Manches LLP v Green (t/a Green Denman & Co)

The clear message of Andrew’s e-mail of 5 February 2004, as regards Mr. Adams, was that although he and his father were very willing for him to be approached that should not occur forthwith: there needed to be further discussion about “the stage when these statements are sought”.

The same day Mr. Green himself spoke to Mr. Kirton on the telephone. Each made a note of the conversation. Mr. Green’s note - written in manuscript on MRP’s second letter of the previous day – was as follows:

There is clearly a difference between the two notes as to what was said about the approach to Mr. Adams. According to Mr. Green’s note, the ball was in Mr. Kirton’s court, whereas according to Mr. Kirton’s note it was in Mr. Green’s. It is Mr. Green’s case that the effect of that conversation was that, so far as Mr. Green was concerned, he was content for Mr. Adams to be seen as soon as Mr. Kirton judged appropriate, but that he left it to Mr. Kirton to advise on precisely when that would be and on the modalities of any approach. I do not propose to seek to resolve that difference at this stage.

On 4 March 2004 Mr Kirton and Mr. Keens met the Greens, for the first time, at MRP’s offices. There is a full attendance note of the meeting made by Mr. Kirton. It covers a wide range of matters, but I need only deal with those which relate to Mr. Adams. As to this, the note says as follows:

It is inconsistent with any explicit instructions having been given to Mr. Kirton to approach Mr. Adams forthwith. It is not simply that the matter is being discussed as if it were still an open question: more specifically, the flavour which comes across is that it was necessary for Mr. Kirton to persuade the Greens of the need to see him “sooner rather than later”.

The reference to the Greens expressing the view that Mr. Adams “will assist” at least suggests that the question was being discussed in terms of the choice which Mr. Kirton had given them in his letter of 4 February (see para. 19 above): there is express reference to the “Way Forward” section of that letter in an earlier part of the attendance note.

Following the meeting, work proceeded with a view to getting the case into better shape. On 12 and 13 July 2004 Mr. Kirton and Mr. Keens and an assistant called Rebecca Harris spent two days at GD’s offices, which were at Mr. Green’s home in Sussex, examining documents. On 14 July Mr. Kirton wrote to Mr. Green, primarily to obtain instructions to proceed to instruct counsel; but the letter also had a section about evidence. This reads:

On 16 July 2004, i.e. two days later, Mr. Green and Mr. Kirton spoke on the telephone. Again, both made notes of the conversation. Mr. Green’s note reads as follows:

There is, again, what Mr. Sweeting described as a tension between Mr. Green’s note on the one hand and Mr. Kirton’s note and letter on the other. On a superficial reading, Mr. Kirton’s note suggests that it is Mr. Green who wants to put off the approach to Mr. Adams, while Mr. Green’s note indicates that that suggestion came from Mr. Kirton himself. But I do not in fact think that the two are irreconcilable. Mr. Kirton’s note can be understood as simply recording Mr. Green’s acceptance of his recommendation. On this basis, the conversation is of limited significance. It is concerned only with a short delay in approaching Mr. Adams until after the consultation. I do not believe that Mr. Kirton can sensibly be criticised, as at that date, for recommending that delay for the reasons which he gave. The real questions are why Mr. Adams had not been seen already and why, to anticipate, he was not seen shortly after the consultation with Mr. Dingemans. This episode casts no direct light on those questions. What is, however, worth noting is that Mr. Green’s own note shows that he was – contrary to what he appears to have said previously – expressing significant doubts about how helpful Mr. Adams would really be; also that it contains no suggestion that Mr. Kirton ought already to have approached him.

The consultation with Mr. Dingemans took place on 5 August 2004. Extremely full notes were prepared by both Mr. Kirton and Mr. Keens. Mr. Keens’ note contains the following passage:

A witness statement from Kuhler;

A witness statement from Adams.

JD turned to the letter of 16 June 1999. JD made it quite clear that he considered this to be a “Dear John” letter … KG did not agree. Lengthy discussion ensued. JD indicated that this was a “Dear John” letter which offered some hope of future involvement but which was not unequivocal. JD also fully accepted that it was written on a false premise. KG indicated that irrespective of JD’s thoughts that he would expect to be invited to continue and they [i.e. Imagination] could not do the comparison [i.e. between the professional life and EP3/4 schemes] without him. JD indicated that whilst this maybe correct, he had read this as a goodbye letter and thinks the Judge would unless Richard Adams changes his mind. JD said this brought him to an important part of this matter which was namely the need to establish the facts from the perception of Richard Adams. KG confirmed he was still in contact with Richard Adams but there had been no insight from him on this aspect.

JD said that the financial incentives correspondence that KG had had with RA was useful. It would appear that all he had got was a simple thank you for pointing out matters. JD indicated that at some stage KG would have to make the decision on whether to jeopardise his business relationship by opening this ground again [my emphasis].

JD indicated that even if he took a neutral view, he could not read the letters the Ken Green way.

… The question is would EP4 have made a difference to Richard Adams. HW [Mr. Wolanski] was what JD commented was a “one horse course man”. The question is what evidence can we get from Adams to help our position. JD stressed that we need a statement from Adams [my emphasis].

KG then suggested that Skandia fear KG going back to Imagination to say that they are worse off. But at the same time he is not certain Richard Adams would be able to recall what he would or wouldn’t do. JD said that in truth the question was really quite simple. JD stressed that we would need a statement from Richard Adams [my emphasis].

JD went on to suggest that he dealt with litigation on a day-to-day basis and without all of the evidence that he has put forward it would be very difficult to progress this matter towards trial. KG thinks Skandia will settle. JD said we could not fight this action on this premise. If they have a concern they will not go to Court, but if they think they are going to win, they would go to Court, just to send a message. KG is of the view that Skandia “want rid” of this case.

JD indicated that we must identify a cause of action where the major weakness is causation. JD said that if we don’t talk to Adams that’s fine, but at the end of the day if he would not have changed his stance we lose on causation.

TOK said that at the outset of this matter, he had said that Adams would be the key. This remained the case. We need to know what would Adams have done in his mind set had he known about EP4 and in the absence of Adams we would have to rely on letters on which basis we would lose.

JD indicated that the way forward was:

A number of points emerge from those notes:

Mr. Dingemans, supported by Mr. Kirton, made crystal clear the centrality of Mr. Adams’ evidence and the consequent need to obtain a statement from him.

