Whitehead & Anor v Barrie Searle Hibbert Downall & Newton (a firm)

In the judgment which I handed down in Chester on Wednesday 9th May I concluded there was a reasonable prospect that Paula McLeish would have succeeded in her claim in the original action and that but for the negligence and/or breach of contract of the second defendant firm, her claim would have been concluded by judgment or settlement before her death in March 1995.

The first claimant, Mr Whitehead, in his capacity as the administrator of Miss McLeish's estate therefore succeeded on what was regarded as the primary claim and was entitled to a judgment against the second defendant in the sum of £118,829 inclusive of interest of £57,393.

While my recollection is that I so ordered, no copy of the order of proceedings on 9th May has been provided. My recollection is that I also, by order, adjourned all ancillary matters to a date to be fixed and ordered that execution of a judgment be stayed until further order at the further hearing, and that the time for appealing be extended until further order at that further hearing.

In the judgment I also concluded that the settlement of £20,000 by way of a Tomlin order dated 6th January 1999 was at an undervalue and that a settlement at £35,000 could have been advised, albeit with a full explanation. My conclusion was that the advice of the first defendant and of the second defendant to settle for £20,000 was negligent and/or in breach of contract.

This claim by the first claimant in his representative capacity was an alternative to the primary claim and only called for an order in the event that the primary claim failed.

For the reasons given in the judgment the alternative claims brought by Mr Whitehead and by David McLeish in their personal capacities ("the personal claims") failed. So there will be judgment for both defendants against the first claimant in his personal capacity and against the second claimant who sued only in his personal capacity.

The adjourned hearing was held on Thursday 5th July when Mr Livesey invited me to make some additional findings and to include them in the judgment - following the release to counsel of the draft judgment on the usual terms, Mr Livesey had invited me, in an email dated 30th April 2007, to make two additional findings. I quote from that email:

I rejected that invitation and so the judgment was handed down. The application, as I say, has been renewed and all parties are agreed that I should deal with and rule upon those applications. They are linked to Mr Livesey's second application, the detail of which is in part A of his skeleton argument, although it was amplified by him in his oral submissions. I summarize it. He submitted that the loss to the estate is the difference between the quantum of the notional award or settlement figure on 1st March 1995 (see para.70 of the judgment) and the court's assessment of the appropriate settlement figure in 1998, that is to say £35,000 rather than £20,000. He submitted that as “... the first £15,000 tranche of the claimant's adjudged loss plus interest was caused by the joint negligence of the first and second defendants,” then the form of the order should be that the first and second defendant should be jointly ordered to pay £15,000 plus interest with the balance falling to the second defendant.

On behalf of the claimant Mr Bebb applied for costs and applied for orders that the second defendant should pay the first and second claimant's costs of the claims against the second defendant in both his representative and personal capacities, and indemnify the claimants against any liability, if any, for the costs as between the claimants and the first defendant. Alternatively Mr Bebb seeks an order that the first defendant should pay the costs of the claim as between the claimants and the first defendant.

On behalf of the first defendant Mr Stuart Smith requested costs orders. His primary case was that the court should make either a Bullock or a Sanderson order, by which the first defendant would recover his costs from the second defendant. As both claimants are legally aided and there is no possibility of a Lockley order, there is an obvious benefit to the first defendant from a Bullock or a Sanderson order. Mr Stuart Smith's secondary case is that the first defendant's costs should be paid by Mr Whitehead. He submitted that the burden should fall on the second defendant for the following reasons. For the assistance of counsel I am quoting from para.3.2(a) to (c) of the skeleton argument:

Mr Stuart Smith said that the qualification means only this: that it would not make a practical difference if a Bullock or Sanderson order was qualified so as to exclude the personal claims. He submitted that provided it was reasonable to bring the primary and alternative claims, then that contemplates that one may fail and so a Bullock or Sanderson order would be appropriate. His other submissions are set out in para.3.4 of the skeleton argument and are not repeated here.

