Mr Russell Chweidan v Mischcon De Reya Solicitors

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMrs Justice Simler DBE
Judgment Date31 Jul 2014
Neutral Citation[2014] EWHC 2685 (QB)
Docket NumberCase No: TLQ/13/1462

[2014] EWHC 2685 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Simler

Case No: TLQ/13/1462

Between:
Mr Russell Chweidan
Claimant
and
Mischcon De Reya Solicitors
Defendant

Mr Antony Sendall (instructed by Lyons Davidson) for the Claimant

Mr Nigel Porter (instructed by Robin Simon) for the Defendant

Hearing dates: 23, 24, 25 & 26 June 2014

Mrs Justice Simler DBE

Introduction

1

This is a claim for damages in contract and tort for professional negligence by Mr Russell Chweidan, the Claimant, against his former solicitors, Mishcon de Reya Solicitors, the Defendant. The claim arises out of underlying employment tribunal claims brought by the Claimant in 2008 against his former employer J P Morgan Europe Ltd ("JP Morgan"). The Claimant retained the Defendant to act on his behalf in those proceedings. Although the Claimant was initially successful in his claim of unlawful direct disability discrimination and unfair dismissal against JP Morgan and was awarded compensation in excess of £500,000, the unlawful discrimination findings were overturned on appeal. The Claimant failed in his claim for unlawful direct and indirect age discrimination and in a claim of disability related discrimination. The ultimate result of the proceedings brought by the Claimant against JP Morgan was an award of £68,000 odd in respect of unfair dismissal and a costs bill that exceeded this sum.

2

In these proceedings, the Defendant admits breach in relation to its failure to lodge a cross-appeal to the Employment Appeal Tribunal ("the EAT") in time with the result that the Claimant was not permitted to proceed with that cross-appeal. Further, there are allegations of breach of duty and/or contract arising out of the alleged failure to advise on or explore the possibility of a claim based on failure to make reasonable adjustments under the Disability Discrimination Act 1995 ("the DDA") from the outset or at any other time that would have enabled such a claim to proceed in the employment tribunal. Causation and loss are denied.

3

The Claimant has been represented before me by Antony Sendall and the Defendant by Nigel Porter. I am grateful for their cogent and helpful submissions.

4

I deal first with the facts and some preliminary points in relation to credibility. Where there are factual disputes I set out my conclusions on those issues. Secondly, I deal with the legal framework. The legal principles that apply in this case are well established and not in dispute. It is their application to the facts that is in issue. Finally I address the question whether or not the disputed breaches of contract or duty have been established and whether any breach of duty has caused loss, and if so, I assess its value.

Witness Credibility and Comment on Documents

5

I heard evidence from Russell Chweidan, referred to as the Claimant, and from James Libson and Laura Garner of the Defendant. I was also provided with 10 leaver arch files of documents relating to the underlying employment litigation and to this claim.

6

Both sides challenged the credibility of the other side's witnesses. Subject to two points referred to below, I am satisfied that all witnesses were endeavouring to give a truthful account of what occurred. I was particularly impressed by Ms Garner who had the clearest recollection of the development of the Claimant's case and a good understanding of the facts and issues the Claimant was raising at each of the various stages. It is inevitable however, and this was frankly accepted by both Mr Libson and Ms Garner, that their recollection of events was adversely affected by the passage of time. In the Claimant's case, I consider that hindsight has led him to have a recollection of the initial instructions and information he gave to the Defendant that does not altogether accord with what happened at the time; and that he has persuaded himself of the truth of certain matters which I have not found to be the case. Consequently where possible I have placed significant reliance on contemporaneous documents. The two points referred to, concern firstly, suggestions made for the first time in cross examination by the Claimant that Mr Libson and/or Ms Garner had fabricated the content of certain attendance notes of discussions with him during the course of the Employment Tribunal hearing. I am satisfied that those allegations are without foundation and ought not to have been made by him. Secondly, the Claimant denied receiving pessimistic advice on the prospects of his cross-appeal during a telephone conference with Mr Libson and Mr Sheldon, thereby challenging as dishonest the evidence given by Mr Libson to this effect. Once again, I am satisfied that he is wrong about this and I accept that a negative view of the cross-appeal was formed contemporaneously and communicated to him, although it is not clear when this was done, as appears below.

