Phyliss Clarke v ARC Legal Assistance Ltd
| Jurisdiction | England & Wales |
| Judge | Ms Margaret Obi |
| Judgment Date | 21 January 2020 |
| Neutral Citation | [2020] EWHC 56 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ19/0604 |
[2020] EWHC 56 (QB)
Ms Margaret Obi
Case No: TLQ19/0604
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant did not attend and was not represented
Ian McDonald (instructed by ARC Legal Assistance Limited) for the First Defendant Steven Reed (instructed by Bar Standards Board) for the Second Defendant
Richard Whitehouse (instructed by DAS Legal Expenses Insurance Company Limited) for the Third Defendant
Stephanie David (instructed by The Financial Ombudsman Service Limited) for the Fourth Defendant
Taranjit Hayre (solicitor-advocate for the Legal Ombudsman) for the Fifth Defendant
Grace Hansen (instructed by Capsticks Solicitors LLP) for the Sixth Defendant
Hearing date: 5 December 2019
Approved Judgment
Introduction
The First Defendant (Arc Legal) is a manager of legal expenses insurance claims. The Second Defendant – the Bar Standards Board (BSB) regulates barristers and specialised legal services businesses in England and Wales. The Third Defendant (DAS Legal) is a provider of legal expenses insurance. The Fourth Defendant (Financial Ombudsman Service) settles individual disputes between consumers and businesses that provide financial services. The Fifth Defendant (Legal Ombudsman) settles complaints between consumers and individuals or businesses that provide legal services. The Sixth Defendant – the Solicitors Regulation Authority (SRA) regulates solicitors and firms in England and Wales. Collectively they are referred to in this judgment as the Defendants.
This is an application by the Defendants to:
a) Strike out Ms Clarke's claim without further order; and/or
b) Grant summary judgment.
The Defendants' applications are in similar terms. The applications are made on the basis that Ms Clarke's claim discloses no reasonable grounds for bringing the claim, is an abuse of the Court's process, fails to comply with the Civil Procedure Rules (CPR); and/or that it has no real prospects of success and there is no other compelling reason why it should be disposed of at a trial. Ms David, on behalf of the Financial Ombudsman Service, also drew to the Court's attention to CPR 3.4(6) which provides that if a claimant's case is struck out and the Court considers that the claim is ‘ totally without merit’ the Court must record that fact and at the same time consider whether it is appropriate to make a civil restraint order.
Ms Clarke indicated, in correspondence with the court office, an intention to make a cross application for the Defendants' application to be struck out. However, there was no such application before the Court.
Application to Proceed in Absence
Ms Clarke did not attend the hearing. She had made an application for the hearing to be adjourned on the basis that she would be out of the country on business. The application was opposed by the First Defendant (with the support of some, if not all, of the other defendants) in an email, dated 30 October 2019, for the following reasons: (i) the strike out applications were issued in May 2016 and June 2016 and it had already taken in excess of six months for the hearing to be listed; (ii) there are six defendants all of whom issued strike out applications and it had been extremely difficult to find a convenient hearing date for all parties and counsel; (iii) Ms Clarke had already sought to restrict listing dates by excluding Tuesdays to Thursdays inclusive in every week; (iv) Ms Clarke provided no evidence of her business trip nor evidence of when it was arranged; (v) it is Ms Clarke's case and the onus is on her to ensure that she is available for procedural hearings; (vi) the hearing date was fixed on 17 September 2019 and it took Ms Clarke almost six weeks to request a relisting.
The application was refused by Mr Justice Stewart on 12 November 2019, for the six reasons outlined by the First Defendant.
At the outset of the application hearing Mr McDonald, on behalf of the First Defendant, made an application for the hearing to proceed in Ms Clarke's absence. The application was supported by the other defendants. I granted the application for the same reasons that the application to adjourn was refused. In reaching this conclusion I took into account the overriding objective to deal with cases justly and at proportionate cost.
Background
Factual Outline
The purpose of this outline (which is primarily based on the witness statement of Mr Keeling, on behalf of Arc Legal, and Mr William Ellerton on behalf of DAS Legal) is to provide context. The overall circumstances are in line with Ms Clarke's chronology of events. However, I recognise that the facts are not agreed, and Ms Clarke may well take issue with aspects of it.
Ms Clarke is a private individual. She was employed by GlaxoSmithKline (GSK) from 17 February 2014 until 27 January 2017 as a Data Analytics Manager.
