Laing v Taylor
| Jurisdiction | England & Wales |
| Judge | THE HONORABLE MR JUSTICE LANGLEY |
| Judgment Date | 20 February 2007 |
| Neutral Citation | [2007] EWHC 196 (QB) |
| Docket Number | Case No: HQ05X03780 |
| Court | Queen's Bench Division |
| Date | 20 February 2007 |
[2007] EWHC 196 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honorable Mr Justice Langley
Case No: HQ05X03780
Mr J. Marks QC (instructed by McBride Wilson & Co) for the Claimant
Mr W. Flenley (instructed by Mills & Reeve) for the Defendant
Hearing dates: 29 and 30 January 2007
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.
The Hon. Mr Justice Langley:
Introduction
This is an interesting and, to my mind, difficult problem. It arises on applications by the Defendants to strike out the claim on the basis of issue estoppel or analogous principle or as an abuse of process and for summary judgment. The essential complaint is that the claim is an improper attempt to relitigate questions already decided against the Claimant.
The Claim in the TCC
The Defendant solicitors (“Taylor Walton”) are sued by the Claimant (“Mr Laing”) for professional negligence in relation to their work in connection with agreements said to have been made between Mr Laing and a Mr Watson and/or Mr Watson's company, Burkle Holdings Ltd, pursuant to which Mr Watson invested £500,000 in a development project promoted by Mr Laing at Glory Mill, High Wycombe. Two oral agreements are involved, the first in October/November 1999, and the second, said to be a variation of the first, made in late April or early May 2002.
There is no doubt that £500,000 was lent to Mr Laing for the purpose of the development. The development proceeded. Mr Laing and Mr Watson fell out over the terms of their agreement. The detail does not matter. Mr Watson claimed that it had been agreed that he should be entitled both to a 12.5% profit share in the development and to a beneficial interest in a 12.5% shareholding in the company owning the development. Mr Laing claimed that only one 12.5% profit interest was to be granted to Mr Laing and that insofar as there was an agreement in relation to a 12.5% shareholding that was only as security for that 12.5% interest. The “value” of 12.5% is said to be of the order of £1.5 million.
Mr Kelly of Taylor Walton was instructed by Mr Watson/Burkle in relation to the agreements and drafted documentation intended to reflect what, or at least part of what, had been agreed.
Mr Watson/Burkle took proceedings against Mr Laing in the Technology and Construction Court. Mr Laing sought disclosure from Mr Watson in the course of which the question arose whether or not Taylor Walton were retained by Mr Laing during the transaction. Mr Kelly said he was, jointly with Mr Watson. After a four-day hearing, it was decided by HHJ Toulmin, in a judgment dated 23 March 2005, that Taylor Walton were not retained by Mr Laing despite Mr Kelly's evidence to the contrary. There was no appeal.
The claim proceeded to trial. It was tried by HHJ Thornton. The trial lasted 7 days. It ended on 1 July 2005. There is a reserved judgment, dated 26 September 2005, running to 55 pages. Mr Watson won and Mr Laing lost. Judge Thornton accepted Mr Watson's evidence that at the outset there was an oral “25%” agreement. Mr Watson's case was that Mr Kelly was only instructed by him to document the 12.5% shareholding and that is why the documents reflect only 12.5%. The judge was not impressed by Mr Laing's evidence. He was hostile to Mr Laing (for whom Mr Marks QC appeared) calling Mr Kelly, but a witness statement by Mr Kelly was put in evidence. Mr Kelly's evidence was supportive of Mr Laing's case that there was only one 12.5%.
Mr Laing was advised of the difficulties of an appeal on questions of fact and there was no appeal from the decision of HHJ Thornton.
