McFaddens (a firm) v Platford

This is a claim by McFaddens, a firm of solicitors, against a practising barrister, Graham Platford, for an indemnity or contribution to damages which it paid out to compromise a negligence claim, intimated against it as a result of its alleged negligence, by former clients, Mr Cunningham, Ms Good and a company called Gelande Corporation of which Mr Cunningham was the major shareholder and Chief Executive, and costs incurred by McFaddens in doing so.

The claim as set out in the Particulars of Claim, is made up of a claim for £51,650 paid to Mr Cunningham, Ms Good and Gelande in settling the claim and the sum of £20,570 which McFaddens claim were costs reasonably incurred by it as a direct consequence of the alleged negligence or breach of duty of the Defendant. The claims are denied.

The barrister against whom the claims are made is Graham Platford, a very senior and respected Junior Barrister called to the bar in 1970.

McFaddens is a small London firm. At the relevant time it had two partners, Timothy Eppel (the senior partner) admitted as a solicitor in 1975 and Harold Berwin, admitted in 1974. In relation to work on the litigation which led directly to the claim against McFaddens, the majority of the solicitors’ work was done by a consultant, Graham Willis, who although he was admitted as a solicitor only in 1994, had previously been successively a litigation clerk and a Fellow of the Institute of Legal Executives with extensive experience of litigation since the 1970’s.

Mr Willis had the day-to-day conduct of the underlying action from June 2005 to the end of September 2005, subject to the supervision of Mr Eppel who had an office on the same corridor in the building and whom he consulted on a regular basis. Mr Willis joined the firm as a consultant in June 2005.

In relation to the underlying claim made by Mr Cunningham, Ms Good and Gelande, for convenience I shall refer to them as “the joint Claimants”. When I am doing so, I am referring to them as Claimants in their action against Collett & Farmer. This is the lawsuit which underlies the present litigation.

This claim relates to an Application made on 16 September 2005, (but not served until a few days later) supported by a witness statement from Mr Willis, that the trial of the action listed to commence on 4 October 2005 in which the joint Claimants were the claimants and Collett & Farmer, Architects, were the defendants should be adjourned because “there is good reason to believe that by reason of mental illness the first claimant (Mr Cunningham) is not fit to conduct the action”.

There is no dispute that this Application was made in very unusual circumstances arising out of a genuine concern as to the mental state of Mr Cunningham. Neither the solicitors in the Claimant firm nor Mr Platford had ever made a similar Application in similar circumstances in professional careers of over thirty years although Mr Eppel said in evidence that he had once made a similar Application in rather different circumstances. This is not surprising since there is a presumption that litigants are competent to conduct their litigation.

There is also no doubt that the Application was not supported by Mr Cunningham. The Claimants contend that in making the Application they followed the advice of Mr Platford and that the advice was negligent. They further contend that they were bound to follow that advice. The Claimants contend that no barrister in the Defendant’s position could have considered that there was anything more than the remotest risk that Mr Cunningham was a patient i.e. that he was incapable by reason of mental disorder from managing his property and affairs including this litigation.

The Defendant contends that, in the circumstances in which he gave the advice, there was a real risk that Mr Cunningham lacked capacity within the meaning of the Mental Health Act 1993 and the Civil Procedure Rules. In such circumstances there was a real risk that Mr Cunningham would require a litigation friend to conduct the proceedings on his behalf. The Mental Health Act 1993 has been replaced by the Mental Incapacity Act 2005. The Civil Procedure Rules have also been amended to comply with the new legislation. Neither the Act nor the Rules alter the basic principles.

It is right to stress at the outset that this is not a case where there is a history of poor advice and support from either the solicitors or Mr Platford. On the contrary, apart from this Application, Mr Cunningham received excellent service both from the solicitors and Mr Platford – in all the circumstances beyond the call of professional duty.

Mr Willis, Mr Eppel and Mr Platford each gave oral evidence before me and were extensively cross-examined. Mr Berwin, who played an important part in representing Mr Cunningham in other proceedings, did not give evidence. In addition I have transcripts of various hearings before and after the hearing on 23 September 2005 when the Application was heard and about which serious complaint is made, as well as a transcript of that hearing.

I find that in their oral evidence Mr Willis and Mr Platford were doing their best to assist the court. I find that Mr Eppel appeared to have a limited recollection on a number of matters which I should have expected him to remember much more clearly. I had the distinct impression that he was seeking to minimise his involvement even at times when he was very much involved.

Mr Cunningham did not give evidence in these proceedings before me or swear a witness statement although he did swear a witness statement in the litigation against Collett & Farmer. Although I have been able to form a clear picture of the relevant events, I take full account, in relation to findings relating to Mr Cunningham, of the fact that I have not heard oral evidence from him in connection with this Action.

In his opening, Mr Nicol for the Claimants, referred extensively to the transcript of a hearing before HHJ Coulson QC on 29 November 2005. This was an application by Mr Cunningham’s new legal team to set aside the Order made on 23 September 2003 that Mr Cunningham should attend for a medical examination by Dr Latcham, Collett & Farmer’s expert, for the purpose of the court being able to decide the issue of whether Mr Cunningham was a patient within the meaning of Part 21.1(2)(b) of the Civil Procedure Rules and that, if he did not do so, his claim and defence to the counterclaim would be struck out. Mr Cunningham had not done so and the claim and defence to counterclaim had been struck out.

I have to be very careful to consider the claim made by McFaddens against Mr Platford on the basis of the state of knowledge as of 16 to 23 September 2005 rather than the state of knowledge at a later date. I shall not therefore refer in any detail to the 29 November 2005 hearing. This hearing was conducted on the basis that the issue of the competence of Mr Cunningham to act as claimant in the litigation had been resolved and that he was competent to do so.

The pleadings of both parties set out much of the factual background from their own points of view. I will deal with the history in detail later and here I will only refer to the main contentions.

McFaddens contend (paragraph 36 of the Amended Particulars of Claim) that, after they ceased to act, the joint Claimants (i.e. the Claimants in the main action) took the position that the Application heard on 23 September 2005 should never have been issued, could not have been issued by competent and skilful lawyers and was wholly untenable.

The pleading went on:

“36.

In the premises it was contended that if the Application to set aside the Order made on 23 September 2005 was not successful and that as a result Cunningham, Good and Gelande lost the chance to proceed against Collett & Farmer and that loss and damage resulted from that loss of a chance, such loss and damage was caused by the negligence and/or breach of duty of the lawyers responsible for the issue of the Application heard on 23 September 2005”.

On the basis that the Action remained struck out if Mr Cunningham failed to comply with the Order that he undergo a further psychiatric examination, the following issues arise (a) whether Mr Cunningham reasonably refused to undergo the further psychiatric examination which was ordered by the court and (b) if the action remained struck out, did the joint Claimants lose the chance of a successful action?

In paragraph 38 of the pleading, McFaddens contend that they were required to attend the hearing on 29 November 2005, at which the Order of 23 September 2005 was in fact set aside, and to instruct counsel. At that hearing they compromised a potential negligence claim against them by agreeing to pay a sum equivalent to the assessed costs of the joint Claimants of and occasioned by the Application on 16 October 2005, heard on 29 November 2005, and a sum equivalent to the assessed costs of Collett & Farmer occasioned by the Application dated 20 October 2005 and by the Order made on 23 September 2005. On 29 November 2005 the Order striking out the joint Claimants’ claim was rescinded and the action was permitted to continue.

