Shaw v Leigh Day (a firm)

This appeal is brought by the Claimant, Mrs Gabriele Shaw, against the part of the Order of District Judge Hovington dated 18 May 2015 striking out her personal claim for damages for professional negligence against the Defendant solicitors pursuant to CPR 3.4(2)(a) and/or pursuant to CPR 24.2(a)(i). The District Judge granted permission to appeal, very fairly identifying three grounds on which the Claimant stood a realistic prospect of successfully overturning his decision. After hearing counsel’s arguments on 6 April 2017, I indicated that I would allow the appeal, but that I would give my reasons for doing so in a reserved judgment.

The background to the claim was described in some detail in paragraphs 3-13 of the judgment below. It began with the death of Mrs Shaw’s elderly father, Mr William Ewan, on 26 September 2007 following a surgical procedure to implant a trans-aortic valve (known as a TAVI procedure). This was a relatively new procedure. The post-mortem reports revealed physical trauma to the aorta at the site of the placement of the prosthetic valve, which had been followed by haemorrhage and severe blood loss, leading to his fatal cardiac arrest.

Mrs Shaw strongly suspected that there had been clinical negligence on the part of the surgeon, the hospital, or both. She initially instructed the Defendant in April 2008 to advise in relation to, and to represent her at, an inquest into her father’s death (“the Inquest”). By June 2009 the family had found out that the valve which had been used during the TAVI undertaken on Mr Ewan had been the subject of a recent clinical trial. After that information came to light, the Coroner ruled that the Inquest would be an Article 2 Inquest (with a jury) to include an enquiry into the circumstances of Mr Ewan’s death and any systemic failings which may have contributed to it.

The Inquest was held over thirteen days in January 2011, resulting in a finding that the catastrophic blood loss and resulting death of Mr Ewan were the unintended outcome of a therapeutic medical procedure. No adverse findings were made against the University Hospital of Leicester NHS Trust (“the NHS Trust”) or against the consultant cardiologist who performed the operation, Dr Kovac. Mrs Shaw sought to challenge the verdict by bringing judicial review proceedings, and obtained permission, but Burnett J rejected the claim, and permission to appeal was refused by the Court of Appeal at an oral hearing on 11 February 2014. On Mrs Shaw’s pleaded case in the professional negligence action, one of the reasons why judicial review was refused was that certain of the complaints she made could and should have been articulated by her legal representatives at the Inquest itself.

A claim for damages for clinical negligence against the NHS Trust and Dr Kovac was issued on behalf of Mr Ewan’s Estate on 23 September 2010, and particulars of claim were served in March 2011. The claim was stayed pending the outcome of the judicial review proceedings.

It appears that there was no separate written contract of retainer in respect of the clinical negligence proceedings, although Mrs Shaw had instructed the Defendant to act in respect of the claim for damages for clinical negligence as early as September 2009. There was, or should have been, an obvious overlap between the work to be done in conjunction with preparing for the Inquest, and the work to be done in preparation for bringing the clinical negligence claim. In both sets of proceedings, the focus of the solicitors’ industry should have been on ascertaining what documentary and other evidence could be obtained, and from which sources, to establish whether Mr Ewan’s death had been caused by negligence on the part of the NHS Trust and/or Dr Kovac.

The Claimant became increasingly dissatisfied with the service that she was receiving from the Defendant, as well as with its cost. She became very critical of its handling of the Inquest and such of the clinical negligence claim as it dealt with. Her complaints centre on the alleged failure by the Defendant to procure sufficient documents and other evidence about the clinical trials on the valve, to enable leading counsel to put all relevant facts before the Coroner and the jury at the Inquest, and to support the claim for clinical negligence. The relationship between solicitor and client became increasingly fractious during the early part of the judicial review proceedings, and eventually broke down altogether. The Defendant ceased acting for the Claimant and the Estate. It came off the record in the clinical negligence proceedings in February 2012.

In February 2014, when the stay was lifted following the Court of Appeal’s refusal of permission to appeal in the judicial review proceedings, the Claimant instructed her current solicitors to act in place of the Defendant in the clinical negligence action, and the claim against the NHS Trust and Dr Kovac was re-amended.

