Thompson & Ors v Arnold

In its current consultation paper, CP9/07 “The Law on Damages” the Government invites comments on the inter relationship between claims under the Fatal Accidents Acts 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 as amended by the Administration of Justice Act 1982, amongst other matters. The paper apparently considers that claims for damages for mesothelioma merit special consideration. This case illustrates the problems of policy to which the inter-relationship between those Acts gives rise, and may demonstrate many features in common with claims for mesothelioma. As with such claims, by the time Mrs Wendy Thompson discovered that she had a cause of action against her former medical advisor, she was already terminally ill. Her life span (as is the case in mesothelioma) was predicted to be short. This was, and sadly, accurate.

When she was 31, Wendy Thompson consulted her General Practitioner (the defendant). She had a lump in her left breast. The defendant diagnosed the lump as benign. It was not. If the diagnosis had been correctly made, the probability is that Mrs Thompson’s life would have been saved.

By the time it became apparent that it was both wrong, and negligently made, it was too late.

In September 1999 with only what was predicted a short time to live, Wendy Thompson issued proceedings against the defendant. Her solicitors were Jones Maidment Wilson.

It ought to have been well known by any reasonably proficient personal injury practitioner that case law (Read v Great Eastern Railway (1868) LR 3 QB 555) had established well over a hundred years before that where a claimant pursued to judgment or settlement a claim for damages for an injury which subsequently proved fatal their dependants could have no right of action under the Fatal Accidents Act 1976. It was well recognised that Read had been followed or recognised at appellate level since then. Despite this, the Schedule of loss and damage annexed to the particulars of claim of September 1999 stated

“The claimant is married with two young daughters. The evidence suggests that she will die of cancer sometime in the next 12 months. Her claim is for personal injury and consequential losses during her lifetime and funeral expenses. After her death, a separate claim will be pursued by her dependants pursuant to the FAA 1976”.

Acting with the advice of Olivia Scates of Jones Maidment Wilson, and counsel instructed by her, the claimant first obtained judgment in default of defence (liability was not at this stage in issue, if it ever had been) and then proceeded to settle the lifetime action. A consent order to that effect was made on the 20^th January 2000. In its material part it provided:-

“The claimant accepts the sum of £120,000 in full and final satisfaction of her claim.”

Wendy Thompson died on 10 April 2002.

Miss Scates and counsel both appear to have been unaware that a Fatal Accident Act claim cannot consistent with existent authority be brought where the deceased has already been awarded, or has agreed, damages for his or her injury. This is all the more surprising because pause for thought might have led them to wonder how a claim for those who had not been injured directly by a tort could succeed after death, in addition to a claim by the injured party herself, when such a claim could not do so in life, and might have given them pause to consider whether there was any fetter upon a defendant being called to pay damages twice, in two separate actions, for one single incident with the possibility of overlap between the two awards.

It is to the credit of Miss Scates that in accord with the professionalism one would hope to see, she frankly admitted in the current action that she had made this mistake.

Undeterred, the claimants (the husband and two daughters of the deceased) brought a claim (on 7 April 2005) under the Fatal Accidents Act against the defendant. The claims as first advanced also included one pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased: that has since been abandoned.

The preliminary issue has been taken, in those proceedings, by the defendant that the claim under the Fatal Accidents Act cannot be brought since Wendy Thompson settled her claim for damages in her lifetime. This judgment determines that preliminary issue.

Mr Patrick Lawrence Q.C. for the claimant makes three central contentions. First, he asserts that the construction of the Fatal Accidents Act adopted in Read and subsequent cases is wrong. He recognises that this argument is not open to him directly before this court, since higher authority precludes it. However, he secondly submits that no authority has considered the question of construction since the coming into force of the Human Rights Act 1996, Section 3 which provides:

“So far as it is possible to do so, primary legislation and subordinate legalisation must be read and given effect in a way which is compatible with…convention rights”

In the light of this, Mr Lawrence Q.C. submits that the court has a duty to interpret the Fatal Accidents Act 1976 so as to secure the rights which are guaranteed by Articles 6 and 8 of the European Convention. So far as Article 6 is concerned, the effect of Read is to exclude a right of dependents to have tried a claim for damages for the loss of a dependency which they would otherwise have been able to enjoy. So far as Article 8 is concerned, the purpose of a dependency claim is to relieve financial deprivations which occurred to the family as a consequence of the death. To avoid these, and the strains imposed upon family life in consequence, is to show the respect for family life which the Article requires.

The third argument which Mr Lawrence Q.C. advances is that the defendant should not be permitted in the present action to rely upon the settlement made by the deceased in her lifetime. He contended that Wendy Thompson’s “claim”, properly construed, did not extend to a claim in respect of the lost years. Accordingly, as I understand his argument, either the settlement, being incomplete, could be re-opened so that the lost years’ claim could be advanced, or it subsisted with the effect that her dependents were not precluded from claiming under the Fatal Accidents Act after her death. He raised this point in his written skeleton argument (see paragraphs 43-57) but did not energetically stress it in oral argument. Rather, he relied (on the footing that the court found against his construction argument) upon cases when claims for rectification, made upon the basis that a document did not reflect the common intention of the parties, could not be pursued because one party had prior to execution of the document realised the mistake, but did not enlighten the other party. The mistake was thus unilateral, not mutual. He pointed out that in some circumstances one party to a contract who realised that the other party had made a mistake might not be able to take advantage of it. The court would prevent it. Although in Riverlate Properties Limited v Paul [1975] Ch 133 Russell LJ. had said (for the court) that a degree of sharp practice was required for this to happen, in Thomas Bates Limited v Wyndham’s Limited (Lingerie) Limited [1981] 1 WLR 505, Buckley LJ. said (515G – 516C) that that reference to sharp practice was obiter. He added :-

“Undoubtedly I think in any such case the conduct of the defendant must be such to make it inequitable that he should be allowed to object to the rectification of the document. If this necessarily implies some measure of “sharp practice” so be it; but for my part I think that the doctrine is one which depends more upon the equity of the position. The graver the character of the conduct involved, no doubt the heavier the burden of proof may be; but, in my view, the conduct must be such as to affect the conscience of the party who has suppressed the fact that he has recognised the presence of a mistake.”

He went on to say that for the doctrine to apply it must be shown:

“first: that one party A erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision, which, mistakenly, it did contain; secondly, that the other party B was aware of the omission or the inclusion and that it was due to a mistake on the part of A: thirdly that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely, that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to resist rectification to give effect to A’s intention on the ground that the mistake was not, at the time of execution of the document, a mutual mistake.”

These criteria were approved by the Court of Appeal in George Wimpey UK Ltd. V VI Construction Ltd. [2005] EWCA 77.

Mr Lawrence Q.C. accepts that if these criteria are established it does not necessarily follow that relief will be given: the court has a discretion whether or not to give relief in respect of the mistake which has been exploited by the party aware of it.

