Say v Howard Gurpinar LLP

I have to give my judgment now on an application which has been made by Mr Say under Rule 39.3 of the Civil Procedure Rules to restore his case after it was struck out when he did not attend on the first hearing day of the trial on 19^th February 2013.

These proceedings have a long and tangled history. They started in 2008 and there have been many hearings and events in the proceedings since then, which I will not recount now. A major difficulty which Mr Say has faced in these proceedings is that he has been having to conduct them in person, because he has been unable to afford legal representation.

His claim is against a firm of solicitors called Howard Gurpinar, who acted for him in 2007 and 2008 - until July 2008 when their retainer was terminated by Mr Say. Mr Say contends that they were negligent in various respects, to which I will return. All the allegations are connected in one way or another with a lease of premises in Corby, where Mr Say was the lessee and was involved for many years in ongoing disputes with his landlord.

As he has explained to me very clearly today, the background to those disputes was that the landlord did not want small businesses such as his in the area which they owned and in the centre of Corby. They wanted to redevelop his premises and others and they were trying as hard as they possibly could, if they could not evict him, at least to make life difficult for him, he says, and to prevent him from continuing his lease. It is that dispute with his landlord which, Mr Say says, prevented him at the end of the day from carrying on a profitable business and has caused many problems, personal and financial, for him; and he blames his solicitors - the defendants in these proceedings - for those problems and contends that they were negligent in various respects in handling those disputes with his landlord.

This case was listed for trial to begin in a three-day window, the first day of which was Monday, 18^th February of this year. The judge in fact took the first day, the Monday, as a reading day and the first day of the hearing, as the parties were told, was due to be Tuesday, 19^th February. As the trial date approached Mr Say recognised that it was going to be very difficult for him indeed to conduct his case himself and he made renewed efforts at that stage to find a legally qualified person to represent him. He tells me he had been trying throughout the proceedings to find solicitors or barristers who would represent him, but he renewed those efforts in the days coming up to the trial.

He has shown me an email which he received from a barrister’s clerk on 11^th February, indicating that there was a barrister whom Mr Say had met and who was in principle willing to act for him, but who required to be paid £50,000 up front in order to conduct the case. However, unfortunately for Mr Say, as he further explained to me this morning, he was not able to raise that money. He had hoped that there was a person who was willing to lend him the money in order to finance the case, but that person in turn, I am told, had difficulty in raising funds and the long and short of it is that Mr Say was unsuccessful in his efforts to raise the money to pay someone to represent him at the date which was fixed for the trial.

I am told by him that his efforts have continued since that day and since his claim was struck out, but even now at today’s date he remains, regrettably, in the situation where he has not as yet managed to raise funds to pay for legal representation. Therefore the position he is in now and will be for the foreseeable future, unless and until that position might somehow change, is that he has no alternative but to conduct these proceedings himself.

On the weekend before the trial was due to start Mr Say was understandably anxious about the situation - about his lack of success in obtaining legal representation and about the fact that the trial was due to start on the Monday or Tuesday. He has, as I have seen from documents that I have been shown and as he has told me, a history of health difficulties including blood pressure problems, and it seems that on the evening of Sunday 17^th February Mr Say had an episode of fainting. He has told me his pulse was racing and an ambulance had to be called to take him to the accident and emergency department at the Middlesex Hospital. I am sure, and it was explained to the judge on the last occasion, that it was the prospect of the trial which induced that episode of acute anxiety and caused Mr Say to have to make that hospital visit. In the end he left the hospital in the early hours of the morning and returned home, having recovered sufficiently to do so.

On the Monday which was the judge’s reading day, 18^th February, Mr Say came to court with Mrs Yavouz, who I should mention has been acting in these proceedings as his Litigation Friend, and went to the court office and delivered a letter to the court office asking if the judge would adjourn the case. The court office gave no suggestion that the case could be adjourned and the position therefore was that Mr Say was due to appear in court on the following day, Tuesday, 19^th February, which was to be the first hearing day of the trial. On that day, however, Mr Say did not attend court. He went in the morning to his GP, at about 7.30 or 8 o’clock that morning. He tells me that the GP was unwilling to listen on that occasion to the problems that he wanted to tell the GP about with his blood pressure and the problems with anxiety that he had been having; but the GP gave him a prescription for some antibiotics and a certificate that he was unfit to work, because of an acute chest infection.

