Dunhill v W. Brook & Co. (A Firm)

This appeal represents the latest round in litigation that originates out of a road traffic accident that occurred as long ago as 25 June 1999 when a motor cycle ridden by Shaun Burgin struck Joanne Dunhill as she was seeking to cross the A635 adjacent to a roundabout in Goldthorpe (between Doncaster and Barnsley in South Yorkshire). What started as a comparatively commonplace incident led to litigation against Mr Burgin involving no fewer than two contested hearings before the High Court, one appeal to the Court of Appeal and further appeals (including a leapfrog appeal from the second of the High Court decisions) to the Supreme Court. Following the conclusion of that litigation, Ms Dunhill continued the pursuit of a claim against her former legal advisers which has led to a further hearing in the High Court and this appeal.

In short, Ms Dunhill retained the First Respondent, W. Brook and Co. (hereafter referred to as “the solicitors”) to act for her. County Court proceedings were commenced on 13 May 2002 (i.e. just before the usual three year limitation period expired) seeking general damages for pain, suffering and loss of amenity and special damages (totalling £2,262.92) for travelling expenses and 10 hours’ care a day for six months followed by one hour a day for two years. The total claim was limited to £50,000 but quantum was clearly considered to be uncertain and, on 3 September 2002 at Barnsley County Court, District Judge Mort ordered a split trial of liability and quantum.

Counsel originally instructed to advise was not available for the trial window and, in December 2002, Justin Crossley (a member of the bar experienced in personal injury litigation) was briefed to conduct the trial of liability only which, in the event, was then listed for two days commencing on 7 January 2003. The first half day was spent in discussions between the parties and the upshot, conveyed to the court shortly before lunch, was that the entire litigation was compromised (with Ms Dunhill’s apparent consent) by a payment of £12,500 and costs.

Within a week, Ms Dunhill expressed dissatisfaction with the way in which her case had been resolved and, in June 2003, she consulted other solicitors. That led, in December 2006, to further proceedings brought by Ms Dunhill, then acting by a next friend, seeking to rely on Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889, [2003] 1 WLR 1511) to set aside the settlement on the basis that she “did not have capacity at the time of the purported settlement of the matter on 7 January 2003”.

In February 2011, that action came before Silber J who decided that the presumption that she had capacity had not been rebutted: [2011] EWHC 464 (QB). Ms Dunhill then successfully appealed to the Court of Appeal ([2012] EWCA Civ 397) which remitted the question whether the compromise and consent order required the approval of the court under CPR 21.10. That issue was decided by Bean J in Ms Dunhill’s favour with the result the settlement was held to be void and had to be set aside: [2012] EWHC 3163 (QB); [2012] 1 WLR 3739. Thereafter, the decisions of the Court of Appeal and Bean J were further litigated in the Supreme Court which dismissed appeals from both: see [2014] UKSC 18, [2014] 1 WLR 933.

As a consequence of the judgment being set aside, Ms Dunhill was free to pursue her proceedings against Mr Burgin. These were eventually compromised as to liability in her favour to the extent of 55% of its full value. Quantum of damage was also compromised but that figure remains confidential although, having regard to the figures placed before the Supreme Court as representing the contentions of the parties, it is clearly very substantially in excess of the figures ever remotely considered and far greater than the upper limit placed on the claim before the County Court hearing.

At the same time as the capacity proceedings were progressing through the courts, in December 2008, Ms Dunhill, again acting by a next friend, sued the solicitors and Mr Crossley of counsel for settling the action in the first place. That action was initially stayed pending the determination of the ongoing litigation but, after its conclusion, it was put on the basis that, as a result of that settlement (alleged to have been negligently advised), Ms Dunhill has suffered loss including both unrecovered costs, and loss of the opportunity to obtain treatment for her injuries earlier than has been the case.

Again, the case has proceeded first to resolve the issue of breach of duty. Causation and quantum of any such loss has been separated off. Thus, between 2-8 December 2015, the issue of breach of duty was tried by Elisabeth Laing J. By a reserved judgment, delivered on 1 February 2016, the judge rejected the claim, dismissing the allegations of negligence against both the solicitors and counsel: see [2016] EWHC 165 (QB). An appeal against that decision is now mounted with the leave of Gloster LJ (such leave having been refused on paper by Hallett LJ).

I have explained the history of this litigation on the basis that the public is entitled to understand why a traffic accident in 1999 is still being litigated in 2018. Although each step taken can be explained, I am afraid that it does not show the civil justice system in good light and it is a matter of real regret that the pace of this litigation has been such that so much time has passed, undeniably causing considerable stress to all the parties involved. Having set out that background, however, the issues ventilated in the appeal now fall to be decided on their merits.