To establish this third ground, and to give a basis upon which a court should exercise its discretion, it was necessary that there should be an evidential exploration of the relevant facts. Accordingly, evidence was called before me.

It aids understanding of the chronological factual history this evidence revealed to note first certain features of the interaction between the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act 1934 which are relevant to the present case, and appreciated by most personal injury practitioners. I set them out in summary form only.

First, a claim for the life time damages of a claimant whose death is impending will, if made on a lump sum basis – the only basis available for claims at the time which this case concerns, which was before the introduction of periodical payment orders – be a claim for the loss of earnings up to the date of anticipated death, and thereafter may include a claim for the “lost years”. Second, the claim can contain no element of care for any child, or husband, of the claimant after death, though the costs incurred in doing that which the claimant would have done to care for family members up until her death may be included. Third, an award for pain, suffering and loss of amenity may be made, but no claim for bereavement damages is payable to members of the family. Fourth, the claim is made by the claimant herself. Accordingly, any damages are paid to the claimant. If she dies any sum unspent out of the money she received will therefore be dealt with as part of her estate, and in accordance with her will if she has made one, subject only to any claims under the Inheritance (Family Provision) legislation.

By contrast, a claim under the Fatal Accidents Act is one for dependency, which may be conveniently divided into two parts – dependency upon earnings (“earnings dependency”) and dependency upon those services provided by the deceased to which a money value can be attributed (“services dependency”) such as care of a spouse and children, insofar as either would have been provided for the benefit of the dependants, during the duration of their dependency. There is no lump sum claim, for pain, suffering and loss of amenity of the deceased – but instead the dependants may make a claim for bereavement which attracts a lump sum award, in a standard figure prescribed by legislation. Finally, a dependency claim is not one made by the claimant, but by her dependants and is therefore for their direct benefit, and not subject to the laws of intestacy, or to any will which she may have made.

A claim for earnings dependency is always likely to be higher than a claim for loss of income during the “lost years”. Although Lord Wilberforce in Pickett v British Rail Engineering Limited [1980] AC 136 thought (at 151B) that permitting a claim for recovery in respect of earnings during the lost years had the “additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts” the Court of Appeal in Harris v Empress Motors [1984] 1 WLR 212 were faced squarely with resolving uncertainties as to the actual position. O’Connor L.J. (with the agreement of Robert Goff and Stephenson L.JJ.) rejected a “straight” Fatal Accidents Act approach to the assessment of a “lost years” claim. Although reference must be had to his judgment for a full expression of the principle, in summary, it is that the sum to be awarded is that which would have been earned in the years after the probable date of death less the expenses necessarily incurred in living during the same period. The sum to be deducted as living expenses is the proportion of a victim’s net earnings that would be spent to maintain herself at the standard of life appropriate to her case. Any proportion to be saved or spent exclusively for the maintenance or benefit of others does not form part of those living expenses, whereas any proportion to be spent exclusively upon herself does. Where some of the earnings are spent on shared living expenses (such as the cost of a mortgage) a pro rata part of that sum must be deducted.

By contrast, in a dependency claim the entirety of sums spent on providing for shared living expenses is treated as part of the dependency for which a claim may be made.

In a conventional case the difference in practical terms in an award in a case in which a man and woman live together is likely to be a that a “lost years” claim will amount to 50% of the victim’s future earnings, whereas to calculate a dependency award in a fatal claim a figure equal to ⅔ of the joint income is the starting point. A practice has grown up of adopting a starting point of 75% where the deceased left a spouse and children.

Since the assessment of “earnings dependency” is more generous, and there is no equivalent in a lost years’ claim for “services dependency”, therefore, a dependency claim is likely to benefit dependents significantly more than a claim for lost years.

Until the Administration of Justice Act 1982 came into effect, the consequence of the ruling in Pickett v British Railways Board, followed by Gammell v Wilson [1982] AC 27 was that a lost years’ claim could be brought on behalf of the estate of a deceased person. This raised the possibility that a defendant might have to compensate both the estate of the deceased for future lost earnings, under the 1934 Act, and (in those few cases where the estate was not left to the husband and children) the dependents of the deceased under the 1976 Act for their loss of income dependency. What might be regarded as the same loss might thus be paid out twice. It was to resolve this anomaly, to which attention was drawn by the speeches in Gammell that the 1982 Act was passed, preventing a lost years’ claim in respect of someone who had died.

However, an action brought for a living claimant may still include a “lost years” claim. If, therefore, in accordance with the rule in Read’s case it is settled, or comes to judgment, prior to the death of the victim a payment may have been made in respect of those lost years.

In the (usual) case in which a claimant viewing her imminent death wishes her dependants to have the advantage of the more extensive sums that can be recovered under the Fatal Accidents Act, compared to a lost years’ claim, she can achieve this within existing rules. One well recognised route is to seek an interim payment which, in a case in which liability has been admitted, may be equal or nearly equal to the amount of a lifetime award. The fact that it may be, or nearly be, the full amount of such an award does not prevent it being a reasonable proportion of the damages to be expected in the eventual claim (which will by amendment add a claim under the 1976 Act), since in the usual case it follows from what I have set out above that a dependency claim will usually be larger. Authority supports such an approach: Stephenson LJ. recognised in Murray v Shuter [1972] 1 Ll Rep 6, CA that: “delay usually defeats justice; but there are cases, of which claims for head injuries are notoriously an instance, where expedition may work injustice…” when ordering an adjournment of trial, which was otherwise ready and due to be heard, so that the dependants of an injured plaintiff whose death was imminent could benefit from the more generous financial compensation likely to be awarded under the Fatal Accidents Act. This principle of adjournment in appropriate cases, in order to secure the benefits of this Act, may be combined with an interim payment.

Before any action formally started, Miss Scates indicated that there would be a claim. By 4^th May 1999, the Medical Protection Society (“MPS”) which provides mutual indemnity to its members in respect of claims against them for professional negligence, looked in advance of the action to make full and final settlement of it. A draft statement of claim settled by counsel was sent to the MPS. By 30^th July 1999, the file holder at MPS (Andrew Oates) wrote a memorandum in which he expressed the expectation that a full detailed Schedule of Loss would soon be received, which was likely to include a “substantial dependency claim on behalf of the soon-to-be- bereaved family.” When the claim was issued the schedule accompanying it however, contained the paragraph set out at (5) above.

Two other features, however, call for comment. Appendix C to the Schedule purported to make a claim for loss of earnings. It made no claim for those earnings during the “lost years” (i.e. the loss of those sums which Mrs Wendy Thompson would have enjoyed, had she survived), less the amounts which would be spent on the necessary expenses of her living, insofar as they would have been defrayed out of her own income. The loss of earnings claimed went up only until the date of anticipated date of death.

