Taylor Walton (A Firm) v Laing

This is an appeal, brought with the leave of the judge, against the refusal of Langley J to strike out as an abuse of process a claim for negligence brought by Mr Laing against Taylor Walton [TW], a firm of solicitors. For reasons that will become apparent, I will refer to those proceedings as the second claim.

Mr Laing is an architect and property developer. Over the years he has had a number of business dealings with, and a relationship of friendship with, a Mr Ian Watson. Mr Watson has also for many years been active in property development. He conducts that activity partly in his own name and partly through corporate entities, those with which we will be concerned being Burkle Holdings Ltd [Burkle], which is owned as to some 85 per cent by Mr Watson, and European Securities Ltd [ESL], an Isle of Man company beneficially owned by Mr Watson.

In 1999 Mr Laing became aware of a business opportunity to develop a site at High Wycombe, which he intended to promote through a company formed for that purpose, New Federal Inc [NFI]. Mr Laing needed funding and, after having secured other investors, approached Mr Watson for the balance of the amount required of some £500,000. In October 1999 it was informally agreed between Mr Laing and Mr Watson that Burkle would loan that sum to NFI. However, in November 1999 that structure was changed, so that Burkle would make the loan to Mr Laing, who would then immediately make the same loan to NFI. The dispute between Mr Laing and Mr Watson, which founded the litigation between them (which I will refer to as the first case), turned on the terms on which that loan was made.

Mr Laing said that in November 1999 it had been agreed that Burkle would receive a 12 1/2% share of the profits of the venture, in place of the 12 1/2% shareholding originally to be allocated to Burkle or Mr Watson, security for that obligation on Mr Laing’s part to be provided by a charge in favour of Burkle over a 12 1/2% shareholding in NFI that under the agreement was to be allocated to Mr Laing. Mr Watson on the other hand said that there had been not one but two agreements. The first agreement (which I will refer to as Mr Watson’s first agreement), which was not affected by the changes in November 1999, was that Mr Watson or his nominee would receive a 12 1/2% shareholding in NFI. That allocation to Mr Watson was said by him to have been in recognition of his procuring for the venture the £500,000 balance of the funding. The second agreement (which I will refer to as Mr Watson’s second agreement) was in the same terms as that alleged by Mr Laing, save that when the adjustment was made in November 1999 the security for Mr Laing’s obligation to pay Burkle the agreed share of the profits of the venture was to be provided by a charge over shares in NFI allocated to an entity known as the Jedburgh Trust. Those shares were different from the shares to be issued to Mr Watson under Mr Watson’s first agreement.

The stark difference between Mr Laing and Mr Watson was therefore that Mr Watson claimed to be entitled, either directly or through Burkle, both to a 12 1/2% share in the profits of the development and to a beneficial interest in a 12 1/2% shareholding in NFI. Mr Laing contended that all that Mr Watson had been granted beneficially was the 12 1/2% share in the profits. His interest in the 12 1/2% shareholding was only as security for that share in the profits.

Mr Laing caused a 12 1/2% shareholding in NFI to be issued to Burkle in November 1999. That transfer on its face appeared to be to Burkle beneficially, something that Mr Laing later claimed to have been a mistake. In 2000 the shares, still not expressed to be by way of charge or security, were at Mr Watson’s request re-registered in the name of ESL. Differences then arose between the protagonists, both in relation to the development itself and in relation to the status of the shares held by ESL. The loan agreement was renegotiated in 2002. Mr Laing and Mr Watson again strongly disagree as to the effect of that step. Mr Laing says that the new agreement was the outcome of a previous oral agreement, and was intended entirely to abrogate the 1999 agreement by cancelling Mr Laing’s obligation to pay the 12 1/2% profit share to Mr Watson in return for a recognition by Mr Laing that the shares held in the name of ESL were, as Mr Watson contended, held beneficially. Mr Watson says that the 2002 agreement was only concerned with the loan provisions. It did not refer to the 1999 agreements as to profit share because it was clear that Mr Watson and Mr Laing disagreed as to the implications of those agreements, and no variation of them was possible. As a result, in Mr Watson’s view the beneficial status of ESL’s holding remained unchanged, as did Mr Laing’s obligation to pay over to Mr Watson 12 1/2% of the profits of NFI.