The particulars of negligence alleged against Mr Platford are that no reasonably competent barrister in the Defendant’s position could properly have advised McFaddens that the Application heard on 23 September 2005 should have been issued.

By an amendment dated 30 May 2008 McFaddens also make the affirmative plea that:

“3A. Even if the Defendant could have properly concluded that Cunningham was not competent to give proper instructions (which is denied) he should have advised the Claimant to apply to come off the Court Record as acting for Cunningham and should have advised the Claimant to give Cunningham proper notice of such an Application. Such an Application would not have been heard in the presence of Collett & Farmer (with the attendant costs), those representatives would not have known about such an application and such an application would not have resulted in the Order made on 23 September 2005 nor the necessity for further hearings (the costs of which are claimed in this action).”

The points were put with admirable brevity in Mr Nicol’s final note:

By his Amended Defence Mr Platford denied (para 3) that he was instructed to advise and represent McFaddens in the Application on 23 September 2005; alternatively to the extent, if any, that it was proved that he did so, it was during the currency of and subject to his retainer on behalf of Cunningham, Goode and Gelande.

Mr Platford said (at para 5 of the Pleading) that his knowledge of Mr Cunningham stemmed from a range of sources including instructions from time to time from the relevant solicitors in various actions in which he represented Mr Cunningham, communications with Mr Cunningham and other documentary material. He contended (para 16) that by 16 June 2005 McFaddens as a firm, through Mr Willis and Mr Eppel, knew a great deal about Mr Cunningham’s mental state, were dealing with him directly and were forming their own view about his ability to give instructions and conduct litigation.

The pleading then set out the history from the Defendant’s point of view.

Of the time immediately before 16 September 2005 when the Application was issued (but not served until 19 September 2005), Mr Platford referred specifically to the telephone call between him and Mr Willis on 15 September 2005, at the end of which he advised Mr Willis to speak again to Mr Cunningham because he feared that the latter might be incapable of managing his own affairs.

Paragraph 51 of the Pleading records that Mr Willis accepted that advice and had a long conversation with Mr Cunningham recorded in an attendance note. Mr Willis then reported to Mr Platford, along the lines set out in the note, that Mr Cunningham refused “to take advice or even to accept explanations or to give instructions. He would not listen to reason. He refused to be examined by a psychiatrist even when it was explained to him that it was only to confirm whether or not he was competent.”

In paragraph 52 of the Amended Defence, the Defendant said that he relied on Mr Willis’ subsequent e-mail to Mr Eppel on 16 September 2005 in which he expanded on Mr Cunningham’s “outlandish view, refusal to listen to him or counsel, devious manner of instructions.” Mr Platford claims that Mr Eppel gave full support to Mr Willis’ stance.

Paragraph 54 of the Amended Pleading contended:

Mr Platford contends further that any loss was caused by Mr Cunningham’s own failure to attend the hearing on 23 September 2005 at which the Order for Mr Cunningham to see a psychiatrist was made, and his subsequent refusal to see the psychiatrist named by the court although he was ordered to do so. These, it is claimed, were the effective causes and consequences of the Orders made on that day. He contends that the Application was reasonably brought and any subsequent costs were thrown away by reason of the conduct of Mr Cunningham. If Mr Platford was or had been in breach of duty, the chain of causation was broken by these two events.

Finally, Mr Platford contends that if the application on 23 September 2005 had not been made, no further evidence would have been permitted and no adjournment of the trial would have been granted. In these circumstances, and without the further evidence, he contends that the chances of success of the joint Claimants in the Collett & Farmer action were negligible.

1) Barrister/advocate’s negligence – the appropriate test

Barrister/advocate’s negligence – the appropriate test

In Arthur J. S. Hall & Co. v Simons [2002] 1 AC 615 (speeches of their Lordships starting at 675) the House of Lords swept away the Bar’s remaining immunities from suit.

Their Lordships said specifically that in civil litigation the common law afforded advocates substantial and sufficient protection as it did for other professionals who may have to take decisions in particularly difficult circumstances.

At page 737 Lord Hobhouse set out the standard to be applied:

“The standard of care in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made.”

At page 726 Lord Hope of Craighead explained the position further and referred specifically to how a potential conflict between the advocate’s duty to the Client and duty to the court should be considered:

“While the advocate owes a duty to his Client, he is also under a duty to assist in the administration of justice. The measure of his duty to his Client is that which applies in every case when a departure from ordinary professional duty is alleged. His duty in the conduct of his professional duties is to do what an advocate of ordinary skill would have done if he had been acting with ordinary care. On the other hand his duty to the court and the public requires that he must be free in the conduct of his Client’s case, at all times to exercise his independent judgment as to what is required to serve the interests of justice. He is not bound by the wishes of his Client in that respect and the mere fact that he has declined to do what his Client wishes will not expose him to any kind of liability… He must also exercise that judgment with the care which an advocate with ordinary skill would take in the circumstances. It cannot be stressed too strongly that a mere error of judgment on his part will not expose him to liability for negligence.”

This latter formulation is very much in line with the speeches of Lord Wilberforce and Lord Diplock in Saif Ali v. Mitchell & Co. [1980] AC 198. At page 214 Lord Wilberforce noted that:

“Much if not most of a barrister’s work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed.”

At page 218 in Saif Ali Lord Diplock noted that:

“Those who hold themselves out to practise other professions, although they are not liable for damage caused by what in the event turns out to have been an error of judgment on some matter upon which the opinions of reasonably informed and competent members of the profession might have differed, are nevertheless liable for damage caused by their advice, acts or omissions in the course of their professional work which no member of the profession who was well informed and competent would have given or done or omitted to do.”

At page 220 Lord Diplock in the same speech went on to emphasise:

“No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment unless the error was such as no reasonably well-informed and competent member of the profession could have made.”

At page 231 Lord Salmon put it this way:

“The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care.”

In Moy v. Pettman Smith [2005] 1 WLR 581 Lord Carswell, in the leading speech, emphasised at page 599 that although the public interest does require the application of the principle that advocates are no longer immune from suit, this must not have the consequence of stifling the advocates’ independence of mind and action in the manner in which they conduct litigation and advise their Clients.

At paragraph 60 of the same speech Lord Carswell emphasised “it would not be in the interests of those Clients if they [the advocates] were compelled by the effect of over-prescriptive decisions to adopt a practice of defensive advocacy in the conduct of litigation or advising litigants about the course to be taken.”

Lord Carswell appears at paragraph 62 of his speech to be introducing a new concept in the test of negligence to be applied. In that paragraph he appears to adopt the test apparently applied by the trial judge, Judge Geddes: “I am therefore in agreement with the conclusion reached by Judge Geddes that the advice fell within the range of that to be expected of reasonably competent counsel of Miss Perry’s seniority and experience.” Lord Carswell does not discuss this formulation of the test or signal any change from the law established in the previous House of Lords decisions to which I have referred.