Second, a claim was made for the loss of earnings of Wendy Thompson’s husband, the first claimant in the present action before me. He was unemployed, having been made redundant, but it was said he was unlikely to return to work before the death of his wife because of his need to look after her. However, a claim for the cost of care and assistance needed to care for her, based upon the report of an expert, was also made. The overlap between the two claims was not acknowledged in the Schedule: the total claimed was the sum of both the reasonable cost of domestic assistance and care and in addition the claimant’s husband’s loss of earnings.

The claim as originally advanced was for £88,358.46p. The principal elements were a sum of £40,000 by way of general damages for pain, suffering and loss of amenity; the husband’s loss of earnings (past and to come): £22,500; domestic assistance and care: £35,709.55 and the claimant’s own loss of earnings past and to come: £16,239.35. The balance was made up of miscellaneous expenses, travel and transport.

Material from the files of both the deceased’s and defendant’s solicitors and of the Medical Protection Society was put in evidence. Privilege was waived.

Olivia Scates was called. She is a partner and head of the clinical negligence department at Jones Maidment Wilson (JMW Solicitors). Her evidence, and her approach to the case was on occasions muddled, and I found some of her answers a little surprising. This may, however, have been because she was plainly embarrassed by the mistake which she frankly accepted she had made at an early stage, long before pleadings were issued.

When issued, the claim was brought by Wendy Thompson. Yet Miss Scates throughout treated the present claimant, Victor Thompson, the deceased husband as also being her client. The very first conference that was held with counsel was on the 1^st February 1999. In her notes of this, “client” was defined as “Wendy Thompson and Victor Thompson (husband)”. She accepted that she advised them both in the light of the circumstances as she saw it at the time. She was not very clear why it was that she regarded Mr Thompson as a client, but the answer I derived from her evidence was that she felt that there were occasions when Wendy Thompson was too ill to give instructions, and throughout she had been unrealistic as to her actual life expectancy. Rather than confronting this (Wendy Thompson was after all of full age and capacity), she adopted the approach of herself determining, with Mr Thompson, what was good for Mrs Thompson and thus took her instructions from him, in part, though, in relation to his wife’s claim. At, and from, the date of the first conference with counsel the strategy was adopted of pursuing the quantification of her lifetime claim, so that Wendy Thompson would feel that there would be some resolution to the process before her untimely but inevitable death: but I am unclear because of this apparently inconsistent approach to the taking of instructions and authority to do so whether it was done with Mrs. Thompson’s full appreciation of the relevant considerations.

Miss Scates knew, as an experienced personal injury practitioner, that to claim both the loss of a husband’s earnings and the full cost of care was potentially to make a claim which would result in double recovery. She did not feel under any duty to communicate her view of the law (which was that what she was claiming was not permissible) to the defendant, because the proceedings were adversarial and the defendant had lawyers acting for her. She expected them to act on their own view of the law. She felt no obligation to say to her opponents, that if they failed to spot the potential double recovery, they were over compensating. That this was no hypothetical position was demonstrated subsequently when, prior to the settlement in January 2000, counsel advised the Thompsons that the defendant through her solicitors Le Brasseur J Tickle (“LBJT”) was making “various mistakes”, with the effect that the claim was erroneously overvalued. No step was taken to indicate this to the defendant.

From her evidence generally, I draw the following conclusions of fact:-

Although in cross-examination she accepted that she was representing that she was concerned with two claims – an actual one for Mrs Thompson and an intended one thereafter for her husband and children – I am satisfied that she did not think this through at the time. Thus in some of the negotiations for settlement, as appears below, she appears to have thought that a claim could be brought for the children, but could not be settled because, death having not occurred, it could not be quantified. She told me that she understood she could not deal with the claims of the children for dependency at the time not because there was no death of a person upon whom they were dependent (which is an necessary pre-requisite of the claim) but because court approval would have to be sought, and could not be given.

She declined a suggestion made by the District Judge that rather than hearing the assessment of damages at a date in January, which was available, it might be used to determine an application for an interim payment.

The thinking underlying her acting as she did was as unclear after her evidence as it seemed from what she did at the time.

Judgment was entered in default of defence. A directions hearing before a District Judge was set for 18^th November. The claimant’s solicitors indicated that they wished an expedited trial date for quantum, and a tight timetable generally, in view of the fact that Wendy Thompson was dying with a short life expectancy. The approach then taken by defendant (memorandum, 5^th November 1999 internal to LBJT) showed that the basic objective of the defendant was to obtain as much time as possible for exchanging expert evidence relevant to the counter schedule, and time to investigate quantum. However, in advance of this a Mr Jonathan Bonser took over the conduct of the case internally at the Medical Protection Society. In a file note of 15^th November he recognised that no claim for loss of earnings during the “lost years” had been made thus far; that the care claimed appeared high but “it may be beneficial to try and settle this claim as soon as possible in order to minimise the claimant’s claim in the event of her death” and “.. in order to prevent a fatal accidents claim arising”.

He wrote to Rachel Sanders who at that stage was the solicitor handling the file at LBJT. The last paragraph of this memorandum of the 15^th November 1999, entitled “plan of action”, asked if she would contact the claimant’s solicitors on a without prejudice basis to see if they would be prepared to settle the claim, adding: “clearly, when Mrs Thompson dies the claim of her estate would be significantly larger than the claim which is put forward at present in the Schedule of Special Damages. It would, therefore, be beneficial to the Society if they would be prepared to settle the claim before Mrs Thompson’s death.”

On 18^h. November, the day of the case management conference, Miss Scates telephoned counsel. The file note suggests they discussed a claim for husband and children, with counsel advising that until Mrs Thompson died no claim could be formalised, nor any interim payment made because there was no cause of action. He advised that the claim for Mrs Thompson would “…still be worth in the order of £50,000 to £60,000 or more” and “the eventual claim for £400,000 or £500,000”.

Miss Scates accepted that a note made by Rachel Sanders of the case management conference itself accorded with her recollection. She told the District Judge that there were in essence two claims – one for Wendy Thompson, and one for her children and husband after her death. It was for this reason she wished the claim to remain in the High Court. The District Judge raised the possibility that the claim might be better dealt with by way of an interim payment to the claimant, with the remainder (i.e. the children’s claim) left to be dealt with after Wendy Thompson’s death. It was suggested (probably by the District Judge) that the trial date, which was set for the 25^th January 1999 with a 3 day time estimate might instead be used for the hearing of such an interim payment application. Olivia Scates said that she would give this some thought.

It is likely that the District Judge had in mind the principles set out in paragraph 27 above in raising the question of an interim payment application. LBJT also raised such a possibility. Miss Scates did not make it: she did not appreciate the purpose this would have served.

Sarah Woodwark took over the file at LBJT after the case management conference. She reviewed the claim, to assess quantum. She too was called to give evidence I found her an impressive witness: frank, straightforward, thoughtful about her answers, honest, and (of particular relevance to the unfolding picture which Wendy Thompson’s claim presented in late 1999 and early 2000) both inherently ethical and very (and properly) conscious of her professional duties. She received her instructions from the MPS on behalf of Doctor Arnold, from Jonathan Bonser.