On behalf of the second defendant Mr Livesey submitted that as the second claimant has failed in all his claims brought as alternatives to the estate's primary claim as against the second defendant, that the second defendant firm is entitled to their costs of that action. He submitted that as the first claimant's claim in his personal capacity also failed, the second defendant should have their cost of that part of the action. He withdrew a submission there should be Lockley orders because as is apparent neither claimant had secured a money judgment.

As to the costs of that part of the action in which the first claimant succeeded in his representative capacity, Mr Livesey submitted that the order of costs against the second defendant in the first claimant's favour should make it clear that the first claimant is not entitled to recover from the second defendant his costs of the claim against the first defendant, including such common costs as are rightly apportioned to that claim. He submitted that "this case is crying out for an issue based order", and he drew my attention to the judgment of His Honour Judge Peter Coulson QC in McGlinn v Waltham Contractors & Ors [2007] EWHC 698 (TCC) at paras.81-89 in which the learned judge, after considering a number of cases in which there had been issue based costs orders, said this:

Mr Livesey submitted that of the various claims the first claimant succeeded only in those made in his representative capacity and that the second claimant's claim was doomed to fail. He submitted that as the first and second defendants both succeeded in defending the personal claims, it would be unjust for the second defendant to pay the first defendant's costs. He submitted that in that part of the claim which related to the undervalue settlement, the second defendant did not blame the first defendant - his case was only that he relied upon counsel's advice. He submitted that the court should ask itself whether the claimants acted reasonably in pursuing the personal claims and the correspondence reveals that those acting for the defendants made repeated attempts to persuade them that they were bad claims in law.

Mr Livesey drew my attention to Irvine v Commissioner of Police for the Metropolis & Ors [2005] EWCA CIV 129, and to paras.22, 30 and 31 in the judgment of Peter Gibson LJ with whom Scott Baker and Jacob LL.J agreed. In para.22:

He relied also upon the dictum in Michael Moon v Paul James Garrett & Ors [2006] EWCA Civ 1121 Waller LJ with whose judgment the other members of the court agreed, after citing parts of the judgment of Peter Gibson LJ in Irvine above, which included the three paragraphs cited, said, at paras.38 and 39:

In so far as I have not referred to them, I have had in mind the detail of all the written submissions and skeleton arguments as well as the helpful oral submissions of all counsel on Thursday 5th July.

I consider first the renewed applications of Mr Livesey. Mr Stuart Smith submitted that the judgment has been handed down and so the parties expect that the order will reflect the judgment. He referred me to Venetia Robinson v Roland Fernsby & Ducan Scott-Kilvert [2003] EWCA Civ 1820, and in particular to para.94 in the judgment of May LJ.

I should add because I was invited by Mr Stuart Smith to consider Charlesworth v Relay Road Limited [2001] WLR, 230 that I have read that report, but I found nothing in that judgment (which turns on very different circumstances) of assistance. Mr Stuart Smith submitted that the first claimant, consistent with his position since 15th September 2006, has not asked for judgment to be entered against the first defendant. There has never been any suggestion that credit should be given for any sum received in respect of a claim for the under-valued settlement. He observed that the matter was not raised at any time during the trial and was mentioned for the first time only after the judgment was sent to counsel in draft. So I was not asked to consider it when matters were fresh in my mind and at a time when I would have received detailed submissions from the parties. He submitted that the findings sought are to enable the second defendant to pursue the first defendant in other proceedings for a contribution.

I agree with all the submissions made by Mr Stuart Smith in opposition to this application. Had I thought it necessary to make either finding, I would have done so before handing down the judgment. I did not and I remain of the view that the findings are unnecessary. I find no reason for apportioning any part of the liability under the judgment to the first defendant, and I confirm my order that there will be judgment for the first claimant in his representative capacity against the second defendant in the sum of £118,829.

I turn now to consider the application for costs. Part 44.3 of the Civil Procedure Rules provides in its material parts:

While there is no reference to a Bullock or a Sanderson order the jurisdiction to make either order has survived the introduction of the CPR, but the position in this case is not the uncomplicated one often found in personal injury actions.