The claim form in the professional negligence action against the Defendant was issued in Manchester County Court as a precautionary measure (to preserve time) on 8 April 2014. It was allocated to the multi-track on 30 December 2014. The claim was quite properly brought in contract for breaches of the contract of retainer, as well as in tort, for breaches of the parallel duties to take reasonable care in and about the provision of professional services under the contract. The Defendant strongly denies any actionable wrongdoing, and intends to fight the claim if it is allowed to proceed.

Initially that claim was issued by Mrs Shaw in her personal capacity alone. When the District Judge struck out the claims brought by Mrs Shaw in her personal capacity, he allowed her application to amend the claim form to join her as the personal representative of the Estate of her late father, thereby preserving the pleaded claims for certain heads of damage that were properly characterised as recoverable by the Estate instead of by Mrs Shaw. The professional negligence claim was then stayed to abide the outcome of the clinical negligence claim brought by the Estate, which had recommenced and was progressing towards trial.

At the hearing of this appeal, Mrs Shaw sought to adduce fresh evidence that was not available at the time of the hearing before the District Judge. That application was not opposed by Miss Boon on behalf of the Defendant, and I was satisfied that the test for admission of further evidence on appeal was met and that it would be in the interests of justice to admit it. The fresh evidence provided an update on important matters that have occurred since the professional negligence claim was struck out in May 2015. Following three specific disclosure orders made against the cardiologist and the NHS Trust on 15 October 2014, 18 December 2014 and 20 January 2015, despite strong resistance, and a non-party disclosure order made against the valve manufacturer in April 2015, the NHS Trust submitted to judgment on the amended claim on 25 June 2015. Dr Kovac initially sought to resist the claim against him on the basis that judgment had been obtained against the NHS Trust, but he eventually submitted to judgment on the amended claim on 22 October 2015.

Although there was no formal admission of liability, by consenting to judgment both defendants to the clinical negligence proceedings accepted that they were negligent in the manner alleged in paragraphs 9-15 of the re-amended particulars of claim. This included an allegation that those defendants failed properly to care for Mr Ewan once it was realised there was damage to the aorta.

On 28 October 2015, an assessment of damages hearing took place before HH Judge Platts. In his judgment, Shaw v Kovac and another [2015] EWHC 3335 (QB), the Judge referred to the prolonged history of the litigation, which he attributed to “the family’s understandable desire to know what has happened to their much-loved father”. He awarded damages to the Estate totalling £13,686.17, but refused to grant freestanding damages for the failure to obtain Mr Ewan’s informed consent to the procedure. However, on 2 August 2016 the Court of Appeal granted permission to appeal that aspect of his judgment.

It was common ground before me that if and to the extent that the Estate recovers from the defendants to the clinical negligence proceedings damages that would otherwise form the basis of the Estate’s claim for damages in the professional negligence proceedings, there can be no double recovery.

In the light of an agreement between the parties to the clinical negligence proceedings recorded in paragraph 41 of his judgment, Judge Platts directed that a claim made in respect of the costs of the Inquest should be considered as costs incidental to the claim following the decision in Roach v Home Office [2010] QB 256, and therefore would have to be considered within the costs proceedings. He refused to entertain an application by Mrs Shaw to be joined as a party to the proceedings in her own right, in case it was argued by the NHS Trust and Dr Kovac that the costs of the Inquest were a loss that she had incurred personally and not a loss incurred by the Estate, but only on the basis that the application was premature. He made it plain that his ruling did not debar her from applying to be joined to the costs proceedings for the same purpose, and that he was not pre-judging the outcome of any such future application. If the costs of the Inquest are awarded either to the Estate or to Mrs Shaw personally in the costs proceedings, then again, there would be no basis for recovering them as damages in the professional negligence proceedings.

A claim made in the clinical negligence proceedings to recover the costs of the judicial review and the application to the Court of Appeal in the judicial review proceedings was expressly abandoned by Mr Berkley QC before HH Judge Platts, who expressed some understandable doubt as to how the Estate could advance such a claim, given that the costs orders were made against Mrs Shaw personally.

With that by way of background, I turn to consider the merits of this appeal.