This appeal turns not on the circumstances of the accident as might, in theory, have been proved but, rather, on the evidence and the risks which the solicitors and Mr Crossley had to consider on the morning of 7 January 2003. That includes the material which they had believed would be available at trial but which was not: such weaknesses in Ms Dunhill’s position as might result obviously played into the assessment of risk which had to be made. It also includes the evidence served or available to Mr Burgin’s insurers all of which played an important part in Mr Crossley’s consideration of the merits when it came to the question of settlement. What follows is summarised with that in mind.

At about 17.50 on 25 June 1999, Ms Dunhill was crossing the A635 with her son and his girlfriend. The road is not a dual carriageway, but on the approach to a roundabout, it widens in order to facilitate two lines of traffic, and bends slightly to the left. There is a traffic island at the mid-point of the widened lane and it was roughly in that position that the three pedestrians sought to cross the road, initially from the kerb to the traffic island, at a point where the kerbs dropped to enable pedestrians to cross the road safely. There were a number of vehicles queueing to enter the roundabout in the nearside lane and Ms Dunhill emerged from between two vehicles.

Witness statements made at the time referred to the appearance of the pedestrians as very merry and joyful. They were said not to be paying much attention to where they were going. Meanwhile, Mr Burgin, on a motorbike, came up the road in the outside lane, passing the stationary traffic and into their path. Ms Dunhill’s son was able to move his girlfriend out of the way, and as such they both avoided injury. A collision between Ms Dunhill and Mr Burgin’s motorbike followed.

Ms Dunhill was removed to hospital having suffered a closed head injury involving a fractured skull, visible brain damage, resulting brain injury, and soft tissue injuries to her legs. She also suffered anosmia i.e. loss of sense of smell and taste. The accident was investigated by the police who do not appear to have gone further than interviewing Mr Burgin (subsequently deciding to take the investigation no further). There was, for example, no sketch plan, measurements or assessment of sight lines. On the other hand, the details of a number of the drivers of the stationary vehicles were obtained by someone as Mr Burgin’s insurers later obtained and served statements from two of them; the statements formed part of the trial bundle and so could be assessed by Ms Dunhill’s legal team.

Given that Ms Dunhill had no recollection of the accident, the starting point was what Mr Burgin said to the officer in question and answer which was in these terms:

I was approaching the traffic island heading towards Barnsley. There was a line of about six or seven cars in inside lane. I came down the outside. I was slowing down and could see that there was no traffic on the roundabout. I went to pull out onto the roundabout and they came out from between the stationary vehicles waiting to enter the roundabout.

Who came from between the cars?

There were three people.

What was there (sic) action?

She just walked straight out I think because there was cars parked up they didn’t expect any one or anything coming down the other lane.

How fast were you travelling?

I should say about I don’t know but I could have stopped if there had been cars coming round the roundabout.

What did you do?

I tried to stop. She hit the front of the bike and I just skidded on some gravel and the bike went on the floor.

Why didn’t you see the pedestrian?

I just couldn’t see them cause (sic) of cars which were parked. They were just there smack in front of me.

Where in the line of cars did the pedestrians come from?

I think between first and second vehicle. I don’t know but I think that second vehicle was a van and that might be why I didn’t see them until they were on top of me.”

Underlining the significance of that interview was para. 71 of the Highway Code which applied at the time. This specifically focused on the risk of pedestrians moving out from behind stationary vehicles in these terms:

Although Ms Dunhill could not remember the accident, she could recollect eating strawberries an hour before it. There is a side handwritten note on her statement that she had no recollection of drinking: that was clearly added because of a hearsay observation in one of the insurers’ witness statements to the effect that the police officer smelled alcohol on her breath. That hearsay assertion (which clearly caused concern to Ms Dunhill’s legal advisers) was not borne out by the hospital notes which made no reference to the effects of alcohol.

Her son, Sam Tasker, made a statement about the extensive use that he and his mother regularly made of this crossing point. As to the accident, the statement goes on:

As Mr Crossley knew when preparing the case, that statement was inconsistent with a statement from Mr Tasker which had been disclosed to an accident reconstruction engineer (whose report was served on the insurers who thus knew about it) which contained the quotation “I would say that I could see clearly 10 or 15 yards up the road”. Additionally, the evidence that Mr Tasker pulled his girlfriend (Carol Rogers) out of the way of the bike which she then noticed was confirmed by her so that there was a line of sight to the motorbike.

For the defendant, the insurers had served statements from Mr Burgin and two of the drivers in the stationary line of traffic. Mr Burgin did not pursue the suggestion that a van might have obscured his view. The critical part of his statement was:

He said that the man shouted “How come you didn’t see us” but one of the uninjured pedestrians said that it wasn’t his fault. That was the view of the two witnesses one of whom (the fourth car in line) noted the pedestrians emerge between the first and second cars and spoke of them seeming “full of the joys of spring ... oblivious as to what was going on”. The other witness was the driver of the car third in line who spoke of the pedestrians seeming “very merry and joyful and happy”, not watching the road and stepping between the first and second cars. Although their opinion that the motorbike rider was not at fault is not admissible, Mr Crossley was rightly concerned about the impact of their evidence and the impression they would make on the judge. On the other hand, that there was no high-sided van and that they could see the pedestrians (as Mr Crossley intended to argue Mr Burgin should have been able to) provides another strand into the argument about primary liability, albeit, at the same time, increasing the risk and size of potential contributory negligence.