Her assessment noted that the claim for the husband’s loss of earnings overlapped that of care, and was otherwise too speculative. She calculated that as per the current schedule a sum of £72,719.16p would be payable. When Mrs Thompson died, there would be an award for bereavement, funeral expenses, continuing care of the children, and a loss of dependency which between them might inflate the sum payable to £167,604.76.

On 23^rd November 1999 she wrote to Mr Bonser to advise paying in £80,000 to £85,000, less the interim payments already made. She did not want to discuss this with Miss Scates over the telephone before making a payment in: That “would only serve to put them on notice of the flaws in their calculations”. She felt uncomfortable, on a personal level, about the situation because it appeared to her that Miss Scates might be making a mistake. She told me, and I accept, that she did not like a professional opponent being mistaken. It troubled her that in the background of the claim were children who might lose their dependency claims because of the mistake (unless they had a remedy against Miss Scates or her firm), but if there was a mistake, it was Miss Scates. She was quite clear that she could not, consistent with her professional duty to her client, point out the mistake to her opponent. Moreover, she felt she could not give advice to someone who was not her client.

By contrast, Mr Bonser (who was also called) was eager to take full advantage of any mistake made by opponents in litigation. His approach was hard-nosed and ruthless. He sought, through the available litigation process, to achieve a settlement of the claim at the lowest possible level for the benefit of his employer, the MPS, and had no scruples about taking full advantage of the claimant’s mistake to help achieve this. In a memo of 24^th November he told the case supervisor, his superior at the MPS, that there appeared to be an opportunity to settle the claim on the basis of a claim for Mrs Thompson herself, and not her estate. In the action itself, a claim for lost years had not been pleaded. Without it, he valued the action at £80,000, but wished to pay in £10,000 more to take account of the lost years claim – “.. in order to make the bait more enticing for the claimant.” (He pointed out that if the claim became a fatal accident one, it could worth as much as £150,000). In evidence he regretted having used the expression “making the bait more enticing”, but it was apparent to me that the reason for his regret was nothing to do with the substance of the sentiment he expressed, but everything to do with its appearance: it seemed to him to sound very callous and hard-hearted. His intention was to improve the payment-in to a level where it was more likely the case would settle, and the claimant, having put herself into the jaws of a trap by her own actions, would find the trap closed upon her.

For the defendant, then, the claim was conducted by two people with very different approaches. Miss Woodwark, through whom the negotiations were conducted directly with Miss Scates, was concerned that she might be taking advantage of a mistake which she felt professionally constrained from mentioning, whereas Mr Bonser, who provided her with her instructions from the MPS on behalf of Doctor Arnold, was very keen to do just that. I accept, however, that Miss Woodwark did not fully appreciate that Mr Bonser’s attitude was as I have described.

He wrote a detailed memorandum of 25^th November 1999 to Miss Woodwark suggesting she accept the future loss of earnings claim for Wendy Thompson in full (she had discounted it); allowed future travel transport and miscellaneous expenses (which had been disallowed by Miss Woodwark) and that some allowance should be made for a potential lost years claim.

“if we are to attempt to settle the action before it develops into a Fatal Accidents Act claim.”

He suggested a payment in at what was, after allowing for interim payments made and recoupment payments to be paid by the defendant, effectively £95,000. Such a sum was paid into court on the 6^th December.

Four days earlier there had been a telephone conversation between Miss Scates and Miss Woodwark. Miss Woodwark was keen to discover whether the interim payment suggestion made at the case management conference would be adopted. She asked Miss Scates why the matter could not be dealt with by way of provisional damages or by interim payment. The reply was that an interim payment could not happen because (as Miss Scate put it) “we are stymied here by the children”. The purpose of the question was (said Miss Woodwark) that she wished to understand Miss Scates’ approach to the case. She did not do so (understandably, in my view). She was going as far as she thought that she could properly go by raising the possibilities of provisional damage awards or interim payments. She was aware that there was a risk that if the suggestion (for instance that of interim payment) had been taken up, Miss Scates might have been alerted to her mistake, but felt it was proper at least to go that far. That she did so was in part because of her general unease. Nothing however suggested to her that the penny had dropped: and it is plain, to me, that indeed it never did until well after the start of the present action.

A counter schedule was prepared by Mr Bonser, and served, which said nothing about the proposed post-death claim by husband and children.

On 15^th December 1999, Miss Scates had a conference with an expert witness, counsel, and “clients” (Wendy and Victor Thompson). Counsel thought it advisable to accept the payment in if more could not be negotiated, though much depended upon the forecast life expectancy.

Despite the fact that counsel had advised that the payment in was acceptable, Miss Scates promptly told Miss Woodwark in the telephone conference on the 16 December that she could not advise her clients to accept it. This is open to the comment that it was misleading. The claimant in the present action alleges that the conduct of the defendant deliberately misled the claimant; the defendant maintains that if the claimant establishes the four requirements set out in Thomas Bates (see paragraph 14 above) I should not exercise my discretion because the claimant cannot seek equitable relief with “dirty hands”. It will emerge that in my view this particular comment, thrown away though it might have been with a view to encouraging a higher settlement figure, was in fact misleading, whereas the conduct of the defendant, through Miss Woodwark, was not..

Miss Scates, however, asked for a breakdown of how the payment in had been arrived at. Olivia Scates’ notes of the telephone call records Miss Woodwark saying that her clients (by which she must have meant the MPS) were worried that they had paid in too much. I am satisfied that this was not an attempt to pressurise the claimant into acceptance of the figure. Having seen both Miss Scates and Miss Woodwark, I doubt it was said in quite these terms, but I am satisfied that Miss Woodwark was indicating the view of the MPS that the payment in was a good one. If there was a reference to too much it may be that this was in the context that the whole of the payment in could not be taken by way of interim payment.

The request for a breakdown put Miss Woodwark in a quandary. She knew that paragraph 6 of the Practice Direction attached to Part 36 of the Civil Procedure Rules permits an application to the court by an offeree if an offerer fails to comply within 7 days with a request for clarification of a Part 36 offer or payment, and construed this as effectively entitling Miss Scates to clarification. Rather than say nothing, and risk an application – which she could have done – she wrote on 17 December to say that the payment into court took into account the matters set out in the counter schedule, but that:

“In addition however for the sake of argument allowed your clients future loss of earnings claim in the full, the miscellaneous expenses in full and a further sum in relation to loss of earnings. In fact when we have compared the figures it seems that the majority of the distance between (sic) is in fact in relation to general damages on which we are quite firm.”

This in fact faithfully represented the quantification of the claim by Mr Bonser in late November, upon the basis of which the figure amounting to £95,000 had been paid in – with one possible exception. The words: “lost years” were not used. Instead Miss Woodwark used the expression “a further sum in relation to loss of earnings”. Though that is what a lost years’ claim is, the letter avoided using the phrase.

