Hicks v Russell Jones & Walker

On 22 May 2007 I gave Mr Hicks permission to appeal against a judgment of Henderson J given on 27 April 2007 in an action against the respondent firm of solicitors. The judge found that the solicitors were negligent but that their negligence had not caused Mr Hicks any loss. In my judgment giving leave to appeal I summarised the background and there is no need for me to repeat it. I gave permission to appeal on a narrow ground, which I explained in paragraphs 13 to 17 of that judgment. The judge found that the solicitors had failed to take proper instructions from Mr Hicks and failed to obtain timely advice from leading counsel, Mr Michael Brindle QC, in relation to the August 1991 valuation referred to in paragraph 4 of my first judgment.

In the circumstances and for the reasons summarised in paragraphs 2 to 8 of that judgment, the August 1991 valuation proved fatal to Mr Hicks’ attempt to maintain an action for conspiracy against Humberclyde, which he had been advised by leading counsel had a real prospect of success. In summary, in the Humberclyde proceedings Chadwick J had ordered that the liquidator of Mr Hicks’ former company HIHL should assign the conspiracy claim to Mr Hicks but the Court of Appeal reversed that decision because it concluded, on the strength of the August 1991 valuation, that the claim had no monetary value.

Henderson J found that if Mr Brindle had been consulted in proper time his advice would probably have been not to have sought to introduce rebuttal valuation evidence. That advice, he observed, might with hindsight appear to have been mistaken but it would not have been negligent. The judge’s finding on that matter was based on the oral evidence of Mr Brindle and on consideration of the advice which he had in fact given when belatedly instructed (at a time by which it would have been too late to have obtained or sought to put in such rebuttal valuation evidence). When the matter first came before me I considered that Mr Hicks had no real prospect of successfully challenging the judge’s findings of facts so far as they went, but that arguably there was an additional relevant question which the judgment had not addressed.

In paragraph 16 of my first judgment I referred to a passage in the witness statement of Mr Samuels, the case handler in the respondent firm, in which he said:

“Mr Hicks was keen to serve a substantial affidavit dealing in detail with the value and merits of the Conspiracy Action and was concerned that to enter no evidence in response on the basis that the merits were not relevant was a weak position and wanted to serve evidence dealing with the merits so that there was a ‘plan b’ in the event that the sixth and seventh affidavits were allowed into evidence by the Court of Appeal.”

I continued:

“Putting the matter rhetorically: if that was the known position of the client and if the solicitors were unable through their own negligence to obtain advice from leading counsel, ought they not to have discussed the matter more fully with their client and prepare the evidence which they knew that the client wished to put before the court? Or is it at least arguable that they were negligent in that regard and that arguably Mr Hicks may have lost the appeal in the Humberclyde action because of the failure to adduce such evidence?”

I concluded that although I could see real difficulties in Mr Hicks’ path I was left with a nagging concern about the case which made me feel that I ought, as a matter of justice, to give leave to appeal so as to enable Mr Hicks to argue that in the circumstances the solicitors were in breach of contract in failing to obtain expert evidence in good time to answer the August 1991 valuation and that their failure to do so was causative of Mr Hicks’ failure in the Humberclyde Action.

The respondents then made an unusual application that the matter should be remitted to the judge for him to make further findings before the appeal was heard. That application came before Lloyd LJ and myself on 12 July 2007. We granted it for reasons explained in the judgment of Lloyd LJ, with which I agreed. The question remitted to the judge was formulated as follows:

“Given that the respondents failed to arrange a conference with leading counsel to consider the August 1991 valuation in proper time what (if anything) ought they to have done by way of obtaining further instructions from Mr Hicks and what consequences flowed from not obtaining earlier instructions from Mr Hicks.”

The judge delivered a supplemental reserved judgment on 5 November 2007. When remitting the matter this court anticipated that, depending on his further findings, one or other party might wish to raise grounds of appeal arising from it or seek directions regarding the future conduct of the appeal. Under CPR 52.9 this court has power to set aside permission to appeal in whole or in part, but a party which was present at the hearing when permission was given may not apply to a court to do so. The respondents had been present when I granted leave to appeal and therefore were not entitled under the rules to make an application under rule 52.9. However, they took the view that in the light of the supplemental judgment the appeal no longer had any real prospect of success. Being unable to apply to the court for an order that the permission should be set aside, they instead wrote to the court inviting its directions as to the future conduct of the appeal. Paper directions were given by Lloyd LJ on 23 November 2007 including these:

“2.