There are indications that both Mr. Dingemans and Mr. Kirton had the impression that Mr. Green was reluctant for Mr. Adams to be approached. This appears most clearly from Mr. Dingemans’ reference, recorded at para. 34 of Mr. Kirton’s note, to Mr. Green having to decide “whether to jeopardise his business relationship” with Mr. Adams by approaching him. But the inference is also supported by the very emphasis which counsel put on the point, and which Mr. Kirton and Mr. Keens reflected in the way in which their notes were formulated: see, for example, the distinction made by Mr. Kirton in para. 101 of his note between “getting evidence” from Mr. Kuhler and “making a decision on whether” to approach Mr. Adams. I also note Mr. Green’s remark, recorded at para. 90 of Mr. Kirton’s note, that he was not certain that Mr. Adams would be able to give helpful evidence: this echoes what he had said to Mr. Kirton in their conversation on 16 July (see para. 27 above). There is no explicit indication in either note as to the origin of the lawyers’ perception that the Greens were reluctant for Mr. Adams to be approached, or, more particularly, of Mr. Dingemans’ understanding that approaching Mr. Adams might jeopardise GD’s existing business relationship with Imagination; but in practice it can only have come from things said - even if not wholly explicitly – by Mr. Green or Andrew to Mr. Kirton and communicated by him to counsel.

If Mr. Green’s case that he had authorised Mr. Kirton to approach Mr. Adams as far back as 5 February were correct, one might have expected to see some record of his protesting that he had no problem with Mr. Adams being approached and that he had already made that clear. But there is nothing to this effect: more specifically, there is no note of his telling Mr. Dingemans that, contrary to what he appeared to understand, he had no concerns about jeopardising his relationship with Mr. Adams. Both the Greens were asked in cross-examination why they had not said anything along these lines. They did not suggest that they had done so but that it had been left out of the note. Rather, their response was that they were being polite and had not wanted to embarrass Mr. Kirton. I found that unconvincing. Mr. Green senior in particular is very capable of being outspoken; but he could in any event have phrased the point as tactfully as he liked. It is clear from the notes that he took a full part in the consultation, at least as regards the discussion of the factual issues: he did not simply sit back and let the discussion wash over him.

Both notes reveal quite clearly that Mr. Green felt very strongly that he had been badly, indeed dishonestly, treated by Skandia. This is to some extent apparent from the passages which I have quoted, but other parts of the notes contain many more indications of the strength of his feeling, particularly in the form of disobliging comments about individuals: employees of Imagination or Skandia are described as “a bit of a menace”, “petty”, “drunk with power”, and “an idiot”, and Skandia generally is described as being affected by a “culture of greed” evidenced by “scandalous bonus structures”. Mr. Green made it clear that he believed that Skandia had, and knew that it had, a lot to hide and that he did not believe that it would be willing to go to court. Mr. Dingemans sought to persuade him to see the case in a more cautious light, but he did not appear to have much success: the exchange about the correct reading of Mr. Adams’ letter of 16 June 1999, recorded at para. 33 of Mr. Kirton’s note, is typical.

The following day, 6 August 2004, both Mr. Green senior and Andrew spoke to Mr. Keens. Mr. Keens made a note of both conversations. He recorded Mr. Green as commenting that he had found Mr. Dingemans “more negative than he had expected”, and he apparently wanted to continue the discussion about the effect of the letter of 16 June 1999. The note then records the following:

On 10 August 2004 Andrew sent Mr. Kirton an e-mail giving his impression of the consultation the previous week and enclosing a note dealing with a number of points. He observed that the comments were his own but that he believed that his father’s views were “not dissimilar”. While he praised Mr. Dingemans in extravagant terms, it is plain that he was disappointed by his apparent caution and did not feel that he had yet fully understood the case (cf. his observations about Mr. Martin referred to at para. 21 above). It is clear that his personal confidence in the strength of the case against Skandia was undented. He did not address the question of an approach to Mr. Adams; but, like his father, he was keen to persuade the lawyers that the letter of 16 June 1999 was not a “Dear John” letter; and in the course of trying to do so he made a number of dismissive observations about Mr. Adams’ abilities as a communicator.

On 13 August 2004 Mr. Kirton wrote to Mr. Green enclosing Mr. Keens’ note of the consultation. He summarised a number of areas on which information or instructions were required. The penultimate paragraph of the letter reads: “As a gentle reminder, you must also make a decision on Adams”. That “reminder” is only consistent with an understanding on the part of Mr. Kirton that it was for Mr. Green to decide whether he wished Mr. Adams now to be approached; and that understanding can in turn only reflect a belief that he had thitherto been reluctant.

On 24 August 2004 Mr. Green wrote to Mr. Kirton enclosing further information and also making some observations in the light of the consultation. He attached a very full document entitled “Comments”, by reference to a marked-up copy of Mr. Keens’ note of the consultation. Although they covered a great deal of ground in some detail, neither the letter nor the comments addressed the question of whether Mr. Adams should be approached for a statement. They do however have some significance for the Adams issue in two respects:

Both the letter and the comments confirm the impression gained from the notes of the consultation that Mr. Green felt extremely strongly about how he believed Skandia had behaved. There was a good deal of ad hominem comment on individuals. He continued to express the view that “the feeling in the industry is that Skandia will not wish these actions to be made public” for fear of repercussions with the Revenue or the Regulator.

Mr. Green was asked in cross-examination why he had not dealt in this letter with Mr. Kirton’s “reminder” in his letter of 13 August that he must make a decision about Mr. Adams. He said that he had been on holiday and that he was in any event far too busy to deal with lawyers’ letters. It was then pointed out to him that that could not be right because he had written the letter of 24 August. He said that much of that letter had probably been written by Andrew and that, in so far as he had contributed to it, that would have been in the form of a draft done before he went on holiday which Andrew would have worked up into the final letter which he signed on his return. He said that at the point that he signed it he had probably not even seen Mr. Kirton’s letter of 13 August. That answer too was plainly incorrect, since the letter of 24 August encloses his comments on the note of the consultation which had only been sent under cover of the letter of 13 August. At that point in his cross-examination he had not been referred to the “Comments” themselves, which were not in the bundle; but they were obtained subsequently and he was asked about them in re-examination. He said at that point that it was probably not him who had written the document: he thought that it was probably written by Andrew and Michael and that he would simply have checked it over. Mr. Sweeting then caused the marked-up copy of the note of the consultation, to which the comments were cross-referred, to be produced. These were elaborately annotated by Mr. Green senior in his own handwriting; and it is clear that the “Comments” are closely based on those annotations. The importance of this sequence of evidence is that it illustrated particularly clearly Mr. Green’s willingness to give whatever account of events best suited the particular point that he wished to make; and also his tendency wrongly to suggest that he was not closely involved in decisions relating to the litigation.

