Susan Berney v Thomas Saul (t/a Thomas Saul & Company (Solicitors))
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Rimer,Lord Justice Moses |
| Judgment Date | 05 June 2013 |
| Neutral Citation | [2013] EWCA Civ 640 |
| Docket Number | Case No: B2/2012/2078 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 June 2013 |
[2013] EWCA Civ 640
Lord Justice Moses
Lord Justice Rimer
and
Lady Justice Gloster, Dbe
Case No: B2/2012/2078
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
His Honour Judge Simpkiss
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms. Susan Berney appeared in person
Ms. Jacqueline Simpson (instructed by Parabis Law) for the Respondent
Introduction
This is an appeal by the claimant, Ms. Susan Berney ("Ms. Berney"), against the decision of HHJ Simpkiss, sitting in the Brighton County Court, dated 24 July 2012. He dismissed Ms. Berney's appeal against the decision of DJ Liston that her claim in action 1HH0003 ("the Negligence Claim") against the defendant, Thomas Saul (trading as Thomas Saul & Co, Solicitors) ("the Respondent") should be struck out on the ground that it is time-barred under the Limitation Act 1980 ("the Act").
Ms. Berney appeared in person before this Court. The Respondent was represented by Ms. Jacqueline Simpson of counsel.
Facts relating to the conduct of Ms. Berney's personal injury claim against Mrs. Liddell
The Negligence Claim arises out of the Respondent's conduct of Ms. Berney's personal injury claim ("the RTA Claim") against a Mrs. Liddell. The following outline of facts relating to the RTA Claim is taken from Ms. Berney's points of claim and Ms. Simpson's chronology. It did not appear to be in dispute and for the purposes of this appeal can be taken to be broadly accurate.
On 20 April 1999, Ms. Berney was driving her car; as she slowed down to approach a roundabout, and was almost stationary, Mrs. Liddell drove her car into the back of Ms. Berney's vehicle. As a result of the injury Ms. Berney sustained physical injuries to her neck and back. She also claims that she suffered other consequences as a result of the accident, including the development of claustrophobia.
In May 1999, Ms. Berney instructed the Respondent to act on her behalf in relation to the RTA Claim, on the basis of a conditional fee agreement.
On 29 June 1999, the Respondent notified Mrs. Liddell's insurers of Ms. Berney's claim and, on 19 August 1999, Mrs. Liddell's solicitors, Davies Wallis Foyster ("DWF") wrote a letter on Mrs. Liddell's behalf confirming that liability would not be in dispute, and asking for full details of Ms. Berney's claim, together with documentary evidence in support.
Thereafter, the claim proceeded at an extremely leisurely pace. Despite repeated requests from DWF for particulars of the damages which Ms. Berney had allegedly suffered, it was only on 12 November 2001 that the Respondent finally sent a list of proposed orthopaedic surgeons to DWF for their consideration; and only, after further prompting by DWF, on 12 April 2002 that the Respondent issued a claim form. The claim form, however, named the wrong defendant, Mr. Liddell, the owner of the vehicle, as the driver, as opposed to Mrs. Liddell, who was in fact the driver at the time of the accident. The claim form stated that damages were "limited to £50,000". The Particulars of Claim were not attached to the claim form.
On 16 April 2002, the Respondent informed DWF that "a protective summons" had been issued against Mr. Liddell, but pointed out that the driver was in fact Mrs. Liddell, and that the Respondent proposed to amend the summons to add her name as a defendant. He also suggested the name of a third consultant orthopaedic surgeon as a proposed joint expert. On the same date, formal notice was also given to Mr. Liddell's insurer.
On 20 April 2002, the three-year limitation period for the RTA Claim expired.
On 8 August 2002, a claim form which named the correct defendant was re-served. Service was accepted and no limitation point was taken by DWF or insurers about the fact that the correct defendant had only been joined after the expiry of the three-year limitation period.
As at 11 August 2002, which was the last day for service of the Particulars of Claim in accordance with the CPR, no Particulars of Claim had been filed.
Over the summer of 2002, the solicitors communicated with each other about obtaining the medical records from the relevant hospital and arranging appropriate medical examinations for Ms. Berney. DWF were authorised by the Respondent, on Ms. Berney's behalf, to obtain the necessary medical records. The Respondent said that he would like to agree an informal timetable in relation to the case. Mr. Anthony Good ("Mr. Good"), the relevant orthopaedic consultant, indicated that he did not wish to see Ms. Berney until the original medical records from the hospital had been obtained by DWF.