She accepted in cross-examination that, with hindsight, she would not have written this letter. She intended to refer to the allowance that Mr Bonser had made for loss of earnings, and felt that the phrase she used was as far as she could go. She maintained – and I accept – that she said as she did because she thought she could not say any more consistent with her duty to her client. To do otherwise would have caused the “penny to drop” with Miss Scates as to her mistake. She expected that after Miss Scates had looked at the schedule and counter schedule there would be a dialogue; that Miss Scates would come to her and invite agreement as to specific heads of loss, and further elucidation of what the sum for further loss of earnings covered. However, that did not happen.

At the start of her evidence, having read the correspondence and her witness statement, I thought it likely as alleged by the claimants that she was being economical in her answers to Olivia Scates, and deliberately so. However, at the conclusion of her evidence I was satisfied that it was right to reject the accusation of economy: she did not see it as such, since she was certain that she could not properly go further.

It never crossed Miss Scates’ mind that the additional sum in respect of future loss of earnings was an oblique reference to a potential lost years’ claim. She assumed it related to Mr Thompson’s future loss of earnings. This was despite the fact that it was clear in the counter schedule that the defendant was alive to the fact that to claim both his loss of earnings in full, and care, would amount to impermissible double recovery.

In my view, this was not an obvious mistake to make. To attribute the additional sum as discounting a revised schedule in advance of its receipt would be more consistent with the general experience of personal injury litigation, in which revised and renewed schedules frequently increase claims shortly prior to trial, and can leave payments in behind in their wake if they are not realistically made. However, of importance is not simply her mistake – but the fact that she never asked for further clarification as she could have done. She accepted, frankly, throughout her evidence that nothing the defendant did had influenced her assessment of the claim at all. She had drawn her own conclusions, with counsel. The breakdown did not influence her. The mistake in thinking she could bring a Fatal Accident claim subsequently was not caused by the defendant. Nor did a further letter (20^th December 1999) saying that the defendant thought that the payment in was generous – which it was, when compared to the schedule – influential, according to her.

On 20^th December 1999 the claimant decided to raise the question whether the costs of potential treatment by Herceptin could be recovered. Counsel advised by telephone that he was not confident in relation to this argument but, in the light of the revised prognosis for Wendy Thompson’s life expectancy, felt that the value of the claim had become such that anything over £100,000 should be accepted.

On 22 December 1999 Miss Woodwark wrote to Jonathan Bonser commenting upon the revised schedule. As to payment in, she proposed to him that things should be left as they were, but if need be the money in court might be increased to, “say, £101,000 total”

It was plain that the parties were moving together upon the basis upon which the claim had been put forward.

Indeed, also on the 22^nd December but unknown to Miss Woodwark, Miss Scates had further discussions with counsel. Between them their assessment of quantum came to a grand total, including an award for pain, suffering and loss of amenity, of £101,353.41p. He advised that the claimant could be confident of beating the payment in of £95,000, and Miss Scates said that she felt

“it would be better to just let the defendants sweat and see what they come up by way of additional payment rather than making a counter offer in this case.”

Counsel was instructed to act on behalf of the MPS. She advised that the payment in was too low, in the light of the fact that expert evidence suggested that the life expectancy had been increased for a further one to two years. In the light of that, on the 7^th January 2000, she advised that a further offer raising the total to £115,000 should be made. Mr Bonser spoke to his supervisor at the MPS. His view was that the claimant was litigating the matter in a rather foolish fashion, which could be to the benefit of the Society in that, first, no lost years’ claim had been pleaded and, second, the claimant should be seeking an interim payment and an adjournment of the trial date, and then waiting for her death so that her dependants could thereafter pursue a Fatal Accident claim by amendment of the original pleadings. He therefore wished to negotiate a settlement as soon as possible. On the same day, £110,000 was offered by letter from LBJT.

On the claimant’s side, solicitor and barrister met on 10^th January. He expressed less certainty than he first had over the figure he had proposed for pain, suffering and loss of amenity (he now thought £30,000 was a minimum, instead of £40,000), and thought the range of award lay from £90,000, if that was the case, to £115,000. He advised attempting to achieve £120,000, and to settle the case at that figure. He pointed out that awards in respect of general damage might soon be increased as a result of an impending Court of Appeal case (which I take to be a reference to Heil v Rankin [2001] QB 272) but that if the case was viewed as a loss of chance of recovery from cancer, a potentially large discount (30 to 40%) might have to be made (I take this to be a reference to his knowledge of the arguments which were finally to be determined in Gregg v Scott [2005] UKHL 2, but which were proper to take into account at the time).

The day after this discussion with counsel, Olivia Scates said on the telephone to LBJT that her client would not accept £115,000, but would negotiate (in other words, upwards from that). At the same time she was expressing to Victor Thompson that if “we had to accept the £110,000” that was “a very good deal” (attendance note 14 January 2000).

On 20^th January 2000 the claim was settled for £120,000 less interim payments and some recoverable benefits.

In deference to the arguments of the parties, I have set out the evidence in some detail. I make the following further findings in respect of it. First, nothing the defendant did actually misled Miss Scates. She relied upon her own knowledge and experience as a solicitor, supported by the advice (to the same erroneous effect) provided by counsel. Nothing the defendant said to the claimant was in fact untrue. Some of it, however, lacked the clarity fuller explanation would have given. Thus a reference to the payment in being “good” was true if considered only in respect of the claim as advanced, as opposed to the claims which potentially might have been advanced and would have been had Olivia Scates not made the error she did. The reference in the letter of 17^th December, explaining the breakdown of the payment in, accurately described the further monies as having been added in respect of future loss of earnings. This is how it had been calculated (by Mr Bonser) and understood (by Miss Woodwark). However, this was a sum in respect of lost years which had not yet been claimed, though the potential was there, and required further explanation before it would necessarily have been understood as such.

By contrast, such misleading comments as were made were in fact made by Miss Scates to Miss Woodwark (albeit in context of talking up the claim during negotiation).

I shall deal with each of the three main contentions in turn. The first two run together.

Mr. Lawrence QC argues that Read was wrongly decided, praying in aid support for this view from McGregor in his book on Damages (17^th. edition, paras. 35-084/93), pointing out that the House of Lords has never considered its correctness, and that judicial comments reflect on its authority – in particular, Lord Wilberforce who in Pickett v British Rail Engineering Ltd. [1980] AC 136 said pointedly that the correctness of Read had never been reviewed by the House, and Lord Phillips who in Gregg v Scott [2005] 2 AC 176 at 223 said that he was not persuaded that a purposive construction of section 1(1) of the 1976 Act might not be possible, and saw the result of such a construction as potentially desirable. However, he recognised that Lord Salmon in Pickett v British Rail Engineering Ltd. [1980] AC 136 at 152 thought, obiter, the construction adopted in Read to be correct.

I am precluded by authority from considering Read wrongly decided. Apart from those I have already mentioned, I was referred to Reader & ors. V Molesworth Bright Clegg Solicitors [2007] EWCA Civ 169 as recent case-law to the same effect. This is accepted by the parties.

