Ameyaw v McGoldrick & Ors

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Christina McGoldrick

Louise Coyne

PricewaterhouseCoopers Services Limited Defendants

On the afternoon of 20 November 2020, I heard argument on matters consequential on the judgment I handed down on 12 November 2020 ([2020] EWHC3035(QB)), and the order I made that day. The Claimant did not appear at the consequentials hearing, nor was she represented. Her mother, Mrs Doris Mensah, attended. She did so for a specific and limited purpose. Mr Leonard Ogilvy, who has previously acted as the Claimant’s McKenzie friend, was also in attendance, but he was not there to represent the claimant as an advocate. The claimant had applied in writing for an adjournment.

I dealt with, and refused, that application, having read documents submitted on behalf of the claimant to which I will refer later. I read and heard argument from Mr Paines of Counsel, for the defendants, on the consequential matters. I made orders for costs in the defendants’ favour. I granted the claimant an extension of time for seeking permission to appeal, and extended time for service of draft Amended Particulars of Claim. I determined that two previous applications by the claimant were totally without merit. I

I gave brief reasons at the time, but made clear that I would provide written reasons, as I now do.

Two applications in this case were listed for hearing on Thursday 5 November 2020. The claimant applied for an injunction. The defendants applied to strike out the claim or for summary judgment in their favour. At the hearing, the claimant did not appear. She applied, through her mother, for an adjournment. I declined to adjourn the hearing and decided to proceed in the absence of the claimant. I considered and dismissed the claimant’s application. I read and heard argument on the defendants’ application, and reserved judgment.

On Wednesday 11 November 2020, before I had handed down judgment, I provided the parties – through my clerk - with a draft order, making clear that in accordance with the Covid-19 protocol the hand-down would be remote, without any attendance from the parties, and that I proposed in any event to give directions for the adjournment of all consequential matters to a hearing a week after the hand-down.

On Thursday 12 November 2020, I handed down judgment remotely. I gave my reasons for the decisions made on the day of the hearing, and gave judgment on the issues which I had reserved. I struck out the whole of the Particulars of Claim and most of the Claim Form. I transferred the claimant’s data protection claim to the County Court. I entered summary judgment for the defendant on the majority of the other pleaded claims. I made an order for directions in the form of my earlier draft, but with the substantive decisions recorded. The order provided for a hearing on Friday 20 November 2020. It extended time for seeking permission to appeal. It provided (by paragraph 13) that

“Any application to adjourn the Consequentials Hearing must be made by application notice with evidence in support in accordance with Parts 22 and 23 of the Civil Procedure Rules.”

Part 23 provides that an application notice should be filed and served no less than 3 clear days before the date of the hearing at which it is to be considered. To be timely, an application to adjourn would have had to be filed and served on Monday 16 November 2020.

An application was filed by the claimant on Wednesday 18 November 2020 and, according to the defendants, it was served at 16:27 that day. In the skeleton argument later submitted for the defendants, Mr Paines fairly summarised the gist of the grounds put forward:

“The main basis of the application is that (she states) she has now found solicitors to act for her on a CFA basis, but who require more time to prepare and who have not been able to instruct counsel (also on a CFA basis). There is a tangential reference (“[I] remain unable to represent myself for reasons previously given”) to her previous assertions of medical issues, but those are no longer at the forefront of her application.”

On Thursday 19 November 2020,

On the morning of 20 November, at 08:41, the claimant emailed the Court in these terms:–

“Dear Sirs,

I write further to my application notice dated 18 November and witness statement dated 19 November (per email chain below).

I confirm that I am in receipt of one hard copy of a document titled “Summary of computerised records relating to mental health held at FHR Group Practice” dated 19 November 2020.

I must explain that the records are summary information and further exclude information about the contents of confidential consultations that I have had with other NHS departments.

I was required to collect this document in person from the GP’s surgery. It was explained to me that the document could not be sent via email because such sensitive medical information could only be sent electronically to an NHS email account. I am now personally responsible for use/misuse of this information.

For above reasons (and also due to my past experiences which the court is already aware of), I am not able to send out this information electronically. I do not understand the implications of doing so and do not believer that I will have control over how this information could subsequently be used.

I do not wish to be discourteous to the court but having given it serious thought, I do not feel able to return to the RCJ at this point in time or to do so without any legal representation when this gives me such great anxiety and stress. If this situation does not improve then it may be that my mother, rather than me, attends court this afternoon in order to show the document to the judge only.

In the event that I am unable to attend, I wish to make clear that I do not give my consent for the document to be shown to the Defendants or their lawyers.