On 26 August 2004 Mr. Kirton wrote to Mr. Green about taking a statement from Mr. Kuhler. On the top of that letter Mr. Green wrote a short note in manuscript in the following terms:

On 7 September 2004 Mr. Kirton spoke to Mr. Green on the telephone. His note reads:

On 9 September 2004 Mr. Kirton wrote to Mr. Green, principally in order to respond to his letter of 24 August. He had not at that point digested the “Comments” document. The response to the letter of 24 August contains nothing relevant to the Adams issue; but it is fair to observe that its tone was calculated to some extent to soften the note of caution which Mr. Dingemans had struck. He agreed that if they were able to “collate substantial information which suggests a conspiracy” this was likely to lead to Skandia coming to the negotiating table.

There was no approach to Mr. Adams in the period leading up to the second consultation with Mr. Dingemans on 17 March 2005. The reason for this was addressed in Mr. Kirton’s Instructions to Counsel dated 22 February 2005. The material part reads:

There is, again, a full note of the consultation with Mr. Dingemans on 17 March 2005. It contains these passages:

Whatever the obstacle had been to Mr. Adams being approached, it was removed by Mr. Dingemans’ firm advice. On 17 March 2005 Mr. Green telephoned Mr. Adams and asked if he would have any objection to speaking to MRP “about a problem I’d been having with Skandia”, as it was put in his contemporary note. An appointment was arranged for April. The Greens discussed in some detail the points which they believed should be raised with Mr. Adams, and Andrew sent Mr. Kirton no fewer than three e-mails with suggestions as to the approach to be taken. (I should also mention, because this is relevant to a later issue, that in the course of apologising to Mr. Kirton for presuming to advise him on the approach to be taken Andrew said “I know you are the most brilliant solicitor in the world”.)

Mr. Keens, accompanied by Rebecca Harris, duly went to see Mr. Adams on 13 April 2005. Mr. Adams made it clear from the start that he did not want any note taken in the course of the meeting. However, Mr. Keens and Ms. Harris prepared an attendance note immediately after the meeting had concluded. Mr. Keens gave evidence before me, based largely on the contents of the note. Mr. Adams himself (called by Mr. Green) also gave evidence to me. There is no significant dispute as to what occurred. The meeting lasted about half an hour. Mr. Keens took Mr. Adams through the main points on which it was hoped that he would assist. I need not set out the substance of his answers. It is enough to say that they contained little, if anything, that supported Mr. Green’s case. Mr. Adams made it plain that he had decided that he did not want to continue with any commission-based scheme. It was obvious to Mr. Keens and Ms. Harris that he “had … been concerned at the high level of commissions which KG had been earning out of the Scheme”. He was not particularly interested to hear about the merits of EP4 and he was not receptive to any suggestion that he had been misled by Skandia. Mr. Keens asked him about the letter of 16 June 1999. He did not accept the description of this as a “goodbye letter”. He said, according to the note:

The impression given by the note is plainly that Mr. Adams would be of no assistance to Mr. Green’s case. He was not prepared to become involved at all, let alone make a statement. Even if he had made a statement, his evidence was likely to assist Skandia more than it did Mr. Green. Mr. Keens said in his evidence before me that he regarded what Mr. Adams had said as “his first word, not his last word” – that is, as I understood it, that there was a realistic chance that Mr. Adams would in due course have changed his position and been willing to assist after all. While no doubt that possibility could not be excluded, it does not appear on the evidence of the note that it was at all likely; and Mr. Adams so confirmed in his evidence to me.

The Greens were of course anxious to know the outcome of the meeting with Mr. Adams. Mr. Keens spoke to Andrew the same day or the next. There is no note of that conversation, but on 14 April 2005 he e-mailed Mr. Kirton as follows:

Andrew did not recall the particular conversation referred to in Mr. Keens’ e-mail. He said, however, that they did receive an account of the meeting in general terms, which was to the effect that it had gone “fine” and that MRP would be going back to Mr. Adams for a statement. Mr. Green gave similar evidence. He said that he was in Milan on business but that Andrew had had a phone call from Mr. Keens telling him words to the effect of “Adams agrees it was not a ‘Dear John’ letter and we are going back to him for a statement”. He said that he regarded that as good news and that he did not seek any further details. I do not find that evidence credible. Mr. Keens’ e-mail and evidence do indeed suggest that he may initially have reported the meeting in more neutral terms than were merited; and he may well also have reported Mr. Adams’ position on the letter of 16 June 1999, since this was a point to which Mr. Green was known to attach (rightly or wrongly) particular importance. But I regard it as inconceivable that he would have conveyed the impression that all was well and that MRP would be going back to Mr. Adams for a (sc. favourable) statement. His own attendance note, which he had, according to the e-mail, promised Andrew that he would be sending, made the true position clear; and in any event there was no point in him giving an impression which was bound to be falsified sooner or later – probably sooner.

Despite Mr. Keens’ expectation that Mr. Green senior and Mr. Kirton would be speaking, it does not appear that any such conversation took place in the immediate aftermath of the meeting with Mr. Adams. That is a little surprising; but the explanation may be that, as Mr. Green said, he was abroad. A few weeks later, however, Mr. Kirton drafted a letter to Mr. Green dealing with various recent developments, including the meeting with Mr. Adams. What looks like a final draft of that letter, bearing the date 23 May 2005, was disclosed by the Claimants. It contains the following passage:

That draft makes it clear that, whatever Mr. Keens may have said or thought, Mr. Kirton at least regarded the outcome of the meeting as substantially negative. It is, however, now accepted by the Claimants that the letter was never sent. Mr. Kirton could not remember why: his only observation was that it appeared from the fact that the draft was in double spacing that it had not been finalised for dispatch, which suggests that the reason was something other than mere administrative oversight. It was not, however, put to him, or suggested to me, that there was some particular reason for the failure which bore on the issues in this case.

The failure to send the letter of 23 May would have left less of a hole in the advice given to Mr. Green if the attendance note of the meeting with Mr. Adams had been sent to him – as Mr. Keens had said in his e-mail that he intended to do, and as Mr. Kirton in the draft letter apparently believed had already occurred (“we have forwarded”). Mr. Keens told me that he thought that he had indeed sent a copy to the Greens. But both Mr. Green senior and Andrew deny that they ever received it. On this point, the probability seems to me to favour the Greens. If the attendance note had been sent, there should have been a covering letter of some kind, however brief; but none has been produced. It is tempting to speculate that the admitted failure to send the draft letter of 23 May and the probable failure to send the attendance note had the same cause, and perhaps that it reflected an unease on the part of Mr. Kirton about how best to break the bad news to the Greens. But that was not put to either Mr. Kirton or Mr. Keens; and it is no doubt equally possible that there is some more mundane explanation, such as that each of them thought that the other would be sending the note.

