Mr Kristian Lee Hanbury (Administrator of the Estate of Mr David Jack Hanbury, deceased) v Hugh James Solicitors (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip DBE,Mrs Justice Yip |
| Judgment Date | 30 April 2019 |
| Neutral Citation | [2019] EWHC 1074 (QB) |
| Docket Number | Case No: HQ17X04185 |
| Court | Queen's Bench Division |
| Date | 30 April 2019 |
[2019] EWHC 1074 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Yip DBE
Case No: HQ17X04185
Mr Richard Viney (instructed by Birchall Blackburn Law) for the Claimants
Mr Ivor Collett (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 8, 9, 10, 11 April 2019
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.
This is a claim for professional negligence brought on behalf of the widow and estate of Mr David Jack Hanbury (“the claimants”) against solicitors who were instructed to pursue a claim arising out of his death from asbestos related lung cancer. The claim did not proceed after an unfavourable medical report was obtained. It is the claimants' case that Hugh James omitted highly material evidence when instructing the medical expert and then failed to notice that this had not been considered.
Factual background
The late Mr Hanbury died in January 2010. For many years, he had worked as an insulation engineer (commonly known as a “lagger”). Given his occupational history, mineral fibre analysis was conducted on lung tissue taken during post-mortem examination. This found very high levels of amosite and crocidolite asbestos. An inquest into Mr Hanbury's death concluded that he had died as a result of industrial disease.
Mr Hanbury became unwell in late 2009 but his cancer was not diagnosed until shortly before his death. He deteriorated very rapidly. The primary limitation period for a claim under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 expired in January 2013.
Soon after the inquest, in August 2010, the family of Mr Hanbury instructed Hugh James Solicitors in Cardiff to consider whether they could bring a claim. Hugh James had been recommended to them as having particular expertise in relation to asbestos claims. In October 2010, Mrs Hanbury, her son Darren, daughter Sharon Powell and son-in-law Robert Powell attended the Hugh James office and met Cenric Clement-Evans, who was then head of the asbestos claims department. Before the meeting, they had provided Hugh James with copies of the post-mortem report and the mineral fibre analysis. Mr Clement-Evans noted that the post-mortem report was “unusually strong” in confirming the levels of asbestos and advised that there appeared to be reasonable prospects of a successful claim, albeit much further work was needed. It was agreed that an application would be made to the firm's conditional fee panel for authority to enter into a conditional fee agreement.
Hugh James was formally retained under the terms of a conditional fee agreement on 4 November 2010. I note that Mr Powell was subsequently appointed as the administrator of the estate and that later Mr Kristian Hanbury took over that role. No issue arises as to the identity of the claimants and it is not disputed that a duty was owed to Mrs Hanbury and the estate to exercise reasonable skill and care in advising and pursuing the claim.
The initial information provided to Hugh James by Mrs Hanbury suggested only one potential defendant, Severn Insulation Company Limited. However, when Mr Hanbury's National Insurance records were obtained it became apparent that the position was more complex. Mr Hanbury had worked for many employers during his working life, several of whom were known to have used asbestos. The firm spent a considerable amount of time investigating the employment history and attempting to identify witnesses to the work that Mr Hanbury had done with his various employers.
In June 2011, Mr Clement-Evans met the family and explained that where there were multiple employers a claim for lung cancer would generally be apportioned such that each employer would only be liable to the extent that they had exposed the deceased to asbestos. I note that, at this time, there was real uncertainty as to how the courts would deal with this complex legal issue. However, the simplified approach adopted by Mr Clement-Evans was not unreasonable and I believe accorded with a significant body of legal opinion at the time. The family were advised that there was a need to obtain further evidence as to the work Mr Hanbury did with his various employers and that apportionment could cause difficulties. Further work was subsequently done by the firm to identify which companies remained in existence and/or were insured at the relevant time. The family appear to have done what they could to assist.