Where deemed strictly necessary, and sitting in private, I give consent that the judge may summarise relevant information to lawyers acting for Defendants for purposes of this application notice only. If contents of the document is communicated to the lawyers, I respectfully ask the court to give appropriate directions and/or direct that the Defendants’ lawyers give an undertaking including that the information provided is not intended for any other use.

Lastly I do not give my consent for copies to be made of the document or for it to be stored without my knowledge or consent.

I will try to make every effort to attend this afternoon however if I am unable to do so, these are my wishes concerning use of my medical information.”

I shall refer to the GP Summary identified in this email as “the Report”.

At about 14.15, I received from my clerk a document entitled “Claimant’s short skeleton for an adjournment”. It was signed “L Ogilvy McKenzie Friend for the Claimant.” It began by stating that it had been “prepared under intense pressure from my understanding” so far as the claimant was concerned and “prepared by me under

Before going into court, I got my clerk to provide the parties with copies of the law report of WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721 and the text of CPR 39.8, both of which appeared to me to have a bearing on the issues raised by the claimant’s email. WEA Records was a case about an application for an Anton Piller (i.e. search) order, heard and granted by Mervyn Davies J at an ex parte hearing. Confidential material was relied on, which was not disclosed to the respondent when the matter came back on notice. The respondent’s application to discharge the order was unsuccessful. An appeal was dismissed as premature, but the Court of Appeal took the opportunity to re-state one of the fundamental rules of litigation. Sir John Donaldson MR said (at 726G) that a situation in which an order is granted after the Court has been given information which could not be disclosed to the defendants “should never be allowed to arise”; and that when it came to the inter partes hearing, “clearly the matter has to be considered solely on the basis of evidence which is known to both parties” (728D).

CPR 39.8 provides, relevantly, as follows:- “Communications with the court

The hearing began shortly after 2:30pm. In Court for the defendants were Mr Paines, his instructing solicitor Mr Drew, and an associate. As I have mentioned, the claimant was absent, but her mother and Mr Ogilvy were there. Mrs Mensah made clear that her attendance was solely for the purpose of providing the document that had been mentioned in the claimant’s email. Mr Ogilvy did not seek a right of audience, making clear that he did not believe he could do so in the absence of the claimant. The hearing was in public, as there was no need nor any justification for any part of it to be in private.

Having asked some questions of Mrs Mensah and Mr Ogilvy I made the following clear:

Thereafter,

I made a note of the undertakings offered, which were these:

All of this took place on the footing that a copy of the document would later be provided to the defendants’ solicitors by the Court.

Having read all the documents, including the Report, I then proceeded to hear argument, refuse the adjournment application, and make the other decisions I have mentioned.

Mrs Mensah and Mr Ogilvy were both present throughout the hearing. Mr Ogilvy was making notes. As I have made plain, the copy of the Report taken by my clerk was not provided to the defendants at the time. At the end of the hearing, I made clear that this would follow the provision of a draft order recording the undertakings. As the hearing concluded after 4pm on a Friday, it was envisaged that this would take place on or after Monday 23 November. At the time of writing, that has not taken place, for reasons it is unnecessary to recount in this judgment. But the fact remains that the undertakings were offered, and the Report was provided to and read by the Court and Counsel on that basis. The undertakings have therefore been recorded in the formal order of the Court.

I have set out these events in some detail not least because there has been correspondence since the hearing which makes it appropriate for me to record my findings of fact about what occurred.

The claimant has conducted these proceedings to date as a litigant in person, assisted from time to time by a McKenzie Friend. She has had solicitors acting for her in the employment proceedings. But there is no evidence that she has sought, at any previous time, to obtain legal advice or representation in this case.

The present application was made the best part of a week after I handed down judgment. It was late, and non-compliant with my order. The evidence in support was limited. The Skeleton Argument did not assist greatly, as its factual propositions were so limited and so broad-brush. I noted that the claimant’s application was based on the need to obtain legal representation, and that was the subject of the evidence in box 10 of the application notice. Her witness statement of 19 November did not deal with that; it dealt instead with her health. I also noted that although assertions were made by the claimant (in her application notice and email correspondence) and by Mr Ogilvy (in the Skeleton Argument) on what the claimant’s solicitors had said they required in order to act for the claimant, there was nothing from the solicitors themselves.