There is over the following months no record of any discussion between MRP on the one hand and either of the Greens on the other of what was happening about Mr. Adams or the impact of his position on the prospects in the litigation. In a letter to Mr. Green senior dated 19 July 2005 making some preliminary observations on Skandia’s defence Mr Kirton says:

The question about Mr. Adams’ evidence was next addressed at the consultation with Mr. Dingemans on 21 December 2005. No Instructions for this consultation were put before me, and I understand that none have ever been disclosed. It is therefore unclear what Mr. Dingemans was told about Mr. Adams’ attitude prior to the consultation. A note of the consultation was made by Roy George, an assistant solicitor at Manches. The focus of the discussion was on what could be done to improve the prospects of resisting Skandia’s application for summary judgment. The discussion as regards Mr. Adams is noted as follows:

That passage is of course wholly inconsistent with the Greens believing, as they say they had been told in April, that Mr. Adams would be willing and able to give evidence in support of the claim. Mr. Green is quoted in terms as saying that “Adams is a person who would not help”; and Mr. Dingemans’ observation about “having another shot” clearly implies that the first attempt was recognised to have been a failure. The obvious explanation is that they had indeed been told the substance of what Mr. Adams had said in the meeting of 13 April, even if they had not been sent the attendance note: in this connection I note that Mr. Green’s reference to Mr. Adams believing that he had been earning excessive commissions reflects something which Mr. Adams had indeed said at the meeting (see para. 41 above). (A possible alternative is that they had learnt of Mr. Adams’ attitude themselves from direct contact with him, but neither of the Greens suggested this in their evidence.) Mr. Green in cross-examination recognised the inconsistency but met it by flatly denying having said the things attributed to him in the note, observing that “notes are only as good as the people taking them”. Andrew likewise, though less emphatically, denied in cross-examination that his father had said what he is recorded as having said: indeed he claimed (though there is nothing about this in his witness statement, and I had the distinct impression of his tale growing in the telling) that he could recall his father having expressed surprise that no statement from Mr. Adams had yet been obtained.

I am satisfied that the note of the consultation is substantially accurate. If it were not, that could only be the result of deliberate falsification by Mr. George. No reason why he should produce a false note was suggested, and indeed Mr. Prestwich did not even put the supposed falsification (in the absence of Mr. George) to Mr. Kirton. In fact, all the probabilities point to the Greens being well aware of Mr. Adams’ attitude long before the consultation, whatever lapses there may have been in formal communication from MRP. If they had really believed that Mr. Adams was willing and able to give a helpful statement it is inconceivable that they would not have pressed to see a statement from him; and even if there had been some initial misunderstanding the true position would inevitably have emerged in the course of their contacts over the intervening months. (I would add that Mr. Dingemans’ reference to Mr. Adams having a drink problem can only - whether or not it was true, which in fairness to Mr. Adams I should say that I heard no evidence to support - have originated in something that he or Mr. Kirton had been told by the Greens; and it suggests that Mr. Green senior or Andrew had prior to the consultation been suggesting to Mr. Kirton reasons for Mr. Adams’ unwillingness to assist.)

The question was raised before me whether Mr. Dingemans had ever been sent the attendance note of the conversation with Mr. Adams. It would be surprising if he had not been, but Mr. Sweeting did not, despite some encouragement from me, produce any document from the file (e.g. the Instructions for the consultation on 21 December) showing that he had. It may therefore be the case that he did not in fact ever see the attendance note. If so, that is poor practice, but I do not see how it bears on the essential issues. It is quite apparent from Mr. George’s note that Mr. Dingemans had been made aware that Mr. Adams had made clear that he did not wish to assist.

The day after the consultation, 22 December 2005, Mr. Kirton wrote to Mr. Green raising various issues, including the approach to Mr. Adams which Mr. Dingemans had recommended. He observed that Mr. Adams “may not … assist”. That of course is entirely consistent with the terms of the discussion as noted by Mr. George and wholly inconsistent with the Greens’ position that they were expecting a helpful statement from Mr. Adams. Mr. Green said in cross-examination that he couldn’t remember if he had been surprised by this remark in the letter: it was coming up to Christmas and he was “pretty exhausted”. I do not find that a convincing answer.

On 6 February 2006 Mr. Kirton wrote to Mr. Green again saying:

In the event, Mr. Adams was not approached again. There was thus no statement from him before Mr. Nugee, though in fact – as I have already noted - the basis on which the claim was dismissed had nothing to do with the causation point.

It is convenient to consider my conclusions on the Adams issue in relation to three distinct periods – (1) February-August 2004; (2) September 2004-March 2005; and (3) April 2005-July 2006.

February-August 2004

Both in his initial letter of 4 February 2004 and subsequently Mr. Kirton put Mr. Green clearly on notice of the importance of ascertaining the position of Mr. Adams. I accept that Mr. Green’s note of his conversation with Mr. Kirton on the following day might suggest that he agreed to MRP approaching Mr. Adams and that he left it to them to decide when and how that should be done. But the weight of the other evidence considered at paras. 25-33 above is overwhelmingly to the contrary, namely that the ball was left in Mr. Green’s court and that he conveyed to Mr. Kirton that he was reluctant for Mr. Adams to be approached for the time being: of the many indications to this effect, the conversation with Mr. Keens on 6 August 2004 is the clearest. Thus either the note of 5 February is simply inaccurate as to how matters were left (as Mr. Kirton’s note of the same conversation suggests) or Mr. Green changed his position subsequently. I think the former is the more likely, but ultimately the question does not matter: what matters is that I have no doubt that the reason why Mr. Adams was not approached during this period is that Mr. Green did not want him to be. I am not entirely sure why he took this attitude. It may indeed be that, as he gave MRP and counsel to understand, he was concerned about jeopardising GD’s business relationship with Mr. Adams: Mr. Green said in evidence that his continuing business with Imagination was too insignificant for him to have any such concerns, but that need not necessarily have been how he saw it at the time. However, there are indications from quite an early stage that Mr. Green was in fact uneasy about how helpful Mr. Adams would really be - see paras. 28 and 30 (2) above - and it may be that this too played a part in his reluctance for him to be seen. Such an attitude would of course be irrational; but it is not unknown for litigants to prefer not to confront difficulties in their cases.

