Harrison Bryce Solicitors Limited v Abdul Shamaj

This is an appeal from a decision of Mr Recorder Armstrong sitting in the County Court at Manchester made on 19 June 2024 when he gave judgment dismissing a claim by the Claimant, Mr Shamaj, against his former solicitors, Harrison Bryce, for professional negligence in relation to the firm’s handling of a road traffic claim. He also dismissed Harrison Bryce’s counterclaim for fees and disbursements totalling some £11,000.

Harrison Bryce now appeals against the dismissal of the counterclaim by permission of Mr Justice Freedman granted following an oral renewal hearing on 10 July 2025. Although a number of grounds of appeal were initially advanced, the permission granted by Mr Justice Freedman was limited to a single ground as follows:

“To consider whether the Recorder erred in his finding [in] dismissing the Counterclaim about Harrison Boyce being misled by Abdul Shamaj, by his determination that the Accident being genuine whereas the Supreme Court in Perrys v Raleys Solicitors [2019] UKSC 5 required him to determine whether Claim was honest.

For the avoidance of doubt, the limited ambit of permission is that there is no challenge to the finding that there was a genuine accident, but the challenge is that the Recorder ought to have found that the Claimant misled the Appellant about the claim to damages being honest. There is therefore no appeal about the finding that the accident was genuine.”

The appeal was argued before me by Dr Mehedi Rahim on behalf of Harrison Bryce and by Mr Kamar Uddin on behalf of Mr Shamaj. I am grateful to both of them for their clear and helpful submissions.

In order to understand the nature of the appeal, it is necessary to set out some of the background giving rise to Mr Shamaj’s claim for professional negligence. Since most of the Recorder’s findings are not in issue, I can take this shortly.

On 17 December 2019 there was a collision between a vehicle driven by Mr Shamaj and another vehicle driven by a Mr Ullah. Mr Shamaj thereupon instructed Harrison Boyce to commence a Road Traffic Act claim on his behalf. Harrison Boyce accepted instructions on a conditional fee basis pursuant to a retainer dated 19 December 2019 which contained the following material provisions:

“Termination

(a)

Under a conditional fee agreement

The firm can end the agreement if it is no longer thought likely you will win the case or if you do not keep to your responsibilities under the agreement.

You can end the agreement at any time. It is particularly important to note that if you end the agreement, or the firm ends the agreement because you have not kept to your responsibilities, you would then be responsible to pay costs, under that agreement, whether or not the matter had then reached a successful conclusion.

…

Charges, expenses and funding

…

However, if the claim did not succeed or we discontinued your claim based on a breakdown of communication then you would still potentially be responsible for:

(i)

The cost of reports or other disbursements incurred by the firm on your behalf (whether or not court proceedings were issued against the Opponent); …

Under our Conditional Fee Agreement, although we will write off our costs should your claim be unsuccessful you are still liable for the disbursements incurred, as set out above and your opponent’s legal charges and expenses, if court proceedings have been commenced.”

The Conditional Fee Agreement to which reference was made in the retainer did not appear in any legible form in the bundle. However, it was not disputed that it contained the following terms as set out in paragraph 10 of the Defence and Counterclaim:

“If you lose, you do not pay our charges, but we may require you to pay our expenses and disbursements.

We may end this agreement before you win or lose, with the consequences set out in the Law Society Conditions.

‘Your responsibilities’ include

(i)

Give us instructions that allow us to do our work properly

(ii)

Not ask us to work in an improper or unreasonable manner

(iii)

Not deliberately mislead us

(iv)

Co-operate with us.

We can end this agreement if you do not keep to your responsibilities. We then have the right to decide whether you must … pay our basic charges and our expenses and disbursements.”

On 7 December 2021, the court listed the trial for 3 May 2022 and gave directions requiring the trial fee to be paid by no later than 5 April 2022, failing which the claim would be struck out without further notice.