The appeal from the District Judge’s order is directed towards the matters dealt with in paragraphs 31 to 38 of his judgment. The District Judge was not prepared to accept the Defendant’s argument that the absence of expert evidence supportive of the pleaded case was fatal to the claim (rightly, it transpires, in the light of what subsequently happened in the clinical negligence claim). He properly approached the application to strike out or for summary judgment on the basis of an assumption that the Claimant would succeed in establishing at trial the pleaded facts on which she relied in support of her claim that the Defendant had negligently performed its contractual duties to her. Thus he started from the premise that the claim was a genuine one, subject only to proof of loss.

His decision to accede to the Defendant’s application was based on the conclusion that, if she established the breaches of contract pleaded in the Particulars of Claim, Mrs Shaw could not prove that she had suffered any recoverable loss in her own right, over and above a right to nominal damages, and that a claim for nominal damages “does not sit comfortably with the court’s obligation to deal with cases justly and at proportionate cost.” It is of some importance in this context to note that the claim to strike out the statement of case was brought under CPR 3.4(2)(a) on the basis that it disclosed no reasonable cause of action, rather than under CPR 3.4(2)(b), on the basis that it was an abuse of process. A claim that could succeed in obtaining an award of nominal damages is not a claim which is bound to fail. However, logically the first consideration should be whether Mrs Shaw has an arguable claim for recovery of other heads of damages. If she does, the issue of recovery of nominal damages ceases to matter.

The District Judge quite rightly held that it was not, and could not have been, an express term of the contract of retainer to represent Mrs Shaw at the Inquest that the Defendant solicitors undertook to obtain a particular outcome. The claim is not pleaded on the basis that it was. He also correctly held, by reference to the authorities cited to him, including Watts v Morrow [1991] 1 WLR 1421 and Farley v Skinner [2001] UKHL 49, that to fall within the exceptional category of cases in which damages for distress can be recovered for breach of contract, it is sufficient that a major or important object of the contract (as distinct from its primary purpose) is to give pleasure, relaxation, or peace of mind.

However, he then said this: “a desired or satisfactory outcome to any legal process is always likely to afford a degree of pleasure or peace of mind but so, it might be said, would the satisfactory performance of very many contracts”. On that basis, he held that there was no real prospect that the court would include a contract of the kind with which this case was concerned within the scope of the category of exceptional cases in which damages for distress could be recovered.

That finding is not a matter of judicial discretion but a matter of law, and an appeal court is entitled to overturn it if it is wrong.

In granting permission to appeal, the District Judge expressly recognised that the Claimant had a real prospect of successfully arguing on appeal that there were arguable issues on the recoverability of damages for distress in relation to a contract for the provision of legal services.

Miss Boon submitted that the categories of case in which damages for distress have been awarded in the past have been those where the very object of the contract has been pleasure or enjoyment, the typical example being a contract for a holiday or the provision of other leisure services. She pointed out that if an insurer fails to pay out on a claim when there is loss of or damage to a treasured family heirloom, the assured may understandably become extremely upset, but a successful claim in contract against the insurer does not entitle that person to damages for distress. She submitted that a contract for legal services falls unarguably on the same side of the line as a contract of insurance. If a lawyer does a bad job for his client, the client is bound to be annoyed and may become very upset, but that does not justify an award of damages to compensate for the emotional impact of the solicitor’s behaviour.

Although Miss Boon disavowed the contention that a claim for damages for breach of a contract for the provision of legal services could never give rise to an award of damages for distress, it seemed to me to be a natural consequence of her argument drawing the analogy with insurance. That cannot possibly be right; the Court needs to inquire what the client’s known objective was in hiring the lawyer in the first place. Awards of damages for distress have been made against lawyers retained in cases where they were engaged to protect children from a risk of molestation, for example.

Attractively though Miss Boon’s submissions were put on this point, I cannot accept them. The District Judge articulated the correct legal test, but failed to apply it, because he then addressed the wrong question. Instead of asking whether it was sufficiently arguable for the purposes of defeating a strike-out or summary judgment application that peace of mind was at least one major object of the retainer of a solicitor to advise and represent the family of the deceased at a public inquest, he focused on the point he had adverted to earlier, namely, that the contract was not intended to achieve a specific outcome at the Inquest. If by “outcome” he meant verdict, as he plainly did, he was mixing up the outcome with the object of the retainer. That is where he fell into error.