Any adjournment application must be considered in the light of the overriding objective. The Court needs to take into account what is at stake at the hearing which it is sought to adjourn. It may take into account the parties’ prospects of success on those issues, if it is possible to form a clear view (see Boyd & Hutchinson v Foenander [2003] EWCA Civ 1516 [9]). It needs to take account of the risk that an adjournment will lead to the Court’s scarce time and resources will be consumed to no useful purpose, or to an extent that is disproportionate to the strength of the case in favour of an adjournment.

The main consequential issues for resolution at this hearing were costs and (if an application was made) permission to appeal against my order dated 12 November 2020. It was clear to me that on the matter of costs there was little that could reasonably be said on the claimant’s behalf. The general rule is that the unsuccessful party pays the costs of the successful party. The claimant was plainly the loser on substantially all the issues I resolved on 5 and 12 November 2020. The Court can make a different order but, absent some Part 36 offer or other admissible offer to settle (and none had been identified or suggested), I could not identify any tenable ground for resisting a costs order on those matters. I had familiarised myself with the history of the litigation and saw no realistic prospect that any argument could be mounted that this was a case for departing from the normal order.

The claimant’s application notice did not identify any such argument. It explained that the solicitors acting for her in the EAT had “agreed to assist me on a CFA and, further, on condition that they are able to secure counsel who is willing to act on a CFA basis as well.” It stated that the solicitors were seeking to identify Counsel to deal with the case, and

“even if Counsel is secured, Counsel would need at least a week or more to get to grips with the long and tortuous history of this case before preparing grounds for permission to appeal and grounds for objecting to costs.” (The emphasis is mine).

Nothing was said, nor was any document produced, to indicate what the solicitors themselves had said. I did not believe that fairness required that the claimant’s solicitors – knowing nothing about the case so far – and new Counsel should be given time to prepare submissions on costs. Initially, I thought there might be a case for reserving aspects of the costs, in case a tenable pleading was produced to amend the residual parts of the claimant’s case. But I was confident that argument could be dealt with fairly by my taking up that argument in debate with Mr Paines.

As for the claimant’s health, I had reviewed the position when deciding to refuse the claimant’s previous adjournment application. My judgment on that application sets out the history. At [22-23] it refers to the principal authorities and summarises some key principles. At [24], I set out my reasons for refusing the adjournment application made at that time. At the hearing on 20 November 2020, I had additional material: the claimant’s witness statement of 19 November 2020, its attachments, and the Report. But this material did not persuade me that I should adjourn argument on costs on the footing that the claimant’s health disabled her from presenting her position, or so impaired her ability to do so that the overriding objective called for an adjournment of that aspect of the matter.

The claimant had now produced some written evidence that her GP clinic declined to provide a report assessing her ability to take part in legal proceedings. In what appear to be text messages, the claimant sought a report compliant with the requirements identified in Levy v Ellis-Carr. The GP practice wrote that

“We are not able to provide a medical report regarding fitness to attend court. It is for the court to determine this, not your GPs.”

In another text, undated in the copy I have, the doctor states

“For the final time, we are unable to do this … please direct all further requests relating to fitness for court proceedings to the clerk of the court, as they are experienced in this field and will obtain medical advice for you if they require it.”

The claimant has said that the GP contract does not cover the provision of reports and that she has been directed to private providers.

This is all most unusual, and puzzling, for reasons explained in my earlier judgment at [24(7)]. The final text quoted above is certainly wrong in what it says about the Court. It is doctors, health professionals, not Courts or Court clerks, who can assess a person’s health and fitness. The claimant’s evidence is also that she cannot afford a private report, and is awaiting a referral, having escalated the matter to NHS England as long ago as 25 August 2020.

This is an improvement on the evidence and information put before me on 5 November 2020. That said:-

It is clear that in the week that passed between the hand down of judgment and the consequential hearing the claimant was able to spend some time seeking agreement to act on a CFA and compile a fairly substantial body of evidence and argument in support of her adjournment application. A relatively small portion of the energy devoted to all of that would have been enough to enable her to prepare and advance a few short submissions on costs.

I turn to the second main consequential issue, permission to appeal. I can deal with this more shortly. In essence, the claimant was seeking more time to enable her to get lawyers on board to formulate grounds of appeal and/or to put forward Amended Particulars of Claim, if she decided to seek to do so. She had not explained why those

But there were several case management factors in favour of extending time. The claimant is unrepresented. She may conclude, having taken advice, that she has no prospect of success and should not seek to appeal. If she does, her grounds are likely to be more focused and better directed if formulated by a lawyer. I know the case well now. If there is an application for permission to appeal, it is better that it be made to me in the first place. If I give permission, that will avoid an application being made to the Court of Appeal. If I refuse, the Court of Appeal will have the benefit of my reasons. And an extension of time will cause the defendants negligible prejudice. This was not a matter on which they had spent, or could have spent, irrecoverable costs. Respondents have a minimal role to play when it comes to permission to appeal.

