Sebastian Townsend Ukegheson v Gresham Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Christopher Hancock |
| Judgment Date | 09 November 2020 |
| Neutral Citation | [2020] EWHC 2903 (Comm) |
| Date | 09 November 2020 |
| Docket Number | Case No: CL-2020-000094 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 2903 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Hancock QC
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Case No: CL-2020-000094
Mr Ukegheson (representing himself) for the Claimant
Ms Hannah Daly (instructed by Trowers and Hamlins LLP) for the Defendants
Hearing dates: 09 October 2020
Approved Judgment
Mr Christopher Hancock QC
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Mr Christopher Hancock QC:
Introduction.
This is an application for summary judgment made by the Defendants, who seek, in effect, to strike out all but one limb of the Claimant's claim, and to reduce the amount of that claim very substantially. The First Defendant provided home insurance to the Claimant, which included legal expenses insurance, the Second Defendant administered that insurance on behalf of the First Defendant, and the Third Defendant was an employee of the Second Defendant. The Claimant, who was the insured under the policy and who is, I understand a member of the Chartered Institute of Legal Executives, a qualified Nigerian barrister and in the process of becoming qualified as a barrister in England, as well as being a registered foreign lawyer represented himself.
Relevant background.
I can set out the history of the matter relatively briefly.
a. The Claimant took out a home insurance policy with the First Defendant in relation to the relevant period. That policy provided cover, inter alia, for legal expenses insurances.
b. The relevant clauses of the policy are to be found in Section 10. That section includes the following clauses:
“ Appointed representative
The lawyer or other suitably qualified person appointed by us to act on your behalf
Costs and expenses – up to the limit of indemnity:
a) All reasonable and necessary legal costs charged by the appointed representative and agreed by us…
Legal proceedings
Legal proceedings:
a) for the pursuit or defence of a claim for damages… dealt with by:
▪ Negotiation
▪ A civil court
▪ A tribunal…
Which we have agreed to or authorised
Prospects of success
In respect of all claim it is always more likely than not that you will:
a) recover damages or obtain any other legal remedy which we have agreed to
b) make a successful defence
c) make a successful appeal or defence of an appeal
Prospects of success will be assessed by us or an appointed representative on our behalf
Cover
We will insure our for any costs and expenses incurred in respect of legal proceedings following an insured event provided that:…
… Prospects of success exist for the duration of the claim…
c. The limit of indemnity under the policy was £50,000. The policy (a copy of the relevant part of which is appended to this judgment) also contained provisions relating to the choice of an appointed representative, arbitration and other methods of dispute resolution. There was no suggestion of any limitation on the Claimant's right to come to Court.
d. The Claimant was employed by Haringey Council until 18 January 2013, when he resigned.
e. Following that resignation, the Claimant brought proceedings in the Employment Tribunal for various claims, alleging (amongst other things) unfair (constructive) dismissal, and discrimination (on grounds of race, sex and disability).
f. The Claimant applied to the Defendant for payment of the expenses of this claim. The Defendant refused to make such payment, on the grounds that its legal advisers, Irwin Mitchell and Mr Peter Starcevic, took the view that the action did not have a greater than 50% chance of success, as the policy required. The date on which this first assessment was made was 11 March 2013, (the assessment being made by Irwin Mitchell) and the reason given was that insufficient evidence had been provided.
g. In addition, Mr Starcevic, of Counsel, advised on 8 April 2013, 18 April and 26 April 2013. On each occasion he concluded that the claim did not have sufficient prospect of success, i.e. more than 50%.
h. Mr Starcevic advised again on 11 July 2013, in relation to the original claims and a claim for whistleblowing. Again, he concluded that the claim did not have a more than 50% chance of success.
i. The Defendant therefore issued a decision to the Claimant to the effect that it would not be providing cover in respect of the claim.
j. On 25 September 2013, in the absence of the Claimant, who was, I understand, abroad completing his studies to become a Nigerian qualified barrister, Employment Judge Manley struck his claim out as having no real prospect of success.