In the first case, heard in 2005, HHJ Thornton QC held, after a seven day trial in which he heard evidence from, inter alios, Mr Watson and Mr Laing, that Mr Watson’s case as to the agreements and understandings between the two men had been true in its entirety. Accordingly, Mr Watson obtained a declaration that ESL’s 12 1/2% holding was beneficial, and Burkle’s entitlement to a 12 1/2% share in the profits of the venture, as provided under the 1999 agreement, remained binding upon Mr Laing. That decision was not appealed, Mr Laing having been advised of the difficulty of appealing decisions of fact made by a judge who had heard live evidence.

The agreements informally made both in 1999 and in 2002 were followed by written agreements. I shall refer to those as, respectively, the 1999 Written Agreement and the 2002 Written Agreement. The drafting of those agreements was undertaken by a Mr Mathew Kelly, a partner in TW. Mr Kelly had in the past acted for both Mr Laing and Mr Watson in various matters. Whether he was instructed in the drafting of these agreements by Mr Laing as well as by Mr Watson is a matter of controversy in the second claim. On the assumption that Mr Kelly was instructed by Mr Laing, or alternatively owed a tortious duty of care to Mr Laing, Mr Laing complains in this, the second claim, that Mr Kelly was negligent in a number of respects, as set out in paragraph 18 of the Particulars of Claim. Those allegations can for present purposes be grouped under two main headings. First, that in or about preparing the 1999 Written Agreement Mr Kelly failed to advise Mr Laing that it must be clearly recorded in that agreement, as it was not, that Mr Laing held his 12 1/2% shareholding in NFI beneficially, and that the shares registered in Burkle’s name were held by way of security only. Second, that Mr Kelly failed to draft the 2002 Agreement in accordance with his instructions, which were that the 2002 Written Agreement was entirely to abrogate the 1999 Written Agreement. That abrogation of the 1999 Written Agreement, and its replacement by the 2002 Written Agreement, would have meant that Burkle, through ESL, for the first time obtained a beneficial interest in the 12 1/2% shareholding in NFI, but Mr Laing ceased to have any obligation to pay over a 12 1/2% share in the profits of the venture to Mr Watson or Burkle.

The pleading then proceeded, in its paragraph 19.1, to say that Judge Thornton’s findings in the first case had been wrong, and that Mr Laing “was exposed to the risk of such adverse findings….because of the breach of retainer, breach of duty and negligence” of TW. It is that claim that is said in the present application to be an abuse of process, in that it relitigates the findings reached by Judge Thornton in the first case between Mr Laing and Mr Watson.

A further feature of the case, which it will be convenient to mention now, is that in front of Judge Thornton there was a witness statement from Mr Kelly that appeared in part to support Mr Laing’s case; and in interlocutory proceedings before HH Judge Toulmin QC, to which we will come in due course, Mr Kelly gave live evidence that also appeared to support the case then being made by Mr Laing. The full nature and implications of this evidence will have to be considered hereafter.

The nature of a claim of abuse of process, and the categories of circumstance in which it can arise, are well settled, albeit that the law has inevitably to be stated in somewhat general terms. It will be convenient to take that from the speech of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at p 536B:

[abuse of process] 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 it 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….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.

The court therefore has to consider, by an intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute. Attempts to draw narrower rules applicable to particular categories of case (in the present instance, negligence claims against solicitors when an original action has been lost) are not likely to be helpful.

As to the proper approach of this court, TW sought to draw from Lord Diplock’s disavowal of the word discretion the conclusion that, since the issue was not one for the discretion of the judge, in any appeal this court should start again, and simply decide whether the trial judge had been right or wrong. I do not think that the matter is so straightforward. In the passage relied on Lord Diplock was indicating that to strike out a case brought without infraction of the rules of procedure was a serious step, not to be taken unless the circumstances were sufficiently extreme as to demonstrate that the judge had a duty to act. That is a much more stringent test than simply to say that the circumstances must fall within a category that entitles the judge to decide for himself whether or not to take action. It is therefore correct that this court, in reviewing the judge’s decision, is not limited to considering whether the facts fell within a wide ambit of discretion. At the same time, however, the issue although not one of discretion is one of judgement in determining whether the duty referred to by Lord Diplock arises. In reviewing such an exercise of judgement this court will always give considerable weight to the opinion of the judge, and particularly so when that opinion has been formed by a commercial judge of many years’ experience.

