Lexander Kuznetsov v Edwards Duthie Shamash (A Firm)

Hearing dates: 18, 20 March 2024

Approved Judgment

Dexter Dias KC

This judgment was handed down remotely at 10.30am on 19 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Dexter Dias KC:

(Sitting as a Deputy High Court Judge)

This is the judgment of the court.

It follows the listing of this case for trial on 18 March 2024 and then 20 March 2024. The trial did not proceed on either of those dates for reasons that will become clear. The parties have made several applications and the judgment provides the court's ruling on each of them.

This is a professional negligence claim. The claimant is Alexander Kuznetsov, who is a litigant in person. There are four named defendants. They are (1) Edwards Duthie Shamash (a firm); (2) Edwards Duthie Solicitors (a firm); (3) Ola McGhee; (4) Olabunmi Adesola McGhee. There is dispute about which or who are the correct defendants. This need not be resolved here, save to say that the first defendant was incorporated after merger in 2019 and defendants three and four are the same person. Ms McGhee's name, however, is Olubunmi and has been misspelled by the claimant. The defendants are represented by Mr Innes of counsel.

The applications before the court for determination are:

1. The claimant's application to adjourn the trial;

2. The defendants' application to strike out the claim;

3. The defendants' various costs applications.

The judgment is subdivided into three sections accordingly. Given the nature of the applications, it is unnecessary to set out the factual background extensively as the detail of the rival cases about the underlying dispute does not, save in one critical respect, affect the decisions the court must now make.

In its barest essentials, Alexander Kuznetsov was employed by the Royal Bank of Scotland (“RBS”) in October 2010 and made redundant in October 2011, with a termination date of 31 December 2011. He made various claims against RBS and in March 2012, albeit briefly, instructed the first defendant. The third defendant was a fee earner at the firm. The first defendant therefore provided some initial advice and prepared a draft of the ET1 Claim Form to pursue a claim in the Employment Tribunal. The claimant revised and lodged at the Employment Tribunal himself on 29 March 2012. The ET1 made a claim for unfair dismissal, with ancillary claims for holiday pay, notice pay and a protective award based on a failure of redundancy consultation. The claims were ultimately compromised on terms involving a substantial payment to Mr Kuznetsov, although the details of that settlement agreement remain confidential.

There was no claim for automatic unfair dismissal based on what is known as “whistleblowing”. The claimant alleged that he was dismissed as a result of protected disclosures he made to RBS about (1) not being paid his bonus and (2) being asked to relocate to its office in Russia. His attempts to pursue this whistleblowing claim were variously dismissed by the courts: by Employment Judge Glennie on 13 February 2015; on appeal at the Employment Appeal Tribunal on 29 July 2015 by HHJ Eady QC (as she then was); on 31 January 2017 by the Court of Appeal.

The claimant alleges that the defendants should have advised him to include the whistleblowing claim in his ET1 claim form against RBS. It is put in his Particulars of claim in this way:

“34.1 [The Defendants] failed to plead the claim for automatic unfair dismissal in accordance with the Employment Tribunal's rules and practice and/or advice that this has to be pleaded separately from the unfair dismissal “tick box” on the form and/or failed to advise that the claim for unfair dismissal had to be pleaded differently.”

The legal significance of this additional claim is that a protected disclosure is treated as an automatically unfair dismissal for the purposes of the Employment Rights Act 1996, and the “cap” on compensation otherwise applicable to unfair dismissal claims in the Employment Tribunal does not apply to whistleblowing.

The defendants dispute that the claimant gave Ms McGhee instructions about the protected disclosures or instructed them to make such a claim. If Mr Kuznetsov did provide such instructions and the claim was not advanced by the defendants, he alleges that this would be a breach of duty, a vital element in a professional negligence claim.

With that outline of the factual background, I turn to the applications before the court.

§I. ADJOURNMENT

On 29 February 2024, the King's Bench Listing Office received the following email sent on behalf of the claimant:

“Dear High Court,

I am a relative of Mr. Alexander Kuznetsov who is a party (claimant) in the proceedings referred above. I was told that a trial is scheduled for the week commencing on 18 March 2024. Due to the medical and health problems sustained by Mr. Kuznetsov, he asked me to contact the Court and inform the Court of the adverse health conditions and seek an adjournment/postponement.

Regretfully, Mr. Kuznetsov sustained a deterioration in the health condition in February, including acute heart pain, due to the triple vessel heart desease. [sic]

This is confirmed by the enclosed medical report/fit note. As stated in the report, the doctor/practice can be contacted at 02074856104 if necessary.

According to the medical records, examination by Professor Uppal showed triple-vessel disease and is scheduled for a coronary artery bypass graft operation into three or four vessels. Risk factors for ischaemic heart disease include hyperchdlesterolaemia, hypertension and positive family history.

In light of the circumstances, I would like to seek a reasonable adjournment/postponement of the hearing due to the adverse health conditions of Mr. Kuznetsov.

Please find an official medical report attached. Please do not hesitate to contact me if any further information is required.

Sincerely,

Valery Kuznetsov”

The authority for Valery Kuznetsov to write on behalf of the claimant is unclear beyond what has been stated in the email. Equally, as noted by the defendants, this was not a formal application to adjourn made by the claimant. Nevertheless, in fairness to Mr Kuznetsov, the court approached the communication as an adjournment application by the claimant or at least on his behalf and was prepared to proceed on the basis that his “relative” was duly authorised.

The attached “official medical report” was a one-page proforma doctor's note from Dr Sabri Trepca dated 26 February 2024. The doctor appears to practice from a health clinic in northwest London. The document states that the claimant was examined by the doctor on the same date, but contains no record of how long the examination took, what Mr Kuznetsov was complained of or what was medically found save for an entry that due to the claimant's “triple vessel disease”, Mr Kuznetsov was “advised” that he was “not fit for work” from 21 February to 23 March 2024. There were no further relevant details provided. The report does not say, as the email claims, that there was a “deterioration” in the claimant's condition, nor that he is unfit to attend court. Nonetheless, this document is the basis of the claimant's adjournment application.

On 14 March 2024, the court received a letter from the defendants' solicitors opposing the adjournment application and another on 15 March 2024. The defendants submitted that the medical evidence filed by the claimant was insufficient. It was not in accordance with the requirements set out in the case of Levy v Ellis-Carr [2012] EWHC 63 (Ch) by Norris J. The approach of the courts to what constitutes adequate medical evidence to justify non-attendance was recently considered in Bruce v Wychavon District Council [2023] EWCA Civ 1389 (“ Bruce”), where Coulson LJ said at [36]:

“There is a good deal of authority concerned with what may constitute adequate medical evidence, in circumstances where that is proffered as the good reason for the non-attendance. The most useful guidance is set out by Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch) at [36], where he said:

“…Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).” (My emphasis)

That approach was expressly endorsed at [26] of the judgment of Lewison LJ in the subsequent case of Forresters Ketley v Brent [2012] EWCA Civ 324.”

The Court of Appeal also considered this issue in similar terms in GMC v Hayat [2018] EWCA (Civ) 2796 at [48] (“GMC”). It should also be noted that the courts have said that where a party is unrepresented, the...