Kelly v London Transport Executive
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE O'CONNOR |
| Judgment Date | 22 March 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0322-2 |
| Docket Number | 82/0139 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 1982 |
[1982] EWCA Civ J0322-2
The Master of the Rolls
(Lord Denning)
Lord Justice Ackner
and
Lord Justice O'Connor
82/0139
1977 K. No. 989
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE CAULFIELD)
Royal Courts of Justice.
MR. ANTHONY SCRIVENER, Q.C. and MR. CHRISTOPHER CARLING (instructed by V.J. Moorfoot, Esq.) appeared on behalf of the Appellant.
MR. DUNCAN MATHESON and MR. NIGEL PITT (instructed by P.E. Putt, Esq. Area Secretary, No 14 London Vest Legal Aid Area) appeared on behalf of the Respondent Law Society.
Michael Kelly is a plausible Irishman and a chronic alcoholic. He put forward a claim for £100,000 for personal injury against London Transport. It was completely bogus. He got legal aid and brought an action against them. He put them to a great deal of trouble and expense. So much so that London Transport now ask that their costs should be paid out of the legal aid fund.
This is the story. Michael Kelly is 60. He was born in Southern Ireland and came over to England when he was 23. He worked here, off and on, until he was 53. On the 21st October, 1974 he got a job with London Transport. Next day he bumped his head and got a slight cut. It was a trivial injury. It was patched up and he went back to work. Six months later, in March, 1975, he stopped work and has never worked since. He has lived on social security benefits and spent much of it on drink.
Starting in July 1975 he has made complaints of all sorts of ills—depression—eye trouble—bad hearing—all of which he attributes to the trivial injury on the 22nd October, 1974.
In March 1977, or thereabouts, a firm of solicitors interviewed him. They got the opinion of two counsel. As a result, they applied for legal aid on his behalf to promote an action against the London Transport Executive. He was granted legal aid in April 1977—but it was limited to obtaining counsel's further opinion. They obtained counsel's further opinion. That seems to have been favourable. So much so that in July 1977 a further certificate was granted to enable the action to go on until the close of pleadings. The proceedings commenced. Many medical reports were obtained. The judge said: "There are more documents on the medical issue in this case than I have ever seen in the whole of my career at the bar and on the bench". Leave was given to obtain the evidence of a machinery expert. Then in January 1980—this is an important date—the matter was put before counsel. We are told that counsel wrote an 18-page opinion, advising that the action should be proceeded with. As a result, on the 12th February, 1980, the legal aid committee gave Mr. Kelly unlimited leave to go on with the action: and for leading counsel to be instructed.
Armed with that legal aid certificate, the solicitors pursued his claim most diligently. They spared no expense. Taking his various complaints:
1. Eye trouble. They instructed two specialists who reported on him four times. It was eventually discovered that in 1971—three years before the accident—he had been in a drunken fight and got a black eye. That was the cause of his eye trouble. One of the specialists reported to the man's solicitors on the 19th June, 1980:
"If I appeared in court I feel that I would have to say that I fully accept that the injury to his right eye was most likely caused by the injury which he received in 1971.
"I regret that we have all rather been led 'up the garden path' in this matter".
2. Deafness. His solicitors instructed a specialist who reported on him eight times. All sorts of tests were done. Eventually, on the 19th June, 1980, the specialist reported to the man's solicitors:
"I am unable to establish that Mr. Kelly has anymeasurable hearing loss resulting from his claim…
"I must agree that when I refer to 'all his hearing problems' these mainly appear to be in a psychological realm rather than having any difficulty actually hearing people speak to him".
3. Depression. The solicitors instructed three specialists who made seven reports on him. Two of them were not at all helpful. The other was a specialist, Dr. Denham, who made a report on the 4th December, 1979 but changed it at the request of the solicitors and dated it the 3rd March, 1980. Later, the judge rejected Dr. Denham's evidence completely. This specialist, Dr. Denham, said positively:
"Mr. Michael Kelly is a man of fifty-eight, disabled by subsequent depression. His depression is typical in every respect. His illness is caused by and consequent to the accident on the 22nd October 1974 and the ensuing injury".
