Somasundaram v M. Julius Melchoir & Company
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY |
| Judgment Date | 12 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0712-7 |
| Docket Number | 88/0609 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 1988 |
[1988] EWCA Civ J0712-7
Lord Justice May
Lord Justice Stocker
and
Lord Justice Stuart-Smith
88/0609
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Sir Douglas Frank, Q.C.) sitting as a
Deputy Judge of the High Court)
Royal Courts of Justice
The Appellant/Plaintiff appeared in person.
MR. R. JACKSON, Q.C. and MR. I. HUGHES (instructed by Messrs Reynolds Porter Chamberlain) appeared on behalf of the Respondent/Defendant.
MR. G. PULMAN appeared as Amicus Curiae.
This judgment which has been prepared principally by Stuart-Smith L.J. is the judgment of the Court.
In April 1982 the appellant was arrested and charged following an incident in which he stabbed his wife during an argument. At his subsequent trial on the 5th November 1982 he was indicted on alternative counts of causing grievous bodily harm with intent and unlawful and malicious wounding. He pleaded guilty to the latter count and was sentenced to two years' imprisonment. On the 24th October 1983 his application for leave to appeal against conviction was dismissed but his sentence was reduced to one of 18 months imprisonment. Throughout these matters the respondents, who are a firm of solicitors, were instructed by and acted for the appellant.
On the 4th May 1984 the appellant, acting in person, issued a writ against the respondents for damages for their alleged negligence in acting for him in the matters to which we have referred between April 1982 and February 1984.
On the 21st March 1986, on the respondents' application to Master Hodgson, the latter struck out the appellant's statement of claim on the ground that it disclosed no reasonable cause of action and that it was frivolous and vexatious and an abuse of the process of the court. The appellant appealed the Master's order and his appeal came before Sir Douglas Prank, Q.C., sitting as a Deputy judge of the Queen's Bench Division, on the 12th November 1986. The learned Deputy Judge dismissed that appeal. The appellant now appeals to this court asking that the order of the learned judge should be reversed and that he should be at liberty to continue with this litigation.
As the appellant before us was in person and the points raised by this appeal were potentially important, the court asked for the appointment of an amicus curiae. Mr. Pulman of counsel was instructed so to act and we are grateful for the arguments which he presented and for the assistance which he gave to us in the course of the appeal, particularly as he did not consider himself able to support all the arguments addressed to us by counsel for the respondent.
Apart from two other substantial grounds relied on by the respondents both before us and before the learned judge below, to which we refer later in this judgment, counsel submitted in the first place that the appellant's claim in this action was clearly frivolous and vexatious on its facts. The original version of the events which he gave to his solicitors, the respondents, was that he had no recollection of picking up the knife with which his wife was stabbed: the incident must either have been an accident or at least the injury caused by him acting in self-defence. On this basis the appellant originally instructed his solicitors that he intended to plead not guilty and to defend the allegations against him on this basis. He subsequently told his solicitors that he wished to change his story: having spoken further to his wife and to his Minister he remembered getting the knife himself and hitting his wife on the head with it. In these circum-stances the respondents arranged a conference with counsel attended by the appellant. At this, despite considerable questioning by counsel, the appellant stuck to his revised story. Counsel consequently advised him that he had no defence and the appellant decided that he would plead guilty, which in the event he did.
It seems at least possible from the material we have that the appellant changed his story to his solicitors in this way in the hope of achieving some reconciliation with his wife. There were at the time serious matrimonial difficulties and part of the appellant's case before us, as we were able to understand it, was that as the respondents were acting as his solicitors in the matrimonial proceedings between him and his wife, they were able to exert pressure upon him by pointing out, and indeed threatening, what might be the result in the matrimonial proceedings, particularly in so far as the children were concerned, if he, the appellant, did not take their advice. It was in these circumstances, the appellant suggested, that he had been over-persuaded to change his story and plead guilty. It is sufficient to say that there is absolutely no evidence to support such a contention and indeed all the relevant material in our papers is clearly to the contrary.
The appellant has also suggested that his solicitors and counsel failed to put forward various matters of mitigation on his behalf. There is nothing in the papers to suggest that this is so: indeed it is apparent that the respondents did obtain a psychiatric report on the appellant to see if this would be of assistance, but it clearly was not.
In these circumstances we have no doubt that this appellant has no reasonable chance of success in this action on the facts alone and that consequently his claim is truly frivolous and vexatious and should be struck out.
This would be sufficient to dispose of the appeal, but as two other important arguments were raised by counsel for the respondents, and dealt with by Mr. Pulman, we think that we too should deal with them in this judgment.
The first of these was that this action is an abuse of the process of the court in that the plaintiff is seeking to attack in civil proceedings the final decision of a criminal court of competent jurisdiction. In Hunter v. Chief Constable of the West Midlands Police [1982] A.C.529 at 541 Lord Diplock, with whose speech the other learned Law Lords agreed, said this:
"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.
The proper method of attacking the decision by Bridge J. in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do. Had he or any of his fellow murderers done so, application could have been made on that appeal to tender to the court as 'fresh evidence' all material upon which Hunter would now seek to rely in his civil action against the police for damages for assault, if it were allowed to continue. But since, quite apart from the tenuous character of such evidence, it is not now seriously disputed that it was available to the defendants at the time of the murder trial itself and could have been adduced then had those who were acting for him or any of the other Birmingham Bombers at the trial thought that to do so would help their case, any application for its admission on the appeal to the Court of Appeal (Criminal Division) would have been doomed to failure."
And at page 541H:
"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 L.J. in Stephenson v. Garnett [1898] 1 Q.B.677, 680–681 and the speech of Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 App.Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A.L. Smith L.J.:
'….. 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 shewn 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 permitted by changing the form of the proceedings to set up the same case again.'"
On the face of it that statement of the law appears to be directly in point. But Mr. Pulman submits that it is inconsistent with the law as laid down in the House of Lords in Saif Ali v. Sidney Mitchell & Co. [1980] A.C. 198. In that case it was held that the barrister's immunity from suit for negligence was not total but only extended so far as was absolutely necessary in the interests of the administration of justice. It was not confined to what was done in court but extended to pretrial work "where the particular work is so intimately connected to the conduct of the cause in court that it can fairly...
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