As I have said, Ms Dunhill’s solicitors also instructed an accident reconstruction engineer. That evidence went to the question of the likely height of the cars in the queue and the sight lines from the seated position of a motor cycle. His report, however, was excluded by the District Judge and it was therefore not available to Mr Crossley to deploy (although its contents would have provided material for cross examination both of Mr Burgin and the eye witnesses).

Although the trial was on liability only, the solicitors had also undertaken some investigations as to quantum (not least because it was necessary to serve a medical report with the Particulars of Claim). However, not all the evidence available was sent to Mr Crossley because the trial was to be on liability only. What he did see were two reports from Mr S. R. Ramnani, a consultant in accident and emergency medicine. The first, dated 6 May 2000 concluded that Ms Dunhill had suffered a “fairly severe closed head injury resulting in cerebral contusion and oedema, a fractured skull, and post-traumatic amnesia lasting for a few days”. As to her recovery, he considered her to be doing well; she was “fine” physically, self-caring, independent, and able to look after herself as well as before the accident. He noted that she had suffered psychological problems before the accident and that it seemed likely that these had been made worse by the head injury. He predicted that her loss of smell and taste was likely to be permanent and that there was a 4% risk of post-traumatic epilepsy which could not be ruled out.

Mr Ramnani’s second report (dated 11 October 2001) was based on a further examination and a review of her medical records (which included the report of a psychologist, Dr Zawadski, to which reference was made). Elisabeth Laing J found that the full report, prepared for therapeutic rather than medico-legal purposes, was in the solicitors’ file but was not supplied to Mr Crossley. Mr Ramnani reported no substantial change in Ms Dunhill’s physical condition, and noted that her main problem was her loss of taste and smell. Her risk of developing epilepsy had diminished to less than 1%.

Regarding her mental condition, Mr Ramnani found that she had experienced some personality changes since the incident, with mood swings and hallucinations. He noted Dr Zawadski’s report of 15 August 2000 that “her current difficulties appear to stem from combination of head injury, psychological reaction to losses she has experienced and the existence of previous psychological difficulty”. He went on that there was a chance that these issues may respond to the head injury rehabilitation that she was then waiting for. Furthermore, she continued to be able to care for herself and lead an independent life.

Mr Crossley also had the benefit of reading an advice dated 24 January 2002 prepared by counsel (Sarah Greenan) who had previously advised on the case. She had met Ms Dunhill and also had the report of the accident reconstruction engineer. Reviewing a number of authorities, she concluded that Ms Dunhill should be able to establish primary liability subject to substantial contributory negligence, leaving her with 33% of the value of the claim or as low as 25% if she was found to have been drinking alcohol.

As to quantum, Ms Greenan reviewed the Ramnani reports (saying that the solicitors should make sure “we” see a copy of Dr Zawadski’s report), concluding:

It was as a result of this advice that proceedings were commenced and a split trial sought. She recommended that the matter be reviewed before trial so that when it became clear that she would not be available, that task fell to Mr Crossley. His instructions to advise included the accident reconstruction report (without identifying that the district judge refused permission to rely on it) together with the more useful photographs attached to that report than were otherwise available. The instructions also referred to the following features of the up to date position:

Ms Dunhill was then unsure of the whereabouts of her son there being a possibility that he was serving a custodial sentence.

On 20 December 2002, Ms Dunhill had made it clear that she did not wish the trial to proceed: she was anxious that the matter be settled without the need for her to give evidence (which fact could have been connected with her mental or emotional state).

Ms Dunhill was supported by a mental health advocate who said that she was being treated by a neuropsychologist and that ‘apparently’ a report was available which the solicitors were seeking to obtain and would be furnished to counsel ‘as soon as possible’.

The solicitors had made a Part 36 offer of 50:50 because without the attendance of Sam Tasker or Carol Rogers, Ms Dunhill’s case would be placed at a disadvantage, there being a further allegation (which was denied) about their consumption of alcohol. (This offer was rejected.)

Mr Crossley provided written advice dated 30 December 2002 in which he agreed that Ms Dunhill had a reasonable prospect of success. He asked that the neuropsychologist’s report be forwarded not only to consider the extent of Ms Dunhill’s psychological problems but also on the grounds that it “may be relevant in respect of her apparent fear of attending the trial”: this last point emphasised advice that he had given orally on 23 December.