Mr. Prestwich submitted, by way of alternative to his primary case, that if Mr. Green was indeed expressing a reluctance for Mr. Adams to be approached, it was all the more important that he be advised in strong terms that until his position were ascertained he might simply be pouring money into a bucket with a large hole in the bottom. In my view the advice given by MRP, and by counsel at Mr. Kirton’s urging, over this period was more than adequate. The letter of 4 February was very clear (and reinforced what Mr. Green had already heard from Mr. Martin). Its contents did not need to be repeated in detail each time Mr. Kirton reminded the Greens, as he did, of the importance of Mr. Adams’ evidence. Mr. Green was an experienced professional man, with – as he accepted in cross-examination – substantial experience of litigation: he was well capable of understanding what he was told.

September 2004 - March 2005

Mr. Dingemans had on 5 August 2004 repeated in strong terms the advice that it was necessary to obtain a statement from Mr. Adams. Mr. Green’s initial reaction was still reluctant: see his conversation with Mr. Keens the following day, saying that Mr. Adams should only be approached “as a last resort”. But he says – see para. 35 above – that on 2 September 2004 he left a message with Mr. Keens’ secretary agreeing to an approach to Mr. Adams; and that is apparently recorded in his contemporary note. If that is correct, then it was prima facie a clear breach of duty on the part of MRP not to proceed.

The entire sequence of events after 2 September 2004 is inconsistent with Mr. Green having given the instructions that he alleges. In the first place, there was a conversation between him and Mr. Kirton on 7 September 2004 about an approach to Mr. Kuhler in which neither party seems to have mentioned the authorisation to approach Mr. Adams communicated only five days previously. I accept that that might by itself be explicable - see para. 36 above – but it is much more difficult to understand why, if the authorisation had been given, MRP took no steps to act on it over the following weeks, particularly in view of the pressure which they had been exerting for months to get just such a go-ahead. One possibility might be that Mr. Green’s message had simply gone astray – it was, after all, only an oral message left with a secretary (and not Mr. Kirton’s secretary). But if that were the explanation one would have expected to see some follow-up from Mr. Green: the decision to allow Mr. Adams to be approached had only been taken reluctantly, and it would be surprising if, once it were taken, Mr. Green was willing simply passively to await developments. When this was put to him in cross-examination his only response was that he had been busy and the matter was not his responsibility. I find that unconvincing. If his case is correct Mr. Kirton was behaving in just the way that he and Andrew had found so objectionable in the behaviour of Mr. Farnsworth of Rooks Rider (see para. 21 above): yet they were doing nothing about it. It is also noteworthy that when, following the consultation in March 2005, an approach to Mr. Adams was unquestionably eventually authorised both Mr. Green senior and Andrew took a keen interest in how the approach was to be played: see para. 40 above. There was nothing of that kind here. The omission is all the more striking as there was considerable correspondence from MRP about the approach to Mr. Kuhler which certainly had been authorised. And of course the consultation on 17 March 2005 was conducted on the unchallenged understanding that the reason why Mr. Adams had not been approached was that Mr. Green remained unwilling: see para. 39 above.

However, the fact remains that Mr. Green’s account has the support of his manuscript note of 2 September. If I am to find that the MRP did not have instructions to approach Mr. Adams that can only be on the basis either that the note is indeed a forgery or that some time fairly soon after 2 September Mr. Green reverted to his previous position that he only wanted Mr. Adams approached as a last resort. As to the former possibility, unimpressed as I was by Mr. Green as a witness, he did not strike me as the kind of person who would be guilty of the cold-blooded dishonesty required to commit a forgery of this kind; and although the note remains hard to reconcile with the other evidence it would be a strong thing to find forgery on the basis of circumstantial evidence alone. As to the latter possibility, there is no evidence that Mr. Green ever explicitly cancelled the instruction which he had, on this basis, given on 2 September. But if that instruction had never in fact reached Mr. Kirton – which the circumstances suggest was the case – no explicit cancellation would have been necessary. It would be enough that in some way or another Mr. Green conveyed to MRP that he remained unwilling for Mr. Adams to be approached for the time being. There is no specific evidence of such communication either; but Mr. Kirton’s instructions to Mr. Dingemans for the consultation in March – see para. 38 above – clearly suggest that Mr. Green had at some point over the recent months confirmed to Mr. Kirton that he did not want Mr. Adams to be approached.

I cannot pretend that I have found this part of the case easy. Mr. Green’s note of 2 September 2004 is, as far as it goes, clear. The contrary evidence is circumstantial and inexplicit. Nevertheless, in my judgment the clear weight of that evidence is against Mr. Green having maintained, if he ever gave, instructions to MRP to approach Mr. Adams during this period. In making that finding I do not ultimately have to find as a fact one or other of the alternative explanations canvassed in para. 61 above, and I do not do so.

It follows that I find no breach of duty on the part of MRP in the period up to and including the second consultation with Mr. Dingemans. Mr. Prestwich again submitted that, even if the failure to approach Mr. Adams was Mr. Green’s decision, MRP were in breach of duty by failing to advise him sufficiently strongly of the need to do so. He submitted that there are indications that Mr. Kirton came during this period to believe that the pursuit of the conspiracy case, as proposed in the first consultation with Mr. Dingemans, afforded an alternative route to victory which made Mr. Adams’ evidence less important, if not altogether redundant. I agree that it does appear that following the consultation in August 2004 the focus of Mr. Kirton’s energies seems to have been more on the conspiracy case; but that is unsurprising since it had to be developed from scratch. I see no sign that he ever formed the belief – which would have been entirely irrational – that Mr. Adams’ evidence was no longer necessary; and the terms of his Instructions for the March consultation show to the contrary. I do not believe that Mr. Kirton was under a duty to advise Mr. Green more strongly or more often than he in fact did about the importance of approaching Mr. Adams. Mr. Green was, as I have already said, an intelligent professional who took a close interest in the litigation. He had heard Mr. Dingemans’ emphatic advice, which confirmed the advice which Mr. Kirton himself had already given. He had been sent the notes of that consultation and been reminded of the point on 13 August. He knew that a good deal of money was being spent in the meantime: he was receiving (and paying) regular bills. No doubt a time would come when it was necessary to repeat the advice; but that is what happened at the consultation in March.