I note with some diffidence that, while agreeing with Lord Carswell, neither Lord Hope of Craighead or Baroness Hale of Richmond referred to the seniority of the barrister as a relevant criterion. Baroness Hale (at Paragraph 28) specifically applied a different test after referring to the standard to be applied in clinical negligence cases.

The Seniority test was adopted by Field J in his recent judgment in Williams v. Leatherdale & Francis [2008] EWHC 2574 (QB). At paragraph 67 he said that “the relevant standard of care is that to be expected by a competent barrister of Mr Francis’s seniority in 2000 who holds himself out as an expert in ancillary relief.”

I note that the current guidance in the Code of Conduct of the Bar of England and Wales approved by the Bar Standards Board does not mention seniority. It provides:

“701.

A barrister (a) must in all his professional activities be courteous and act promptly, conscientiously and diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste the court’s time and to ensure that professional engagements are fulfilled…..b) must not undertake any task which (i) he knows or ought to know he is not competent to handle; (ii) he does not have adequate time and opportunity to prepare for or perform.”

This test is consistent with the speech of Lord Hope at page 726 of Hall v. Simons and with his observations in Moy.

A comprehensive formulation of the standard to be applied is that the barrister must conduct himself in his professional work with the competence (care and skill) of a barrister of ordinary skill who is competent to handle that type of and weight of work and a breach of that duty occurs when the error is one which no reasonably competent member of the profession possessing those skills should have made.

With the greatest diffidence I conclude that this test represents the law as I understand it based on the analysis which I have set out. It is consistent with the line of cases involving medical practitioners starting with the classic test of McNair J in Bolam v Friern Hospital Management Committee [1957] IWLR 582 at 586 and including Sidaway v Governors of Bethlem Hospital [1985] AC 871 at 897C to which Baroness Hale specifically referred.

Although it may mean that I apply a different standard, I am urged rightly on Mr Platford’s behalf to apply the test set out by Field J, namely to judge his conduct against that of a barrister of Mr Platford’s seniority – well over thirty years.

In Ridehalgh v Horsefield [1994] Ch 205, the Court of Appeal added what it described as “an important qualification”. Lord Bingham MR said in relation to a wasted costs order in court proceedings “Any Judge who is invited to make or contemplate making an Order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure. In the fog of war ……mistakes will often be made….it is only when, with all allowances made, an advocate’s conduct of court proceedings is plainly unjustifiable, that it can be appropriate to make a wasted costs order against him.”

In this case it is said on behalf of Mr Platford that the decision which he had to make was akin to a decision made in the course of a hearing. I do not understand the Court of Appeal in Ridehalgh to be confining their observations to conduct in the Court room but to be making a general observation underlining the importance of considering a decision in the context in which it was made.

Role of the instructing solicitor

In this litigation the issue of the relationship between the barrister who is instructed and the solicitor who gives the instructions is raised directly. Locke v. Camberwell Health Authority [1991] 2 Med LR 249CA is a report of a case in which the Court of Appeal gave judgment on 23 May 1991. The case is concerned with the reliance of the solicitor on counsel’s advice. In the leading judgment Taylor LJ set out the relevant principles:

These are all important principles. In order to understand the respective roles of the solicitor and barrister it is necessary to consider each case individually. For example, at one end of the spectrum it is a proper use of the Bar for a solicitor without experience in a particular field to rely on counsel’s advice particularly on questions of law. At the other end of the spectrum the barrister may be instructed to draft pleadings or prepare schedules on the facts presented to him and must do so according to the solicitor’s instructions provided he can comply with his rules of professional conduct. In between, the roles of the barrister and the solicitor will normally reflect the co-operative relationship between the barrister and solicitor in a particular case.

It is worth noting that frequently, because of the closer relationship with the client, the barrister must rely to a greater or lesser extent on the solicitor for the factual basis on which the barrister gives his advice. On the other hand, subject to having regard to the other principles which Taylor LJ set out, it is clear that a solicitor is generally entitled to rely on the advice of counsel based on the facts presented to him.

The Mental Health Act and Civil Procedure Rules

I turn now to the Mental Health Act 1993 (since replaced by the Mental Incapacity Act 2005) and the Civil Procedure Rules which were in force in September 2005.

The Mental Health Act 1983 defines mental disorder in paragraph 1 as:

“Mental illness, arrested or incomplete development of mind, psychopathic disorder and other disorder or disability of the mind and ‘mentally disordered’ shall be construed accordingly.”

The statute contains no definition of “mental illness”. In W v. L [1974] 1 QB 711, Lawton LJ answered the question of how the expression should be construed. He said:

“The answer in my judgment is to be found in the advice which Lord Reid gave in Cozens v. Brutus [1973] AC 854 at 861, namely that ordinary words in the English language should be construed in the way that ordinary sensible people would construe them. That being the right test, then I ask myself what would the ordinary sensible person have said about the patient’s condition in this case … In my judgment such a person would have said ‘well the fellow is obviously mentally ill’. It is that application of the sensible person’s assessment of the condition, plus the medical indication, which in my judgment brought the case within the classification of mental illness and justified the finding of the County Court Judge.”

It is this application of a sensible person’s assessment of the condition together with the medical evidence which was described by Dr Brenda Hoggett (now Baroness Hale) in the publication Mental Health 1976 page 43 as the “man must be mad” test.

Part 21 of the Civil Procedure Rules is the successor to Order 80 RSC and contains special provisions which apply in proceedings involving children and patients.

Part 21.1(2)(b) defines patient as “a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs.”

Part 21.2(1) provides that “a patient must have a litigation friend to conduct proceedings on his behalf.”

Part 21.3(3) provides that “if a party becomes a patient during proceedings, no party may take any step in the proceedings without the permission of the court until a party has a litigation friend.”

Part 21.3(4) provides that “any step taken before a child or patient has a litigation friend shall be of no effect unless the court orders otherwise.”

Part 21.6 sets out the procedure for appointing a litigation friend. Under CPR 21.6(4) an application for an Order appointing a litigation friend must be supported by evidence. The note to the Supreme Court Practice 21.6.1 says that the court may exercise its powers under this Rule of its own initiative but the Rule envisages the powers being exercised by the persons referred to in CPR Rule 21.6(2) i.e. (a) a person who wishes to be a litigation friend or (b) a party.

Masterman-Lister

The issue which Mr Platford and McFaddens had to address was whether Mr Cunningham was or may have been incapable of managing and administering his property and affairs (in this case, the Collett and Farmer litigation) by reason of mental illness. The starting point in any consideration of this issue is the presumption that a litigant is capable of managing his own affairs.

The issues were considered in detail by the Court of Appeal in Masterman-Lister v. Brutton & Co. [2003] 1 WLR 1511 in this context.

In his judgment Kennedy LJ noted that many of the cases have been litigated in the context of an individual’s capacity to decide whether to accept or refuse medical treatment. For example in paragraph 25 of his judgment, he quoted the following passage with approval. In Re MB (Medical Treatment) [1997] 2 FLR 426, 437 Butler-Sloss LJ held that:

“A person lacks capacity when some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when (a) the patient is unable to comprehend and retain the information which is material to the decision, especially the likely consequences of having or not having the treatment in question: (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision….”