The neuropsychologist referred to by the mental health advocate was not Dr Donna Zawadski (whose report date stamped 15 August 2000 had in fact been sent to the solicitors on 23 July 2001 by Barnsley District Hospital NHS Trust with the medical records). It was a report from Dr Nick Morton, a consultant clinical neuropsychologist to whom Ms Dunhill had been referred for treatment (as opposed to medicolegal) reasons. It was dated 12 December 2002.

On 31 December, Ms Dunhill authorised the release of Dr Morton’s report to the solicitors; she also spoke about it to Ryan Marsh, a trainee at the solicitors, who later attended the trial. He said that he would chase up Nick Burton (the mental health advocate). On 2 January, Mr Marsh spoke to Mr Burton who reiterated that Ms Dunhill was very upset and did not want to attend the trial. He also spoke to Mr Crossley and told him about ‘the dismissal’ of the report from the accident investigation engineer, that is to say that the evidence of the engineer had not been permitted.

The report from Dr Morton was, in fact, faxed by the Primary Care Trust to the solicitors at 15.30 on the day before the trial. Thus, it was potentially available for Mr Crossley to consider. Mr Brook (the partner responsible for the case) gave evidence that he remembered reading it but Elisabeth Laing J rejected that evidence. Marc Willems Q.C. for Ms Dunhill challenges the rejection of the admission by Mr Brook (made against his own interests) but does not contend that either Mr Crossley (or Mr Marsh) saw it. Suffice to say that it painted a far more serious picture of the extent of Ms Dunhill’s recovery and referred to her living “a very limited life”, noting that her behavioural and cognitive effects were consistent with her head injury and likely to arise out of a frontal lobe injury. Dr Morton recommended specialist brain injury rehabilitation (only available at a few independent sector services) and anticipated that she required 12 months within a residential setting. In the absence of benefit, other approaches would have to be considered.

On 7 January 2003, Ms Dunhill attended Sheffield County Court accompanied by Mr Burton along with Carol Rogers. Although she then said that her son would be attending (and had been given taxi money to do so), he did not appear. As a result, Mr Crossley then assisted by Mr Marsh, had the difficult task of deciding how to proceed with the hearing. The judge allowed time for the parties to discuss the case and, during the morning, Mr Crossley spoke both to Ms Dunhill and his opponent.

Mr Crossley considered that the failure of Ms Dunhill’s son to attend constituted a significant setback in relation to the prospects of success in the litigation on the basis that he was the only witness upon whom he could rely for evidence as to Mr Burgin’s approach, his likely speed and the distance at which he saw him. This was so notwithstanding the discrepancy about distance referred to above. The result was that he then believed the prospects of success on primary liability to be less than 50%.

In the absence of Mr Tasker, Mr Crossley advised Ms Dunhill that although an application could be made for an adjournment, it was unlikely to succeed. He identified an alternative which was to ask counsel for Mr Burgin whether his client would be willing to pay a sum of money for full and final settlement of the claim without admission of liability. Mr Crossley is recorded as explaining that if she chose this avenue she could expect an offer “drastically reduced from what she may expect if she [were] to receive full damages”. In the event, he was authorised to have the conversation with counsel for Mr Burgin.

After discussion, Mr Burgin offered to settle the case on a full and final basis for £10,000 without the admission of liability; Ms Dunhill rejected this offer. Continuing the negotiations, but on Mr Crossley’s understanding that this would be as far as Mr Burgin’s insurers would go, an increased offer of £12,500 was made. At the time, the trial had only been prepared on liability and no further enquiry was made of Mr Brook (or of Mr Marsh to discuss with Mr Brook) about the updated medical position, or the report from Dr Morton. Neither does it appear that there was a discussion about Ms Dunhill’s condition with her even though Mr Crossley was aware that she was due to attend for residential head injury rehabilitation.

Mr Crossley was clearly concerned that notwithstanding the fact that Mr Burgin had admitted that he had not looked for pedestrians crossing (focussing instead on the traffic on the roundabout) and that it was no longer suggested that a high van obscured his vision and the provisions in the Highway Code, in the absence of Sam Tasker, there was a real risk that the claim could fail in its entirety. He then considered the provisional advice as to quantum which Ms Greenan had provided (although this was based on the reports of a consultant in accident and emergency medicine albeit referring to the report of Dr Zawadski) and concluded that 25% of that sum was a not unreasonable settlement figure.

Thus, on the basis of the material then available to him (including the Ramnani reports which included reference to Dr Zawadski and the advice from Ms Greenan), Mr Crossley advised Ms Dunhill that £12,500 was a reasonable offer and she, albeit hesitantly, accepted that advice. Thus, the claim was compromised for that lump sum in full and final settlement.