The first defendant was not a party to the primary claim and the alternative claims were in two parts. First there was the estate's claim in respect of the undervalued settlement; then there were the personal claims by both claimants which were based on what I shall term for shorthand purposes allegations of assumption of responsibility (see paras.83 to 107 of the judgment) which both defendants successfully defended and which, in my judgment, were not reasonably brought.

Mr Stuart Smith, who accepted it was reasonable for the first claimant in his representative capacity to join both defendants in that part of the estate's claim which related to the undervalued settlement submitted there is no reason why a Bullock or Sanderson order may not be made but to exclude the costs of the personal claims in the alternative action. I reject that submission and reject the applications for a Bullock or Sanderson order. In my judgment they are appropriate nowadays only in those cases where the claimant does not know which party is at fault and it is inappropriate to make either order when both defendants succeeded in defending a large part of the claim. I consider also that it would be contrary to the objective of r.44.3 to make a qualified Bullock or Sanderson order.

I summarise the matters which I consider are particularly relevant to my determination of the cost issues. They are: (1) Clearly the estate's primary claim against the second defendant and its alternative claims against both defendants in respect of the undervalued settlement were properly brought. Contrary to the submissions of Mr Livesey, the case for the second defendant regarding the undervalued settlement in my judgment was, in reality, to blame the first defendant. While Mr Clough did not say so in terms, the whole tenor of his evidence was to put the blame elsewhere for all the second defendant firm's failures and omissions. (2) In my judgment, the personal claims of both claimants should not have been brought. On any view, the second claimant's claim was wrong in law. I consider the defendants are not to be criticised for not applying for a strike out because there were factual issues in the first claimant's case and the continued participation of the second claimant added little if anything by way of costs. The defendants are entitled to rely upon the fact that they drew to the claimant's notice in correspondence the hopelessness of the personal claims. Furthermore I am satisfied that large parts of the claim for damages in the alternative action were grossly over-valued. (3) The primary claim could not, contrary to Mr Livesey's submissions, have been decided on paper. While there were more issues of law in the alternative personal claims, they were not as extensive as Mr Livesey submitted. Mr Stuart Smith helpfully in this regard reminded me of the number of authorities referred to in the closing submissions on behalf of the defendants. (4) I am satisfied that certainly from the pre-trial review held by Butterfield J on 25th October 2006 the claimants made it clear that their primary case was against the second defendant, and that if that succeeded the alternative claim would be unnecessary. It follows that had the second defendant admitted liability on the primary claim, then there would have been no further proceedings against the first defendant. There was no payment into court or admissible offer to settle the primary claim. I interpose to make this observation: the opposition of the second defendant to the application of the claimants for split trials made at the pre-trial review to which I earlier referred should not be held against them. I need not rehearse the arguments because it is clear that Butterfield J considered that split trials were simply not practicable. (5) The defendants had both proceeded on basis that the claims were for practical purposes in the alternative from 27th January 2006 when they each paid £30,000 into court. The notice was in these terms: I am referring to the costs correspondence bundle at p.73:

The acceptance by the estate of that payment would not have prejudiced their primary claim which they could have continued to pursue. (7) In my judgment, that payment should have been accepted. (8) The factual issues save as to quantum in the alternative claims, including the estate's claim, were irrelevant to the court's determination of the primary claim, but the factual issues in respect of the undervalued settlement did have some relevance to the factual issues relevant to the assumption of responsibility issue particularly because the second defendant in its defence sought to rely on the fact that the firm was a high street practice which had to rely upon counsel selected for his experience in the field of medical negligence. (9) To succeed in part of the claim the first claimant had to attack the credibility of the second defendant. That is a serious allegation to make against a professional man. So while the claim was only part successful, I do not consider the "who won" approach is conclusive. Certainly I reject the submissions of Mr Livesey, if I understand them correctly, that as the estate recovered less than 7% of the total sum claimed, then the claim for costs should be limited proportionately to that amount, or certainly much reduced on that ground. (10) My conclusion is that the costs of the primary claim and that part of the alternative claim which related to the undervalued settlement should be deemed to be about 50% of the total bill. That assessment is based in part upon the days spent during the trial on the respective claims and in my view, that a significant time was spent on the evidence relevant to the undervalued settlement - the evidence relevant to the personal claims was brief and within a very short compass. If the costs should be less than 50% then that would be explained, in my view, by the costs of expert reports for quantum purposes and I would make the necessary adjustment to maintain the 50/50 split because that expense was occasioned by the failure in the first place of the second defendant firm to pursue the claim properly before Miss McLeish's death. I should make it clear, as I hope I made it clear in the judgment, that had they pursued their claim properly before her death then much of the evidence which had to be subsequently obtained would, by then, have been obtained. (11) Rule 44.3(5)(a) provides that the conduct of the parties includes "conduct before as well as during the proceedings". So although significant parts of the alternative claims failed, I consider I should not overlook my conclusions as to the conduct of Mr Clough and Mr Searle, and in particular my conclusions in paras.111, 114 and 116 of the judgment. Their conduct, the more so in the case of Mr Clough, fell well below that to be expected by members of the legal profession. That is not to use an order for costs to punish one or other or both of them for those shortcomings, but rather to observe that had they accepted their shortcomings as they should have done, that would have resulted in considerable savings of costs.