Whilst I agree that the contract was not concerned with achieving a particular verdict, it was concerned with ensuring, so far as possible, that the circumstances leading to Mr Ewan’s death were sufficiently investigated to provide the family with an answer to the question why their loved one died after undergoing the TAVI procedure. As Judge Platt recognised in his judgment in the clinical negligence proceedings, the desire to know what happened was the driving force behind all this litigation. The claim is pleaded on the basis that the Defendant was aware from the time of its instruction by the Claimant that establishing the full facts of her late father’s death was of paramount importance to her, that she had written fully to the Defendant in such terms on 6 March 2008, and this had been acknowledged by the Defendant.

The answer that is ultimately provided following an inquest may not be the answer the deceased’s family is hoping for; the District Judge made the valid point that the fact that a client may attach significant emotional value to a particular inquest verdict will not be enough to warrant an award of damages for distress. However, the client is still expecting an answer based on a satisfactory factual investigation, an answer that will give him or her the peace of mind or sense of satisfaction that comes with knowing that the matter has been properly and thoroughly investigated, and that is the very reason that they engage a lawyer to look after their interests. Inquests have an emotional element that is unique, and absent from other forms of legal process. If the solicitor retained to put the necessary materials before the Coroner and jury does not carry out his or her job with sufficient diligence, the client will never receive that comfort.

At this stage, all that I need to determine is whether there was a realistic, rather than fanciful, prospect of persuading a trial judge that at the time when Mrs Shaw engaged the Defendant to represent her at the inquest, an important object of that contract was to obtain peace of mind (or as families sometimes put it after an inquest or other form of public inquiry, “closure”). I consider that the point is plainly sufficiently arguable to get over the threshold for summary judgment or strike-out; indeed, I would go so far as to suggest that the Claimant may well have the better of the argument.

The fact that the Defendant has taken the position that there is no arguable legal basis for recovering any part of the fees paid to a solicitor as damages for negligent performance of his or her services in representing the client at, and in connection with, an inquest into the death of a close family member, unless it can be demonstrated that the solicitor failed to perform a discrete chargeable task, only serves to reinforce that view. If the Defendant is right on that point, the solicitor could do a second-rate job, the client could prove it at trial, and despite this the court would be powerless to award anything more than nominal damages, because it could not even compensate the client for the distress that objectively both contracting parties would contemplate as likely to arise in such circumstances.

In any event, it appears that there is no decided case on this point in relation to inquests; that alone would be sufficient reason for this matter to be allowed to proceed. There is a wider public interest in ascertaining whether a contract engaging a lawyer to take on this role in connection with an inquest is of the exceptional type that, when breached, could give rise to an award of damages for distress. This was never a suitable case for summary judgment.

The District Judge dealt with this aspect of the claim in paragraph 38. He articulated the well-established principle that where a defendant has substantially performed the work that it was engaged to do, such that there is some value to the claimant, it is entitled to be paid, and if the client is able to show that the work was performed negligently, then their remedy takes the form of an award of damages. However, he did not apply his mind at that stage to the question of how those damages should be computed. Having next referred to the fact that the Defendant was paid an amount of fees agreed by way of compromise of proceedings brought under the Solicitors Act 1974, he dismissed this head of claim on the basis that “there is nothing in the material before me that persuades me that the Claimant has any real prospect of demonstrating a total failure of consideration, or that the contract of retainer is susceptible of severance”.

It is fair to say that the way in which this head of damages has been articulated has developed somewhat in the course of the appeal. The District Judge was right that a claim for total failure of consideration cannot even begin to get off the ground. However, if a client engages a lawyer to provide services worth £x, and the lawyer in fact provides services worth £y (which is a lot less than £x,) there must be at least a viable argument, with a realistic prospect of success, that the client’s loss is measured by the difference in value between x and y. The fact that the contract of retainer is not susceptible of severance should not affect that analysis.