Mr Say gave those documents to Mrs Yavouz. He did not attend court himself on that day. Mrs Yavouz did attend court to seek to explain his absence and asked the judge if he would be willing to adjourn the trial. There was discussion of an adjournment of the trial, but when the judge suggested that there would be conditions imposed before he was willing to consider an adjournment, including an immediate payment of costs, Mrs Yavouz took the position – having gone out of court to make a telephone call to Mr Say - that in that event, because Mr Say could not afford to make such a payment, he would come to court if necessary the next day to be present in court.

The judge at that point decided that he would strike out the claim under 39.3 of the Civil Procedure Rules, because Mr Say had not attended the trial as it was his obligation to do on that day, and that it would be necessary to make an application to restore the case if Mr Say wished to proceed with it. That was the order which the judge then made. Regrettably, from the transcript, it seems that the hearing ended in a way which does not make pleasant reading and I do not think it profitable or necessary to investigate those matters further today. All that matters for today’s purposes is that the judge made an order which, in circumstances where Mr Say was absent, the Court was fully entitled to make and that as a result an application needs to be made, as it now has been made, by Mr Say if he wishes to have his case restored.

On this application there are three requirements, which the applicant has to show and which the Court has to be satisfied about before the Court has power to restore the case. Those requirements are: first, that the applicant acted promptly when he found out that the Court had exercised its power to strike out the claim; second, that he had a good reason for not attending the trial; and third, that he has a reasonable prospect of success at the trial.

So the position on the hearing today is that, unless Mr Say can satisfy all of those requirements, then I, as the judge hearing the matter today, have no power to restore his case. If on the other hand he can satisfy all three requirements, then I have to consider whether, in the overall interests of justice, his case should be restored.

As to the first requirement, it is accepted that Mr Say has acted promptly after he found out that the Court had struck out his claim and made this application, which was issued on 25^th February 2013, in order to restore the case. So the first requirement is satisfied.

The second issue is whether Mr Say had a good reason for not attending the trial. It is necessary here to draw an important distinction. What, under the rules, Mr Say has to show is that he had a good reason for not being present in court on that day. His obligation as somebody conducting his own case and who had no solicitor who was able to appear for him was to attend by being physically present in court on the first day of the trial.

There is a second and separate question which may also be relevant if all three requirements are satisfied as to whether, even if Mr Say could have physically attended court on that day, he was in a fit position properly to represent himself and argue the case and to conduct what was expected to be a six or seven day hearing.

In the way of medical evidence Mr Say has provided, through a witness statement made by Mrs Yavouz, copies of the certificate issued by his GP and the prescription given to him on the morning of 19^th February, which I have already referred to. It seems that after that, on 21^st February, he attended another appointment with his GP, who on this occasion did give attention to his problems of blood pressure and anxiety and gave him a prescription for a tranquilizer and an appointment for blood tests, which as I understand have still not been carried out.

Since then Mr Say has also been referred to the Enfield Primary Care Mental Health team and I have been provided with two letters from a mental health worker who is a member of that team dated 22^nd February 2013 and 5^th March 2013. Those letters explain the damaging effects which this litigation has been having on Mr Say’s mental health and when I read them this morning I felt considerable concern, because they set out in detail what he has explained to the mental health practitioner about the damaging effects which this litigation has been having on him, and when I asked him about these matters he confirmed them to me this morning.

In the first letter of 22^nd February the writer refers to not only this case, but apparently seven civil litigation cases in all in which Mr Say has been involved over the years - at any rate a significant number and the fact that he had been asked by his family to stop pursuing legal actions. The letter also mentions that he had left his family - in fact, as he told me, his wife had left him - as a result of these legal battles and the effect that they were having on him. The letter also says:

“He reports being increasingly agitated. His thoughts rush through his head and he finds it difficult to think. He frequently feels very angry as though he is going to explode, although he has been able to control himself. He denies any history of violence.”

Then it goes on to discuss his social situation and previous psychiatric history.

In the second letter of 5^th March there is a description of Mr Say’s state of mind when he saw the writer on 5^th March:

“He was in an agitated state. He went into a long explanation of his legal difficulties.”

And then there is a reference to what the author was told about those:

“He was distressed when describing this to me and showed me a letter he had written to the Queen in which he appeals for her help. He had shown me similar correspondence previously. During the interview his thinking appeared disordered with a strong sense of persecution. He has no insight and is preoccupied with these legal battles. He looked tired and distressed. I was concerned about his ability to attend court, given that he appears to be psychotic.”