In case this matter goes further, however, I shall briefly express my own view. I do not think that in its relevant respects it was wrongly decided. The Fatal Accidents Act 1846 provided materially as follows:-

“WHEREAS no Action at Law is maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person, and it is often times right and expedient that the Wrongdoer in such Case should be answerable in Damages for the Injury so caused by him…whensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to a Action for Damages, notwithstanding the Death of the Person injured…”

The Fatal Accidents Act 1976 consolidated this Act amongst others. Therefore it is to be read as effecting no change in the law and interpretation of the earlier Act, unless such as conclusion is unavoidable from the language used. It is not.

Mr Lawrence QC repeated a number of times that the construction adopted in Read was apt to defeat an entitlement of the family of the deceased. This is to look at the object of the Act as being to benefit dependants. The recital with which the 1846 Act begins does not take this approach. Gauged by it, the purpose of the Act is not to ensure that there is a benefit, hitherto unenjoyed, which is to be conferred upon (for instance) the children of the deceased. Instead, the focus is on ensuring that the defendant does not escape paying damages which he would, but for the death which he had caused, otherwise be called upon to pay. The mischief which the Act addressed appears upon its face thus to be the fact that a loss might be caused by a tortfeasor, yet the tortfeasor not be called upon to pay for it because the tortious consequences of his own act were so dire.

If the tortfeasor is in fact called upon to pay, during the life time of the injured victim, then the mischief has been addressed.

Next, the wording of Section 1(1) of the Fatal Accidents Act 1976 refers to wrongful acts such as would “if death had not ensued” have entitled the person injured to maintain an action and recover damages. This is a reference to the rule which ante-dated the 1846 Act that death extinguished a personal cause of action, such as a claim for damages for injury. The 17^th edition of Macgregor on Damages suggests at paragraph 36 – 009 that the interpretation adopted by and since Read is that the wording imposed a requirement that the deceased could successfully have sued at the time of his death, whereas the statutory wording was (says the author) really intended only to ensure that there was actionable tortuous conduct against the deceased in the first place. Even if this approach is possible in respect of the wording “if death had not ensued” it is no answer to the last seven words of the sub-section:

“…notwithstanding the death of the person injured”

Mr Lawrence QC accepted that he would have to submit these words were mere surplusage or repetition if the phrase were not to count against his argument. If they had been omitted, there might have been some arguable uncertainty as to whether the words “death had not ensued” related merely to the abrogation of the previous common law rule, or whether they required the individual who died to have a cause of action which he could effectively have maintained for damages at the time of his death. Since the words dependent upon “notwithstanding” deal with the previous common law rule, and its abrogation, the earlier words must relate to timing if they are to have any separate force, and if they do not have any separate force then the statute is unhappily repetitive. I prefer to draw a conclusion which gives appropriate force, without repetition or surplusage to wording used.

Thirdly, the alternative construction for which Mr Lawrence contends would have the effect that death would be the circumstance which brought the right of action into play. It could not, as a matter of construction, matter whether the death was foreseeable, or not. Even to the extent that death was accelerated, a claim for the dependants would follow. It is common experience that many injuries may shorten life expectancy although many years are yet to run before that occurs. A brain injury may have that effect, for instance. There is no principled basis within the statute for distinguishing between such a case and those of imminent death if the construction is as Mr Lawrence QC contends. If, however, it is as Read found it, there is no place for any such claim - the passage of the limitation period in respect of the original action would bar it, for death would not on its own give rise to right of action.

For death alone to be the qualifying event gives rise to the prospect of double recovery. The lifetime victim could – as in this present case – sue for loss of earnings during the “lost years”, yet whatever (s)he chose to do with those damages the dependants would have a right of action for financial dependency upon her death. This is to replicate the very vice which the 1982 Act was enacted to prevent, following Gammell v Wilson.

In Read Blackburn J. said:-

“The intention of the enactment was that the death of the person injured should not free the wrongdoer from an action…”

I accept that Section 3 of the Human Rights Act permits a reappraisal of the interpretation. For me to do so, however, I need to be clear that the interpretation which I regard as correct in English Law, European Convention aside, offends against Article 6, or Article 8. The argument that it does is predicated upon the statute conferring a right of action upon dependants which is barred by the operation of the rule in Read. I reject such a submission. There is no general right which is barred by an arbitrary rule. The dependants of an injured victim have no general right in law to sue for their mental suffering and consequent illness caused by observing the suffering of their loved one. The corrosive effects of long-term care of the seriously injured receive no compensation from he who inflicts the injury. Those who sustain physical injuries as an inevitable consequence of a victim being injured (such as the carer who is physically assaulted by the brain injured who becomes aggressive: or the carer who injures her back lifting someone who has lost both legs in an accident) have no direct claim against the individual who causes those injuries, however foreseeable they may be as a consequence of the tort. The right given by the Fatal Accidents Act to dependants to sue is thus a right created specifically by the statute, and not an example of a more general right which one would expect to encompass examples such as the above, if it were to exist. It deals with the case in which a victim has not had the opportunity of obtaining funds which, indirectly, might benefit those for whom the victim cares, and those who depend upon his income. If I am right as to the approach which I take to construction of the Fatal Accidents Act itself, entitlement to compensation is conferred by the wording of the Act, whereas otherwise there would be none: and since it is part of the definition of the right that it should exist only where the victim has not himself brought a claim to termination within his lifetime, I do not think that the effect of the construction could be said to bar access to an existing right.

Similarly, I do not see how Article 8 could begin to have purchase. Not to permit a further claim against a defendant where the defendant has already satisfied a claim in respect of the self same facts during his victim’s lifetime is not, in my view, to show any lack of respect for private or family life.

Accordingly, I reject both the first two bases upon which the claimant placed her case.

The Fatal Accidents Act 1976 was a consolidating statute, and thus presumed to have been enacted with knowledge of the way in which the previous legislation had been interpreted. I accept Mr Hopkins’ argument that that can be seen as Parliamentary endorsement for the approach which thus far had been taken to the interpretation of Section 1 of the Act. A more powerful point, however, is one which he made by reference to Section 12 of the Limitation Act 1980. That provides as follows:-

“(1)

An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any other Act, or for any other reason).

Where any such action by the injured person would have been barred by the time limit in Section 11 of this Act, no account shall be taken of the possibility of that time limit being over ridden under Section 33 of this Act.”