Translated into the wider context, Chadwick LJ at para 58 emphasised (a) that under English law a person must have the necessary capacity in relation to the transaction to be effected and (b) what is required is the capacity to understand the nature of that transaction when it is explained. He added later in his judgment that it is an issue-specific test and when applied to different issues it may yield different answers (para 75). This point is also emphasised by Kennedy LJ at paragraph 27 of the judgment.

Taking an example relevant to this case, a person may have the capacity to understand the simple issue involved in giving instructions to apply for an adjournment whereas he may not have the capacity to understand and decide rationally complex issues as to what needs affirmatively to be done, and to give affirmative instructions to others.

At paragraph 75 Chadwick LJ, went on to explain what he meant by “understanding”. He said that “the test to be applied, so it seems to me, is whether the party to legal proceedings is capable of understanding with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand what he needs to understand in order to pursue or defend a claim I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or as such a person is now described in the Civil Procedure Rules, a next friend)”.

At paragraph 79 Chadwick LJ cited the 1995 Law Commission Report on mental incapacity which drew attention to the need that a person should be able both (i) to understand and retain the information relevant to the decision which has to be made (including information about the reasonably foreseeable consequences of deciding one way or another) or of failing to make any decision and (ii) to use that information in the decision-making process.”

Chadwick LJ in the same paragraph referred with approval to the fact that a judge should have in mind paragraphs 318 and 319 of that Report which are to the effect that a person should not be held to be unable to understand the information relevant to the decision if he understood it in broad terms and simple language and “that he should not be regarded as unable to make a rational decision merely (my emphasis) because the decision, which he does make, is a decision which would not be made by a person of ordinary prudence.” Such a decision would not begin to rebut the presumption that a person is capable of managing his own affairs.

I should add that managing and administering one’s affairs frequently requires not only the ability to make decisions but also (with appropriate assistance) to carry out those decisions by, for example, reading and understanding documents in order to be able to give sufficient instructions for the drafting of a witness statement and (once drafted) the capacity (with assistance if necessary) to understand it, comment on and approve it. This goes beyond using the information in the decision-making process to include the capacity to implement (with assistance) the decisions which have been taken. (The point is referred to by Kennedy LJ at paragraph 18 of the Judgment). When it comes to the trial, the test is whether or not a party is capable of managing his own affairs (i.e. the trial) by reason of mental disorder.

The Claimants say that in order to understand the guidance given by the Court of Appeal in Masterman-Lister, one has to consider the context in which it was given and what they submit are relevant surrounding circumstances. They submit as a matter of law that no barrister could have concluded that there was anything other than the remotest risk that Mr Cunningham was incapable by reason of mental capacity of managing his own affairs.

In making this submission they refer to the Practice Direction (Declaratory Proceedings) Incapacitated Adults [2002] 1WLR 325 Fam D as being illustrative of the sort of situation in which it can properly be claimed that adults lack capacity (see the references to those who cannot consent to medical treatment – for example sterilisation – and those in a persistent vegetative state).

In particular Mr Nicol cites on one side of his line Kirby v Leather [1965] 2QB 367 where a plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. He was held to be “under disability” because he was not capable of exercising any reasonable judgment.

On the other side of the line he cites In re: C (Adult: Refusal of Treatment) [1994] 1 WLR 290 where the court held that it had not been established that the patient’s general capacity was so impaired by Schizophrenia as to render him incapable of understanding the nature, purpose, and effects of the treatment advised and consequently his right of self determination had not been displaced.

In my view, it is not helpful to try to create a distinction in this way. It is important to note that the same reason given for the appointment of a guardian in Kirby v Leather would have applied using the Masterman test. Equally, applying the test, the court would have reached the same result in In re C. The Court of Appeal sought, and in my respectful view succeeded in Masterman-Lister in formulating a test of general applicability.

In formulating the test, Chadwick LJ cited with approval the passage in Kirby v Leather which set out the ratio for that decision namely “in particular he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement”.

The test set out in Masterman-Lister is not confined to the type of situation referred to by Mr Nicol but is of general application and requires answers to the following questions: 1. Does the individual have the capacity to manage his own affairs? 2. Is the answer the same in relation to the specific issue which is being considered? and 3. If the answer to 1) and 2) is ‘No’ does this arise by reason of mental illness? I should add, that “manage” includes not only making decisions but the ability to carry out such work (with assistance) as is necessary to give proper instructions and, where appropriate, to do what is necessary to implement the decisions.

Loss of a chance

McFaddens claim that if they had not made the settlement which they did, the claim would have remained struck out and the joint Claimants would have lost a worthwhile cause of action and therefore the chance of succeeding in their claim.

I gratefully adopt the summary of the law set out by Underhill J in Pritchard Joyce v. Batcup [2008] EWHC 20 (QB). In particular, Underhill J refers to the judgment of Rix LJ in Dixon v. Clement Jones [2007] Lloyds Rep. PN 20 at paras 24-42.

Underhill J concludes at paragraph 111:

“My task is not to seek to decide definitively whether LL were liable in negligence to Mr and Mrs Fox for the amount of the loss settlement, but simply to decide whether the claim had a real and substantial prospect of success and thus constituted a thing of real value…Even if there may sometimes be cases where it is open to the court, in effect, to try the lost action, this is certainly not one of them… In performing that task I ought to take into account the principle deriving from Armory v. Delemirie (1722) 1Strange 505, that if the negligence of the defendant has led to evidence being unavailable which might otherwise have assisted the victim of that negligence, he should not have the benefit of any consequent doubt.”

I should also refer to the case of Mount v. Barker Austin (a firm) [1998] PNLR 483. At page 497 Moore-Bick J, sitting in the Court of Appeal, explained the nature of the claim in this way:

“When a person sues his former solicitors for negligence for the conduct of proceedings which led to his action being struck out, his loss is normally measured by reference to his prospects of success in the primary litigation – see Kitchen v. RAFAssociation [1958] 1 WLR 563. However in order to recover for the loss of this kind the court must be satisfied that the plaintiff had at least a real or substantial chance that he would have succeeded in the primary action, not merely a speculative one… If his prospects fall short of that, the court will ascribe no value to them, but provided the court can see that there were real prospects of success it will evaluate them notwithstanding the difficulties that may involve.”

At page 502, Moore-Bick J said that the evidential burden lies on defendants to show that despite having acted for the Claimant in the litigation and charged for their services, that litigation was of no value to their client. If the litigation was of some real value, it is not appropriate to investigate in detail what the prospects of success would have been in the substantive action but to take a broad brush approach. In this case the burden of proof will remain on the defendant but it is in circumstances where I must consider the issue in the context of the state of the evidence at the date of the Application and take account of the ‘Unless Orders’ limiting the evidence to that disclosed at an earlier date.

Contribution

By section 2 of the Civil Liability (Contribution Claims) Act 1978 if it becomes necessary to do so, I am required to apportion the relevant contributions of the parties in such proportions “as may be found by the Court to be just and equitable having regard to the person’s responsibility for the damage in question.” Each case must be considered on its particular facts. In Pritchard Joyce it was 75% against the barrister and 25% against the solicitors.