It is clear from those letters and from what Mr Say has told me this morning that this litigation has been taking a very heavy toll on his physical and his mental health and that he is finding it extremely difficult to cope with the pressures to which he has been subjected through it. This has, moreover, as I have mentioned, even led to him leaving or being left by his family. I asked Mr Say why, in those circumstances, he was continuing to pursue litigation in circumstances where it seems to be doing him so much harm. He explained to me that he sees it as a matter of pride and honour and feels that, whatever the personal cost to him, he must do everything he can to pursue this case.

The conclusions that I reach on the evidence about Mr Say’s failure to attend court on 19^th February and on the second question of his fitness to conduct litigation are, first of all, that there was not a good reason why he could not physically have presented himself in court on 19^th February. I accept that he was highly stressed and anxious. I accept that he had a chest infection. But he was able to come to the court office on the previous day and the court was told that he could, if necessary, have come to court on the following day and I do not consider that he has demonstrated that he was unable physically to have attended court on 19^th February. For that reason, he has, as I conclude, failed to satisfy the second requirement under rule 39.3.

But I am also equally satisfied that, if Mr Say had come to court on that day, he would not have been in any fit condition to conduct as a litigant in person a six or seven day trial. He has struggled, understandably, today in the half-day or so that this hearing has lasted; and from what I have seen of Mr Say and from the letters which I have referred to, I conclude that attempting to conduct a six or seven day trial in his current circumstances would be a dangerous and damaging thing for him to try to do.

There is nothing to suggest that in the foreseeable future that position will in any way change. The only thing that could possibly change which would enable, as I see it, Mr Say to conduct a trial of this case would be if somehow he were able to raise the funds to pay for somebody to do it on his behalf. But as matters stand at the moment, there is no evidence which indicates that there is any foreseeable or realistic prospect that that will occur.

What I infer from all of that is that, even if he had attended court on 19^th February, so that his claim had not then been struck out, he would not have been in a position realistically to go ahead with the case on that day. He is not realistically in a position to do so now and the inevitable result, I think, is that the Court would, if he had attended Court, have felt compelled to stay his claim until such time as in the future he might, if circumstances changed, have sought to make an application to lift that stay and attempt to proceed with the claim.

The third requirement under the rule, as I mentioned earlier, is that it is necessary for Mr Say, even if he had been able to demonstrate that there was good reason for his non-attendance on 19^th February, also to show that his claim has reasonable prospects of success. On this issue I have read the Defendant’s written opening submissions for the trial, which go in great detail through each of the four claims which are made against the Defendant firm of solicitors and point out what the Defendant says are a series of serious and indeed insurmountable objections to each of those claims.

Mr Say did not produce any skeleton argument for the trial, although there was an order which required him to do so, nor has he produced any written argument today to attempt to persuade the Court that he does have reasonable prospects of success and to answer any of the objections which have been raised by the Defendant. I have read, however, his witness statement containing the evidence that he would give if the trial of this matter were to proceed and I have listened as carefully as I can to what he sought to explain to me today about his claim and the arguments that he wishes to advance.

I am prepared for today’s purposes to make all reasonable assumptions in his favour where there are disputes of fact which could only reasonably be resolved by hearing evidence from witnesses if a trial were to take place. But it does seem to me that each one of the four claims which Mr Say advances in this action does have very serious difficulties facing it and does in each case face at least one difficulty, if not more, as to which I am unable, on the information that I have seen today, to see what answer could reasonably be given to it.

The first claim – and perhaps the one on which Mr Say places most emphasis - is a claim that Howard Gurpinar failed to obtain the renewal of his lease of the property in Corby. He says that they were instructed to do so, but they failed to take steps, whilst they were retained, to attempt to renew the lease and his lease was not renewed by the landlord. There were subsequent attempts to obtain a new lease by taking court proceedings. The landlord fiercely resisted those proceedings and ultimately Mr Say reached an agreement with the landlord under which he withdrew his application for a new lease in exchange for a payment which was, as I understand it, double the amount of statutory compensation payable to him.