In January 2015, with the approval of Swift J, the original action (restored as a consequence of the decision of the Supreme Court) was itself compromised as to liability and, at some stage, the stay on these proceedings were lifted. By amended Particulars of Claim, although it was not suggested that Ms Dunhill’s claim had been handled negligently prior to the instruction of Mr Crossley, it was contended that both solicitors and counsel had been negligent in their conduct of the claim thereafter. Whether or not it was clear from the pleadings, at the commencement of the trial before Elisabeth Laing J, Mr Willems made clear that he was not pursuing any allegation relating to a failure to appreciate that Ms Dunhill lacked capacity against either solicitors or counsel. The claim was pursued on the basis that it was negligent to recommend full and final settlement in the sum of £12,500.

It is difficult in any short summary to do justice to the detailed analysis that Elisabeth Laing J provided in a comprehensive and very detailed judgment running into 158 paragraphs. She approached the case on the basis that the potential liability of the solicitors was parasitic on the liability of Mr Crossley. She therefore posed the questions, first, whether Mr Crossley was negligent; secondly, if so, whether the solicitors had discharged their duty by sending a trainee to court on 7 January 2003; and, thirdly, whether the solicitors were reasonably entitled to rely on the advice of Mr Crossley with regards to settlement.

Turning to the first, Elisabeth Laing J saw force in Mr Crossley’s assessment that the evidence of Sam Tasker was very important to the case on liability. She also recognised and validated his concern that, without that evidence, he could have been left in a position where the judge would hold that he had failed to discharge the burden of proof, and that relying on the witness statements served on behalf of Mr Burgin to prove his case was a high-risk strategy. Moreover, Elisabeth Laing J considered that Mr Willems had failed properly to appreciate the potential damage that would be caused to Ms Dunhill’s case if Mr Burgin’s witnesses had come up to proof. As such, Elisabeth Laing J found that the view reached by Mr Crossley regarding the risk of Ms Dunhill losing the case entirely was not negligent on the basis of the material known to him at the time. She summarised the position (at [142]) in this way:

The judge then went on to consider whether Mr Crossley was negligent in not having asked the trial judge for an adjournment in order to secure the attendance of Sam Tasker. Again, she saw force in Mr Crossley’s assessment that the judge would, in all likelihood, have asked why he had not attended on that day, and whether any assurance could be provided that he would attend an adjourned hearing. Not knowing either where he was or why he was not in court, she decided that Mr Crossley rightly concluded that he would not have been able to provide the trial judge with a sufficient explanation or adequate reassurance on this matter.

Elisabeth Laing J also rejected arguments advanced by Mr Willems with regards to the likelihood of findings of contributory negligence, the precise apportionment on which he advised Ms Dunhill and the relevance of whether she (and the other pedestrians) had been drinking prior to the incident.

With regards to the assessment of quantum, obviously of importance when advising on the acceptability of a full and final settlement, Elisabeth Laing J also rejected the allegation that Mr Crossley had been negligent in that regard. She highlighted that it was inevitable that the evidence prepared on quantum in a legally aided claim would be provisional where a split trial had been ordered, and that it was unrealistic to suggest that Mr Crossley could or should have obtained an adjournment to obtain more evidence on quantum given that he was plainly unaware of the relevance of the reports compiled by Dr Zawadski (save to the extent that it was summarised by Mr Ramnani) and Dr Morton. As a result, on the basis of what was known to Mr Crossley at the time, he was not negligent when doing his best to assess quantum and in so doing reaching a similar conclusion to that provided by Ms Greenan.

Turning to the solicitors, Elisabeth Laing J focussed on the fact a junior trainee solicitor had been sent to court, and that, on her assessment, the trainee was out of his depth through no fault of his own. Thus, if Mr Crossley had made a blatantly negligent error, then the solicitors would not have had sufficient knowledge or experience to detect it. On the basis, however, that he had not, the solicitors had not been negligent either. The only proviso in her judgment was that had the case been established against Mr Crossley, she considered that it would also have generated liability in the solicitors.

There is no dispute as to the legal principles engaged in this case and therefore it is appropriate only to summarise them before turning to the arguments advanced on this appeal. Thus, it is beyond argument that both solicitors and counsel owed Ms Dunhill a duty to exercise such skill and care as would have been afforded to her by a reasonably competent practitioner in the personal injury sector of the legal profession: see Hall (Arthur JS) & Co (a firm) v Simons [2002] 1 AC 615 applying Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. To that must be added that there is no question of liability for what may be considered to have been, with the benefit of hindsight, an error unless the error was one that “no reasonably well-informed and competent member of that profession could have made” as per Lord Diplock in Saif Ali v Sidney Mitchell & Co [1980] AC 198 at [220D].