There is in any event a further point. I am not satisfied on the balance of probabilities that if MRP had approached Mr. Adams in the autumn of 2004 and got – as it is reasonable to assume that they would - the same response as they did in April 2005 Mr. Green would have been prepared to cut his losses and abandon the litigation. This important question is in fact barely addressed in his witness statement and, no doubt for that reason, was not really explored in cross-examination; but it is in truth not a matter on which the witness’s own evidence would be determinative, and I have to form my own view based on the primary facts found. Mr. Green felt a strong animus against Skandia, by whom he felt that he had been disgracefully treated. He and Andrew were also confident that Skandia would, once it recognised that they were in earnest, settle rather than face an embarrassing trial, particularly if conspiracy – which has a pejorative ring to it – were alleged. These attitudes were strongly entrenched (see paras. 21, 30 (4) and 32 above). When Mr. Dingemans, as he did in both the first two consultations, sounded a strong note of caution, the reaction of both the Greens was to explain away or misinterpret his observations (as they had apparently done with Mr. Martin’s earlier advice: see para. 21 above). Against that background, I think it more likely than not that even an apparently unequivocal refusal by Mr. Adams to assist would not have been treated as the end of the road. They would have continued to harbour hopes that he could be brought round in due course or in any event that he would not assist Skandia either; and they would have hoped that, whatever the difficulties on causation, Skandia’s worries about the case would bring it to the negotiating table. Such a course might not have been wise, but it would not have been wholly irrational: large corporate defendants do sometimes settle weak claims for commercial or reputational reasons.

My conclusion on this point is reinforced by the fact that when Mr. Adams was eventually approached and proved unwilling to assist, the plug was not pulled at that stage: the Greens of course say that that was because they were not given the true picture of his position, but I have rejected that.

The effect of this finding is that even if Mr. Green had succeeded in establishing breach he would have shown no loss. This is a case in which, the determinative question being what Mr. Green himself would have done, that question falls to be determined on the balance of probabilities rather than on a loss of a chance basis: see Allied Maples Group Ltd. v. Simmons & Simmons [1995] 1 WLR 1602. It follows that the claim would fail in so far as formulated in tort and that even in contract Mr. Green would be entitled only to nominal damages.

April 2005 - July 2006

Mr. Green’s complaint in relation to this period is not of course that MRP had failed to approach Mr. Adams but that they failed to tell him or Andrew of the outcome of that approach. But the effect of my findings at paras. 49-54 above is that while Mr. Keens’ initial account to Andrew of the interview may not have been full or accurate, and while MRP did not thereafter communicate formally with Mr. Green senior as ideally they should have done, nevertheless he and/or Andrew were given the essential message that Mr. Adams was unwilling to assist. The Greens can have been in no doubt whatever, from the advice which they had already received, that this was bad news from the point of view of the litigation. Just how bad it was could clearly have to be discussed with counsel in due course. If they had wanted that advice sooner they could have asked for it. I do not therefore believe that there was any breach of duty on the part of MRP.

Further, if MRP had, contrary to that finding, been in breach in this respect, my conclusions at paras. 64-66 above would apply a fortiori. By April 2005 a great deal of work had been done to develop the conspiracy case, and Amended Particulars of Claim were on the point of being pleaded. Well over £200,000 had already been incurred in costs. If Mr. Green had for the first time learnt at or around that date that Mr. Adams was unwilling to be involved I regard it as very unlikely that he would not have wished to proceed.

I find that neither MRP nor Manches was in breach of duty to the Defendant.

THE PILBROW ISSUE

There is no disagreement between the parties as to the relevant law. The Court of Appeal held in Pilbrow that if a client instructs a firm of solicitors on the basis that the services which he requires are to be provided by a solicitor and those services are in fact provided by an unqualified person, however competent, the firm has failed to provide the thing contracted for and is not entitled to its fees. It is common ground that in the present case the services supplied by Manches and MRP were provided by Mr. Kirton, who was unqualified: no reliance has been placed by the Claimants on such supervision as may nominally have been exercised over him by Mr. Marshall. Mr. Sweeting did seek to distinguish Pilbrow on the basis that Mr. Kirton’s team included qualified solicitors; but I do not believe that that is a sufficient distinction given that the team was clearly working to his direction.

Accordingly the primary issue before me is whether Mr. Green knew when he first instructed MRP, or learnt at any stage prior to the conclusion of the work for which he was charged by either firm, that Mr. Kirton was not a solicitor. I will start by setting out the parties’ respective cases. Without prejudice to the formal burden of proof (which may not be straightforward) I will start with the Defendant.

It was Mr. Green’s case that he made clear to MRP from the start that he wanted the services of a solicitor. He referred in his witness statement to what he said was a contemporary note of his first telephone conversation with Mr. Kirton, on 15 September 2003. This reads as follows:

In cross-examination Mr. Green accepted that Mr. Kirton did not in the conversation there recorded claim as such to be “an expert professional”, still less a solicitor; but he said that he assumed that that was what he was, because he had made clear what he wanted and when Mr. Kirton said that he would take the case he must be taken to have accepted it on that basis. Mr. Sweeting did not put to Mr. Green that the note was not genuine or that Mr. Green did not use the word “solicitor” (Mr. Kirton, unsurprisingly, had no specific recollection of the conversation); and I must accept that he did. I should, however, make clear that I do not believe that Mr. Green was in this conversation making the point to Mr. Kirton that he wanted the services of a solicitor as opposed to an “experienced professional” who was not a solicitor (whether an experienced managing clerk/legal executive or indeed an employed barrister). There is nothing in the note or Mr. Green’s oral evidence to that effect: indeed I doubt whether the possibility that an “experienced professional” lawyer in a firm of solicitors could be anything other than a solicitor occurred to him. This finding may not strictly speaking, mean that he is not to be treated as having contracted for the services of a solicitor and in any event matters moved on subsequently (see para. 74 below); but it is relevant to other factual issues which I shall have to decide.

Mr. Prestwich also referred to the terms of the retainer letter which Mr. Kirton on behalf of MRP wrote to Mr. Green on 20 October 2003. The material parts of the letter are as follows:

It was Mr. Green’s case that it remained his understanding, and Andrew’s, throughout the period to which the fees relate that Mr. Kirton was indeed a solicitor. He points out Andrew’s use of the term “solicitor” (without correction from Mr. Kirton) in the e-mail referred to at para. 40 above. It was only when, after Mr. Nugee had given judgment, counsel for Skandia in the course of submissions about costs referred to Mr. Kirton not being “admitted” that they began to ask questions. It was Andrew’s evidence that in August 2006 he asked someone at the Law Society what “not admitted” meant and was told that it meant “not a solicitor”. It was only then that they understood the true position.

