McFaddens v Graham Platford
| Jurisdiction | England & Wales |
| Judgment Date | 30 January 2009 |
| Neutral Citation | [2009] EWHC 126 (TCC) |
| Docket Number | Case No: HT-07–379 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 30 January 2009 |
[2009] EWHC 126 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
HHJ Toulmin Cmg QC
Case No: HT-07–379
Mr Andrew Nicol (instructed by Barlow Lyde & Gilbert LLP) for the Claimants
Mr Guy Mansfield QC (instructed by Fishburns) for the Defendents
Hearing dates: 3—6 & 13 November 2009
HHJ John Toulmin CMG QC:
This is a claim by McFaddens, a firm of solicitors, against a practising barrister, Graham Platford, for an indemnity or contribution to damages which it paid out to compromise a negligence claim, intimated against it as a result of its alleged negligence, by former clients, Mr Cunningham, Ms Good and a company called Gelande Corporation of which Mr Cunningham was the major shareholder and Chief Executive, and costs incurred by McFaddens in doing so.
The claim as set out in the Particulars of Claim, is made up of a claim for £51,650 paid to Mr Cunningham, Ms Good and Gelande in settling the claim and the sum of £20,570 which McFaddens claim were costs reasonably incurred by it as a direct consequence of the alleged negligence or breach of duty of the Defendant. The claims are denied.
The barrister against whom the claims are made is Graham Platford, a very senior and respected Junior Barrister called to the bar in 1970.
McFaddens is a small London firm. At the relevant time it had two partners, Timothy Eppel (the senior partner) admitted as a solicitor in 1975 and Harold Berwin, admitted in 1974. In relation to work on the litigation which led directly to the claim against McFaddens, the majority of the solicitors' work was done by a consultant, Graham Willis, who although he was admitted as a solicitor only in 1994, had previously been successively a litigation clerk and a Fellow of the Institute of Legal Executives with extensive experience of litigation since the 1970's.
Mr Willis had the day-to-day conduct of the underlying action from June 2005 to the end of September 2005, subject to the supervision of Mr Eppel who had an office on the same corridor in the building and whom he consulted on a regular basis. Mr Willis joined the firm as a consultant in June 2005.
In relation to the underlying claim made by Mr Cunningham, Ms Good and Gelande, for convenience I shall refer to them as “the joint Claimants”. When I am doing so, I am referring to them as Claimants in their action against Collett & Farmer. This is the lawsuit which underlies the present litigation.
This claim relates to an Application made on 16 September 2005, (but not served until a few days later) supported by a witness statement from Mr Willis, that the trial of the action listed to commence on 4 October 2005 in which the joint Claimants were the claimants and Collett & Farmer, Architects, were the defendants should be adjourned because “there is good reason to believe that by reason of mental illness the first claimant (Mr Cunningham) is not fit to conduct the action”.
There is no dispute that this Application was made in very unusual circumstances arising out of a genuine concern as to the mental state of Mr Cunningham. Neither the solicitors in the Claimant firm nor Mr Platford had ever made a similar Application in similar circumstances in professional careers of over thirty years although Mr Eppel said in evidence that he had once made a similar Application in rather different circumstances. This is not surprising since there is a presumption that litigants are competent to conduct their litigation.
There is also no doubt that the Application was not supported by Mr Cunningham. The Claimants contend that in making the Application they followed the advice of Mr Platford and that the advice was negligent. They further contend that they were bound to follow that advice. The Claimants contend that no barrister in the Defendant's position could have considered that there was anything more than the remotest risk that Mr Cunningham was a patient i.e. that he was incapable by reason of mental disorder from managing his property and affairs including this litigation.
The Defendant contends that, in the circumstances in which he gave the advice, there was a real risk that Mr Cunningham lacked capacity within the meaning of the Mental Health Act 1993 and the Civil Procedure Rules. In such circumstances there was a real risk that Mr Cunningham would require a litigation friend to conduct the proceedings on his behalf. The Mental Health Act 1993 has been replaced by the Mental Incapacity Act 2005. The Civil Procedure Rules have also been amended to comply with the new legislation. Neither the Act nor the Rules alter the basic principles.
