Victor Lewis Nicholson v Knox Ukiwa & Company (A Firm)& Philippa Knox
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR. JUSTICE SAUNDERS,JUDGE REDDIHOUGH |
| Judgment Date | 02 June 2008 |
| Neutral Citation | [2008] EWHC 1222 (QB),[2007] EWHC 2430 (QB) |
| Docket Number | Case No: HQ05X02467 |
| Court | Queen's Bench Division |
| Date | 02 June 2008 |
[2007] EWHC 2430 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
His Honour Judge Reddihough
(Sitting as a Judge of the High Court)
Case No: HQ05X02467
MR J GREENHILL (instructed by Burroughs Day) appeared on behalf of the Claimant
MS H MCGREGOR QC and MR I BENSON (instructed by Weightmans LLP) appeared on behalf of the Defendant
: The application before me arises out of a very long and sorry saga dating back over more than 30 years. It has involved many solicitors who have acted at different stages on behalf of the claimant. Some of those solicitors are alleged to have been or have admitted being negligent in the conduct of matters on behalf of the claimant who is now, I think, 73 years of age.
The present claim is against the second defendant, a solicitor, and her firm, the first defendants, for damages for their alleged negligence in the conduct of the claimant's claim against Peter Kingshill & Co, a firm of solicitors. Peter Kingshill & Co had previously acted for the claimant in his claims against yet two more solicitors, Roland Fernandez and the firm of Curwen, Jessop and James, for their negligence in dealing with matters on behalf of the claimant, including a claim against the National Westminster Bank Ltd dating back to events in 1973 to 1974. The little I have said thus far probably gives a good indication of the nature of this long saga.
The claim against Peter Kingshill & Co was issued in October 1993 and eventually liability was admitted, and, by consent, judgment was entered against Peter Kingshill & Co on 23 August 1994 for damages to be assessed. The claimant had various solicitors acting for him in that claim and at times he acted in person. Eventually the defendants were instructed to act for him in the claim in around May 1998.
On 25 August 1999 a mediation took place in relation to the claim at which the claimant attended with the second defendant. With the assistance of two mediators, discussions took place with the solicitors instructed by the Solicitors' Indemnity Fund on behalf of Peter Kingshill & Co.
It is said that at that mediation a settlement of the claim was reached. However, in the present claim the claimant asserts that: if a settlement was reached by the defendants on his behalf, it was without his authority; that the defendants acted negligently in connection with the mediation; did not advise him properly and settled the claim at an undervalue.
The trial of the present claim was listed for 17 April 2007. The claimant by April 2007 was acting in person.
On 12 April 2007 he made an application for the trial date to be vacated before Mr Justice Hodge on the basis that he wished to amend his Particulars of Claim to allege fraud against the defendants, that he wished to seek further disclosure of documents and that he had difficulties because he was now acting in person. That application was refused by Mr Justice Hodge, who ruled that the trial must proceed on 17 April 2007.
On 17 April 2007 the trial was listed before His Honour Judge Hickinbottom, sitting as a judge of the High Court. The claimant failed to attend the trial on that day and an order striking out the claim was made. The claimant's case was struck out under CPR Part 39.3(1)(b). Judgment was entered for the defendant and the claimant was ordered to pay the defendant's costs to be subject to detailed assessment, on an indemnity basis if not agreed. He was ordered to pay the sum of £50,000 on account of costs by 4.00pm on 2 May 2007. Finally, it was ordered that any application to restore the proceedings under Part 39.3(2) and (3) be made as soon as practicable and in any event by 4.00pm on 2 May 2007. It was ordered that any such application should be supported by evidence.
By an application dated 14 May 2007 the claimant now applies for an order under Part 3.3(2) for his claim to be restored. His Honour Judge Hickinbottom gave directions on 25 May 2007 regarding this application. He ordered in particular that the application be treated as claimant's application to restore the proceedings under Part 39.3(2) and as an application to extend the time limit of 4.00pm on 2 May 2007, which had been contained in paragraph 4 of the order of 17 April 2007, to which I have already referred.