In 2016 Ms Clarke made a claim against her former employer GSK in the Employment Tribunal (“the GSK Claim”) including unfair dismissal, claims in relation to protected disclosures and discrimination on the grounds of race. Ms Clarke initially issued two separate claims which were subsequently consolidated. She had the benefit of an insurance policy managed by Arc Legal (the “Arc Policy”) under which she sought cover for legal assistance in relation to the first claim. The Arc Policy provided that such cover would be withdrawn if Ms Clarke's prospects of success in the GSK Claim fell below 51 per cent, or if any offer of settlement from GSK was not accepted by Ms Clarke against legal advice.
On 28 June 2016, Irwin Mitchell advised Arc Legal that the GSK Claim did not have the requisite prospects of success. However, on 3 October 2016, Ms Homa Wilson, a solicitor privately instructed by Ms Clarke, provided an opinion stating that certain elements of the GSK Claim did have prospects of 51 per cent. Accordingly, in line with an email sent to Ms Clarke on 13 September 2016, Arc Legal instructed a barrister, Mr Maurice Rifat, to provide an overruling opinion on the merits of the GSK Claim. Mr Rifat concluded that it had “ no merit with about, at the very best, 5% chance of success”. Ms Clarke complained about Mr Rifat to the Second Defendant. The complaint form is dated 23 October 2016.
On or around 25 November 2016, Ms Clarke supplied Arc Legal with a further assessment of the GSK Claim from Mr John Stephenson, a barrister privately instructed by her. Mr Stephenson advised that certain elements of the GSK Claim had sufficient prospects of success. Arc Legal informed Ms Clarke that it would consider cover for those elements. Arc Legal funded the reviews undertaken by Irwin Mitchell and Mr Rifat and, despite being under no obligation to do so, also reimbursed Ms Clarke for the cost of Mr Stephenson's opinion.
Ms Clarke subsequently instructed Ms Jacqueline McGuigan to represent her in the GSK Claim. In February 2017, Ms Clarke approached DAS Legal in relation to a second claim and the funding of Ms McGuigan's instruction under an insurance policy managed by DAS Legal (the “DAS Policy”). According to Arc Legal, the DAS Policy had not been disclosed by Ms Clarke in breach of the Arc Policy. It was not brought to Arc Legal's attention that Ms Clarke had an additional policy until it received correspondence from DAS Legal. On 24 April 2017, although Arc Legal managed and had control of the legal expenses insurance on behalf of both insurers, Ms Clarke was informed that as she also held the DAS Policy, Arc Legal would only be able to consider funding its share of the GSK Claim.
Ms Clarke complained that Arc Legal had not reimbursed her for Ms Wilson's fees. On 22 March 2017, relying upon guidance published by the Financial Ombudsman Service, Arc Legal rejected Ms Clarke's complaint. Ms Clarke made a complaint to the Financial Ombudsman Service. On 22 May 2017, the Financial Ombudsman Service recommended that Arc Legal reimburse Ms Clarke for Ms Wilson's fees. As DAS Legal declined to cover its share, Arc Legal paid Ms Clarke in full for the fees she had incurred in instructing Ms Wilson.
Arc Legal also made a payment to Ms McGuigan, in respect of the work undertaken by her on Ms Clarke's behalf between January and June 2017. On 6 June 2017, Ms McGuigan ceased acting for Ms Clarke. Ms Clarke subsequently complained to the SRA about Ms McGuigan.
On or around 14 June 2017, Ms Clarke instructed the law firm Pannone Corporate (“Pannone”) to attend mediation in relation to the GSK Claim and represent her in any final hearing before the Employment Tribunal. On 9 August 2017, Arc Legal paid Pannone, enabling it to act and instruct a barrister, Ms Tina Ranales-Cotos. During this time, GSK made an offer to Ms Clarke to settle the GSK Claim for £60,200 (the “Settlement Offer”). On 24 August 2017, Pannone advised that the Settlement Offer should be accepted; and that Ms Ranales-Cotos' opinion was that the GSK Claim no longer enjoyed the requisite prospects of success.
Ms Clarke did not accept the Settlement Offer. On 25 August 2017, Arc Legal withdrew cover, in accordance with the Arc Policy. DAS Legal also withdrew cover. On 29 August 2017, Pannone ceased acting and applied for postponement of the final hearing in the GSK Claim. However, those acting on GSK's behalf objected to the application. Ms Clarke then applied for the postponement herself. The application was refused by the Employment Tribunal. Arc Legal (acting on behalf of itself and DAS Legal) confirmed by email that it had withdrawn the legal expenses insurance cover in...
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