Mr Cunningham is, by common consent, an intelligent man. He has played rugby football at a very high level and since has had a substantial career in business. He has in recent years been involved in a considerable amount of litigation. This has been handled by different solicitors and counsel and, at the time of the Application, was being handled by different solicitors within McFaddens.

Since before 2001 Mr Cunningham had been involved, no doubt worryingly for him, in Company Director’s Disqualification Proceedings in relation to two companies, Park 4 Less Limited and PhoneDrive Limited. The first document in the chronological bundle is the Second Report of the Official Receiver in those proceedings dated the 1^st June 2003, in which the Official Receiver asked for Mr Cunningham to be disqualified as a director. McFaddens have represented Mr Cunningham in the director’s qualification proceedings at least since 2003 with both Mr Eppel and Mr Berwin much involved. Mr Platford did not represent Mr Cunningham in those proceedings. Much of the early evidence that follows relating to Mr Cunningham’s mental and physical state was obtained by McFaddens in relation to the disqualification proceedings.

A number of the Actions, including the Collett & Farmer Action, related to the refurbishment of a Grade II star listed building called Bengeo Hall in St Leonard’s Road, Bengeo, Hertford SG14 3GN which he and Ms Good had purchased in May 2002 for use as their permanent residence. Collett & Farmer were the architects. Until 2004 Grundberg Mocatta Rakison (“GMR”) acted as the solicitors in the Collett and Farmer action. They instructed Mr Platford as counsel.

It is clear that from 2002 Mr Cunningham had health problems. The early evidence is largely derived from the director’s disqualification proceedings. Mr Cunningham was severely ill with Caliparium (cerebral) malaria in November 2002 and was treated for it. It appears from a report from Dr Davies, Consultant Cardiologist, dated 17th December 2003 that Mr Cunningham also has had heart problems. Dr Davies advised that Mr Cunningham should undergo electrical cardioversion in the week commencing 5th January 2004. He warned that a court appearance during the procedure or for at least two weeks thereafter would create stress and exacerbate the rhythm of the heart or cause chest pain.

Mr Eppel wrote to Howes Percival on the 18^th December 2003 informing them of the position as the opposing solicitors in the director’s disqualification proceedings. The information was instrumental in Mr Cunningham obtaining an adjournment in that litigation until a new trial date which was set for the 19^th May 2004.

In April 2004 Mr Eppel was becoming concerned because Mr Cunningham had not put his firm in funds. This was to be a continuing concern. Mr Eppel sent an email to Mr Cunningham on 17 April 2004 “Re: Donald Duck” ( i.e. relating to the Directors disqualification proceedings) in which he noted that:

“(f)

in December 2003 (you having to failed to pay off the old bills or put us in funds for the January trial) an adjournment was agreed with Howes Percival on the grounds of your medical condition. This was extremely difficult to obtain.”

Mr Eppel asked for £130,000 to be paid to him in the following two-to-three days on account of McFadden’s fees together with those of leading and junior counsel.

On 22 April 2004 Mr Eppel recorded that he had telephoned Mr Cunningham and that Mr Cunningham had told him that he had been away and while he was away he had been involved in two accidents and had suffered a severe torn muscle in his right groin. He said he would ask his specialist if he could give evidence in four weeks time (i.e. 19^th May 2004). Mr Eppel warned him that there was a risk he would not be able to adjourn the director’s disqualification proceedings again. Mr Cunningham said that he would raise the funds to pay solicitors and counsel by selling sufficient shares in Earthport PLC, of which he was Managing Director, in order to put McFaddens in funds.

On 30April 2004 Mr Currie, Consultant Orthopaedic Surgeon, sent Mr Eppel’s partner, Mr Berwin, an email which noted that Mr Cunningham may require urgent surgery as a result of the injury to the right groin and that he also had a cardiac condition. He said that Mr Cunningham’s current condition required strong analgesia and this was likely to impair his concentration as well as make it difficult for him to sit through a court case.

On 7 May 2004 Mr Cunningham swore a witness statement in support of his application for an adjournment in the director’s disqualification proceedings.

On 10^th May 2004 Mr Cunningham sent an email to Mr Eppel saying that “this is to confirm that I am not in a position mentally or physically to attend trial or any pre-trial conferences or consultations or in any way to prepare for the trial because of the considerable pain and discomfort I am still experiencing following the two accidents.”

The application for this adjournment was heard two days before the trial. On 11 May 2004 Mr Currie supplied an extensive report for the court in relation to the April 2004 accident. He confirmed the findings in his earlier report and said that he expected Mr Cunningham’s symptoms to improve over the next 4-6 weeks.

Mr Cunningham was granted his further adjournment.

On 21 May 2004 Judge Seymour QC gave directions in the Collett & Farmer action for the period to the 13^th August 2004 and thereafter a trial was fixed for 6 October 2004. McFaddens would know the history of this litigation because GMR passed their papers to McFaddens after McFaddens had been instructed.

Mr Cunningham was also involved in other litigation. He was being sued in the Hitchin County Court for fees for project management services relating to the work at Bengeo Hall. In this litigation the learned Recorder found for the claimant.

On 29 October 2004 His Honour Judge Hegarty QC gave judgment in Eugenia v. Gelande. Mr Platford, instructed by GMR appeared for Gelande.

On 4 November 2004 Mr Cunningham again visited Dr Davies at the Royal Brompton Hospital in relation to his cardiac problems and obtained from him a further report in support of a further application for an adjournment of the director’s qualification proceedings on the grounds of his ill-health. Mr Platford said in evidence that he was not aware of this report. Mr Eppel must have been aware of it. Dr Davies said that “he has had a difficult time with pressure at work and at home and to compound matters had a chest infection and asthma in October. “Dr Davies said that he proposed to admit Mr Cunningham for further electrical cardioversion.

The director’s disqualification trial was again postponed, this time to 22 February 2005.

On 24 January 2005 Mr Berwin noted that Mr Cunningham would not be present on 22 February 2005 because he was undergoing a heart procedure. He said that his firm needed to be paid its outstanding fees and the costs of applying for a further adjournment.

The Collett & Farmer action was not tried on 6^th October 2004. On the 25 January 2005, by consent, Judge Seymour QC dealt with a number of matters and in particular ordered that on the proposed change of expert, the joint Claimants should serve a Draft Amended Particulars of Claim by 4pm on 11 February 2005 together with the report of their new expert Mr Palos. This was an Unless Order. The order also provided a timetable for directions leading to a pre-trial review on 27 May 2005.

On 3 February 2005 his then solicitors, GMR, wrote to Mr Cunningham in relation to the Collett and Farmer litigation. They gave a picture of the problems which Mr Cunningham (and the other claimants) faced and noted Mr Cunningham’s rejection of a compromise.

Meanwhile in the director’s disqualification litigation McFaddens successfully obtained a further adjournment at short notice. Mr Berwin telephoned Dr Lewis Clein, a Consultant Psychiatrist, in early February 2005. He told Dr Clein that Mr Cunningham had agreed to see him. Mr Berwin also told Dr Clein about Mr Cunningham’s alcohol abuse, the frenzied activities over the last few months and the pressures which he was undergoing.