In order to be able even to start the second case Mr Laing had to allege that TW, through Mr Kelly, owed a duty of care to him. It will have been seen from the extract from the Points of Claim set out in §9 above that the allegation is not merely of a contractual duty, arising from a retainer, but also of a duty in tort whether or not Mr Kelly was in fact retained by Mr Laing. I do not say that against the background of the facts of this case the latter claim is impossible, but it would need a good deal of explanation, such as is at present completely absent from the pleadings, before it could come under serious consideration. The reality is that Mr Laing has to establish the retainer that is alleged at some length in the pleadings.

That plea is affected by an interlocutory application by Mr Laing in the first case for disclosure of various documents relating to the transaction held by Mr Kelly, which application was resisted on the ground that they were subject to legal advice privilege enjoyed by Mr Watson. That application could only succeed if, put shortly, such advice as might be contained in the documents was both to Mr Watson and to Mr Laing in the exercise of a joint retainer. Mr Kelly gave evidence that, as quoted by Judge Toulmin in paragraph 73 of his judgment:

in the context of [the 1999 Written Agreement] I regarded my role as to draw up a document to reflect what the parties had agreed between them. I would have had some difficulty advising either of them as to anything in particular in relation to the document

From that and other evidence Judge Toulmin concluded, at paragraphs 149-150 of his judgment, in relation to the 1999 Written Agreement that

If I had concluded that Mr Laing was Mr Kelly’s client…I should have concluded that Mr Laing and Mr Watson/Burkle had separate retainers and that Mr Laing’s retainer was confined to the mechanical process of drawing up the 1999 agreement. It certainly did not extend to seeing independent legal advice which was given by Mr Kelly to Burkle/Mr Watson.

Judge Toulmin went on to hold (paragraph 155) that if Mr Kelly was thereafter advising Mr Laing that was under a retainer separate from that given to Mr Kelly by Mr Watson, and therefore did not entitle Mr Laing to see any advice given to Mr Watson by Mr Kelly. He then said at the end of his judgment, paragraph 158, that he had not heard any focussed evidence about either the 2002 Written Agreement or the handling of the 12 1/2% holding in NFI, and was not going to pass on whether Mr Kelly was retained by Mr Laing in those matters.

The suggestion that Mr Laing could not assert a retainer in making the new claim because that would be inconsistent with the decision of Judge Toulmin played only a subordinate role in the submissions before us, and rightly so. It will be seen from the account of Judge Toulmin’s judgment set out above that, although he was plainly sceptical of all of Mr Laing’s claims as to a retainer, he made no finding about the relationship between Mr Laing and Mr Kelly at the time of the event that bases a major part of Mr Laing’s case, the drafting of the 2002 Written Agreement. And he did conclude that it was at least possible that Mr Kelly was retained by Mr Laing in relation to the drafting of the 1999 Written Agreement. In those circumstances I find it impossible to say that it will be an abuse of process for Mr Laing in the new claim to assert the retainer that he does. I note also that this argument does not seem to have been advanced before Langley J, or at least not advanced with sufficient force for him to consider it necessary to address it in his judgment.

There are much more far-reaching difficulties for Mr Laing in relation to the substance of his claim, when considered in the context of the judgment of Judge Thornton; to which I now turn.

In order to succeed in the new claim Mr Laing has to establish at least that (i) the underlying agreements between Mr Laing and Mr Watson were as alleged by Mr Laing; (ii) Mr Kelly knew that; (iii) in drafting the 1999 and 2002 Written Agreements Mr Kelly failed to reflect what the two protagonists had agreed; (iv) that failure caused Mr Laing loss, in the shape of the decision against him recorded by Judge Thornton. But Judge Thornton found in the first case that item (i) was not correct; so items (ii) and (iii) did not arise. Mr Laing’s case in the new claim recognised that, and that it would be necessary to demonstrate that Judge Thornton’s judgment on item (i) had been wrong.