Mr. Sweeting took Andrew Green in cross-examination to the terms of the letter to Manches of 2 September 2006 raising a formal complaint (see para. 16 above). The letter mentioned the fact that Mr. Kirton was “not … even an admitted solicitor” but it did so only by way of comment on the level of the fees and made no complaint that this was a fact which had been concealed from the Greens until then. Andrew said that they had not at that point taken advice and were unaware of the Pilbrow point. I accept that that is likely to have been the case; but I see force in Mr. Sweeting’s contentious that, irrespective of any legal issue, if the Greens had felt that they had been misled on an important point of this kind they would have been likely to say so. Mr. Sweeting also pointed out that no complaint on this point was made when the Greens’ new solicitors first wrote to Manches. (Mr. Sweeting also referred to the wording of an e-mail to Mr. Kirton of 21 July 2006 raising various queries about the order for costs: the e-mail is in the name of Mr. Green senior but it seems that Andrew had a major hand in its drafting. However, the points he made by reference to it seem to me inconclusive.)

Mr. Sweeting pointed out to Mr. Green in cross-examination that at the foot of MRP’s writing-paper, on which he had received a very large number of letters between September 2003 and November 2005, Mr. Kirton is listed as a “senior associate” with an asterisk indicating “not admitted”. Mr. Green said that he had paid no attention to that. Mr. Sweeting submitted to me that that was an implausible answer and that the reason that neither of the Greens had raised any query was that they had indeed had the position explained to them. There is something in that submission, but if it stood alone I would not give it much weight. Not everyone is as interested as lawyers in the minutiae of status. For the same reason, if – which I think is likely, despite their evidence to the contrary – the Greens received Mr. Kirton’s business card and the firm’s brochure (see para. 78 below), I would not be very surprised if they failed to appreciate the significance of the way that Mr. Kirton was there described. Mr. Sweeting did not submit – and I would not have accepted the submission if he had – that the mere use of the opaque phrase “not admitted” on standard stationery was sufficient to bring home to a client who is not a lawyer that a person who he had otherwise been led to understand was a solicitor was not in fact qualified as one.

At para. 13 of his witness statement Mr. Kirton referred to his first meeting with the Greens on 4 March 2004. He said that he would on that occasion have given them his business card and the firm’s brochure (both of which used the phrase “not admitted”). He continued:

There was no independent evidence directly supporting Mr. Kirton’s account. Mr. Keens was present at the meeting on 4 March 2004 but, unsurprisingly, he did not claim to have any recollection of it. However, he did give evidence that on many occasions he had heard Mr. Kirton explain to clients his position as an unadmitted litigator in the terms set out at para. 13 of his witness statement. Mr. Keens was not challenged on that evidence, and I accept it. He went on to say that he was very surprised that Mr. Green should now be saying that he believed throughout that Mr. Kirton was a solicitor. His witness statement says “my definite view is that from the outset he knew that this was not the case”. While that statement is entirely general and is not based on any specific evidence, I do not believe that it should be wholly discounted on that account. Mr. Keens was involved with Mr. Kirton and the Greens for the best part of two years and was well-placed to form a view on the probabilities. Mr. Keens did not join Manches in November 2005 and thus no longer has any involvement with the parties. He struck me as a fair and independent witness.

It was also Mr. Kirton’s evidence that the fact that he was not a solicitor came up in conversation with Mr. Green senior on other occasions. At para. 14 of his witness statement he said this:

When that account was put to Mr. Green he was vehement in his denial, describing it as “absolutely ridiculous” and “rubbish”. He said, repeating a leitmotiv of his evidence, that he was “busy all the time” and that on Mr. Kirton’s visits – which were essentially to examine documents - he saw him and Ms. Harris only briefly “at elevenses and lunchtime”. He said that he was not in the least interested in hearing about Mr. Kirton’s background or experience. He had not been specially impressed by Mr. Kirton’s abilities: he thought he went in for too much “self-praise”, which “rang warning bells”. If anything, he said, it was Mr. Kirton who was inquisitive about his background He said that if Mr. Kirton had told him that he was not admitted as a solicitor “I’d have chucked him out of the door: I wouldn’t have had anything to do with him”. I found both the manner and the circumstantiality of that denial histrionic and unconvincing. Among other things, his comments about Mr. Kirton’s abilities have the ring of hindsight: there is undisputed evidence that he employed him for other work during this period. I defer for the present an overall assessment of the credibility of the witnesses’ respective evidence on the Pilbrow issue, but I should say at this stage that I do not find Mr. Kirton’s account in any way unlikely: even if he and Mr. Green had only met at mealtimes, the kind of conversation he describes is entirely plausible.

The Claimants also adduced evidence from a Ms. Frances Reed, who is employed by Manches and had previously been Mr. Kirton’s secretary there and at MRP. She gave evidence that she remembered an incident when Mr. Green senior had visited Mr. Kirton at MRP and that while she had been taking him up in the lift he had described Mr. Kirton as (according to her witness statement) “the best litigator that he had ever had, despite the fact that he was not qualified”. But in an effective cross-examination Mr. Prestwich was able to point to a number of inconsistencies about her evidence. I do not believe that she was lying, but I think it very possible that she was confusing Mr. Kirton with another client; and I think it right to attach no weight to her evidence.

If Mr. Kirton had taken proper care over the terms of the retainer letter, the issue about whether Mr. Green was told about his status would not have arisen: Mr. Green would have been clearly put on notice of the position and would either have accepted or rejected it. I have considered carefully whether I ought to treat the terms of the letter as a definitive statement of the terms of the retainer in this regard. It might at first sight seem attractive to do so. The point of a retainer (or client care) letter is that both parties should have an authoritative statement of the basis on which the solicitor is acting; and once such a letter (drafted, be it noted, by the solicitor) is signed there is a lot to be said for its being conclusive unless and until replaced by an equivalently formal document. But Mr. Prestwich did not in fact put the case that high, and on reflection I think he was right not to do so. In the case of other written contracts, their terms can be varied, or a waiver or estoppel can arise, as a result of oral agreement or of conduct, and I can see no principled reason why a solicitor’s retainer should be different. If I were in truth satisfied that before the work in question was done it was made clear to Mr. Green, albeit informally, that the person doing it was not a solicitor, and he made no demur, he ought not in justice to be permitted to raise the point later as a reason for not paying his bills. The burden of showing that that was so must of course be on the Claimants. In this connection I have also had regard to the observations of Denning LJ in Griffiths v. Evans [1953] 1 WLR 1424 to which Mr. Prestwich referred me (though initially for another purpose). At p. 1428 he said this:

It follows that the crucial question for me is whether I am satisfied that at the meeting on 4 March 2004 Mr. Kirton did indeed give his “standard” explanation. If he did, that would supersede Mr. Green’s initial request in September 2003 for “a solicitor”. I have come to the conclusion that Mr. Kirton did indeed give that explanation. My reasons can be summarised as follows:

I accept Mr. Kirton’s evidence that it was his standard practice to give such an explanation. I have no reason to doubt the truthfulness of his statement to that effect, and I can see good reasons why he should have had such a practice. His statement is of course supported by the evidence of Mr. Keens, who I regard as a truthful witness. Of course, people do sometimes depart from their normal practices, but I see no special reason why he should have done so on this occasion.