Dr Clein saw Mr Cunningham on 11 February 2005 and prepared a report dated 14 February 2005. It is important to note that Mr Berwin and Mr Eppel were well aware of the report. Indeed Mr Eppel agreed in cross-examination that he was familiar with it. Mr Platford was not involved in this litigation and was not aware of the report at that time although he learned about it later.

The Report noted that Mr Cunningham was referred by McFaddens for an urgent consultation to assess Mr Cunningham’s fitness to attend court on 22-25 February 2005 and 1^st March 2005 in the director’s disqualification proceedings.

The history set out in Dr Clein’s report noted that he had been living with his partner, Catherine Good, for the past five years but that the relationship was at present going very badly. Mr Cunningham was irritable and tense. His concentration was worsening and he was only sleeping three to four hours nightly. “He feels tired all the time and yet cannot sleep”.

Dr Clein’s diagnosis was as follows “In my opinion Mr Cunningham is suffering at present from a Reactive Depression (ICD.10.classification F.32.1)”.

It was not until Mr Nicol for the claimants very helpfully set out the classification in detail in his final submissions that the ICD classification, a standard internationally used classification, was explained. Until the hearing before me, Mr Eppel, Mr Berwin, Mr Willis and Mr Platford were unaware of the precise significance of the classification. It is important to set it out, not so much in relation to what McFaddens knew at the time, but to indicate whether according to Dr Clein, Mr Cunningham was or may have been suffering from mental illness.

Had the lawyers understood the precise meaning of the medical classifications, it would have reinforced their concerns as to whether on not Mr Cunningham ought to be further examined to see whether or not he ought to have a next friend in the litigation because he was incapable of managing the litigation by reason of mental illness. It was consistent with their concerns.

F.32 Depressive episode is described as follows:

“In typical mild, moderate or severe depressive episodes the patient suffers from lowering of mood, of energy and decrease in activity. Capacity for enjoyment, interest and concentration is reduced and marked tiredness after minimum effort is common. Sleep is usually disturbed and appetite diminished. Self-esteem and self-confidence are almost always reduced and, even in the mild form, some ideas of guilt or worthlessness are often present. The varied mood varies little from day to day, is unresponsive to circumstances and may be accompanied by “somatic symptoms” such as loss of interest and pleasurable feelings, waking up in the morning before the usual time, depression worst in the morning, marked psychomotor retardation, agitation, loss of appetite, weight loss and loss of libido. Depending on the number and severity of symptoms a depressive episode may be specified as mild, moderate or severe.”

“F32.0 Mild Depressive Episode”

“Two or three of the above symptoms are usually present. The patient is usually distressed by these but will probably continue with most activities”.

“F32.1 Moderate Depressive Episode” (the current diagnosis)

“Four or more of the above symptoms are usually present and the patient is likely to have great difficulty in continuing with normal activities”.

“F32.2 Severe Depressive Episode with psychotic symptoms and severe depressive episodes without psychotic symptoms” (the later diagnosis).

“An episode of depression in which several of the above symptoms are marked and distressing, typically loss of self-esteem and ideas of worthlessness or guilt. Suicidal thoughts and acts are common and a number of “somatic” symptoms are usually present.”

The Application for an adjournment in the Director’s Disqualification proceedings on 15 February 2005 was successful but the Official Receiver asked for and the Court gave a direction that Mr Cunningham should be examined by the Official Receiver’s nominated psychiatrist Dr Neil Boast.

In the four actions in which GMR were then involved, Albany Construction. Eugena, City South Projects and Collett & Farmer, the solicitors emailed Mr Cunningham to say that, inclusive of VAT, fees of £187,119.59 were outstanding of which £63,944.48 plus VAT represented counsel’s fees i.e. Mr Platford’s fees. Mr Platford continued to act for Mr Cunningham in those actions but, as I have said, he was not involved in the Director’s Disqualification proceedings.

Mr Cunningham obtained his further adjournment in the director’s disqualification proceedings to the first open date after 1 October 2005. No later than 30 June 2005 the Court ordered the Official Receiver to file and serve such evidence including, but not limited to, medical evidence, as the Official Receiver deemed appropriate in relation to Mr Cunningham’s fitness to attend the adjourned trial. Mr Berwin said in an email to Mr Cunningham dated 17 February 2005 that the psychiatrist would probably be Dr Boast whom he had looked up and “he seems to be quite a formidable and no doubt cynical practitioner”. Mr Berwin urged Mr Cunningham to comply with all requests from those treating him.

On 22 February 2005 Mr Cunningham saw Dr Clein again and repeated to Mr Berwin that he had demonstrated to Dr Clein that he was more relaxed but still subject to the pressures that caused the stress-related symptoms. Mr Cunningham also appears to have seen Dr Clein on 1 March 2005.

In the Collett & Farmer litigation, Dr Clein sent a brief note to GMR (received 10 March 2005). This note was also used in the application in the Luton County Court to which I will refer.

Dr Clein’s note said “this is to confirm that I have been treating Mr Cunningham for reactive depression and an anxiety state brought on by stress since 11 February 2005. (He is seeing me weekly for cognitive therapy). “In my opinion this condition has damaged his ability to cope adequately with the pressures put upon him and coping with deadlines would be considerably impaired.”

Mr Cunningham was also having problems in the action against him in the Luton County Court by Albany Construction Limited. On 15 February 2005 His Honour Judge Hamilton ordered that unless Mr Cunningham’s company, Gelande, served its list of documents by 1 March 2005 the defence and counter-claim would be struck out.

The deadline of 1 March 2005 was missed and on 1 April 2005 Judge Hamilton heard an application by Mr Cunningham for relief from the consequences of his failure to comply with the earlier order. Judge Hamilton considered whether the failure to comply with his Order was intentional or not. The learned judge concluded that it was intentional. He noted that the medical certificate set out above (not the report provided for the director’s disqualification proceedings) did not say anything about Mr Cunningham’s inability to go through files or undertake a number of other tasks for the purpose of disclosure in the litigation.

On 14 April 2005 Mr Cunningham filed his Notice of Appeal against Judge Hamilton’s decision. At point 4 Mr Cunningham contended “4. The learned judge misunderstood the medical evidence of Dr Clein and was wrong to conclude that the defendant’s failure to comply with the Order was culpably intentional in the light of Dr Clein’s certificate.” Mr Platford agreed in cross- examination that he had seen Dr Clein’s certificate. Mr Willis said he had not seen it.

The Notice of Appeal in the action in the Luton County Court, said that the time for compliance with Judge Hamilton’s order had passed and, in view of the extreme urgency, Dr Clein had been asked to produce a certificate rather than to write a report. At this stage neither GMR (the solicitors) nor Mr Platford was aware of the detailed report which Dr Clein had prepared for the Director’s Disqualification proceedings.

In the Director’s Disqualification proceedings, on 24 April 2005, Dr Boast wrote to Mr Berwin and Howes Percival offering to see Mr Cunningham on 6 June 2005. In fact the appointment was fixed between Mr Cunningham and Mr Boast for 11 July 2005 but Mr Cunningham did not attend. Dr Boast was offered another appointment on 18 August 2005 which Mr Cunningham did keep.