During the course of preparation for trial, matters came to light which suggested that this was not a genuine road traffic claim and that the accident had been staged as a result of collusion between Mr Shamaj and Mr Ullah for the purposes of financial gain. On 11 March 2022, Harrison Boyce wrote to Mr Shamaj recording its belief that the accident was not genuine and stating that “any agreements with you have now been terminated. We will be forwarding you a bill of costs to cover the cost the work done on your case.”

The trial fee was not paid. However, Mr Shamaj did not become aware of this until he attended court on 3 May 2022 for trial with a direct access barrister, only to find that the claim had been struck out on 29 April pursuant to the directions order of 7 December 2021. It was in these circumstances that Mr Shamaj commenced the present action against Harrison Boyce for professional negligence, claiming that it was in breach of contract and/or duty in having failed to pay the trial fee or advise him of the consequences of not doing so. As already stated, Harrison Boyce counterclaimed for its outstanding fees and disbursements.

The Recorder correctly identified the following three issues which he needed to resolve in order to dispose of the proceedings:

The Recorder did not expressly identify the counterclaim as a separate issue but recorded that it was common ground that it would succeed if in fact the accident had been staged.

The following material findings of fact were made by the Recorder following a careful and detailed appraisal of the written and oral evidence:

Having made these findings, the Recorder then proceeded to deal with the counterclaim in a mere four short paragraphs. I intend no disrespect to him when I say that the reasoning in these paragraphs is not set out in anything like the same detail as the remainder of his otherwise excellent and comprehensive judgment.

The relevant paragraphs of the counterclaim read as follows:

“31.

In breach of the terms of the retainer and CFA:

a.

The Claimant misled the Defendant by

i.

presenting details of a claim which were fraudulent and/or false.

ii.

By claiming that he was the innocent victim of a genuine accident;

iii.

By claiming that he was travelling along with 5 other occupants, all members of his family;

iv.

By claiming that he did not know Mr Ullah at all, although much later admitted to having some knowledge of him.

v.

Claiming that he had suffered injuries and losses arising out of Mr Ullah’s negligence;

vi.

Staging the accident.

b.

The Claimant failed to keep to his responsibilities in that

i.

He misled the Defendant in relation to the circumstances of the accident and the bona fides of the Claim;

ii.

Thereby failed to give proper and accurate instructions

iii.

Failed to co-operate properly and with honesty in the handling of his Claim.

On behalf of Mr Shamaj, Mr Uddin argued that this pleading was limited in scope to challenging the genuineness of the accident itself. I do not accept this. That was undoubtedly the primary way in which Harrison Bryce argued the case but the pleading in itself is sufficiently wide to encompass an allegation that Harrison Bryce was misled in relation to the honesty of the claim for damages notwithstanding that the accident may have been entirely genuine. It also, as it seems to me, sufficiently raises an alternative, lesser, contractual claim for the recovery of expenses and disbursements on the basis that Harrison Bryce was entitled to terminate the retainer having concluded that Mr Shamaj was no longer likely to win his claim.

The thrust of Dr Rahim’s submissions in support of the appeal was that, when considering whether Harrison Bryce was misled for the purposes of the counterclaim, the Recorder failed to draw a distinction between the genuineness of the accident and the honesty of the claim. He relied heavily in this regard on the decision of the Supreme Court in Perry v Raleys Solicitors, [2019] UKSC 5 and, in particular, on the comments of Lord Briggs that “the court simply has no business rewarding dishonest claimants” (paragraph 23) and that
“the burden lay on [the claimant] to prove that he would have made an honest claim” and not on the defendant to disprove it. He argued that the Recorder’s focus should accordingly have been on whether the claim was honest and that this was a different question from whether the accident had been staged. Having expressly found that the majority of the claim could not honestly have been pursued, it must necessarily have followed that Mr Shamaj misled Harrison Bryce in breach of his responsibilities. The counterclaim should therefore have succeeded.