7

So far as concerns notes of meetings and attendances on the Claimant which were the subject of much criticism on the Claimant's behalf, I am satisfied that the manuscript notes made by Laura Garner capture broadly the discussions had with the Claimant and the advice he was given. I accept the Defendant's evidence that there would be additional costs to the client for typing up such notes and that this would have been undesirable to the Claimant, who was particularly conscious of costs in circumstances where these were not recoverable even were he to succeed. I am also satisfied that there is nothing unusual or sinister in the fact that attendance notes of discussions during the course of the Employment Tribunal hearing were typed up on 17 December 2008. It is clear that an issue had arisen as to the Claimant miss-recollecting advice he had been given on settlement and in those circumstances, in the heat of tribunal proceedings where advice was being given quickly and reactively, there was nothing unusual or sinister in the Defendant ensuring that such notes of the advice being given on settlement should be carefully recorded. I am sure that before these proceedings were commenced the Claimant accepted that the typed attendance notes reflected advice given at the time. This led him to abandon allegations made in the draft particulars of claim about the failure to advise on bettering the settlement offers from JP Morgan, when the particulars of claim came to be finalised and served. He made no challenge to the validity or accuracy of these documents until he was cross-examined about them.

The Facts

8

The Claimant was employed by Robert Fleming and Co-Ltd in November 1994 and remained employed by that firm until 2000. Following an acquisition followed by a merger in early 2000, the Claimant became an employee of JP Morgan.

9

In 2005 he moved to Structured Credit Sales where he worked for Ian Slatter. He was awarded a bonus of $250,000 but was unhappy with this award. He states that he had been led to believe that he would receive between $350,000 and $450,000 by Mr Slatter. He understood from Mr Slatter that generally, the bonus provided would be around 5% of the credit sales made. This could be adjusted downwards where the credits came from the JP Morgan franchise or upwards for business with new clients or new products. When a colleague with whom he worked left in mid-2005, he was replaced by a salesman called Anthony Berger (described by the Claimant as much younger than himself). The Claimant states that Mr Slatter gave all the biggest hedge fund accounts to Mr Berger and when questioned about this, was told that Mr Slatter expected more from Mr Berger than from the Claimant himself. The Claimant states that Mr Berger was expected to produce sales credits of $15 million whereas he was expected to produce $5 million of sales credits for 2006.

10

In fact, the Claimant earned $17 million of sales credits during 2006, whilst Mr Berger earned $5 million for that year. In addition he states that his sales were obtained from new accounts and in new business areas. Despite this, for his work in 2006 he was awarded a bonus of $798,000 and once again, felt that this did not reflect his successful sales and achievements in that year. He states that Mr Slatter informed him that the discrepancy in the bonus would be rectified if he could show that it was not a one-off, by achieving the same target in 2007. He was promoted to Executive Director in the Hedge Fund Sales Team soon after his bonus award.

11

The Claimant's appraisals for 2005 and 2006 identified the need for product development as a key area and, in particular in 2006, an over dependency on client P and the need to diversify his revenue base.

12

On 25 March 2007 the Claimant was involved in an accident on a work skiing trip which resulted in serious injury to his thoracic spine. He spent two weeks in hospital but throughout that period was available for contact with clients and his employer via email and telephone. He spent a month recuperating at home following his release from hospital, working from home as far as possible during this period. The Claimant returned to work on 24 April 2007, on a phased return basis. Initially he worked mornings only but by the end of 2007 he was able to work at the office from 8am until around 3 or 4pm. While at work he wore a back brace and was often in severe pain, taking regular medication. Once at home in the late afternoon he would continue working as far as possible.

13

Two occupational health assessments were conducted by JP Morgan during this period: the first in August 2007, and the second in January 2008. The initial assessment dated 7 August 2007 stated that the Claimant was expected to make a full recovery and was not considered a disabled person for the purposes of the DDA. It suggested that the Claimant work reduced hours...

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