The Present Claim
Mr Laing's claim against Taylor Walton asserts a duty of care (contrary to the decision of Judge Toulmin), that the agreement with Mr Watson was for only 12.5% (contrary to the decision of Judge Thornton), that had Mr Kelly drafted the documents as he should have done they would have shown clearly that there was only one 12.5%, and that (flatly contrary to the evidence accepted by Judge Thornton) had he done so Mr Watson would in fact have signed them because he knew that was the true agreement they had made. Despite some of the wording in paragraph 18 of the Particulars of Claim, Mr Marks expressly disavowed any claim on any other basis such as a loss of a chance. The case stands or falls on Mr Watson signing up to one 12.5% had it been put squarely to him. The damages claimed are damages to compensate Mr Laing for the cost of his liability to Mr Watson/Burkle calculated on the basis of both a 12.5% shareholding and a 12.5% profit share.
This apparently remarkable claim is made all the more extraordinary by the fact that it is not even submitted that there is any new evidence on which Mr Laing can rely to contend that had it been before Judge Thornton the judge would or even might have reached a different conclusion.
It is acknowledged by Mr Marks that Judge Toulmin's decision is binding between Mr Laing and Mr Watson and that documents held by Taylor Walton for which privilege has been claimed on behalf of Mr Watson/Burkle are indeed privileged and cannot be disclosed without a waiver, which has been refused. They will not therefore be in evidence if this claim continues.
There is, however, a further singular feature of this case. Mr Kelly (apart from denying negligence) in effect agrees with Mr Laing's case both as to duty of care and as to the substance (one 12.5%) of what was agreed between Mr Laing and Mr Watson.
To add to the exceptional nature of these events and this evidence, Mr Marks took me through some of the more significant documents at the time of and surrounding the oral agreements and when (in November 2004) the dispute between Mr Laing and Mr Watson arose. I have also read Judge Thornton's judgment. In my judgment Mr Marks advanced a reasonably compelling case that the decision of Judge Thornton on the terms of the agreements is open to serious challenge. If it was wrong, I think it also to be reasonable to conclude that, despite its stark nature, the case on causation in these proceedings is also far from hopeless. I think it would be wrong for me to say more in view of the decision I have come to and it is right to acknowledge that the case was no different from that put before Judge Thornton who had the advantages not only of hearing the witnesses and, no doubt, having detailed submissions on behalf of Mr Watson. But my judgment that there is a serious case to be made in favour of Mr Laing is, I think, material to the issues before me. Indeed it is fatal to the application by Taylor Walton for summary judgment, albeit Mr Flenley acknowledged that application was aimed at Mr Laing's case being that Judge Thornton would have decided otherwise had there been no negligence and not (as it became clear in the course of the hearing it was) on the basis that Mr Watson would have signed documentation recognising he had only one 12.5% interest. I am satisfied that, seen in isolation, the claim by Mr Laing has a real prospect of success including success on the causation and duty issues.
The Law: Abuse of Process/Issue Estoppel
Mr Flenley, for Taylor Walton, submits that this claim is a blatant attempt to relitigate issues already decided and to make a collateral attack on the decision of Judge Thornton. That is not, in substance, challenged by Mr Marks. He submits, however, that it does not follow that the court must strike out the claim and it should not do so where there is a real prospect of the claim succeeding and Mr Kelly himself...
To continue reading
Request your trial
-
Kotonou v National Westminster Bank Plc
...Nat West or would otherwise bring the administration of justice into disrepute; I refer to how the matter was put by Buxton LJ in Laing v Taylor Walton (a firm) [2007] EWCA Civ 1146 at [12]. 16 As appears from Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748 at [16], per Thomas LJ, an issue......
- Secretary of State for Business, Innovation and Skills v Potiwal
-
Hinds v Conyers Dill & Pearman (A Firm)
...481; [2001] C.P.L.R. 49; [2001] BCC 820; [2001] 1 BCLC 313; [2001] P.N.L.R. 18, distinguished. (7)Laing v. Taylor Walton (a firm), [2007] EWHC 196 (QB), followed. (8)Lake v. Lake, [1955] P. 336; [1955] 2 All E.R. 538, referred to. (9)Perry v. Raleys Solicitors, [2019] UKSC 5; [2019] 2 W.L.R......
-
Laing v Taylor
...Case No: A2/2007/0528 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE [2007] EWHC 196 (QB) QUEEN'S BENCH DIVISION MR JUSTICE LANGLEY Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment of Word......