Once she had settled her claim, Wendy Thompson could no longer maintain an action and recover damages in respect of the injury she had suffered by reason of Dr Arnold’s negligence. This comes within the phrase “or for any other reason” in the parenthesis. That is a wide phrase. It must extend beyond time limits to other reasons. The relevant question might be rephrased: “for any reason, could Wendy Thompson maintain an action and recover damages immediately prior to her death?” The answer would be “No”. This section plainly contemplates that the Fatal Accidents Act 1976 itself provides that the construction which I am bound to adopt, and which also appeals to me, is to be preferred. Though invited by Mr Lawrence QC to construe the section as if the words “or for any other reason” were absent, being obliged to do so by the approach in applying Section 3 of the Human Rights Act 1998 enjoined by Ghaidan v Godin-Mendoza [2004] 2 AC 557 (see paragraphs 26 to 30 and 32 to 33) I decline to do so. No sensibly arguable breach of the Convention arises and, in any event, I recognise that any words omitted (just as in the case of those to be implied) must “go with the grain of the legislation”. The grain of the legislation is that between them the 1976 Act and Section 12 of the Limitation Act 1980 provide that a right of children and spouses to claim an award for loss of their dependency upon the deceased wife and mother arises where there has been no determination (by settlement or judgment) of the claim of the injured victim prior to her death.

I don not accept that the settlement agreement, construed in accordance with familiar principles most recently expounded authoritatively by Lord Hoffmann in Investors Compensation Scheme Ltd. V West Bromwich Building Society [1998] 1 WLR 896, 912-3, permits the conclusions Mr. Lawrence QC argues for. Her claim is a reference to the action as a whole. Because on occasion a head of compensation may be referred to as though it were a separate claim – as in the expression “lost years’ claim” – the conclusion does not follow that the “claim” in the settlement agreement was one for lifetime damages, lost years apart.

It would have been objectively understood by the reasonably well-informed observer that the whole of the lifetime damages claim was being settled. If a court were to hold that the words “full and final settlement of a claim” permitted subsequent exploration of whether certain heads of damage had been “claimed” or not, such that the settlement could be re-opened if they had not, would be to deprive such an agreement of the very certainty which is the point of making it in the first place.

Moreover, it would not follow – even if this were wrong – that the claimants could take advantage of the Fatal Accidents Act. If it were sought to re-open a claim on the basis that not all of the possible heads of compensation had been explored, the attempt would fall foul of the principles of cause of action estoppel (subject only to residual questions of equitable discretion). I think it improbable that any such belated additional claim would be permitted. If that is so, then not only the basic contention that Mr. Lawrence QC makes but also the consequence of it necessary for his clients’ claim to succeed cannot be established.

If the settlement agreement is to be re-opened, such that a claim could be said to be extant at the point of death, it can only be if the law of mistake permits it.

Mistake

Notwithstanding that such findings were likely, Mr Lawrence QC referred me to a number of cases in support of his contention that the court should grant relief. Commission for theNew Towns v Cooper [1995] Ch 259, C.A. was a case in which a defendant deliberately manoeuvred a plaintiff into a position in which apparently innocuous writing actually conferred valuable rights upon the defendant. The defendant engineered this situation. Mr Lawrence sought to derive from this authority that there was a very substantial overlap between unilateral mistake and estoppel, and that it was unfair for a party to insist upon his strict legal rights where he had acquired those strict legal rights by taking advantage of a mistake by the other party of which he was aware. He accepted that in either case the advantage would have to be an unfair advantage.

To my mind Commission for New Towns v Cooper was a case in which it was critical that the conduct of the defendant had been unconscionable (see per Evans LJ at 292 and the second holding referred to in the head note). Material to that decision was that the defendant had deliberately set out to, and succeeded in, trapping the claimant into giving away its strict legal rights

On the particular facts of Commission for New Towns v Cooper the judgment of Lord Justice Evans (at 292) that there was nothing unfair in holding the defendant to the agreement, which to his knowledge was the only one which the plaintiff’s representatives intended to make, is readily understood. Moreover, the defendant made a false representation in order to induce the plaintiff to reach the agreement which was disadvantageous to the plaintiff; and the court felt able to infer that the representation was such as to induce a person behaving reasonably to make such an agreement and that in the absence of evidence to the contrary it did indeed have that effect. None of those features are facts of the present case. There was no false representation (at the most, it could be said one was economical); it was not intended (by Miss Woodwark, who interfaced with Miss Scates) to induce Wendy Thompson to reach an agreement contrary to her interests, and, further, the evidence was that the representation (assuming for the moment that it was one) did not have any effect upon her. She drew her own conclusions, with the aid of counsel.

Conscious that the court treated the facts of Cooper as giving rise to an estoppel, rather than to a claim for rescission or rectification, Mr Lawrence sought permission to re-re-amend paragraph 13 of the Particulars of Claim to raise an alternative claim of estoppel. This was to the effect that the defendant would be put to terms, so as to require it to elect between rescission of the settlement agreement or estoppel (preventing the defendant from relying upon deprivation of a right of action to the dependants’). I permitted an application by the claimants to re-re-amend their claim for such a purpose. The proposed re-re-amendment (to paragraph 13 of the particulars of claim) is as follows:

“The same result may be achieved by treating the Defendant as being estopped from contending that the settlement has deprived the dependants of a right of action pursuant to the 1976 Act. The Defendant may be put to terms, so as to require it to elect between rescission of the settlement agreement or the imposition of the said estoppel. The estoppel is founded on the facts set out above, namely (i) the mistake as to the effect of the settlement; (ii) the Defendant’s knowledge of that mistake; (iii) the omission to draw the mistake to the attention of the Claimant; (iv) that the mistake was calculated to benefit the Defendant; and (v) that it is inequitable for the Defendant to take advantage of the mistake”.

This did not seem to me to involve any new determination of fact. Rather, it provided an alternative legal analysis of the facts, if I should find that they showed that the defendant had behaved unconscionably and ought not in justice to be allowed to rely upon the settlement agreement as, effectively, barring an action under the 1976 Act. The defendant did not seek to argue that she was prejudiced by it. I accordingly give permission for the amendment. It does not, however, change my decision that there is no proper factual basis to sustain any argument, whether framed in mistake, rectification, or rescission – or, now, estoppel – which would deprive the settlement of January 2000 of effect.

In support of his argument that estoppel applied here, Mr Lawrence QC relied upon the “Stolt Loyalty” [1993] 2 Lloyds Rep. 281. In that case, it was common ground that claims against Stolt Loyalty Inc arising under Bills of Lading had been extinguished unless either an extension of time was granted by agreement between the parties, or Stolt Loyalty were estopped from denying that they granted such an extension. Mr Justice Clarke, as he was, determined that upon a proper construction of the correspondence an extension of time had in fact been granted. However, the issues of estoppel had been fully debated, so he determined them. They arose in that the U.K. agent of Stolt Loyalties Insurers became virtually certain that the plaintiff’s solicitors had made a mistake. The insurer wished to take advantage of it, and a letter was deliberately drafted, purporting to grant an extension of time to ship-owners (but not to demise charterers) in such a way as not to alert the solicitors to their mistake. Clarke J. applied a ruling of Webster J. from The Henrik Sif [1982] 1 Lloyds Rep. 456:

“...the duty necessary to found an estoppel by silence or acquiescence arises where “a reasonable man would expect” the person against whom the estoppel is raised “acting honestly and responsibly” to bring the true facts to the attention of the other party known by him to be under a mistake as to their respective rights and obligations.”

