Pritchard Joyce & Hinds (A Firm) v Batcup and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Sullivan,Lord Justice Dyson,Lord Justice Sedley |
| Judgment Date | 05 May 2009 |
| Neutral Citation | [2008] EWCA Civ 972,[2009] EWCA Civ 369 |
| Docket Number | Case No: A2/2008/0336/QBENF,Case No: A2/2008/0336 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 May 2009 |
[2008] EWCA Civ 972
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE UNDERHILL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Smith DBE
Case No: A2/2008/0336
Mr J Wardell QC and Mr J Smith (instructed by Withers LLP) appeared on behalf of The Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
(As Approved)
In view of the time, I am not going to give even a short judgment. I simply say that, although I regard this as a very careful judgment, I think it is arguable that the judge has failed to take adequate account, at any rate in his overt analysis, of the explanations given by the defendants themselves as to the reasons why they thought and acted as they did.
I would say also that, because barristers' negligence cases are fortunately relatively rare, they do not often come to be considered by the Court of Appeal. This case presents an opportunity for the Court of Appeal to consider the duty on a barrister, particularly where he or she is not instructed specifically in respect of the matter of which he or she is accused of negligence.
Order: Application granted.
[2009] EWCA Civ 369
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE UNDERHILL
Before: Lord Justice Sedley
Lord Justice Dyson and
Lord Justice Sullivan
Case No: A2/2008/0336/QBENF
Case No. TLQ/07/0201
John Wardell QC & Tiffany Scott (instructed by Withers LLP) for the Appellants
Sue Carr QC & Anneliese Day (instructed by Barlow Lyde & Gilbert) for the Respondent
Hearing dates: Tuesday, 24 th to Thursday, 26 th February 2009
Lord Justice Sullivan:
Introduction
After a trial lasting 6 days Underhill J. found that the Appellants, Mr Susman QC and Mr Batcup, leading and junior counsel who had been instructed by the Respondent, Pritchard Joyce and Hinds (“PJH”), a firm of Solicitors, on behalf of clients called Mr and Mrs Fox had been professionally negligent in that they had failed to advise Mr and Mrs Fox of the time limit applicable to a potential claim against their former Solicitors, Messrs Wellers. The deadline for making the claim was the end of October 1997. The possibility of a claim against Wellers did not occur to either of the Appellants before the end of October 1997. Underhill J. believed that it should have done (134). 1
In challenging that conclusion the Appellants recognise that they have an uphill task. There was no dispute between the parties at the trial as to the applicable law. The lengthy judgment, which extends to 146 paragraphs, is a meticulous reconstruction of the protracted and involved history of what was, from Mr and Mrs Fox's point of view, a sorry saga of their involvement with the legal profession over a period of some 20 years.
At the conclusion of his consideration of the question whether the Appellants had been negligent Underhill J. said that he had striven to avoid hindsight, and referring to Moy v Pettman Smith [2005] UK HL 7, [2005] 1 WLR 581 at paragraph 19, reminded himself that the question was not whether he, or other barristers in the Defendants' position, might have given the advice in question, but whether any reasonably competent barrister should have done so (141).
In a nutshell, the Appellants contend that, notwithstanding this correct self-direction, on examination of the judgment it can be seen that Underhill J. did in fact apply his own meticulous standards when considering whether the conduct of both Wellers and the Appellants was negligent, and that he did so based upon his own reconstruction of events with the benefit of hindsight conferred upon him by the large volume of material produced at the trial.
In brief outline, the Respondent had settled a claim for negligence brought against it by Mr and Mrs Fox. The Appellants were counsel instructed in relation to the same matter. Mr and Mrs Fox did not proceed against the Appellants. Having settled Mr and Mrs Fox's claim the Respondent contended that the Appellants had also been negligent and were responsible for the same loss, and accordingly sought a contribution from them under the Civil Liability (Contribution) Act 1978. If Underhill J. was correct in concluding that the Appellants were negligent his
apportionment of the contribution as 75:25 between the Appellants and Respondent is not challenged.