It is right to stress at the outset that this is not a case where there is a history of poor advice and support from either the solicitors or Mr Platford. On the contrary, apart from this Application, Mr Cunningham received excellent service both from the solicitors and Mr Platford – in all the circumstances beyond the call of professional duty.
Mr Willis, Mr Eppel and Mr Platford each gave oral evidence before me and were extensively cross-examined. Mr Berwin, who played an important part in representing Mr Cunningham in other proceedings, did not give evidence. In addition I have transcripts of various hearings before and after the hearing on 23 September 2005 when the Application was heard and about which serious complaint is made, as well as a transcript of that hearing.
I find that in their oral evidence Mr Willis and Mr Platford were doing their best to assist the court. I find that Mr Eppel appeared to have a limited recollection on a number of matters which I should have expected him to remember much more clearly. I had the distinct impression that he was seeking to minimise his involvement even at times when he was very much involved.
Mr Cunningham did not give evidence in these proceedings before me or swear a witness statement although he did swear a witness statement in the litigation against Collett & Farmer. Although I have been able to form a clear picture of the relevant events, I take full account, in relation to findings relating to Mr Cunningham, of the fact that I have not heard oral evidence from him in connection with this Action.
In his opening, Mr Nicol for the Claimants, referred extensively to the transcript of a hearing before HHJ Coulson QC on 29 November 2005. This was an application by Mr Cunningham's new legal team to set aside the Order made on 23 September 2003 that Mr Cunningham should attend for a medical examination by Dr Latcham, Collett & Farmer's expert, for the purpose of the court being able to decide the issue of whether Mr Cunningham was a patient within the meaning of Part 21.1(2)(b) of the Civil Procedure Rules and that, if he did not do so, his claim and defence to the counterclaim would be struck out. Mr Cunningham had not done so and the claim and defence to counterclaim had been struck out.
I have to be very careful to consider the claim made by McFaddens against Mr Platford on the basis of the state of knowledge as of 16 to 23 September 2005 rather than the state of knowledge at a later date. I shall not therefore refer in any detail to the 29 November 2005 hearing. This hearing was conducted on the basis that the issue of the competence of Mr Cunningham to act as claimant in the litigation had been resolved and that he was competent to do so.
The pleadings
The pleadings of both parties set out much of the factual background from their own points of view. I will deal with the history in detail later and here I will only refer to the main contentions.
McFaddens contend (paragraph 36 of the Amended Particulars of Claim) that, after they ceased to act, the joint Claimants (i.e. the Claimants in the main action) took the position that the Application heard on 23 September 2005 should never have been issued, could not have been issued by competent and skilful lawyers and was wholly untenable.
The pleading went on:
“36. In the premises it was contended that if the Application to set aside the Order made on 23 September 2005 was not successful and that as a result Cunningham, Good and Gelande lost the chance to proceed against Collett & Farmer and that loss and damage resulted from that loss of a chance, such loss and damage was caused by the negligence and/or breach of duty of the lawyers responsible for the issue of the Application heard on 23 September 2005”.
On the basis that the Action remained struck out if Mr Cunningham failed to comply with the Order that he undergo a further psychiatric examination, the following issues arise (a) whether Mr Cunningham reasonably refused to undergo the further psychiatric examination which was ordered by the court and (b) if the action remained struck out, did the joint Claimants lose the chance of a successful action?
In paragraph 38 of the pleading, McFaddens contend that they were required to attend the hearing on 29 November 2005, at which the Order of 23 September 2005 was in fact set aside, and to instruct counsel. At that hearing they compromised a potential negligence claim against them by agreeing to pay a sum equivalent to the assessed costs of the joint Claimants of and occasioned by the Application on 16 October 2005, heard on 29 November 2005, and a sum equivalent to the assessed costs of Collett & Farmer occasioned by the Application dated 20 October 2005 and by the Order made on 23 September 2005. On 29 November 2005 the Order striking out the joint Claimants' claim was rescinded and the action was permitted to continue.
The particulars of negligence alleged against Mr Platford are that no reasonably competent barrister in the Defendant's position could properly...
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...Mr Pugh had the weekend to consider the points and he used it to do so. His predicament was similar to that of the barrister in McFaddens (a firm) v. Platford [2009] EWHC 126 (TCC) (see, in particular, paragraph 374 of the judgment of HH Judge Toulmin CMG QC) - he was at the doors of the co......