On 25 May 2005 GMR came off the record in the various actions in which they had been representing Mr Cunningham. Immediately before that, Mr Cunningham had resigned as the Chief Executive Officer of the publicly listed company Earthport PLC.

Also on 25 May 2005 Mr Cunningham wrote to the clerk to HH Judge Seymour QC, the judge then managing the case in the Technology and Construction Court, notifying the court of the change of solicitor in the Collett & Farmer action and requesting an adjournment of the pre-trial review due to be heard on 27 May 2005 and also an adjournment of the trial on 27 June 2005 so that he could instruct new solicitors and complete the work necessary for trial.

No-one appeared for the joint Claimants on the 27 May 2005. Mr Mort, of counsel, appeared for the defendants. Judge Seymour QC granted an adjournment of the pre-trial review to 10.00am on 7 June 2005. The Order provided that unless the claimants or a representative attended that hearing the claim would stand dismissed and the defence to counter-claim would be struck out. In the event that the claimants, by a representative or in person, attended the adjourned hearing of the pre-trial review, Judge Seymour QC imposed stringent directions (subject to amendment at the adjourned hearing) which would lead to a trial starting on 27 June 2005.

On 6 June 2005 McFaddens were instructed in the Collett & Farmer litigation. Mr Willis had joined Mr McFaddens as consultant on about 5 June 2005. His arrangement with the firm was that he would have primary conduct of the litigation subject to the supervision of Mr Eppel. Mr Willis was to be paid on a contingent basis i.e. his remuneration would depend on a successful recovery of fees either as a result of success in the litigation and recovery of fees from the defendants or recovery of fees from the claimants. Mr Willis has received very little money for his conscientious work.

Before considering the next stage in the history it is convenient to pause and review the information which was known to the various legal advisers relating to Mr Cunningham’s medical history at the time when McFaddens were instructed in the Collett & Farmer litigation.

Mr Eppel and Mr Berwin were fully conversant with Mr Cunningham’s medical history including his visits to Dr Clein and the full psychiatric report which Dr Clein had written for the Director’s Disqualification proceedings. They were also conversant with the strategy which had enabled Mr Cunningham to obtain adjournments of the trial in those proceedings since the beginning of 2004. They were also well aware that Mr Cunningham had consistently failed to put McFaddens in funds either through reluctance or inability to do so.

Further they were aware of the medical evidence that in addition to the diagnosis of reactive depression by Dr Clein, Mr Cunningham had also suffered from physical problems. They knew that Mr Cunningham was to be seen by Dr Boast on behalf of the Official Receiver.

Mr Willis, having just arrived at the firm, had no prior knowledge of Mr Cunningham. He was, however, an experienced litigator well used to assessing a wide range of clients. He would conduct the day to day aspects of the litigation under the general supervision of Mr Eppel.

Mr Platford was a very senior junior barrister with over 30 years of experience and with a large practice. He had been instructed in the Collett & Farmer litigation by GMR and in three other actions arising out of the purchase and refurbishment of Bergeo Hall. These instructions came from GMR from late 2003. Mr Platford said that he had had frequent telephone conversations and meetings with Mr Tackley, who was his previous instructing solicitor at GMR, that he had met Mr Cunningham in conference, and represented him at court when he gave evidence in the Eugena v Gelande and City South v Cunningham actions.

In relation to potential mental health problems, Mr Platford had not had to consider this issue in the depth in which it had been considered and followed up in the director’s disqualification proceedings. He had seen Dr Clein’s certificate used in the Albany Construction litigation which referred to reactive depression. “This is to confirm that I have been treating Mr Cunningham for reactive depression and an anxiety state brought on by stress since 15 February 2005 (he is seeing me for cognitive therapy)”. Mr Platford had not at this stage seen Dr Clein’s first medical report. He was certainly far less conversant with Mr Cunningham’s medical condition in all its aspects than either Mr Eppel or Mr Berwin.

From the time he joined the firm Mr Willis prepared detailed file notes in relation to Mr Cunningham’s litigation. It is clear that these notes were very conscientiously made and remarkably accurate. It is a considerable tribute to Mr Willis that they were not challenged at any point and were relied on by all the witnesses as giving an accurate account of the events which they described. It is right to emphasise again that Mr Willis acted in all respects (other than those the subject of this litigation about which I must make findings) in a manner which was thoroughly conscientious.

When McFaddens were instructed on 6 June 2005 in place of GMR, Mr Platford was asked by McFaddens to continue as the joint Claimants’ counsel in the Collett & Farmer litigation. McFaddens had not previously instructed him in other litigation.

On 6 June 2005 Mr Willis had a 16 minute telephone conversation with Mr Platford. Mr Platford gave his opinion on the current state of the litigation. He knew that Mr Cunningham had contracted cerebral malaria and had been ill, that relations had broken down with Mrs Good, that he had suffered from depression and that he had lost his job with a major company.

Mr Willis said that McFaddens had come into the Collett & Farmer litigation with various Unless Orders made against Mr Cunningham and that he hoped that the court would give Mr Cunningham more time for compliance with those Orders. Mr Platford said at the conference on the day before the Case Management Conference that he would do what he could to help. Both Mr Willis and Mr Platford recognised that there was a danger that the case might be struck out at that stage.

Also on 6 June 2005 McFaddens sent the claimants in the Collett & Farmer action a letter setting out their terms of business. Paragraph 13 noted that “Mr Graham Willis will carry out most of the work on this matter personally, but you can also contact Mr Timothy Eppel who will be familiar with the file”.

The adjourned pre-trial review took place in front of Judge Coulson QC on 7 June 2005. The state of the litigation was considered in detail and Orders were made on the basis that 27th June 2005 was to be maintained as the trial date. The learned judge noted that the original trial date had been as long ago as 6 October 2004 and he made stringent Orders with a view to maintaining the June 2005 trial date.

The Orders included paragraph 4 “Signed statements of witnesses of fact to be filed and served by 12 noon on the 14^th June 2005. No witness evidence may be relied on by any party save and to the extent that that party has complied with the provisions of the Order.” This Order was a matter of considerable significance to Mr Cunningham and his legal advisers.

Apart from the problems directly relating to the litigation it was clear that problems remained relating to McFaddens being put in funds by Mr Cunningham. It was arranged that the expert, Mr Palos, would be paid directly by Mr Cunningham because McFaddens, who had not been put in funds, very sensibly refused to be responsible for Mr Palos’ fees.

On 9 June 2005 Mr Cunningham received a stiff letter relating to fees. Mr Eppel said that the firm was prepared to assist but “we are not prepared to take any financial risk in the light of the history. If you or Catherine (Good) are able to provide us with cleared funds then we will do the work limited to what those funds allow.”

This lack of funds was a recurring theme. On 13 June 2005 Mr Willis recorded “Discussion with Timothy Eppel. Told him about considerable funding problems and my concerns in regard to this case.” The threat to cease to act for Mr Cunningham was not carried out.

On 14 June 2005 (the last day of the Unless Order) Mr Cunningham signed a detailed witness statement in the Collett and Farmer litigation. Although containing some details, Mr Platford advised that it did not incorporate his proposed amendments and was seriously defective as Mr Cunningham’s evidence in chief. Because of the deadline imposed by the court the witness statement had to be served in that form. The impact of the deficiencies on the joint Claimants’ chances of success in the litigation was later commented on by Mr Platford and the solicitors.