Lord Diplock’s views on this issue have been echoed in VG v Denise Kingsmill [2001] EWCA Civ 934 in which, giving the judgment of the Court, Sir Murray Stuart-Smith said at [63]:

The same principles have been restated in various forms in different claims of this type. Thus, in Moy v Pettman Smith (a Firm) [2005] 1 W.L.R 581 Lord Carswell said (at [60]):

Similarly, in Pritchard Joyce & Hinds (A Firm) v Batcup [2009] P.N.L.R 28, Sedley LJ said (at [103]):

Further, a solicitor is not liable in negligence if he acts reasonably on the advice of appropriate counsel who has been properly instructed. But a solicitor must not be passive, and must exercise his own independent judgment of the case before him. If he considers that counsel’s advice is ‘obviously and glaringly wrong’ it is his duty to speak up (Locke v. Camberwell Health Authority [1991] 2 Med LR 249, CA; Martin Boston and Company v Roberts [1996] 1 PNLR 45, 50, applying a dictum of Oliver J in Midland Bank v Hett, Stubbs and Kemp [1979] Ch 384, 403). Similarly, the same standard of care applies regardless of the level of experience obtained. As such, given that Mr Brook chose to delegate the responsibility of attending court to his trainee, Mr Marsh, that does not in and of itself permit them to fall below that standard.

When reviewing the decision of Elisabeth Laing J, as Anneliese Day Q.C. for Mr Crossley reminded the court, it is also important to bear in mind the appropriate deference to which the views of the judge are entitled. This necessary injunction has been emphasised in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] ETMR 26 per Lewison LJ in terms (at para [114]):

On the other hand, Mr Willems argues that his substantive challenge (save in very marginal respects) is not to the facts found by the judge, their evaluation or the inferences but rather to the application of the settled law to those facts and inferences. The difficulty in cases such as the present, however, is that the task of the judge was not to apply facts, as found, to the legal landscape as he or she found it to be but, rather, to exercise an evaluative judgement in relation to the thought processes and professional assessment of lawyers engaged in the extremely difficult task of the moment, namely how to deal with the issues raised by the changed dynamic and risks of success or failure in a case which was then, immediately, due to be tried.

In that regard, the fact that another solicitor or member of the Bar would have acted differently is not to the point. As Sir Murray Stuart-Smith said, the relevant advice must have been such that no competent and experienced practitioner would give it. Mr Willems accepts that, as a consequence, the bar which he must overcome is set high.

Although advanced in reverse order, Mr Willems made submissions both in relation to the assessment of liability and quantum. In both cases, the submissions which he advanced were primarily focused on the position of Mr Crossley and, although subsidiary allegations were made in relation to the solicitors, the separate position of the solicitors was barely mentioned in argument. Approaching the matter logically, it is appropriate first to deal with Mr Crossley’s assessment of the risks in relation to liability where there was no question of inadequate instructions.

I deal first, but shortly, with the failure to request an adjournment. The decision of the judge was clearly correct: with the case set down for a two day hearing on liability, advancing the argument that Sam Tasker (who himself had not seen the motorbike until the last moment) was an essential witness not only was extremely unlikely to succeed but also served to reveal the concern that counsel had about establishing the case he was going to have to argue if the application failed. To request an adjournment to obtain further medical evidence was even less likely to succeed: the trial was fixed for liability only so quantum was irrelevant. In addition, there was no concern (at that time) about Ms Dunhill’s capacity and, in any event, she had no memory of the accident. It is extremely difficult to see how the application in relation to quantum could ever have been justified.

Turning to liability, Mr Willems argued that Mr Crossley over-estimated the risk of losing the issue of primary liability not least because, even in the absence of Sam Tasker, there remained a strong case in circumstances where Ms Dunhill could rely upon significant aspects contained within the evidence of Mr Burgin’s witnesses. The case was never said to be hopeless such that settlement for any sum was better than no settlement at all and although Mr Willems submits that the judge misunderstood his submission about the inevitability of a finding of contributory negligence (which Mr Willems conceded), the problem for Mr Crossley was not contributory negligence but primary liability which depends on sightlines and the moment that pedestrian and motorcyclist could have seen each other.

Ms Day argued that the judge had been fully aware of all these points and simply reached a decision contrary to Mr Willem’s submissions to which Mr Willems responded by submitting that this court is not only entitled to interfere but bound to do so if we are satisfied that the conclusion was wrong. For my part, I agree that the case could be run – and probably run successfully – based on what Mr Burgin said to the police and in his statement (looking forwards to the roundabout, without there being a high sided van to obscure vision) and para. 71 of the Highway Code. That, however, is far from saying that the judge (who heard Mr Crossley and was in the best position to assess his doubts and his assessment of the position that morning) was not entitled to take a different view. In my judgment, to interfere with her conclusion that Mr Crossley was entitled to fear that the case no longer had a 50% prospect of success and could fail in its entirety runs contrary to what is the clear approach to the assessment of a trial judge as set out by Lewison LJ in Fage UK Ltd v Chablani (supra).