The serious problems which this claim faces include these. First of all I was shown correspondence which includes notes of meetings in which Howard Gurpinar was told by Mr Say that at this stage he did not wish to pursue the renewal of the lease. But even if I leave those aside, it was also pointed out that any failure - if failure there was by Howard Gurpinar - to make an application to the court for a compulsory renewal of the lease, did not prejudice Mr Say, as he brought proceedings himself within the relevant time against the landlord and it was those proceedings which ultimately were compromised by the agreement to pay the double statutory compensation that I mentioned.

But more fundamentally than all of that, it is quite clear from everything that Mr Say has told me this morning that the landlord was fiercely opposed to any continuation of the lease and was determined, by hook or by crook even, to prevent Mr Say’s lease of the property from continuing any longer than could possibly be avoided. What is more, the landlord’s reason for that included the fact that he wished to redevelop the property and had been seeking planning permission in order to do so.

There is a witness statement from a Mr Rawlings who was employed either by the landlord or by a related company, who makes it quite clear in his evidence that it was not the landlord’s intention to renew the lease, that it had decided to develop the property and that there was no prospect of the landlord renewing the lease, I am unable to see that Mr Say has adduced in these proceedings, or could adduce, any evidence which would give him any reasonable prospect of persuading the Court to reject that evidence of Mr Rawlings.

The second claim which Mr Say makes is a complaint that Howard Gurpinar failed, before the limitation period expired in June 2008, to issue proceedings against a firm of solicitors who had previously acted for him called Lamb and Holmes. The complaint against Lamb and Holmes was that it was said that they were responsible for the landlord forfeiting the lease back in June 2002. At that time Lamb and Holmes were holding in their client account a sum of £5,000 odd. Once Mr Say became involved in a dispute with the landlord, Lamb and Holmes no longer wanted to act for him, a matter about which he complains, because they acted for the landlord in other matters and considered that they were in a position of conflict of interest.

On 5^th June 2002, Lamb and Holmes had written a letter to Mr Say referring to the money which they held on account and asking if he wanted them to pay it over to the landlord. Mr Say did not respond directly to that, but on 12^th June new solicitors acting for him wrote a letter to Lamb and Holmes - these new solicitors being Shuttari Paul & Co - in which they said:

“We understand that Mr Say has placed your offices in funds for the payment of rent. Could you please forward the monies to the landlord?”

They also in that letter asked Lamb and Holmes to forward their papers. Unfortunately, the authority which Shuttari Paul & Co enclosed with the letter only authorised Lamb and Holmes to release their papers and did not contain authority to pay the arrears of rent to the landlord. Understandably in those circumstances, Lamb and Holmes sought further authority before making any payment; they sought confirmation that Mr Say did indeed give instructions for that to be done.

However, before anything else had been done, out of the blue I am told, on 14^th June the landlord abruptly forfeited the lease. That caused severe inconvenience and financial loss to Mr Say, who had to take steps to obtain relief against that forfeiture. In making this claim against Howard Gurpinar for failing in their turn to make a claim against Lamb and Holmes for not paying over the £5,000 towards the rent owed to the landlord, the problems which Mr Say faces include these. In the attendance notes which I have seen it appears that Howard Gurpinar first of all needed more information from Mr Say in order to formulate a claim and, second, were asking for £5,000 on account in order to do so. Mr Say takes issue that that was indeed the correct position and for present purposes I am willing to assume in his favour that he may have an answer to that, although it is not clear to me at the moment what it would be.

The further and fundamental problem, as it seems to me, about this claim is that I cannot see that a claim against Lamb and Holmes would have had any realistic prospect of success. That is for two reasons. The first reason is that on the correspondence I can see no criticism properly to be made of Lamb and Holmes for not paying the £5,000 to the landlord in circumstances where they had not received a clearly authorised instruction from Mr Say to do so. The second problem is that the amount of rent owed was significantly more than £5,000, so that, even if that sum had been paid, there would have been approximately another £5,000 still owing and, given the intransigent and possibly unreasonable position which the landlord was adopting at that stage, I see no reason whatever to suppose that the landlord would have been deterred from forfeiting the lease by receipt of only part of the money that it was claiming.

For those reasons I do not consider that the claim against Lamb and Holmes had any realistic prospect of success and it follows from that that, even if Mr Say could somehow establish negligence on the part of Howard Gurpinar in not bringing proceedings against Lamb and Holmes, I see no reasonable prospect of showing that had such proceedings been brought they would have resulted in a recovery of money by Mr Say. On the contrary, the likelihood seems to me to be that they simply would have cost Mr Say money without bringing him any benefit in return.

