Locke v Camberwell District Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1991 |
| Date | 23 May 1991 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Parker, Lord Justice Taylor and Sir George Waller
Judge - criticism of counsel's conduct - wrong assumption
A judge's criticism of counsel's and solicitor's conduct of a plaintiff's negligence case, based on the assumption that had they scanned the medical records properly they would have discovered a document which would have destroyed the plaintiff's case, was unfounded.
The document in question was, on fresh evidence before the Court of Appeal, only revealed for the first time before the judge and had, for reasons unknown, been inadvertently omitted from documents disclosed to the plaintiff's legal advisers. Accordingly, the judge's order that the plaintiff's solicitor pay personally the defendant's costs should be set aside.
The Court of Appeal stated allowing an appeal by the plaintiff's solicitor, Mr Daniel Davies, from the order of Mr Justice Morland (The Times December 11, 1989) that Mr Davies pay personally the defendant's costs from November 1, 1987 pursuant to Order 62, rule 11 of the Rules of the Supreme Court 1981.
The plaintiff, Elsie Doreen Locke, suffered from angina and had a cardiac catheterisation procedure at King's College Hospital which left her with a continuing disability in her right arm. She instructed Mr Davies to make a claim against the defendant, Camberwell District Health Authority.
Mr Davies consulted Dr Sutton, an expert cardiologist, instructed counsel, Mr Robin Spon-Smith, and obtained legal aid. A writ alleging negligence was issued on September 1, 1983.
In 1988 leading counsel, Mr John Archer, QC, was instructed and after consultation with Dr Sutton, both Mr Archer and Mr Spon-Smith in a joint opinion advised the action should not proceed to trial and legal aid should be withdrawn.
The defendant's solicitors would not agree to the action being discontinued unless Mr Davies paid the costs personally.
Leave was granted to the plaintiff to discontinue and the application for costs against Mr Davies came before Mr Justice Morland who made the order appealed from.
Mr Duncan Matheson, QC and Miss Siobhan Goodrich for Mr Davies; Mr John Grace for the defendant.
LORD JUSTICE TAYLOR said that at the end of the first day of the hearing Mr Grace handed the judge a cardiac catheterisation procedure record (CCPR). The judge assumed that the CCPR was amongst the hospital notes, and that if those acting for the...
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...Ch 205, Sir Thomas Bingham MR said at 237: "We endorse the guidance given on this subject in Locke v Camberwell Health Authority [1991] 2 Med LR 249 . A solicitor does not abdicate his professional responsibility when he seeks the advice of counsel. He must apply his mind to the advice rece......
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