The court will wish to consider at that hearing whether the appeal still has any prospects of success, in the light of the findings of Henderson J in his further judgment of 5 November 2007. If the court concludes that the appeal has no reasonable prospect of success, it will wish to consider whether to set aside the grant of permission to appeal, or to strike out the appeal, or whether to dispose of the appeal summarily in some other manner.

“3.

In order that the court can consider those issues Mr Hicks should consider whether, and if so in what terms, he wishes to amend the grounds of appeal in his Appellant’s Notice so as to contend that the judge’s findings and conclusions in his further judgment are wrong.”

Further directions were given as to the timetable for him doing so.

Mr Hicks has submitted additional grounds of appeal. That is the background against which the matter now comes before this court to consider the linked questions whether permission should be given to Mr Hicks further to amend his grounds of appeal and, if not, whether the current permission to appeal should be set aside. In his supplemental judgment Henderson J found that if Mr Samuels had taken proper instructions from Mr Hicks around the end of January 1998 the immediate effect would have been that Mr Hicks would have set about preparing material in response to the further evidence being advanced by Humberclyde and that there would have been a decision to obtain the advice of Mr Brindle about how they should proceed. Mr Brindle had until then impressed Mr Hicks and enjoyed his confidence. The judge also found that matters would then have proceeded accordingly, with Mr Brindle advising by late March or early April and any questions of legal aid being sorted out at the same time. Those findings are in paragraph 30 of his supplemental judgment.

The significance of the reference to January 1998 was that on 27 January 1998 this court had considered an application by Humberclyde for leave to adduce new evidence on its appeal against the decision of Chadwick J. The material which it was seeking to introduce included the August 1991 valuation. The Court of Appeal had adjourned Humberclyde’s application for leave to adduce new evidence and therefore tactical questions arose on Mr Hicks’ side about how they were to respond to this application when it was renewed, as it would be, before the court on the full hearing of the appeal.

The judge considered Mr Hicks’ case that the probable result of any discussion between himself and Mr Samuels about the August 1991 valuation would have been the preparation of rebuttal evidence and, in particular, the obtaining of a retrospective valuation of the hotel.

Without doubting the genuineness of Mr Hicks’ present belief, he did not accept that evidence. He dealt with this matter in paragraph 31 of his judgment. There essentially two reasons for his not accepting it. One was that the pros and cons of “plan B” would have been a matter on which the advice of leading counsel would have been needed as soon as it could be obtained because the question was not an overall straightforward one. Although the August 1991 valuation was important (and of course its importance became clear, and clear to all, with the outcome in the Court of Appeal), there were a number of other pieces of evidence which Humberclyde were seeking to introduce, as Mr Brindle explained in his evidence at the trial which the judge accepted. There were a number of considerations which bore on how Mr Hicks should attempt to deal with that evidence. There were arguments for saying that it was better not to seek to put in any contradictory evidence and hope that the entire evidence would be kept out by the Court of Appeal. There were also problems under Ladd v Marshall [1994] 1 WLR 1489 with seeking to introduce fresh evidence and there was, at least in the view of Mr Brindle, some risk that introducing further evidence on some matters could be seen to highlight potential weaknesses in Mr Hicks’ case.

The second reason why leading counsel’s advice would have been needed was that the Legal Aid Board would have wanted legal advice before sanctioning the obtaining of a valuation report and Mr Brindle’s opinion on that subject would have therefore been important. The judge concluded that the result of these discussions, which should have taken place promptly after the hearing of the Court of Appeal on 27 January 1998, would have been in fact the arrangement of a conference with Mr Brindle at which he would, as a matter of probability, not have recommended the obtaining of a retrospective valuation. He considered that Mr Hicks would have accepted the advice given and in any event it would have been very difficult to have obtained valuation evidence with public money in the light of that advice from leading counsel.

The judge made a number of other findings but, as I see it, those are the really critical findings for present purposes. Unless Mr Hicks can successfully challenge them or show that they do not satisfactorily meet the point on which permission to appeal was given, his appeal is left with no realistic prospect of success.

Mr Hicks has mounted a sturdy challenge to those findings. He also makes other criticisms of the supplementary judgment but, as I have already indicated, it seems to me that the essential findings on which it is necessary to concentrate for present purposes are the ones just identified.