My conclusions: (1) There will be an order that the second defendant firm pay the costs of the first claimant's primary claim. (2) There will be an order that the first and second defendants pay the first claimant in his representative capacity 75% of the costs of the alternative claim relating to the undervalued settlement. I consider there should be some reduction to reflect (a) that had there had to be judgment in respect of that claim, it would have been for a figure much less than the money in court and (b) the payment in of 27th January 2006, had it been accepted, would not have prejudiced, as I said earlier in this judgment, the primary claim. So this part of the alternative claim should not have been litigated to trial. (3) I have decided I should not order the second defendant to meet the first defendant's liability in costs for the alternative claim. While there is some attraction in the argument that the second defendant put the first defendant to costs by not settling the primary claim, my conclusion is the probability is that the first claimant would not have settled the primary claim at a sum so significantly lower than that claimed in the schedule of loss. (4) Although the claimants lost their personal claims against both defendants and the general rule is that the unsuccessful party would be ordered to pay the costs of the successful party, in the light of my findings at (11) above, I consider it would be unjust to make such an order. It would be of little or no practical effect anyway because the claimants are legally aided and such orders would not be enforced without leave.

Accordingly, there will be judgment for the first and second defendants against the first claimant in respect of his claim in his personal capacity with no order as to costs, and judgment for the first and second defendants against the second claimant with no order as to costs. I will ask Mr Counsel to draw up the order. The order will include, in addition, paras.4, 5, 7, 8 and 9 of the draft with which he provided me by email on 6th July as subsequently amended by agreement between the parties.

I should add this: Mr Bebb sent me an email concerning the views of the Legal Services Commission regarding a claw back from the judgment sum of any costs that are paid out under the Legal Aid Certificate. I mention it because he properly distributed it to other counsel in the case. I had in fact already reached my decision on the costs issues in this case before I read the email, but in any event, in my judgment it contains nothing to which I am required to have regard under the provisions of 44.3.

On behalf of the second defendant firm Mr Michael Harrison applies for permission to appeal both the judgment and the costs order. As to the judgment he relies upon a document headed "draft grounds of appeal" with which I was provided by Mr Livesey on Thursday, 5th July. Mr Harrison has helpfully indicated to me that certainly some of the matters relied upon as particulars of a ground of appeal are in fact themselves free-standing grounds of appeal. He has drawn my attention in particular to the facts giving rise to the judgment in Williamson, referred to in those draft grounds. This was a case which, in my judgment, was very fact sensitive. I have been asked to remind myself, by reference to CPR 52.3(6) of the court's approach to permission applications. I am not persuaded that there is anything in the draft grounds of appeal or the further submissions made by Mr Harrison which would warrant then grant of permission, so permission to appeal the judgment is refused.

As to costs, Mr Harrison puts the matter shortly. The second defendant stands very much by its submissions that this was a case in which an issue based order is appropriate and should have been made. I observed that the order which I have in fact made is very close to such an order, and in my judgment, bearing in mind all matters of costs are matters of discretion, I am not prepared to grant permission to appeal the costs order either. So that application is refused as well.