It is the claimant's application to extend that time limit of 2 May 2007 to 14 May 2007, and, if granted, his application to restore his claim, which is now before me.
In considering the application I have read witness statements from the claimant and exhibits thereto; a witness statement from the defendant's solicitor and exhibits thereto; the defendants' skeleton argument for the trial and one for this application; the claimant's skeleton argument for this application prepared by him personally and a supplemental skeleton argument prepared by counsel on his behalf who was only instructed on 20 July 2007.
Not surprisingly, the bundles of documents for the trial contained some 3,500 pages. There was obviously no question of those being considered by me for the purposes of this application but I have had regard to the documents, including witness statements, contained in a core bundle prepared for the trial of some 250 to 300 pages.
I have also been provided with copies of various advices prepared by counsel previously instructed on behalf of the claimant and one advice from counsel instructed on behalf of the defendants.
Additionally, I have been very much assisted by oral submissions made to me over a total of one and a half days by Mr Greenhall on behalf of the claimant and Mr McGregor, Queen's Counsel, on behalf of the defendants.
In reaching my conclusions on this matter I have had regard to all of those materials and to those submissions.
The starting point for my consideration of the application is Part 39.3(5). This applies where the claimant has failed to attend the trial and his claim has been struck out. Part 39.3(3) says that where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. Paragraph (2) states that where the court strikes out proceedings or any part of them under this rule, it may subsequently restore the proceedings or that part.
We then move on particularly to Paragraph (5) which provides as follows:
“Where an application is made under paragraph ( 2) or (3) by a party who failed to attend the trial the court may grant the application only if the applicant; (a) acted promptly when he found out the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial and; (c) has a reasonable prospect of success at the trial.”
Thus it is accepted on his behalf that the claimant must satisfy the court of all three of those requirements.
Dealing firstly with the reason the claimant did not attend the trial. That reason is set out in what is his tenth witness statement at paragraphs 1 to 9. He says in that witness statement that on the evening of Monday, 16 April 2007, that is the evening before the trial date:
“I began to experience chest pains. I am already on medication for arterial fibrillation. As I was staying in Tottenham I visited Honerton Hospital accident and emergency department in Hackney. Accident and emergency records show that I was seen at 9.00pm, and ECG or EEG identified heart problems and I was immediately transferred to the acute care unit.”
He then goes on to indicate how at 9.41am on the next day, the trial date, 17 April 2007, he was able to contact his ex-wife and to request her, as she did, to telephone the listing office at this court and to inform the court that the claimant would be unable to attend the trial on that day due to him having been admitted and kept in the hospital. He exhibits to his statement a letter from his ex-wife, who, at the time of the statement was in America, indicating that what he said about her contacting the court is correct. I have no reason at all to doubt that she did so contact the court and that the trial judge was informed of the message which came.
The claimant continues in this witness statement:
“I naturally assumed that the hearing would be automatically abandoned in the interests of justice in view of my hospital admission, which could have been confirmed well before the hearing commenced.”
He exhibits also to his witness statement a brief letter from the accident and emergency department at the hospital in question, which confirms that he attended accident and emergency on 16 April 2007, he was assessed at 2100 hours and later admitted. He was discharged from the hospital on 25 April 2007. There is then a discharge information form from the hospital which again confirms his admission to the hospital, sets out various health problems which he had previously had, including atrial fibrillation and deep vein thrombosis, and sets out his clinical presentation when he was admitted, namely, that he had chest pain aggravated by movement, sharp left-sided pain with radiation to the left shoulder and fingers with associated sweatiness and nausea and also associated diarrhoea. Then there are details of various examinations which were carried out upon him and it is recorded that he was started on named antibiotics for an atypical pneumonia and thereafter his respiratory symptoms improved.
It said he developed an inflamed left index finger...
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