I was therefore broadly sympathetic to the submission that some further time should be given. I made this clear to Mr Paines who, having taken instructions, indicated that he would not resist the grant of further time. I extended time for seeking permission to appeal, making clear that if a further extension was sought it would be unlikely to succeed, in the absence of evidence from the lawyers to explain why more time was needed.

Time for service of draft Amended Particulars of Claim (if so advised) was also extended for similar reasons.

I dealt first with the costs of the hearing before me, awarding them to the defendants. My reasons for that will be apparent from what I have already said: the defendants were the winners on all those issues, and no reason was identified, nor could I see any reason, why the general rule should not apply in this case.

I assessed the costs of the hearing before me summarily because that is the default position, and there was no reason to depart from it. I deducted the costs of attendance at the hearing by an associate from the defendants’ solicitors’ firm. A partner was in attendance and that, in my judgment, was as far as it was reasonable to go in all the circumstances. The rates sought and the hours worked were reasonable and proportionate, in my judgment, as were Counsel’s fees. The rate charged for the partner, Mr Drew, was below the 2010 guideline rate. The rate charged for the associate was somewhat above that rate but still reasonable in my judgment.

I also awarded the defendants the majority of their other costs of the claim to date, to be assessed on the standard basis if not agreed. I was persuaded that my initial response (paragraph [27] above) was mistaken. As Mr Paines pointed out, my judgment and order represented the final dismissal of everything the claimant had pleaded, except for a few words in the Claim Form. It was on the matters I struck out, and the causes of

Even if the claimant were able to comply with the requirements of my Order dated 12 November 2020, and produce Amended Particulars of Claim which disclosed a

I did not award the defendants their costs of the proceedings dealt with by Steyn J, DBE on 14 September 2020. That is because the Judge made no order as to the costs of those proceedings, and the general rule in such a case is that no party is entitled to costs: CPR 44.10(1)(a)(i).

I made an order for a payment on account of the costs I had awarded but not assessed, in the sum of £35,000. That is roughly 50% of the total costs claimed, after deducting the sum claimed in respect of the hearing before me. That proportion is in line with the authorities on the topic, and with the defendants’ submissions.

I have accepted the defendants’ application for an order that the claimant should pay interest on costs from the date of my order, pursuant to s 17 of the Judgments Act 1838.

If the Court dismisses an application and considers it to be totally without merit

Mr Paines, applying for determinations that two of the claimant’s applications were TWM, reminded me of the right approach, as set out in R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 [2014] 1 WLR 3432 [13]: “totally without merit means no more and no less than ‘bound to fail’” (Maurice Kay LJ, with whom Sullivan LJ and Lord Dyson MR agreed).

The claimant’s injunction application comfortably satisfies this test. The reasons are clear from what I said in my previous judgment at [25-34]. In short, the application sought to prevent the defendants from holding medical reports which they reasonably require to hold for the purposes of ‘live’ proceedings; and it contained a procedurally flawed application to restrain disclosure of such reports, without any evidence that there was a risk of improper disclosure. It was also persisted in, despite evidence clearly explaining the true position.

The claimant’s application to adjourn the hearing on 5 November 2020 also satisfies the TWM test. As my earlier judgment makes clear, the claimant has been told time and again what is required by way of evidence to support an adjournment on medical grounds. This application could never have succeeded. It was wholly unfounded for the reasons I gave in my judgment at [24].

As I made clear at the hearing on 20 November 2020, I reach that conclusion after taking account of the additional evidence and information made available by the claimant for the purposes of that hearing. I have indicated that the position adopted by the GP practice is concerning. There is now evidence of a refusal to prepare a fitness for court assessment. But it is now apparent that the claimant knew, from as long ago as 6 August 2020, that she could have a report on her medical records from her GPs, if she asked the administrative department to produce it. The facts that she did not ask until 14 November, and that it took only 5 days to produce it when she did, serve to underline the weakness of the position she adopted on 5 November. My assessment of the substance of the report is also supportive of my conclusion on this point.

As indicated above, I shall consider separately whether to make a CRO. That matter remains reserved. When I come to it, I shall have to bear in mind any previous certifications as TWM. I am told by Mr Paines that applications in this case have been so certified on two previous occasions.