In response, Mr Uddin made the following points:

In my judgment, there are two broad questions which fall for determination on this appeal:

As to (a), I am satisfied that the Recorder did not fail to draw the distinction as alleged. It is true that Harrison Bryce’s primary focus at trial was on the genuineness of the accident. Indeed this is expressly recognised in paragraph 101 of the judgment. However, in paragraph 102 the Recorder goes on explicitly to consider the argument (which had only clearly emerged at trial) as to whether Harrison Bryce had been misled specifically in relation to Mr Shamaj’s claim for damages notwithstanding any finding that the accident was genuine.

In my judgment it is therefore clear that, contrary to Dr Rahim’s submissions, he did not address the counterclaim solely through the lens of whether the accident had been staged but was alive to the possibility articulated in Perry v Raleys that a genuine accident can nonetheless give rise to a dishonest claim.

The more difficult question is question (b), namely whether his findings that the claim for damages could not honestly have been pursued meant that he should have upheld the counterclaim.

As a preliminary observation, the effect of the retainer and the Conditional Fee Agreement is that Harrison Bryce can only substantiate a claim for its fees as well as its expenses and disbursements if Mr Shamaj failed to keep to his responsibilities under the agreement. Paragraph 31 of the Counterclaim pleads the respects in which it alleges that he failed to do so. However, it is important to note that it is not sufficient for Harrison Bryce to plead simply that it was misled: the retainer and Conditional Fee Agreement require it to have been deliberately misled. In other words, there must have been something tantamount to fraud. It is certainly arguable that the Defence and Counterclaim falls some way short of the properly particularised pleading that would be expected for a such claim.

An issue then arises as to the incidence of the burden of proof. Dr Rahim relied on Perry v Raleys in support of the proposition that the burden was on Mr Shamaj to prove that his claim was honest while Mr Uddin submitted that since it was Harrison Bryce which was alleging that it had been positively misled, it bore the burden of proving the allegation in the normal way.

On this point, I agree with Mr Uddin. Lord Briggs’ comments on the burden of proof in Perry v Raleys were made in the context of a claim by the claimant against his solicitors for professional negligence leading to the loss of a chance, i.e., equivalent to the claim brought by Mr Shamaj in these proceedings. It was in that context that the Supreme Court held that the claimant needed to demonstrate that his claim would have been honest in order to establish that he had lost a substantial chance of recovery. It was not incumbent on the defendant to prove the converse. However, the question of a counterclaim by the solicitors alleging that they had been dishonestly misled did not arise in that case and I do not read Lord Briggs’ comments as extending to that situation.

In my judgment, the need for Mr Shamaj to prove that his claim could have been honestly pursued for the purpose of establishing the loss of a chance is conceptually and analytically distinct from an allegation by Harrison Bryce that it was deliberately misled. If it chooses to make such an allegation, it must prove it.

Dr Rahim’s main argument, however, was that the burden of proof in this case was in fact irrelevant. This was because the Recorder had found as a fact that most of the claim could not honestly be pursued such that Mr Shamaj had no substantial prospect of making any recovery at all and this finding in itself effectively determined whether Harrison Bryce had been fraudulently misled.

Persuasively though these submissions were advanced, in my judgment the matter is not so simple. While the Recorder found that the claim as a whole could not be honestly pursued, the critical question for the purposes of the counterclaim is whether it was only pursued in the first place because Mr Shamaj dishonestly misled Harrison Bryce.

On this point, it is perhaps slightly unfortunate that the Recorder’s reasoning was not set out more fully but I bear well in mind that this was a trial which had initially been given a one-day time estimate but which in fact ran for four days. He was therefore no doubt under acute pressure of time.

In paragraph 103, he expressed the view that there appeared to have been very significant failings in the way that the case in relation to special damages had been prepared, referring to the lack of evidence that Mr Shamaj’s statement had been taken in his first language as required under the rules. He also referred to having considered a “number of factors” but without articulating exactly what these were. He then concluded that there was insufficient evidence before him that Mr Shamaj had misled Harrison Boyce in relation to the special damages claim and that accordingly none of the allegations in paragraph 31 had been made out with the result that the counterclaim fell to be dismissed.