That does not conclude the appeal because it is also necessary to assess the challenges in relation to quantum specifically because Mr Crossley also used Ms Greenan’s provisional assessment of quantum (doubtless informed by his own professional experience) as a check that, discounting the prospective full value of the claim for the risk of potential failure and for substantial contributory negligence still produced a figure broadly in line with the offer. Putting the point another way, had he believed that the case, on full liability, was worth, say, £¼ million, it might well have been the better judgment to fight (even at the risk of losing but still with, say, a 40% prospect of success of obtaining a judgment for 40% that is to say with 60% contributory negligence). On calculating the cost benefit, that would mean accepting £12,500 when the discounted risk value of the case was £40,000 (ie. 40% of 40% of £¼ million). I turn therefore to quantum, which Mr Willems put first in his challenge to the decision of the judge.

In relation to Mr Crossley, Mr Willems also submits that Elisabeth Laing J fell into error when concluding that he had discharged his duty of care to Ms Dunhill in relation to quantum. He does so on the basis of findings of fact which he contends should have driven her to reach the opposite conclusion. These may be summarised as follows:

Mr Crossley knowingly advised Ms Dunhill to settle her claim on an incomplete evidential background regarding quantum, failed to alert her to that fact and made no efforts to fill the known gaps in the material which he had before him (whether by contacting Mr Brook, requiring Mr Marsh to contact Mr Brook or otherwise);

Mr Crossley inadequately prepared for the case having identified but failed to appreciate several relevant concerns indicated in the medical evidence (so called ‘red flags’) which would have justified greater damages and/or advising the Appellant on the basis of provisional and limited advice proffered by Ms Greenan;

Mr Crossley inadequately executed the case by failing to advise Ms Dunhill that the value of her claim would depend on the success of her brain injury rehabilitation and, in consequence, failing to negotiate for a settlement involving provisional damages for the risk of epilepsy (or advise of that possibility). As a consequence, he assessed the value of the claim on an inaccurate basis.

As regards the solicitors, the criticisms which Mr Willems advanced in his skeleton argument are premised on their advice or the support offered to Mr Crossley’s advice. In addition to failing to put the contrary view to that advanced by counsel, the breaches are summarised in this way:

The solicitors knew that the evidence in respect of the quantum of the Claimant’s claim was incomplete and failed to raise that issue, or seek to address it with Ms Dunhill or by providing to Mr Crossley the available report from Dr Zawadski or the recently received report from Dr Morton (both neuropsychologists and in a better position to advise on the impact of the brain injury than Mr Ramnani, a consultant in accident and emergency medicine) particularly bearing in mind that Ms Greenan’s advice was provisional.

The solicitors themselves failed to point out the concerns (or ‘red flags’) in the medical evidence, the fact that Ms Greenan’s advice on quantum was provisional and depended on Ms Dunhill’s successful rehabilitation or to provide Ms Dunhill with the choice of settling for certainty in the sum £12,500 or pursuing a claim on the basis that it may be worth very considerably more.

The complaint that Mr Brook should have provided Dr Morton’s report to Mr Crossley is undermined by the finding of fact (with which I would not interfere) that, contrary to his evidence, Mr Brook had not read it. Furthermore, Mr Brook only knew that the trial was on liability alone. It was not suggested (or found) that he was alerted either to the fact that Sam Tasker had not attended the trial (with the consequential risk, as Mr Crossley perceived, to achieving any positive result) or to the fact that quantum and potential ‘full and final’ settlement figures were being considered. The highest this complaint could be put was that Mr Crossley and Mr Marsh knew that further evidence was being sought and could (Mr Willems would say should) have asked whether it had arrived, if only to increase the power of their arguments in relation to settlement.

Furthermore, in her judgment, Elisabeth Laing J found that although Mr Crossley had been alerted to the existence of the neuropsychological report compiled by Dr Morton, he had formed the impression, whether rightly or wrongly, that this report would merely explain any inability or reluctance on the part of Ms Dunhill to attend trial. Furthermore, in relation to Dr Zawadski’s report, whilst Mr Crossley may have noted its existence from a review of the case file, the fact of its availability (or the possibility that Ms Dunhill’s prospects of recovery were inadequately summarised in Mr Ramnani’s report) was never brought to his attention, again because the trial was intended to be on liability only.

Quite apart from these arguments, Ms Day argues that Mr Crossley had identified the ‘red flags’ in the medical evidence but reasonably relied on Mr Ramnani’s conclusions not least because he had assumed that any evidence from Dr Morton would explain Ms Dunhill’s failure to attend (when she had, in fact attended) and although he had asked for it “to consider the extent of Ms Dunhill’s psychological problems” (see [28] above) this was all in the context of considering the trial on liability only. The fact is that Mr Crossley did not know that, in fact, the solicitors had the report of Dr Zawadski or that of Dr Morton. Neither did Mr Marsh know that Dr Morton’s report had arrived and whether or not Mr Brook knew about the arrival of that report, he did not know that the trial was concerned with anything other than liability.