It is clear that the firm had concerns about the strength of the available evidence. In January 2012, a trainee solicitor assisting Mr Clement-Evans advised the family that unless they could obtain better witness evidence, they would not be able to take the case any further. It was agreed that an advertisement calling for witnesses should be placed in the local press. This was described as a “last throw of the dice”. That did produce some further evidence, causing the same trainee to advise that they were now “a little more optimistic”. The next steps were to obtain medical evidence and then send the papers to a barrister to advise.
Mr Clement-Evans left Hugh James in 2012. Mr Simon Ellis took over his position as head of the asbestos team. He had already done some work on the claimants' case and took over conduct on Mr Clement-Jones' departure. He wrote to the family in May 2012 explaining the enquiries that had been made to identify witnesses and indicating that the next step was to instruct a barrister who would be asked whether he was willing to act on a conditional fee basis.
Instructions were sent to Counsel, Mr Robert O'Leary. He was an experienced barrister, with particular expertise in asbestos related litigation. He was regularly used by Mr Ellis. He entered into a conditional fee agreement dated 31 May 2012. No advice was sought at that stage. Mr Ellis was simply seeking confirmation that Mr O'Leary was willing to act under a conditional fee agreement.
It is apparent that Mr Ellis had some continuing concerns about the claim. He reviewed the file on 13 June 2012 and considered a schedule prepared by a junior colleague which listed the potential defendants and noted where insurance cover was in place and where witness evidence was available. Mr Ellis concluded:
“On this basis, we should potentially recover in excess of 50% of the full value of the claim. As this is a lung cancer claim, this is probably viable.”
He then called Mr O'Leary. The attendance note is as follows:
“SE Telephoning Rob O'Leary.
I said that I had received his CFA. I said I was happy to deal with the claim on that basis but I just wanted to ensure that he was fully aware that the witness evidence we had was unlikely to be improved on. We would not be able to locate additional witnesses nor were the witness [sic] we did have likely to be in a position to improve upon their statements. Rob said that he fully appreciated this.
I said that on this basis, I would get Letters of Claim sent off and I would arrange for a medical report to be obtained.”
Letters of claim were sent that day. Eight potential defendants had been identified.
The following day, 14 June 2012, Dr Ian Williamson, a consultant chest physician, was instructed to prepare an expert report. The letter of instruction referred to six witness statements and the Inland Revenue schedule of employment as being enclosed but makes no mention of the post-mortem report or mineral fibre analysis.
Dr Williamson's report is dated 26 September 2012. He had apparently seen the deceased's GP and hospital records but not the post-mortem report or mineral fibre analysis. He concluded:
“There is insufficient evidence within the evidence provided to attribute an increased risk of lung cancer to previous asbestos exposure and on balance of probability his lung cancer was due to cigarette smoking.”
Having reviewed this report, Mr Ellis wrote to the family on 4 October 2012 explaining that the medical report was not supportive of the claim. He indicated that, as the evidence stood, it would not be possible to proceed with the claim. He advised that it might be possible to obtain evidence from a forensic engineer but advised that the family would have to fund the cost of such evidence. Mr Ellis said that he would need to discuss the position as a matter of urgency. By then, there were only three months left of the limitation period.
Mrs Powell telephoned Mr Ellis the next day. He repeated the advice he had given in the letter and reiterated that the cost of obtaining an engineer's report would not be met under the “no win no fee” agreement. He also explained that even if a supportive engineer's report was obtained, the defendants would undoubtedly challenge it and that he could give no assurances. If the claim failed, they would not recover the costs of the report. Unsurprisingly given that advice, the family decided that they could not risk incurring the cost of an engineer's report. By letter dated 8 November 2012, they confirmed that they would not be pursuing the claim. Mr Ellis therefore closed his file and wrote to the proposed defendants' representatives to indicate that Hugh James was no longer instructed. The claim was pursued no further.
It is the claimants' case that Mr Ellis was negligent in failing to send the post-mortem and mineral fibre analysis reports to Dr Williamson and in failing when reviewing the report to recognise that he had not seen that...
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