Dr Rahim referred me to the fact that, leaving aside his first witness statement prepared by Harrison Bryce for the purpose of the Road Traffic Act claim, Mr Shamaj had filed two further witness statements after instructing new solicitors, Z Legal, both attested by a statement of truth, in which he stood by and maintained his claim for damages. The first of these was for the purposes of opposing the insurer’s claim for costs in the underlying action. The second was specifically for the purposes of the claim against Harrison Bryce. He said that in circumstances where Mr Shamaj was standing by the full extent of his claim to the bitter end, notwithstanding that elements of it were “demonstrably false” it was impossible to find otherwise than that he had deliberately misled Harrison Bryce.

In response, Mr Uddin drew attention to the fact that Mr Shamaj had initially been approached by a claims management company which had a relationship with Harrison Bryce. He accepted that Mr Shamaj had denied in the witness box that the signatures on the hire agreement and the recovery invoice were his and had admitted that he had never had physiotherapy. However, he pointed out that there had never been any pleading challenging these specific aspects of the damages claim and that Mr Shamaj was accordingly unaware of the arguments that would be raised against him until he was actually giving evidence.

I should make it clear that there has never been any allegation that Harrison Bryce had manufactured any evidence or been complicit in advancing a dishonest claim. However, the role of the claims management company remains somewhat opaque. I therefore put to Dr Rahim the possibility that perhaps there had been a misunderstanding or miscommunication on both sides – perhaps because Mr Shamaj was not being proofed in his first language – as a result of which Harrison Bryce was inadvertently misled without any deliberate fault on the part of Mr Shamaj.

Dr Rahim accepted this as a theoretical possibility and conceded that the point might have carried some weight if the court was concerned only with Mr Shamaj’s original witness statement in the underlying claim. However, he pointed out that Mr Shamaj had stood by his damages claim even after fresh solicitors had taken over the conduct of the proceedings against Harrison Bryce and had confirmed his subsequent statements on oath at trial. It was only in cross-examination that he had retracted his evidence. He therefore submitted with some force that it was implausible for any inadvertent mistake to have survived the careful scrutiny of a second firm of solicitors.

This leaves the court in a difficult position. As the Recorder somewhat wryly observed at various points in his judgment, there were a lot of unanswered questions as to the circumstances in which the unsustainable heads of claim were put forward which were not explored in evidence by either party. What is clear, however, is that all the relevant material to which I have been referred was before the Recorder who evidently considered it with some care. Having sat through four days of the trial and had ample opportunity to observe Mr Shamaj and the other witnesses, he was by far the person best placed to assess the evidence and decide whether Harrison Bryce had been misled or not.

His conclusion that it had not been misled is a finding of fact with which I would in any event have been loath to interfere. As it is:

In conclusion:

During the course of argument, I raised the possibility that the Recorder may have erred in failing to address Harrison Bryce’s alternative case that it was in any event entitled to recover its expenses and disbursements on the basis that it had concluded (with justification, as the Recorder found) that Mr Shamaj’s claim was no longer likely to succeed. This would have been a purely contractual claim rather than a claim for damages. It seemed to me that there was no obvious answer to this claim where the Recorder had held that Harrison Bryce was indeed entitled to terminate the retainer and where that retainer must have come to an end at some stage.

As Mr Uddin pointed out, however, the alternative case had never formed any part of Harrison Bryce’s Grounds of Appeal. He submitted that it would be procedurally unfair to determine the point in the absence of prior notice to Mr Shamaj and a properly articulated application to make a late amendment to the Grounds of Appeal.

Dr Rahim did not make any application to amend but instead he presented the appeal firmly on the basis discussed above. He did nonetheless argue in reply that the ground of appeal for which permission had been given was sufficiently broad to encompass the alternative case.

I do not agree. The honesty or otherwise of the claim and the genuineness of the accident have nothing to with a contractual claim based on an entitlement to terminate the retainer. While an appeal on this basis might have succeeded, it was not before the court and so the question does not arise.

For all these reasons, the appeal is dismissed.