In pursuit of that recognition Mr Marks QC in able submissions took us, as he had taken Langley J, through a substantial amount of the documentation relating to the 1999 and 2002 Written Agreements, in an attempt to demonstrate that those agreements should have been in the form that Mr Laing alleges. Langley J concluded, after the same enquiry as was conducted before us, that there was a reasonably compelling case that the decision of Judge Thornton on the terms of the agreements is open to serious challenge. That conclusion enabled Langley J to find that it would not bring the administration of justice into disrepute to permit the issue of the terms of the agreements to be relitigated; and that in terms of fairness it would be unfair to Mr Laing if he were not permitted to pursue a case in which he alleges that it was the negligent drafting of the documentation which exposed him to the claim by Mr Watson/Burkle.

There are two types of difficulty about this approach, which may have been stressed more clearly before us than they were before Langley J. First, the attack on the judgment of Judge Thornton is in my view not as obviously cogent as Langley J concluded. It depends at least in part on assuming what it has to prove, that the underlying agreements were not in the form alleged by Mr Watson. That is because if, as Judge Thornton found, the parties did enter into Mr Watson’s first agreement, then the drafting operation, directed only at the arrangements for the loan, was only intended to implement Mr Watson’s second agreement; since, as Judge Thornton further found, at paragraph 159 of his judgment, Mr Kelly was never told about Mr Watson’s first agreement. And, further, in relation to the effect of Mr Kelly’s negligence, I cannot find that Judge Thornton ever relied on the terms of the Written Agreements as guiding him to his conclusions as to the nature of the underlying agreements. Rather, he found the Written Agreements to be accurate because they reflected what the protagonists had agreed: see for instance paragraph 171 of his judgment. He reached his conclusion as to what had been agreed on the basis of the oral evidence of the protagonists, and analysis of their actions during and after the negotiations.

The second, different, and more significant difficulty is however that everything said to us and to Langley J in criticism of Judge Thornton’s judgment could have been said to Judge Thornton (and mainly was so said); and could have been deployed in the appeal from Judge Thornton that was never brought. What is sought to be achieved in the second claim is, therefore, not the addition of matter that, negligently or for whatever reason, was omitted from the first case, but rather a relitigation of the first case on the basis of exactly the same material as was or could have been before Judge Thornton.

I give as but one example of how the second claim involves relitigation of the first case an attendance note by Mr Kelly of a conversation that he had with Mr Laing on 24 February 2003 [item 591 in the documents before us]. Mr Marks argued that the note demonstrated that Mr Kelly thought that Mr Laing’s case was correct, because it reported to Mr Laing a statement by Mr Watson that there was no longer any need to bother about his 12 1/2% share in the profits of the development because ESL now had a beneficial interest in 12 1/2% of NFI. Knowledge on the part of Mr Kelly that Mr Watson had made that admission showed that it would not be unfair to TW to permit Mr Laing now to seek to depart from the findings of Judge Thornton. But the document in question was heavily relied on by Mr Laing in the first case, and was subjected to detailed consideration by Judge Thornton in paragraphs 155-161 of his judgment. He concluded that, read in context, Mr Watson had not made the admission asserted by Mr Laing.

That the new claim involves relitigation is so even in respect of the ways in which Mr Kelly is now alleged to have been negligent. If it had been thought necessary at the trial to explain away the Written Agreements (and it is far from clear that that was seen as a difficulty for Mr Laing’s case), Mr Kelly could have been called to explain what had gone wrong. That was not done. Rather, in his written statement before Judge Thornton what Mr Kelly did say was that, when performing the role of amanuensis to which he referred in his evidence before Judge Toulmin quoted in §15 above, he was never instructed by Mr Laing that Burkle were to receive a 12 1/2% share in the profits as well as a 12 1/2% shareholding in NFI. That says nothing as to the implications of Mr Watson’s first agreement: which Judge Thornton found Mr Kelly to have known nothing about.