k. The Claimant sought permission to appeal to the EAT and that permission was granted by Mrs Justice Slade on 21 January 2015. The Claimant thereupon made an application for cover for the permission application and the appeal. The matter was assessed again on 20 March 2015 by Mr Starcevic, who concluded that although there were good arguments in support of the appeal against the striking out, it remained the case that the prospects of the claim as a whole succeeding were less than 50%. Following the provision of further material by the Claimant, Mr Starcevic reiterated that view, on 25 March 2015.
l. On 19 May 2015, Mr Starcevic carried out a further assessment. He concluded that the appeal was likely to succeed but that the claim as a whole did not have greater than 50% prospects of success.
m. On that appeal to the EAT, on 21 May 2015, Langstaff P held that the first tier judge should not have struck out all of the Claimant's claims, but upheld the first tier judge's decision in relation to the claims for victimisation and religious and disability discrimination. Other claims were remitted to a different ET.
n. The Defendant then wrote to the Claimant stating that it would consider paying his costs of the appeal to the EAT and asking what costs had been incurred. This was then the subject of prolonged correspondence.
o. Going back to the chronology, the Claimant appealed from the decision of the EAT to the Court of Appeal, seeking to have all the claims remitted to the ET, including those for victimisation and religious and disability discrimination.
p. At this stage, the Defendant, having failed to agree with the Claimant on the choice of a counsel to assess the claim, obtained an assessment from Mr Ghazan Mahmood of Counsel, who again concluded that the prospects of success on the claim were less than 50%.
q. Although the CA gave permission to appeal, the appeal was unsuccessful.
r. The Claimant sought and was refused permission to appeal to the Supreme Court.
s. The claims that had been remitted to the ET were then settled with Haringey. The Defendant had determined that those claims had a less than 50% chance of success. However, as I understand it, those claims were not the subject of a further assessment over and above those already obtained and set out above.
The causes of action alleged.
This being the history of the matter, I turn to the suggested causes of action put forward by the Claimant. These are not always easy to follow.
a. The first is a breach of contract, in refusing to fund the claim despite the fact that it was a claim with good prospects.
b. The second is a more far reaching accusation of fraudulent misrepresentation.
Loss and damage.
Next, it is necessary to outline the loss and damage claimed by the Claimant.
a. First, the costs of the appeal to the EAT are claimed. The Defendants accept liability for these; their defence is simply that the costs are overstated. The claim amount is £62,847.60 (subject to assessment); the Defendants maintain that the costs should be £1,278.60. The major reason for the dispute is that the Claimant claims on the basis that he was not a litigant in person, and so is entitled to claim the costs that he would have paid to another lawyer, and not merely on the basis of costs payable to a litigant in person.
b. Second, a claim relating to the costs incurred in running the (unsuccessful) claims to the CA and permission to appeal to the SC is put forward. This claim totals £40,000.
c. Thirdly, there is a claim for £35,000 for loss of the ability to earn monies doing other cases.
d. Fourthly, there is a claim for distress due to the alleged breaches of duty by the Defendants in the sum of £250,000.
In view of the disputes as to the matters in fact pleaded, I annex to this judgment a full copy of the Particulars of Claim. Paragraphs 5–8, 13, and 25–27 are of particular relevance.
The approach on an application for summary judgment.
The Claimant reminded me, justifiably, of the fact that to strike out or give summary judgment on a claim for fraud was a “draconian” step, relying on the statements of principle in Palladian Partners LP and others v The Republic of Argentina and another [2020] EWHC 1946 (Comm). I have also in mind the statements of the House of Lords in Three Rivers DC v Bank of England (No 3) [2001] 2 AC 1, at paragraphs 185–186 and the statement of Flaux J (as he then was) in JSC Bank Moscow v Kekhman [2015] EWHC (Comm) 3173, at paragraph 20, as to the pleading of fraud. I bear these statements very much in mind in relation to the fraud pleading.
However, in my judgment, the overall test for summary judgment is aptly set out in the often cited decision of Lewison J, as he then was, in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at 15:
“15. As Ms Anderson QC rightly reminded me, the...
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