Watson v Irwin Mitchell
Jurisdiction | England & Wales |
Judge | MR JUSTICE DAVID CLARKE,Mr Justice DAVID CLARKE |
Judgment Date | 11 March 2009 |
Neutral Citation | [2009] EWHC 441 (QB) |
Date | 11 March 2009 |
Court | Queen's Bench Division |
Docket Number | Case No: PR 890045 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Law Courts
Openshaw Place, Preston PR1 2LL
Before: Mr Justice David Clarke
Case No: PR 890045
The Claimants in person
Ben Hubble (instructed by Barlow Lyde & Gilbert LLP) for the Defendant
Hearing date: 24 February 2009
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice DAVID CLARKE:
Introduction
At the conclusion of the hearing on 24 February 2009 I announced that I would grant the Defendants' application to strike out this action as an abuse of the process of the Court, but that I preferred to put my reasons into writing in a clear and concise form. This I now do.
This is the second action brought by the Claimants against the Defendants, claiming damages for breaches of professional duty owed by the Defendants to the Claimants in connection with previous litigation eventually settled in October 2000 on a “drop hands basis”. That previous litigation comprised a number of actions or potential actions arising from economic damage allegedly caused to the Claimants and their company, Coverhills Ltd, by the operation of an illegal cartel and/or conspiracy on the part of motor manufacturers and parts distributors. Those original proceedings had been in existence since 1992 and the Defendants were the third firm of solicitors involved on the Claimants' behalf. The proceedings were in a difficult procedural state when the Defendants assumed conduct in May 1996.
In April 2003 an action against the present Defendants was launched in the Queen's Bench Division in the Royal Court of Justice. I shall refer to this as “the first action”. It too has had a highly complicated procedural history. Apart from the period from 4 March 2004 to 28 September 2005 when Abbotts were on the record as their solicitors, the Claimants have been litigants in person. The procedural history is full set out in the chronology on page 37 of bundle FAC1 and does not need to be repeated.
For present purposes it is important to have regard to the present status of the first action. It arises from the proceedings before Master Eyre on 18 October 2005 and the orders made by him on that day and on 5 January 2006. The latter order was made without a hearing, both parties being content with that course, but the Master provided written reasons for his decision.
Before October 2005 there had been a number of hearings before the Master in relation to the state of the pleadings. The Particulars of Claim had been served on 5 October 2004 claiming some £8m damages from the Defendants. That pleading was very long and was regarded by the Defendants, rightly in my view, as confused and difficult to follow. Their interpretation of the claims set out in the pleading was that they were three in number, as follows:
“Claim 1: alleged that the Defendant, in conducting the original litigation, failed to identify and take into account an allegedly significant limitation date of 20 June 1997 (which was said to be 6 years after the Claimants discovered the original Defendants' deliberate concealment per section 32 of the Limitation Act 1980); the Claimants alleged that the Defendant should have taken various steps to issue new actions and/or cure difficulties with the existing issued claims before that date;
“Claim 2: alleged that the Defendant failed to inform the Claimants of a Part 36 Offer of £705,000 made in March 2000 in the original litigation.
“Claim 3: alleged that the Defendant negligently conducted the professional negligence actions that followed on from the demise of the original litigation on a drop hands basis.”
A Part 18 Request was served with the Defence on 29 April 2005 and a Case Management Conference (“CMC”) took place before the Master on 23 June 2005. On that occasion the Master ordered that as well as answering the Part 18 Request, any proposed amendment to the Particulars of Claim should be served by 21 July 2005. A further CMC was fixed for 17 August 2005.
By that date the Claimants had served a Reply which dealt, in part at least, with the Part 18 Request, and in particular appeared to abandon any separate claim under (c) above. Accordingly the Defendants applied for the relevant paragraphs of the Particulars of Claim to be struck out at the resumed CMC.