I therefore conclude that it would bring the administration of justice into disrepute if Mr Laing were to be permitted in the second claim to advance exactly the same case as was tried and rejected by Judge Thornton. If Judge Thornton’s judgment was to be disturbed, the proper course was to appeal, rather than seek to have it in effect reversed by a court not of superior but of concurrent jurisdiction hearing the second claim. That the second claim is in substance an attempt to reverse Judge Thornton is important in the context of wider principles of finality of judgments. In Hunter, at p 545D, Lord Diplock said that the proper course to upset the decision of a court of first instance was by way of appeal. Where, wholly exceptionally, a collateral, first instance, action can be brought it has to be based on new evidence, that must be such as entirely changes the aspect of the case: see per Earl Cairns LC in Phosphate Sewage v Molleson (1879) 4 App Cas 801 at p 814. The second claim in our case not merely falls short of that standard, but relies on no new evidence at all.

It is however argued that all of that is irrelevant, or at least not conclusive, where the second claim is, unlike the claim in Phosphate Sewage, not between the same parties. The appellant relied on, and Langley J was impressed by, observations by Lord Hoffmann in Hall v Simons [2002] 1 AC 615 at p 705H, on the status of claims of abuse of process in negligence actions against solicitors involved in earlier proceedings:

I see no objection on grounds of public interest to a claim that a civil case was lost because of the negligence of the advocate, merely because the case went to a full trial. In such a case the plaintiff accepts that the decision is res judicata and binding upon him. He claims, however, that if the right arguments had been used or evidence called, it would have been decided differently.

In the present case, Mr Laing perforce accepts that the decision of Judge Thornton is binding on him. The obligation to Mr Watson placed on him by that judgment is the loss that he seeks to recover in the second claim against TW. That judgment against him was only obtained by Mr Watson because of the negligence of Mr Kelly. Accordingly, the second claim does not seek to reverse the decision of Judge Thornton, but rather seeks to recover from TW the cost to Mr Laing of that decision.

I of course agree that it will not necessarily, or perhaps usually, be a valid objection to a claim for solicitors’ negligence in or about litigation that the claim asserts matters different from those decided in that litigation. That is so not only of cases where the solicitors’ have made what might be called administrative errors that have prevented the earlier proceedings from being properly pursued or their outcome challenged by the proper means (eg Walpole v Partridge & Wilson [1994] AC 106); but also where errors in assembling the evidence or understanding the law are alleged to have led to an incorrect result, as was the case in Hall v Simons itself. But the present case is significantly different from those just mentioned. The difference is that, as shown in §19 above, in order to succeed in the new claim Mr Laing has to demonstrate not only that the decision of Judge Thornton was wrong, but also that it was wrong because it wrongly assessed the very matters that are relied on in support of the new claim. That is an abusive relitigation of Judge Thornton’s decision not by appeal but in collateral proceedings, and in substance if not strictly in form falls foul of the Phosphate Sewage rule.

Mr Laing sought to escape from this dilemma by arguing that his complaint was not that Mr Kelly’s drafting had produced the error on the part of Judge Thornton, but rather that, without that error, the case would never have reached Judge Thornton: because if the documentation had been correctly drawn Mr Watson would have recognised that it represented what had been agreed, and would have signed, in particular, the 2002 Written Agreement as a true record of the relationship between himself and Mr Laing. Mr Marks assured us that that claim could be extracted from the pleading quoted in §9 above; and Langley J at his §12 accepted that as the basis of the claim.

The difficulty about this approach, which may not have been put clearly to Langley J, is that it requires there to be rejected another finding of Judge Thornton, that the parties had indeed entered into Mr Watson’s first agreement. Unless that finding can be dislodged, it is plainly absurd to say that Mr Watson would have accepted a draft of the 2002 Written Agreement in the terms now contended for by Mr Laing as a complete statement of the relationship between the two men. The need to reverse that finding thus makes this way of putting the second claim equally as abusive as a direct attack on the whole of the decision of Judge Thornton.