Mr Hicks has produced a number of lengthy written submissions. I say that in no spirit of criticism. Mr Hicks, as a litigant in person, has understandably been anxious that the court should have before it a full understanding of the background and circumstances of the case. We have read all his written submissions. They have also enabled him to be brief and focused in his oral submissions. I do not propose to comment in detail on all the various points which he has made. His proposed amended grounds of appeal run to 19 paragraphs but Mr Hicks has confirmed in his oral submissions that he makes three major criticisms of the supplemental judgment. One is that the judge has not properly addressed the question remitted to him on the premise on which it was based. Secondly, he submitted that the judge was predisposed against him. Thirdly, he submitted that in reaching his conclusions the judge failed to take account of important pieces of evidence and the natural probability of how Mr Hicks would have responded in the hypothetical situation which the judge had to consider, given the desire which Mr Hicks had expressed for a “plan B” and that, accordingly, his findings of fact on those key issues are open to the real prospect of successful challenge.

I have considered these points anxiously. So far as the first is concerned, I understand why Mr Hicks has submitted that the judge did not address the remitted issue on the premise identified when leave was given. Mr Hicks has highlighted in his written submissions certain early paragraphs in the judge’s judgment on which that submission is based. But I am satisfied, when one reads the judgment fully and carefully, that the judge has addressed the question remitted to him. He has considered the question of hypothetical fact: what would have happened if Mr Hicks’ instructions had been taken in a proper manner (that necessarily including proper explanation to Mr Hicks of the evidence which Humberclyde were seeking to adduce)? I am not persuaded that this ground of attack has any real prospect of success. In fairness to Mr Hicks, when the difficulties of his argument were pointed out to him by particular reference to some later paragraphs in the judgment of Henderson J, he did not feel able to pursue the point further. That in my view was a realistic approach. He did not abandon his argument but he was not able to add to it.

As to the complaint that the judge was predisposed against him, that is not infrequently the honestly held belief of a litigant who returns to the court where a judge has previously given a judgment against him. But there is no material on which such an objection could, in my judgment, properly be sustained and again Mr Hicks was not able to point to any particular objective evidence to support it.

So there remains the question whether there is a real prospect of Mr Hicks being able to persuade the court that the judge’s factual finding was wrong and should be reversed on appeal. A heavy burden rests on a litigant who seeks to challenge a trial judge’s findings of fact, particularly in a matter as lengthy and complex as this case, in which the judge has had a lengthy opportunity of forming his views of the witnesses and has considered the written evidence in far more detail than an appellate court can ordinarily do.

I understand the force of Mr Hicks’ belief that the August 1991 valuation was so important that it would have dwarfed all other considerations and that he would have been adamant that rebuttal evidence must be obtained; he would not have been willing to countenance any delay in obtaining leading counsel’s advice. He has reminded us that he is no stranger to litigation; that he has been advised in other matters by other leading counsel. He suggests that if there had been any delays with Mr Brindle he would have promptly wanted other leading counsel instructed. That is not, I believe, a point which has been previously argued in this case (that alternative leading counsel would have been instructed). However, the real question is whether there is any true prospect of a court finding that the judge was wrong to reach the conclusion that he did. To reverse the judge the court would have, in effect, to find that the judge’s findings of fact were perverse. In my judgment there is simply no real prospect of that. The judge gave his reasons for reaching his conclusion and, although Mr Hicks does not accept them, they are entirely rational grounds. It is right to say that the August 1991 valuation was not the only piece of evidence which needed to be considered. It is also right that to obtain a rival valuation from public funds supporting legal advice would have been needed. The view that leading counsel’s advice would have been needed to be obtained as promptly as possible is not merely not irrational, it is in my judgment entirely sensible. Accordingly I have come to the conclusion that there is now no prospect of this appeal succeeding. The inevitable consequence is that the leave which I previously granted should, in my judgment, now be set aside in the light of the supplemental judgment.

I agree that, for the reasons given by my Lord, Mr Hicks’ application for permission to amend his appellant’s notice by expanding his grounds of appeal in order to challenge the points taken in the supplemental judgment should be dismissed, and that, reverting to the points on which permission to appeal was given originally by my Lord last July, in the light of the supplemental judgment, for the reasons given, there is now no realistic prospect of success on the appeal and that, accordingly, this court should set aside the permission to appeal granted at that stage with the consequence that the appeal should now be dismissed.