Smith v Linskills (A Firm)
| Jurisdiction | England & Wales |
| Judge | I,THE MASTER OF THE ROLLS |
| Judgment Date | 05 February 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0205-5 |
| Docket Number | (Appeal) |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 1996 |
[1996] EWCA Civ J0205-5
(Mr. Justice Potter)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Peter Gibson Lord Justice Schiemann
(Appeal)
QBENF 94/0713/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
MR. A NICOL QC & MR. G MILLAR (Instructed by Messrs. Strain Keville & Co., London, DX 9065) appeared on behalf of the Appellant
MR. G MANSFIELD QC & MR. A SANDER (Instructed by Messrs. Weightman Rutherfords, Liverpool) appeared on behalf of the Respondent
Monday 5 February 1996
THE MASTER OF THE ROLLSThis is the judgment of the court.
Mr Smith, the plaintiff in these proceedings, appeals
against a decision of Potter J given in Manchester on 18 April 1994. The judge determined a preliminary issue against Mr Smith in this action brought by Mr Smith against his former solicitor. He held that Mr Smith was seeking by the action to challenge the final decision of a criminal court which he had had a full opportunity to resist and that Mr Smith was unable to bring this claim within any of the exceptions to a general rule of public policy which precludes the making of such a claim. He accordingly held the action to be an abuse of the process of the court and ruled that it should not proceed. Mr Smith now seeks to challenge the judge's decision.
On the evening of 13 December 1983, a gang of four or five men, all but one of them masked, burst into the home of Mr and Mrs Bancroft in Prestatyn in North Wales. They tied up members of the family and forced Mr Bancroft at knifepoint to hand over the contents of a safe. The gang were disturbed by the arrival of a visitor at the front door of the house and made their escape through the back. In due course two men were arrested and charged with aggravated burglary. They were tried in the Crown Court at Mold (His Honour Judge David QC and a jury) in July 1984.
One of the defendants was a man named Hayes who was said to be the member of the gang who had not been masked and who was identified by Mr Bancroft and his son. He was convicted and sentenced and is not involved in these civil proceedings.
The other defendant was Mr Smith. He was not identified by sight or voice as a member of the gang. There were three main planks to the prosecution case against him. One was the evidence of a Mr Broomhead, a man with an unsavoury criminal record and a paid police informer, who testified that when he and Mr Smith had earlier been fellow-prisoners Mr Smith had confessed to the commission of this crime. The second plank was an alleged association between Mr Smith and Hayes. It was established that they had known each other some years before when Mr Smith had been a prison officer and Hayes had been a prisoner serving a sentence; but the evidence of a continuing association between them amounted at the trial to very little. The third plank of the prosecution case was evidence that one of the members of the gang appeared to be aware of the existence of a safe in Mr Bancroft's house, and also familiar with the layout of the house and with the possible means of exit at the back. This raised a possible inference against Mr Smith, since he was the son-in-law of Mr and Mrs Bancroft, and therefore was in a position to know of the safe (which virtually no one outside the immediate family did); and also to be familiar with the geography of the house. At the trial Mr Smith raised a defence of alibi, which was strongly challenged by the prosecution; the prosecution accordingly relied on what was suggested to be an obviously false defence. Mr Smith was convicted and sentenced to seven years' imprisonment. He applied for leave to appeal against his conviction but this was refused by Hollis J on paper on 22 November 1984. He renewed his application to the Court of Appeal (Criminal Division) but was again refused leave on 11 July 1985. He served the appropriate part of his sentence.
On 20 June 1990, after his release from prison, Mr Smith issued the writ in these proceedings against the defendant, who had acted as his solicitor in the criminal proceedings. His claim was for damages for negligence and breach of contract by the defendant as his solicitor in the preparation of his defence to the criminal charge. The essence of his complaint was that it was the defendant's negligence which had led to his conviction and sentence. Paragraph 15 of his amended statement of claim served on 9 January 1992 conveniently summarises the particulars of negligence on which he relies:
"The defendant:-
(i) failed to request an old-style committal;
(ii)failed to visit the Plaintiff sufficiently to take instructions and prepare for trial;
(iii)failed to provide the Plaintiff with copies of the depositions so as to obtain his instructions on them;
(iv)failed to arrange an identification parade to see whether Mrs Bennett could identify him:
(v)failed to take statements from three prisoner witnesses, Pawlicki, Johnson and Klein, despite repeated requests by the Plaintiff:
(vi)failed to trace and take a statement from the landlady at the Copplehouse pub;
(vii)failed to consult the plaintiff, or check the evidence that could be given by potential alibi witnesses before settling the alibi notice;
(viii) failed to take any timely or adequate statement from the Plaintiff's wife and sister-in-law;
(ix)failed to follow an obvious and reasonable inquiry as to the key Prosecution witness' motive for giving evidence against the plaintiff;
(x)failed to take any steps to ensure that the case did not come on before the Defence was properly prepared, or to get the case vacated when it came on prematurely;
(xi)failed to brief Counsel in a timely manner and to arrange a pre-trial conference with him before the day of the trial."
The defendant applied to strike out the action as an abuse of the process of the court and this order was made by District Judge Harris on 16 July 1991. Mr Smith appealed and his appeal came before Steyn J in Liverpool on 6 November 1991. He allowed the appeal and set aside the order of the district judge. But he ordered the trial of a preliminary issue of law, namely:
"whether if the Defendant was negligent and the Plaintiff was convicted because of the said negligence the Plaintiff's case is sustainable in law and/or should be allowed to proceed."
It was this preliminary issue which came before Potter J, whose decision is reported at [1995] 3 All ER 226. He ruled that Mr Smith's case was not sustainable in law and should not be allowed to proceed. It is the correctness of that decision which Mr Smith now challenges.
II
The leading modern authority on abuse of process in cases such as the present is Hunter v Chief Constable of the West Midlands Police [1982] AC 529. At the outset of his speech, with which the other members of the House agreed, Lord Diplock said (at 536 B):
"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."
Later in his speech (at 541B) Lord Diplock laid down what has since been regarded as the governing rule on this subject:
"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."
He continued (at 541 H):
"My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A.L. Smith LJ in Stephenson v Garnett [1898] 1 QB 677, 680–681 and the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App. Cas. 665, 668 which are cited by Goff LJ in his judgement in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A.L. Smith LJ:
"….the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court."
The passage from Lord Halsbury's speech deserves repetition here in full:
'…I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be...
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