Both counsel raised some interesting arguments about the relationship between a claim for wasted expenditure and a claim in restitution for abatement of the price paid for services, and I was referred to passages in the 31^st edition of Chitty on Contracts (in particular paragraph 26-026 and 29-062 to 29-063), which each of them contended supported their respective positions. I have already referred to Miss Boon’s argument, on behalf of the Defendant, that a claimant can only recover damages for wasted expenditure if the client agreed to pay for a specific service that he did not receive, e.g. if the lawyer promised to attend 13 days of the inquest but did not attend on day 11 or 12. She also submitted that the Claimant may well face difficulty with this head of loss in the light of the compromise reached on fees (though I was told that the settlement of the dispute on fees was entered into expressly without prejudice to the claim for damages for professional negligence).

Bearing in mind that this appeal is against a decision to strike out the particulars of claim or to award summary judgment, the legal arguments raised only served to enforce my view that this is nowhere near the simple type of case in which it is obvious that the Claimant’s arguments are bound to fail. Nor are they bound to succeed. There are complex and interesting arguments on both sides; but the fact that the contract may not be susceptible of severance is not necessarily a complete answer to the claim to recover a proportion of the expenditure incurred on fees as damages. The District Judge was wrong to find that it was.

The District Judge also fell into error in his approach to the argument of Mr Berkley QC that if a claim for breach of contract at the very least would result in an award of nominal damages, there are reasonable grounds for bringing it. Mr Berkley had referred the judge to the long line of mainly 18^th and 19^th Century authorities (conveniently referred to in the 31^st edition of Chitty on Contracts Vol 1 at para 26-009) establishing that there is a real purpose to an award of nominal damages because it establishes that there has been an infringement of the claimant’s legal rights. The District Judge referred in his judgment to the fact that all these authorities about vindication of legal rights pre-dated the CPR; however, that approach was to fall into the very trap that he himself identified of mixing up matters of substance with matters of procedure.

Miss Boon helpfully referred me to the case of Tony Sullivan (aka Rudey Solomon) v Bristol Film Studios Ltd [2012] EWCA Civ 570 in which the Court of Appeal refused to disturb a decision of the lower court to strike out as an abuse of the process of the court, a claim for breach of statutory duty, breach of copyright and performance rights, based on the posting of a video featuring the claimant, Mr Solomon, on You Tube for only five days. Although the claim had survived an application for summary judgment, and therefore had been assessed as standing a real prospect of success, the judge below had assessed the likely damages recoverable as £50 instead of the much higher figure initially claimed, and had decided that the value of the claim was disproportionate to the amount of time and expense that would be incurred in taking it to trial. He therefore struck it out as an abuse of process.

The Court of Appeal upheld that view of the likely recoverable damages, and Mr Solomon accepted that if the judge was right about the likely scale of damages, his claim should not go forward to trial. In the light of that concession, his appeal was dismissed. However, both Lewison LJ and Etherton LJ made some observations about the approach that might be taken to an application to strike out a claim for abuse of process, where the recoverable damages were disproportionate to the costs of proceeding to trial. After rightly pointing out that defamation claims are a special case, Lewison LJ made the important point in paragraph 29 of the judgment that the mere fact that a claim is small should not automatically result in the court refusing to hear it at all. He said that if he was entitled to recover a debt of £50, he should in principle have access to justice to enable him to recover it if his debtor did not pay. Indeed, “it would be an affront to justice” if his claim were simply struck out. It is only if there is no proportionate procedure by which a claim can be adjudicated (my emphasis)that it would be right to strike it out as an abuse of process.

Miss Boon submitted that this case fell into that category, even if the court considered that damages for distress were arguably recoverable, since Mrs Shaw had not claimed more than £5,000 under that head. As in Solomon, the claim was on the multi-track and substantial costs had already been incurred by the parties. I am not persuaded by those submissions. This case is a very different proposition from the Solomon litigation and the question whether it should be allowed to proceed to trial turns on its own particular facts.

In his concurring judgment in the Solomon case, Etherton LJ emphasized that the disproportion justifying the strike out of Mr Solomon’s claim was not merely between the likely amount of damages he would recover if successful in the proceedings and the litigation costs of the parties; it included consideration of the extent to which judicial and court resources would be taken up by the proceedings. He said that if the Court had been aware of the true value of the claim at the outset, consideration could have been given to transferring it to the Patents County Court, or to the small claims track; but the real problem was that Mr Solomon had persisted in a “grossly inflated value” of his claims which had ruled out those alternative routes. For those reasons, he was not disposed to interfere with the exercise of judicial discretion to strike out the claim as an abuse of process.