TW claimed that it would in any event be manifestly unfair to them to permit Mr Laing to reopen the issue between himself and Mr Watson. Mr Watson had claimed privilege for various documents that might assist the case; and Mr Watson himself had indicated that he would not attend a further trial. I doubt whether there are any other documents that could make a substantial addition to what is already before the court, but the absence of Mr Watson from the trial of the new claim is significant. Judge Thornton based his conclusions largely on his acceptance of the evidence of Mr Watson, which the trial court in the new claim will be deprived of. I am not entirely certain that this issue, taken on its own, would demonstrate manifest unfairness to TW; but what it does very firmly underline is that the new claim will indeed be a re-run of the first case, in both of which proceedings Mr Watson, for exactly the same reasons in each case, is a central witness.

On the other side of the coin it was argued that it was unfair to Mr Laing, and possibly improper on the part of TW, that when Mr Kelly, a partner in TW, supported the case that Mr Laing seeks to put in the new claim TW should, as it was put, seek to shield themselves from that claim by relying on the judgment of Judge Thornton. There might be something in that complaint if Mr Kelly’s evidence had not been available to Judge Thornton, who had a clear view of the role that Mr Kelly had played. The limited assistance that Mr Kelly gave to Mr Laing’s case, and the fact, found by Judge Thornton, that he was unaware of a central issue between Mr Watson and Mr Laing, Mr Watson’s first agreement, shows that it is not improper for unfair for TW to rely on the findings of Judge Thornton.

It was argued before us, but not I think before Langley J, that TW were the privies in interest of their client Mr Watson. Mr Laing was bound by estoppel not only as against Mr Watson but also against TW in respect of the issues decided in the first case. The second claim should be dismissed on that ground, without therefore needing to evoke abuse of process. This was a novel claim, and almost certainly misconceived. It is difficult to see how a solicitor can have the same interest as his client either in fact or in law, not least because of his concurrent duty to the court. In any event, this is not the case in which to seek to explore this suggestion further.

These proceedings are an abuse of process. Langley J did not give sufficient weight to the central factor that creates that abuse, that the proceedings are in substance a complete relitigation of the decision of Judge Thornton. I would allow the appeal and strike out Mr Laing’s action.

I agree with both judgments.

I agree that the appeal should be allowed for the reasons given by Buxton LJ. The attempt to bring proceedings in contract and in tort against TW involves an impermissible challenge to the facts found by Judge Thornton and is, for that reason, an abuse of process.

I should explain why I conclude that the challenge is impermissible. Allegations of negligence during the course of litigation, against solicitors or advocates, will normally involve an attempt by a claimant to demonstrate that the previous conclusion of the court would have been different, absent negligence on the part of the lawyer. In many cases it will, indeed, be necessary to do so in order to prove causation and loss. The paradigm is the loss of a case due to negligent advocacy. But to bring such proceedings for negligence does not bring the administration of justice in to disrepute; Hall v Simons teaches to the contrary.

But such cases differ from the instant appeal in two important respects. Firstly, in the normal run of case, the impugned conduct of the lawyer is independent of the factual conclusions of the court; those conclusions are only relevant to prove causation and loss. His case does not, in reality, involve any challenge to the findings or conclusion of the court. He merely contends that, in the light of the negligence of which he now complains, the court’s conclusions would have been different. But this not so in the present case. As Buxton LJ has demonstrated (at paragraphs 19 and 27), the claimant cannot establish that his adviser’s drafting of the agreements was negligent without challenging the judge’s findings as to credibility and fact. To make good the allegations of negligence, Mr Laing must show that his account of the agreements is the truth. He must demonstrate that Judge Thornton’s judgment of his credibility was wrong.

Secondly, generally in actions against legal advisers arising out of litigation, the losing party’s allegations of negligence could not have been advanced in the case which he lost. They arise only after the case is concluded. But in the present case, the claimant had every opportunity during the course of the trial to raise, as he would have it, the inadequate drafting. The more Mr. Marks QC emphasised the strength of Mr Laing’s position on the basis of the written evidence, the harder it became to understand why the errors of Mr Kelly were not fully aired at trial. On Mr. Laing’s account the 1999 and 2002 written agreements were inadequate. Mr Laing had every opportunity at trial to explain that the inadequacies were due to the incompetence or misunderstanding of Mr Kelly.

Those two features demonstrate why the court should not permit this action to proceed.