As against all those doctors for Mr. Kelly, London Transport engaged five specialists who attended at the various examinations by Mr. Kelly's doctors. These were able conclusively to demonstrate the falsity of Mr. Kelly's claims. The most illuminating of them is the report of Dr. Denis Leigh of the Bethlem Royal and the Maudsley Hospitals of the 28th June, 1980:
"I consider that the accident of 22.10.74 in which Mr. Kelly seems to have lacerated his scalp has no relationship to Mr. Kelly's present mental, or indeed physical condition. He is a chronic alcoholic and was a chronic alcoholic in 1974. In July 1975 he showed evidence of an early dementia and of a delusional state characteristic of chronic alcoholism. He has continued to drink heavily over the years, has had an attack of delirium tremens in 1979, but still continues to drink heavily, and to do little else…
"Finally, I consider that Mr. Kelly is unfit to continue to be responsible for his affairs. He should be placed under the care of the Court of Protection—but that is a matter for his solicitors to arrange".
His solicitors did consider it and refused to put him under the care of the Court of Protection. On leading counsel's opinion they refused to consent to the appointment of a guardian and said that they would contest any application that might be made in that respect.
Medical Reports
The solicitors for London Transport sent copies of their medical reports to the solicitors for Mr. Kelly. One in February 1980: and the others as soon as they were received in July 1980. But Mr. Kelly's solicitors did not reciprocate. They only sent at one stage the "doctored" report of Dr. Denham. Otherwise, they did not send any of their medical reports to London Transport. Time after time London Transport asked for these reports. They were not produced until a fortnight before the trial—although, months before, on a summons for directions, an order had been made for their production.
In addition to the medical experts, Mr. Kelly's solicitors asked for and obtained leave to call a machinery expert, a Col. Hands. The judge dismissed his evidence as of no consequence because he "attempted to prove the obvious".
Payment into court
On the 29th July, 1980 London Transport Executive paid into court £750 in satisfaction of the plaintiff's claim. It was not accepted. We are told that, informally, the solicitors took the advice of counsel upon the matter. On his advice, it was not accepted. The trial was fixed for the 28th October, 1980. On the 24th September, 1980 (still not having received the plaintiff's medical reports) London Transport wrote a letter offering £4,000, saying:
"The Executive have given further consideration to this matter, especially in the light of the costs which they will incur on the trial and which, even if they are successful in resisting the claim, they will be unable to recover from your legally aided client.
"I am now instructed that the Executive are prepared to pay a global sum of £4,000 (inclusive of the amount of £750 already in court) in settlement of the plaintiff's damages and costs".
The plaintiff's advisers did not accept that offer. We are told that they again informally took the advice of counsel upon the matter. As we know from the specialist's opinion, the man himself was unable to conduct his affairs. It was his advisers—solicitors or counsel or both—who must have advised him not to accept the £4,000.
Then on the 13th October, 1980 (a fortnight before the trial) Mr. Kelly's solicitors at last forwarded the medical reports. Although on their own reports there was no conceivable claim in respect of the eye trouble and the hearing, they went on with those claims. The specialists on those points were required to attend the court: but only one was called. The others were not necessary.
The judge's ruling
The hearing lasted three days. On the 30th October, 1980 Mr. Justice Caulfield gave judgment. In picturesque language, he exposed the bogus claim. He found the plaintiff a wholly unacceptable witness. He rejected completely the evidence of Dr. Denham. He said that he was "over-obliging in his quest for the plaintiff". He condemned him for changing his report at the request of the plaintiff. He said:
"I do not think the solicitor should have asked him anyway to have changed his report and, secondly, if a consultant was asked, knowing that he is delivering a forensic report—one that is going to be used in the courts—he should not have obliged and therefore he falls down in my estimation".
Mr. Matheson has told us today that it was not really the solicitor who was responsible for changing the report. The matter had been put to counsel. Counsel had advised the obliteration of references to previous medical reports. But—whoever it was—it is quite plain to my mind that the specialist's report should not have been...
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