On 17 August 2005 the Master struck out those paragraphs (by consent of counsel then appearing for the Claimants) and directed that the Claimants serve by 21 September 2005 a fresh pleading reflecting that order. On that day the Claimants purported to do so but the fresh pleading appeared to resurrect the deleted allegations and was again long and (in the view of the Defendants) confusing and difficult to follow.
On 18 October 2005 the matter came back before the Master, who accepted the substance of the Defendants' complaint. In a carefully drawn order, he directed as follows:
“ IT IS ORDERED THAT
1. The application be refused, save as follows;
2. There be liberty to the Claimants to restore the application by no later than the 30 th November 2005 for hearing on notice, provided they comply with the following requirements:
(1) The Claimants must by no later than the 15 th November 2005 file and serve on the Defendants new draft Amended Particulars of Claim.
(2) There must be no reference in that new draft to the allegations already struck out, and in particular to the intended actions for professional negligence against former solicitors.
(3) The Claimants must set out their allegations:
[The order then specified the precise requirements of a concise pleading.]
3. The action be stayed FORTHWITH pending further order.
4. The Claimants pay the Defendants' costs of today, assessed summarily at £2,000.”
This made clear to the Claimants, who were by now once again litigants in person, precisely what they were required to do. The Claimants thereafter provided two fresh drafts, one dated 8 November 2005 and the second dated 22 November 2005, on which date they also issued an application notice seeking a stay of the proceedings (notwithstanding that the action was already stayed at that date) pending an application to the European Court of Human Rights.
The Defendants took the view that the fresh pleadings again failed to comply with the requirements of clarity and conciseness, and with the Master's specific directions, and wrote to the Court accordingly. On 5 January 2006 the Master, considering the matter without a hearing (as to which both sides had consented), dismissed the application to amend the Particulars of Claim and confirmed that the action remained stayed until further order. He provided written reasons, recording as follows:
“1. The Claimants have now set out their allegations in a draft consisting of some 90 paragraphs, covering at least 20 pages of text. Even then, the Claimants seek in the draft to refer additionally to no fewer than 5 volumes of copy documents.
2. The allegations are set out:
(1) At enormous length;
(2) Without the least regard for any of the requirements of the order made last October, apart from the use of red ink for adjustments;
(3) So as to make it almost impossible to discern any facts that could possibly provide even some of the ingredients of action.”
The Master then went on to set out his understanding of the Claimants' core allegations and added a number of further comments about the pleading, highlighting the difficulties in ascertaining the case which the Defendants would have to meet. He concluded by saying that the action appeared to be without merit and that the Claimants' application was accordingly refused.
The Claimants sought and obtained permission to appeal against the orders of 18 October 2005 and 5 January 2006 to a judge of the Queen's Bench Division. Wilkie J heard the appeal on 13 September 2006 and dismissed it. As appears from his judgment, he took some time and care to elicit from the First Claimant the nature of the various claims against the original Defendants and what had become of them, and thus to elicit the basis of the claim against the Defendant solicitors. At paragraph 29 he said :
“It has taken quite a time for me to try to tease out those pieces of information and certainly they are not apparent from the amended pleadings. If Mr and Mrs Watson want to proceed with these claims it would be advisable for them at the very least, if my summary of the position is accurate, to try to replicate at least those material facts in the pleaded case which would, of necessity, restrict the scope of the claim which the Defendant has to meet.”
Wilkie J went on to describe further elements of the claims, as he understood them, and went on in paragraph 38:
“….if in due course he wishes to try to amend the pleading …. in order to comply with the requirements of Master Eyre, he might do worse than refer to this judgment which, in however imperfect a way, has attempted to identify what the essence of the claims are that he wishes to make against the Defendant”
The Claimants sought to appeal against the decision of Wilkie J. I have read a detailed note of the hearing on 14 November 2006 before May LJ (as he then was), who was at pains to explain to the Claimants the difficulties they faced in pursuing a second appeal and the reasons why he could not entertain it.
Thus, as at the end of 2006, the first action had been stayed, and remained so pending any further order of the Court in that action. It still remains stayed. It has not been dismissed or struck out or terminated in any other way. Nor is the status of that action...
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