On 14 August 2002, DWF wrote to the Respondent enclosing the acknowledgement of service and stating:
"As the medical examination has not proceeded, we believe it is necessary for you to serve Particulars of Claim."
On 9 October 2002, DWF wrote to the Respondent saying that they intended to instruct a psychiatrist, Dr. Anthony Fry.
On 23 October 2002, Ms. Berney had an appointment with Mr. Good, the jointly instructed orthopaedic surgeon. His report of the same date concluded:
"As a result of the incident under discussion, [Ms. Berney] sustained a soft tissue injury to her neck. I believe she recovered from any symptomatology related to the incident by the time she had ended physiotherapy in June 1999. I would not attribute any subsequent symptomatology to the incident under consideration and would note that both neck pain and lower back pain are not uncommon in the public at large."
Ms. Berney was dissatisfied with Mr. Good's report, and, as a result, counsel was instructed to draft various questions to be asked of Mr. Good. These were apparently sent to him by the Respondent on 10 December 2002, with a copy to DWF. No response to the questions was received from Mr. Good, despite various chasing letters. There were various communications between the Respondent and DWF during the period from December 2002 to July 2003. These related to: obtaining Mr. Good's reply to the questions; the instruction of a new medical expert, Mr. Hughes; and the obtaining of further medical records which, despite the earlier authorities given to DWF, were still, apparently, outstanding, and which Mr. Good had stated he needed to have in order to be able to answer the questions drafted by counsel.
According to Ms. Berney, she telephoned the Respondent regularly during the period from August 2003 to March 2004. He would say that he had things in hand, and was working hard on the case, which she believed. In January 2004, again according to Ms. Berney, the Respondent stopped answering his telephone altogether. On 8 March 2004, Ms. Berney instructed new solicitors, Martin Ross ("MR"), and, on 5 April 2005, terminated the Respondent's retainer. Difficulties were encountered by MR in obtaining the relevant files from the Respondent.
On 30 April 2004, MR, having received the Respondent's file, wrote to him in the following terms:
"Further to my letter of yesterday, I have now begun to look at the file. So that I may be sure that I have the whole file, please will you confirm the following to me.
1/ No Particulars of Claim have been served,
2/ No Defence has been served,
3/ No Schedule of Special Damages has been served,
4/ No attempt to follow the Personal Injury Pre-action Protocol,
6/ The last action taken on the file was July 2003,
7/ Although this case was issued in April 2002, there are no Court Orders whatsoever. I look forward to hearing from you as soon as possible."
On 2 June 2004, MR wrote to Ms. Berney confirming that no Particulars of Claim had been filed in breach of rule 7.4 CPR, and advised her:
"I consider that you are now vulnerable to an application to strike out on the above ground or for general lack of prosecution of the claim. That is more particularly so because the Claim form was filed over two years ago and still no particulars of Claim have been filed. The Court would be likely to take a very dim view of that."
On 7 June 2004, DWF wrote to MR to state that no Defence had been served. Thereafter, on 16 September 2004, MR wrote to Mr. Good asking him once more to answer counsel's questions and enclosed Ms. Berney's hospital records. Thereafter, MR wrote to DWF to inform them that Mr. Good had not replied to the questions on his report.
On 1 October 2004, Mr. Good wrote to MR in the following terms:
"I have been through the hospital records you sent me. Unfortunately they do not include the attendance at the Accident and Emergency Department of the Worthing Hospital on 20 th April 1999. I wish to see a complete record of that attendance before proceeding further. I suspect these records will need to be obtained directly from the Accident and Emergency Department ["A&E"]. On receipt of those records then I will attempt to answer the questions."
On 13 October and 2 November 2004, MR wrote to the Records Department of Worthing Hospital to ask for the medical records that included Ms. Berney's visit to the hospital on the day of the accident. On 3 November 2004, DWF wrote to MR:
"… to enquire whether it is your intention to apply for an extension of time to serve the Particulars of Claim. If so, we suggest that Mr. Good be asked to refrain from answering the question you have raised until the court has adjudicated on this case."
On 19 November 2004, DWF wrote to MR:
"… we can agree to a period of 4 weeks from today for Mr. Good to respond to the questions and...
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