However, he regarded it as of importance that the action or inaction had produced some belief or expectation in the mind of the alleged representee such that it would thereafter no longer be right to allow the alleged representor to resile by challenging the belief or expectation which was engendered (see per Kerr LJ. in the August Leonhardt [1985] 1 Lloyds Rep. 28 at 35. He concluded:-

“…the Court should indeed be careful before acceding to arguments which assert duties of disclosure in new situations... there can be no general duty upon one party to litigation or potential litigation to point out the mistakes of another party or his legal advisors. However each situation must be judged in the light of its particular circumstances ”

If one is looking for a distinction on the facts between the Stolt Loyalty and the present case, one (at least) is apparent in that in the present case no representations made by the defendant caused the claimant to make the mistake she did. It was entirely self-generated. Nor (on my view of the facts) was any trap laid for the claimant which would make it unconscionable for the defendant to rely upon the settlement ultimately reached.

In Thames Trains Limited and Railtrack PLC v Michael Adams [2006] EWHC 3291 Nelson J. considered whether it was unconscionable conduct for a defendant’s solicitor to fail to inform a claimant’s solicitor of an offer to settle a claim which she (the defendant’s solicitor) had sent at 10.41 a.m. by a facsimile which the claimant’s solicitors had not received and of which they knew nothing during settlement discussions at 11.40 a.m. on the same day. He concluded (see paragraph 56) that a reasonable man would not expect such a solicitor acting honestly and responsibly to have informed the other of her earlier offer.

I accept the law which Nelson J. set out from paragraphs 34 to 37 of his judgment. There is no general duty upon one party to litigation or potential litigation to point out the mistakes of another party or its legal advisors.

Each situation must however be judged in the light of its particular circumstances. One of those circumstances, here, is that the mistake which was made was entirely the fault of Miss Scates, and counsel instructed by her on Wendy Thompson’s behalf. This mistake was not induced by any conduct on behalf of the defendant. True it is that if the mistake had been pointed out to the claimant’s solicitor it might have been remedied (though I express no certainty about this, having heard Miss Scates): certain it is that the opportunity of an informed reconsideration was not provided. But that must be so in any case in which the legal advisor of one party has made a mistake which was apparent to the legal advisor of the other. If there is no general duty to draw such a mistake to the attention of an opponent in litigation (because (a) there is no duty to advise an opponent; (b) the adversarial system assumes that each party will seek its own advice; (c) the duty of a solicitor is to his own client, subject to his duty to the court; and (d) a reasonable man would ask in any such case of the solicitor telling other party of their mistake: “whose side are you on?”) there must be some special feature. Those identified in the case of common mistake, if such a mistake is to avoid a contract, are set out in Great Peace Shipping Limited v Tsavliris Salvage (International) Limited [2003] Q.B 679, at paragraph 76. Of the five elements identified there the third and fourth are both missing in the present case – “the non-existence of the state of affairs must not be attributable to the fault of either party” and “the non-existence of the state of affairs must render performance of the contract impossible”. Mr Hopkins QC for the defendant rightly makes the point that if this is so for common mistake then a unilateral mistake can confer no greater rights.

The defendant too sought to re-re-amend, by inserting a further paragraph after 11.D.8, as a new 11.D.9. This sought to deny the claimant equitable relief by reason of the conduct of the deceased by her “servants or agents” in the first action, in that (summarising): (i) she had advanced a claim for Victor Thompson’s loss of earnings when such a claim was not considered recoverable; (ii) thought that the defendant had made “various mistakes” in the quantification of the claim but did not alert her to any of them; (iii) did not tell the defendant that in law she could have discounted the potential quantum of £90 - £115 thousand pounds by 30-40%, to allow for issues of causation, and thus sought to rely upon the defendant’s mistake; and (iv) falsely said in a phone call of 11^th.January 2000 with the defendant’s solicitor that the defendant’s offer of £110,000 was not acceptable, when a decision had already been taken to accept it if more could not be negotiated.

All four complaints have support in the evidence. My decision to permit this re-re- amendment (which I do) does not however depend on that. I take into account that although the claimant objected, at paragraph 8 of written submissions made after the conclusion of oral argument, there is in my view no real prejudice, since the allegations explored to substantiate these complaints were inevitably in issue in a case which involves considering whether the conduct of the claimant was inequitable, or not; and that I think it right that if I am asked to determine that conduct of A towards B is inequitable that is a conclusion to be reached in the balance on all the relevant facts, and thus must take into account the way B has behaved too. No doubt the maxim “He who comes to equity must come with clean hands” is simply a handy way of reminding a court that the equity of one party’s dealing may depend at least in part on how the other party too has acted. If this is correct, then I think the re-re-amendment actually unnecessary, though permitted.

If, however, the proper approach is that which seems to me artificial - to decide whether the conduct of the defendant was unconscionable without having regard to the way the deceased (though her legal advisers) was behaving, to decide that it was, and then to ask as a separate question whether the dependants of the deceased should be permitted to rely on it because they have “unclean hands” – I still would have permitted the amendment. It involves no new evidence, and the claimants could meet the substance of it and did so in the action, even if not alerted to the way it would specifically be advanced.. On this approach, however, I would not have concluded that the behaviour of the defendant was unconscionable; but that if I am wrong in my conclusion to that effect on the facts I have found, I would then have declined to exercise my discretion to grant relief, because (a) the deceased appears actually to have misled the defendant (whatever the intention may have been, and albeit in the context of robust and adversarial negotiation), to the extent that the defendant relied upon representation (iv), to the defendant’s financial disadvantage; and (b) the claimant argues that the defendant should not be entitled to take advantage of the mistakes made by the deceased and Victor Thompson, when the repeated conduct of their legal representatives was to do just that themselves, by taking full advantage of what they saw as mistakes by the defendant.

In addition, I was invited to consider that the claimants here had a good cause of action against Miss Scates and counsel. Though in his skeleton argument Mr Lawrence QC suggested that a prerequisite of such a claim was that the solicitor should owe a duty to the present claimants – whereas she owed a duty to Wendy Thompson, it could not be assumed without more that she owed a similar duty to the present clients - it is quite plain that in fact Miss Scates regarded Mr Thompson as a client of hers, and indeed accepted once that she advised the family unit. Her advice was given more to him than to her. I do not wish to predetermine any claim that might be brought for professional negligence against her or her firm, since that is not presently before me, and it is possible to conceive that there may be some point which arises which I have not had put before me. However, so far as relevant to the present action, I regard Mr Hopkins’ point as well taken. It is likely that the claimants will not miss out on compensation which they might otherwise have had. (This point is relevant not only to a decision whether I would grant relief in respect of the inequitable reliance upon an unilateral mistake, but also whether there has been a breach of the Article 6 and Article 8 rights so as to cause disadvantage to the claimants. I have already concluded this is not so, and this point provides a further independent reason against it).

In conclusion therefore:-