The negligence alleged by Mr and Mrs Fox against the Respondent, and by the Respondent against the Appellants, was their failure to advise Mr and Mrs Fox of the time limit applicable to a potential claim against their previous Solicitors, Wellers. Underhill J. summarised this claim as follows:
“The lost claim against Wellers would itself have been a claim for negligence in failing to advise Mr and Mrs Fox of the time limit applicable to a claim against another firm of solicitors, Lindars Leech (and/or the responsible partner, Mr Alan Leech)(“LL”). The lost claim against LL would have been for negligent advice given to Mr and Mrs Fox which it was said led to them losing the opportunity of the favourable settlement of a complicated dispute arising out of a property development project in Spain. The advice in question was given in late October 1985, and….the settlement opportunity was lost by the end of that month. Accordingly any claim for that loss would prima facie have had to have been brought by the end of October 1991, and any action against Wellers for failure to advise Mr and Mrs Fox of that deadline would have had to have been brought by the end of October 1997: that is the deadline which it is said [the Respondent] and the [Appellants] failed to draw attention to.” (2)
For those wishing to read the full story of Mr and Mrs Fox's travails with the law over twenty years the facts are set out in great detail in paragraphs 5–107 of the judgment [2008] EWHC 20 (QB). It should be noted that although Underhill J. heard oral evidence from the two Appellants and from two partners in the Respondent, Ms Hartwell and Mr Hinds (Mr Fox was not available to be cross examined) he said that his “fairly full account” of the history was derived very largely from the contemporary documents and that he only occasionally needed to refer to the witness statements and the oral evidence (4). In these circumstances, the Respondent's contention that this appeal is, in substance, a challenge to the Judge's evaluative judgment loses much of its force: this Court is in much the same position as the trial judge if his conclusions are very largely based on the contemporary documents rather than oral evidence.
The original dispute
In 1970 Mr and Mrs Fox undertook a development of holiday apartments in Spain but the project ran into difficulties having absorbed most of Mr Fox's savings. To rescue the project he entered into an agreement with a company called Rantlodge Limited (“Rantlodge”) whereby in return for shares in an English company his interest in the project would be vested in a Spanish company controlled by Rantlodge, and in order to secure borrowing by Rantlodge he would deposit £70,000 in an account in its name with a Spanish bank. The individuals behind Rantlodge were referred to in the judgment as “the Hanson interests”. Rantlodge went into liquidation. Mr Fox never received the shares or the return of his deposit. He believed that he had been cheated by the Hanson interests.
Stoneham Langton & Passmore
The first firm of solicitors instructed by Mr Fox, in 1984, was Messrs Stoneham Langton & Passmore (“SLP”). Mr Fox had the benefit of legal aid. His case was handled by Mr Lines, an experienced managing clerk at SLP. At this stage there were two aspects of the dispute with Rantlodge/the Hanson interests. In November 1984 Mr Fox had learnt that the £70,000 he had deposited had been transferred by the Spanish bank to an account in London in the name of a Panamanian company called Fontana Holdings Inc. (“Fontana”). He issued proceedings against Fontana for the recovery of the money and obtained a Mareva injunction which was effective to freeze the assets held by the bank. Fontana instructed Titmuss, Sainer & Webb (“TSW”), who also represented the Hanson interests, and was given leave to defend in June 1988. A Defence was served in July 1985 (“the Fontana action”).
Mr Fox also wished to bring proceedings against the Hanson interests based on what he believed was their dishonest conduct towards him since 1980. This, “the Hanson action”, would have been a much larger claim. Settlement discussions took place which Mr Fox regarded as unsatisfactory. He was advised by Mr Jolyon Grey of counsel in August 1985 that he should not litigate the two actions but should obtain what he could by way of settlement.
Mr Fox rejected this advice: he was prepared to settle on the right terms, but the terms then on offer were inadequate. After negotiations directly between Mr Fox and Mr Farnsworth representing the Hanson interests, a without prejudice letter dated 8 th September 1985 from Mr Fox to Mr Farnsworth stated that settlement proposals had been agreed in principle.
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