In a case where an application is made to strike out a claim as an abuse of the process, it is easy to see why such considerations would come into play. The abuse in the Solomon case was largely attributable to the gross inflation of the damages, which had prevented the claim from being allocated to the right track in the first place. Therefore Mr Solomon could hardly complain about the result (indeed, he did not contend otherwise if his arguments about the recoverability of much greater amounts of damages were rejected on appeal).

However, the District Judge in the present case was concerned with an application to strike out a claim as disclosing no reasonable cause of action, not with an argument that it was an abuse of process, let alone that there had been a deliberate exaggeration of Mrs Shaw’s loss. Indeed, there had been argument before him about the technical division between claims for losses that she was entitled to bring as representative of her late father’s estate and claims for losses that she incurred in her own right; the former claims were rightly allowed to proceed, and an amendment was permitted to enable that to happen. That does not mean that a judge dealing with an application of this nature should lose sight of the overriding objective; but he must not confuse the question whether there are reasonable grounds for bringing a claim, with the question whether the claim is an abuse of the process of the court. The tests for striking out under those two heads of CPR 3.4(2) are separate and distinct. That reasonableness of bringing an otherwise arguable and cogent claim is not determined by its value.

In this case, the District Judge’s reasoning in paragraph 37 went badly awry when he suggested that there was no reasonable ground for bringing a claim because in his view, there was little prospect of an outcome other than an award of nominal damages. That is to fall into the very error identified by Lewison LJ of finding that a hearing should be denied to someone who wishes to pursue an otherwise valid small claim, merely because it is small. That approach is tantamount to denying access to justice, and places the decision outside the range of reasonable decisions open to a court properly directing itself.

The question whether there are reasonable grounds for bringing a claim is a separate question from the question whether there is no proportionate procedure by which such a claim can be adjudicated. The District Judge was not faced with the latter question; (the Defendant had not made any submissions about proportionality) and he fell into error by conflating the two. Proportionality is not a relevant factor in assessing whether there are reasonable grounds for bringing the claim in the first place. I am not faced with the latter question on this appeal either because, as I have already held, there is a sufficient argument that the Claimant would be entitled to recover more than nominal damages to get her across the threshold for resisting a strike out or summary judgment.

However, even if I am wrong about the error of law in the District Judge’s approach, even if the sole head of recoverable loss were just nominal damages, and even if proportionality were a factor in the exercise of the discretion under CPR 3.4(2)(a), the District Judge still failed to consider whether the substantive justification for allowing such claims, articulated in the long line of cases to which he was referred, was still valid, and he failed to consider whether it would be possible to devise alternative directions which would allow the claim to be adjudicated proportionately.

Thus, insofar as he was exercising a discretion, the District Judge did so without taking all relevant factors into account and weighing them in the balance. The decision to strike out the claim was arrived at by a process that was informed by fundamental legal error and must be set aside.

That being so, this court is entitled to look at the matter afresh. I agree with Mr Berkley’s submission that this was never an appropriate case for a strike out or the grant of summary judgment. Regardless of the eventual size of any damages that may be awarded, if the Claimant is right in claiming that she has been so badly served by a firm of solicitors holding itself out as a specialist in inquests and claims for clinical negligence, and charging fees of the magnitude claimed by the Defendant, her claim deserves to be heard, it serves a legitimate purpose, and it cannot be a disproportionate use of court time and resources to permit it to go forward even if her ultimate award of damages is relatively small. The clinical negligence claim resulted in the recovery of damages of less than £15,000, but no-one has suggested that it should not have been brought before the court.

For all the above reasons, the appeal is allowed. The matter should be remitted to the District Judge for a case management hearing at which consideration can be given as to what further directions should be given for the progress of the action; initially, it seems to me, there is a need to direct a stay pending determination of the costs proceedings in the clinical negligence action as the outcome of those proceedings could have a bearing on the recoverable damages in the present claim. The claim is still at a very early stage; it is not too late to set a costs budget going forward if that were deemed appropriate.