In contrast to his position as regards the meeting on 4 March 2004, Mr. Kirton did claim to have a specific recollection about his conversation with Mr. Green in Sussex: see para. 80 above. I have no reason to doubt the truth of this evidence, whereas, as I have said, I found Mr. Green’s denials unconvincing. If such a conversation occurred and, as Mr. Kirton says, Mr. Green expressed no surprise or objection, that tends to support the view that he was already aware of Mr. Kirton’s status.

For the reasons which I have already given, I do not regard either Mr. Green senior or Andrew as reliable witnesses, and I cannot attach significant weight to their denials. I do not regard Andrew’s use of the term “solicitor” on one occasion as inconsistent with his having been told that Mr. Kirton was not admitted. If he and his father were happy with the position, the facts about Mr. Kirton’s status are not likely to have remained at the forefront of his mind, and “solicitor” would be no more than a loose synonym for “lawyer”.

I can see nothing implausible in Mr. Green being content to accept Mr. Kirton’s services on the basis that he was not a solicitor. It is not uncommon – though admittedly the practice is declining – for experienced legal executives or managing clerks to have the conduct even of quite major litigation; and, whether or not Mr. Green knew that, if Mr. Kirton was regarded by MRP as competent to handle a case of this kind I do not see why he would necessarily have questioned it. The position would be a fortiori if Mr. Lunn, who recommended MRP, had recommended Mr. Kirton by name. Mr. Kirton’s unchallenged evidence was that MRP’s work for Mr. Lunn had been mostly handled by him; and in those circumstances it would be surprising if Mr. Lunn had not indeed recommended him individually. Mr. Green says however that Mr. Lunn had spoken to his wife rather than to him and that, at any rate as transmitted to him, the recommendation was only of MRP as a firm. I am bound to say that I find that rather unlikely and that Mr. Green’s evidence on the point had the ring of being tailored to meet this very objection.

The Greens’ failure to complain in their letter of 2 September 2006 and their subsequent letter before action that they had been misled about Mr. Kirton’s status (see para. 76 above) is in my view a point of real weight, albeit not decisive by itself.

The Claimants’ case also gains, some albeit, modest further support from (a) the Greens’ failure to query the phrase ‘not admitted’ on MRP’s stationery (see para. 77 above) and (b) the evidence of Mr. Keens referred to at para. 79.

It does not follow from this conclusion that either Mr. Green or Andrew was consciously lying in their evidence to me, and that is not the impression that I formed. They - and Mr. Green senior in particular - were clearly badly shaken by the dismissal of their claim by Mr. Nugee. They had already incurred very large costs in the expectation (however optimistic) that they would in due course be recouped from Skandia; and they were also now liable for much of Skandia’s costs. They were looking for a way out and for someone to blame. In that frame of mind, it was not difficult to convince themselves – and certainly once they became aware of the Pilbrow case - that they had been misled about Mr. Kirton’s status: memories can very easy slur over the facts in such circumstances.

I should also record my finding on one issue which might arise if, contrary to my conclusion above, the Greens were not told – or not in any way which had legal effect – that Mr. Kirton was not a solicitor. On that basis Manches’ claim would fail; but on Mr. Green’s counterclaim the issue might arise of what he would have done if he had known the true position. If I had to decide that issue, I would hold that Mr. Green would have continued to instruct MRP (and Manches) in any event. I do not believe that he would have attached decisive significance to Mr. Kirton’s status. Mr. Green’s original request for a “solicitor” was not (see para. 73 above) an indication that he was opposed in principle to having work done by an unqualified litigator: the essence of his requirement was that he wanted, in his own words, “an experienced professional”. Mr. Kirton was both experienced and, save in the most narrowly technical sense, a professional. The signs are that from the start both the Greens liked Mr. Kirton and thought he was on their side and would do a good job; and that seems to have remained the position for most if not all of the period until the defeat before Mr. Nugee. If they were troubled at all and wanted reassurance, Mr. Kirton was genuinely in a position to demonstrate his very long experience as a litigator, and Mr. Lunn would have confirmed that he was satisfied with his work. Mr. Keens, himself an experienced solicitor, was a member of the team.

SEC. 69 (2) OF THE SOLICITORS ACT

I can deal with this point shortly. The signature on many or all of the bills on which Manches sue is illegible. It is of course a statutory requirement that all solicitors’ bills should be signed by a partner. Mr. Prestwich, encouraged by the superficial similarity of at least some of the signatures in question to Mr. Kirton’s signature, put Manches to proof that each of them had indeed been signed by a partner in the firm rather than by Mr. Kirton. Mr. Zietman, for Manches, Head of Commercial Litigation and Arbitration, gave evidence before me and confirmed that that was the case. In most cases he was able specifically to identify the signatory, but even where he could not I am satisfied that under the firm’s procedures it is extremely unlikely that a non-partner would have been asked to sign a bill or would have done so. Mr. Kirton confirmed that none of the signatures was his. I am satisfied that all the bills in question were signed by a partner.

The Claimants are entitled to judgment on the bills identified in the Particulars of Claim, subject to the outcome of the assessment already ordered. The Defendant’s counterclaims against both Manches and the former partners in MRP are dismissed.

Nothing in this judgment should be taken as expressing any view on the merits of the criticisms of the work of MRP and Manches which may be made on the assessment. I can understand why the Greens were dismayed at the size of the bills which accrued in connection with the Skandia litigation, particularly if (as I am told) they far exceeded the estimates given. But I am not in a position to make even a provisional judgment as to whether those bills were indeed excessive or whether any departure from the estimate was justifiable. All that I can say is that the battlefields which the Greens have so far chosen in an effort to avoid or mitigate their liability were the wrong ones.