Mr Crossley is criticised for not taking fuller instructions from Ms Dunhill as to her recovery but, on the other hand, he well understood from the reports that he had seen that she suffered psychological difficulties quite apart from any consequences of the accident and had not wanted to go to court. Further, she had attended with a mental health advocate to provide her with such help as she needed. To ask her to separate out the accident from her other problems was not going to improve on the analysis in the medical reports.

Elisabeth Laing J dealt with each of the arguments advanced by Mr Willems in detail, recognising that in a legally aided case, quantum would not fully be investigated until the liability trial had been concluded with the result that counsel had to do the best he could if seeking to obtain some recompense for his client in a case which he considered that he faced fighting and losing (see [149]-[150] of her judgment). He was entitled to rely on Mr Ramnani and was not negligent in arriving at a figure similar to Ms Greenan’s; or in failing to reflect unclaimed and unascertained future loss ([151]-[152]). Neither was it unusual or evidence of negligence to negotiate a full and final figure in these circumstances without agreeing provisional damages for the epilepsy risk at ‘perhaps less than 1%’ ([153]).

Again, the judge had the responsibility of assessing the overall evidence including the approach of Mr Crossley (with the benefit of the way he responded to lengthy cross examination only in part conveyed by the transcript). Again, the perils of “island hopping” as identified in Fage UK Ltd v Chobani UK Ltd (supra) and imposing this court’s (different) view for her judgment, reached with a far broader appreciation of the circumstances itself of the judgement of Mr Crossley requires us to conclude that his advice was “blatantly wrong”: see VG v Denise Kingsmill (supra). Only with the benefit of hindsight can that be said to have been so. As with my conclusion in relation to liability, faced with the position as it was on 7 January 2003 and his concern that the case could fail in its entirety, I am not prepared to say that it was.

For the avoidance of doubt, that is not to say that I do not have concerns about one aspect of Mr Crossley’s approach. For my part, given that he had only come into the case just over two weeks before the trial and that he had a client suffering from mental health problems, having ascertained that Mr Marsh’s experience was limited and that Mr Brook (the partner responsible for the case) was in the office, he would have been better advised to contact Mr Brook to inform him of developments and see whether there was anything about quantum of which he was not aware and, in particular (as had been hoped) whether Dr Morton’s report had been obtained. That might have led to the disclosure of the reports of Dr Zawadski and, possibly, Dr Morton which could have been used with the insurers in an attempt to negotiate a higher figure. Even then, however, I do not believe that it would have led to any substantive change of approach. It would not have led to a trial which the judge found Mr Crossley was entitled to consider should be avoided because of the risk of failure and, at best, it might have led to a further increase in the settlement figure.

Before concluding this analysis, it is appropriate to say something about Hickman v Blake Lapthorn [2005] EWHC 2714 on the basis that all counsel relied on it before Elisabeth Laing J and Mr Willems complains that she does not deal with it in her judgment. It was a claim similar to this, with liability in issue although offers had been made by the Motor Insurers Bureau acting in the place of the uninsured motorist with the result that primary liability was unlikely to create the difficulties that Mr Crossley had perceived in this case. The disclosed and extensive medical evidence was that the prognosis was uncertain, raising the prospect that Mr Hickman would be unemployable and unemployed for life. Solicitors and counsel were found to have been negligent in their valuation and settlement of the claim. These cases are always fact specific and, in my judgment, it has no value as a precedent: it is merely an example of such a case succeeding. Nothing can be derived from the judge’s failure to mention it.

It cannot sensibly be suggested (and, as I understand the position, it is not) that the case could succeed against the solicitors if it fails against counsel. In the circumstances, in my judgment, the judge was entitled to come to the conclusions that she did and I would dismiss this appeal. As a result, the solicitors’ Respondents Notice does not fall for consideration but it is worth observing that I consider there to be merit in the proposition that it fulfils the solicitors’ duty of care to permit a trainee to accompany properly instructed counsel to a split trial provided that he or she has instructions that a solicitor (preferably having the conduct of the case) is available if the need arises.

I cannot leave the case without observing that those who act in the field of personal injury litigation should always be alert to potential difficulties about capacity when serious head injuries have been sustained. It is to the great credit of Mr Willems, the counsel with whom he has worked and those who instruct him that they have persevered through multiple hearings and obtained what, on liability alone, appears to be a result which will undeniably have been reflected in the ultimate settlement: I observe only that to have had regard to what happened subsequent to 7 January 2003 would have been to exercise the benefit of hindsight. Although the result of this appeal will leave Ms Dunhill out of pocket for some of the expense that has been incurred, I have little doubt that for what we now know were life changing injuries, she will have, albeit belatedly, received a substantial sum that will go at least some way to provide compensation for her suffering.

I agree.

I also agree.