 and D4 to strike out the claim as an abuse of process pursuant to CPR 3.4(2)(b) because it amounts to an impermissible collateral challenge to the ET's determination of the race discrimination claim (“the abuse of process applications”);
ii) Applications by D2, D3 and D4 for summary judgment pursuant to CPR 24.2 in relation to the whole claim as it has no real prospect of success and there is no other reason why it should proceed to trial (“the main summary judgment applications”);
iii) In the alternative to ii), an application made by D2 and D4 only, to strike out the whole claim under CPR 3.4(2)(a) on the basis there are no reasonable grounds for bringing it (“the no reasonable grounds application”); and
iv) In the further alternative, applications made by D2, D3 and D4 that paragraphs 17(10) – (14) of the Particulars of Claim (“PoC”), which contain the quantum allegations, be struck out on the basis there are no reasonable grounds for bringing this part of the claim / summary judgment be granted as they have no real prospect of success and there is no other reason why this part of the claim should proceed to trial (“the quantum applications”).
D1, who was placed into voluntary liquidation in May 2014, has filed a Defence also contending the claim has no reasonable prospect of success and is an abuse of process; but D1 has not applied to strike out the claim or for summary judgment and has played no part in the hearing.
D2 and D4's application is supported by a witness statement from Mr David Robinson, solicitor at Kennedys LLP, dated 8 July 2019. D3's application is supported by witness statements dated 8 July 2019 and 14 October 2019 from Mr John Bennett, solicitor and partner at DWF Law LLP. The Claimant's witness statement, dated 9 October 2019, is made in response to the applications. Each of the statements addresses the Claimant's instructions to his lawyers and the course of the ET proceedings. They exhibit approximately 540 pages of documentation concerning those matters. Much of the narrative of what occurred is undisputed.
The structure of this judgment is as follows:
• An outline of the underlying events: paragraphs 6 – 15;
• The Claimant's pleaded case: paragraphs 16 – 36;
• Direct race discrimination: the law: paragraphs 37 – 41;
• The no reasonable grounds application: paragraphs 42 – 43;
• Summary judgment: the law: paragraphs 44 – 46;
• The main summary judgment applications: paragraphs 47 – 111;
• The quantum applications: paragraphs 112 – 116;
• The abuse of process applications: paragraphs 117 – 142.
An outline of the underlying events
The Claimant began employment with Lloyds on 30 September 2010. He was dismissed on 16 April 2012. He was employed as a private banker in the Wealth Business Unit (“WBU”), which was responsible for dealing with high net worth and ultra-high net worth individuals. His role involved attracting clients from Asian communities. The Claimant is of Pakistani national origins. For the majority of his employment his line manager was Mr Tim Pethybridge. Ms Pamela Godson was a HR Manager who joined the WBU in February 2011. She led the disciplinary investigation to which I shall now refer.
On 27 September 2011 the Claimant was required to attend a fact finding interview conducted by Ms Jenny Walker in relation to potential breaches of Lloyds' Conflicts of Interest and Personal Integrity Policies. The allegations concerned his relationship with the former world heavyweight boxing champion, David Haye, a Lloyds' client. They centred on the acceptance of gifts and hospitality and undertaking external work for Mr Haye and his company, Haymaker Limited, during working hours with Lloyds. On 5 October 2011 the Claimant was suspended from work. Disciplinary proceedings were instituted in December 2011, conducted by Ms Vicki Foster. The first disciplinary meeting took place on 24 February and was adjourned. The next hearing was on 7 March 2012. Ms Foster subsequently informed the Claimant that he was summarily dismissed for gross misconduct in a letter dated 16 April 2012. The letter described the misconduct as:
“ use of vehicles provided by Mr Haye; sums of money transferred between your own and Mr Hayes account; the fact that you have a personal email account at Haymaker Ltd; your attendance at a meeting with Jack Barclay Bentley where you represented Mr Haye and lead discussions to broker a sponsorship deal on his behalf in work time and your Linked-In account stating your role as Adviser at Haymaker….In summary, it is my belief that your actions represent Gross Misconduct and are deemed as misconduct serious enough to destroy the employment contract between yourself and the Bank”
The Claimant appealed his dismissal. Following a hearing conducted by Mr Takis Martakis, he was advised his appeal had been unsuccessful.
The Claimant first instructed D4 in relation to the internal disciplinary proceedings. On 25 January 2012 the Claimant emailed him two documents he had prepared, ‘ Draft Grievance’ and ‘ Summary of Lloyds' Evidence’. At D4's request, D3 used these documents as the basis for finalising the Claimant's grievance complaint which was submitted to Lloyds on 7 March 2012 (with a slightly amended version submitted on 9 March 2012).
Following his dismissal, the Claimant retained D4 to act in his ET claim against Lloyds. Proceedings were issued on 13 July 2012 for unfair dismissal; discrimination on grounds of race and/or religion; and victimisation. The Grounds were drafted by D3. Lloyds defended all claims. Further Particulars of the discrimination and victimisation claims (which had been ordered by the ET), were drafted by D3 and served on 30 October 2012.
On 21 December 2012 D3 and D4 advised the Claimant in conference and he agreed to withdraw his claim for discrimination on grounds of religion. Shortly thereafter D3 provided an outline for the Claimant's witness statement, which was subsequently prepared by D2 and was signed by the Claimant on 18 January 2013. In February 2013 the Claimant provided his comments on the witness statements served by Lloyds. By this time D3 was no longer acting, as a result of the Claimant's before the event insurance funding running out. A Schedule of Loss was served on 9 January 2013; and an updated version was served during July 2013.
The ET hearing began on 12 March 2013. By this stage the Claimant was represented by alternative counsel, Mr Raoul Downey. Witness evidence was heard over seven days in March. The case was then adjourned part heard. During the intervening period Mr Downey became too unwell to continue acting and D3 was re-instructed, attending a conference on 24 July 2013. The ET hearing resumed for two concluding days of evidence on 1 and 2 August 2013. Closing submissions were then heard on 28 and 29 October 2013.
The ET's decision was sent to the parties on 11 December 2013. The unfair dismissal claim was upheld and the discrimination and victimisation claims were dismissed. The Tribunal's conclusions in relation to the Equality Act 2010 claims are considered below. As regards unfair dismissal, the ET accepted the Claimant had been dismissed for a potentially fair reason, namely the Respondent's genuine belief he had committed misconduct (paragraph 84). However, the ET found the procedure adopted and the investigations undertaken were so deficient as to fall outside the range of reasonable responses open to Lloyds and that the failings were of such a degree that belief in the Claimant's misconduct was not reasonably held (paragraphs 85 – 101). The identified deficiencies included: that the allegations were only framed in general terms, with requested particularisation never provided (paragraphs 89 – 91); that...
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