The third allegation made against Howard Gurpinar is that they are said to have been negligent for failing to pursue another firm of solicitors - that is the firm Shuttari Paul & Co, which I mentioned. It is said that there were three claims or potential claims against Shuttari Paul & Co, which could and should have been made on behalf of Mr Say by Howard Gurpinar. The first is a claim that Shuttari Paul & Co were negligent for not suing Lamb and Holmes for negligence in failing to pay over the money held in their client account. Apart from other difficulties, that claim faces the same fundamental problem as the claim against Lamb and Holmes itself, because if, as I have concluded, there was no reasonable prospect that a claim against Lamb and Holmes would have generated any recovery, it must by the same token follow that there was no reasonable prospect that a claim against Shuttari Paul & Co for failing to sue Lamb and Holmes would have generated any recovery.

The second complaint about Shuttari Paul & Co is that they did not accept an offer which had been made to Mr Say to vary his lease and surrender a storage room which fell within the scope of his lease and to be paid £40,000 for doing so. It is apparent from the correspondence, which I have been shown, that such an offer was made by the landlord but was not accepted by Mr Say and that the offer was then withdrawn by the landlord. I see nothing to indicate that on those facts there would be any reasonable prospect of successfully suing Shuttari Paul & Co for non-acceptance of the offer, from which it in turn follows that a claim against Shuttari Paul & Co for negligence would itself have been a worthless claim and that Mr Say has lost nothing of value, even if he were able to establish that Howard Gurpinar were at fault in failing to commence such a claim.

The last limb of the claim which it is said ought to have been brought against Shuttari Paul & Co by Howard Gurpinar on Mr Say’s behalf relates to the failure, it is said, to remove a charge over the property. I am not in a position to consider today the effect that that charge had on Mr Say and I am prepared to take his word that the charge did cause him ill effects in leaving him to have to attempt to borrow money. But he faces here a fundamental problem that there is no evidence that Shuttari Paul & Co were ever instructed by him to secure the removal of the charge, nor have I seen evidence that Howard Gurpinar were instructed to bring a claim against Shuttari Paul & Co on that basis.

The final claim included in these proceedings against Howard Gurpinar was a claim for alleged negligence in failing to pursue a rent review arbitration. That arbitration related to a review of rent payable under Mr Say’s lease with effect from November 2002. The arbitration proceedings were commenced long before Howard Gurpinar were involved, and the proceedings continued for some two years after Howard Gurpinar ceased to act, until they finally concluded in 2010, when the arbitrator issued an award in which he found that the landlords were entitled to increase the rent - in fact by significantly more than the amount of the increase which they were seeking. The arbitrator therefore upheld the rent increase sought by the landlord from what had been £15,500 a year before November 2002 to £16,800 a year from that date.

A difficulty which Mr Say faces is in demonstrating what Howard Gurpinar were expected or instructed to do in relation to that arbitration during the period when they were acting on his behalf. But even if I assume in his favour that they ought to have been taking what steps they could to progress the arbitration, I am unable to see that he has any reasonable prospect of showing that inaction on the part of Howard Gurpinar has ultimately caused him any prejudice. The essential reason for that is that the arbitration continued, as I say, for some two years after Howard Gurpinar had ceased to act and there is nothing to suggest that any inactivity during the period of their instruction made any ultimate difference to the result of the arbitration, or that the result would have been any better or different for Mr Say had Howard Gurpinar taken action during the period of their retainer to progress the claim on his behalf.

So, for those reasons, I am not persuaded that Mr Say has reasonable prospects of pursuing any of the claims made in these proceedings, and for that reason too I conclude that I do not have power under rule 39.3 of the Civil Procedure Rules to restore this claim. Even if I did, then, as I said earlier, unless and until Mr Say is able to raise money to enable him to instruct a lawyer, he would, so far as I can see, be in no position realistically to conduct a trial of the claim and so fixing another trial date would in any event, in my view, be pointless.

I know that the conclusions that I have reached today will be extremely disappointing for Mr Say. I hope he will at least go away knowing that he has done everything he possibly could to try to pursue this case and I hope that in due course he may come to recognise that it may actually have been of benefit to him and not least to the good of his own health and wellbeing that this litigation will now end.