On 15 June 2005 in an email to Mr Cunningham, Mr Eppel rehearsed the funding problems. Mr Eppel said with apparent bitterness “Under all the circumstances we have no way forward, please accept this notification that we are now coming off the record…We also expect you to deliver the £5,000 in accordance with your promise to me – or is your promise not worth anything?”.

Mr Berwin continued to be engaged in contesting the director’s disqualification proceedings on Mr Cunningham’s behalf. Mr Willis spoke to Mr Berwin who said that Dr Clein would be seeing Mr Cunningham at 4pm on 15 June 2005. The urgency appears to have been prompted by the appointment to see Dr Boast which was originally due to take place on 6 June 2005. Mr Cunningham did keep his appointment with Dr Clein.

Dr Clein was going away on the following day and he produced a hand-written report. Mr Eppel told Mr Willis that Mr Berwin would provide direct liaison with Dr Clein as he was dealing with the director’s disqualification case.

Dr Clein’s further report referred to his first report in February 2005. He categorised Mr Cunningham’s condition as F32.2 (previously F32.1). Dr Clein concluded of Mr Cunningham that “his condition has worsened since I first saw him…he feels under great stress. I am certain that he is in no fit state to face a nine day trial such as has been set to occur commencing on June 27th…I recommend that the court proceedings should be postponed till he is in a better mental state.”

Even if the reader does not understand the significance of F32.2, there was a clear reference to an earlier diagnosis, to Mr Cunningham’s condition worsening and to the need to postpone the trial until Mr Cunningham was in a better mental state.

The purpose of Dr Clein’s letter was to provide support for an adjournment to the trial in the Director’s Disqualification proceedings. It does not address the more general question of whether Mr Cunningham lacked capacity to conduct proceedings and would need a litigation friend, but there is enough in the report to raise the factual question of whether, at that particular time, Mr Cunningham had (with appropriate help and advice) sufficient mental capacity to understand and take decisions on the detailed issues put before him (and to carry out rationally his part in the litigation).

On 16^th June 2005 Mr Willis and Mr Platford discussed a further application for an adjournment of the trial. Mr Willis told Mr Platford that Mr Cunningham had been stressed, and suffering from depression as specified by Dr Clein. They also discussed their concerns about the instructions which Mr Cunningham had been giving to Mr Willis. This, coupled with the report on Mr Cunningham’s medical condition as described in Dr Clein’s latest report, provided the basis for a further application for an adjournment.

These continuing concerns would also be highly relevant to the wider question, raised later, of whether Mr Cunningham had the necessary mental capacity to conduct and to address the litigation.

Mr Cunningham did not attend the hearing before Judge Coulson QC on 16 June 2005 but he did give permission for Dr Clein’s latest report to be disclosed at that hearing. It is important to set out the medical problems which were discussed in the presence of Collett and Farmer’s legal team and the Judge in view of the matters disclosed at the hearing on 23 September 2005. The Claimants contend that what was said on the latter occasion was highly prejudicial to Mr Cunningham. Mr Platford contends that it did not go in any material sense beyond what the Defendants in the Collett & Farmer litigation already knew from this hearing.

The Application Notice, signed by McFaddens, sought an adjournment because “the First Claimant (Mr Cunningham) who is the principal witness of all three claimants herein is not in a fit state to face a trial on 27 June as set out in the medical report of Dr Lewis Clein and is not fit to give proper instructions as also set out”.

At paragraph 4 of part C of the Application Notice, Mr Willis said:

“I myself have noticed that Mr Cunningham has been very stressed in giving instructions in the last few days and now that I have seen the report of Dr Clein, I am not confident that the instructions given to the Claimant’s solicitors by Mr Cunningham were sensible and proper instructions having regard to his medical condition and state of mind. Further I am concerned that I shall not be able to obtain sensible and proper instructions from Mr Cunningham whilst his immediate medical condition persists as is described by Dr Clein and in the circumstances an adjournment of the trial and further or other directions will be sought.”

The lack of specificity in the statement was criticised by the learned Judge at the subsequent hearing but the sense of the evidence was clear enough.

At the hearing on 16^th June 2005 before Judge Coulson QC, which was transcribed, Mr Platford referred to Dr Clein’s report and said that Mr Willis could not safely rely on any instructions which he was getting from his client and Mr Platford was concerned that if Mr Willis pressed him any further, Mr Cunningham would be made ever more ill and he was also concerned that Mr Cunningham had been talking about suicide.

Mr Platford was asked by the learned Judge why the application was being made so late. Mr Platford replied, “Because it was not until the 14 (June) that we recognised that the problems were anything other than Mr Cunningham being difficult.” Not surprisingly, Judge Coulson QC remained highly critical of the lateness of the application.

Mr Mort, for the Defendants, viewed the evidence with (from his point of view) appropriate scepticism in relation to yet another application for an adjournment. Mr Mort noted that Dr Clein’s later report did not say in terms that Mr Cunningham was unable to give instructions leading to a nine-day trial.

Judge Coulson QC heard about the other civil actions relating to Bengeo Hall. Mr Platford said that when the litigation was started eighteen months before, there was no suggestion that Mr Cunningham was other than fully fit to conduct the litigation.

Although he was clearly sceptical as to the validity of the Application, Judge Coulson QC adjourned the trial to the provisional date of 10 October 2005. He made it clear that “certainly on the material before the court it would not be adjourned beyond that date”. The implication of this observation is that there would be no further adjournment without additional compelling medical or other evidence.

The Order, made at the hearing, maintained the existing orders relating to evidence at trial including paragraph 4 of Judge Coulson’s previous order that witness statements had to have been served by 12 noon on 14 June 2005 and that no witness evidence may be relied on save to the extent that the parties had complied with the Order.

This raised immediately the question of Mr Cunningham’s witness statement. Mr Willis raised the matter with Mr Eppel on the same afternoon. Mr Willis noted:

“I explained that there may be a need to re-address whether Robert was capable of giving his witness statement or whether this should be looked at further.”

It was clearly desirable that any further witness statement from Mr Cunningham should be made at the earliest possible moment if there was to be any chance of succeeding in an application to vary the existing order in relation to witness statements and to permit the further statement to be admitted in evidence.

Mr Willis addressed the point with Mr Cunningham immediately after he had spoken to Mr Eppel. He told him that Mr Platford had raised the question that he may not have been able properly to address the points in the witness statement.

On 22 June 2005 Mr Willis wrote to Mr Cunningham again complaining that his firm had not been paid. “It is therefore urgent that you still send the funds rapidly firstly in the sum of £8,000 and then sums to bring you up to at least £21,000 plus VAT and a further sum for another £3,000 plus VAT for counsel’s fees.”

He followed this up on 23 June 2005 with a further threat to come off the record. The deadline for being put in funds, which Mr McFaddens imposed, was not met and a further letter dated 29 June 2005 from Mr Willis included a further threat to come off the record. The threat to come off the record was not carried out.

On 23 June 2005 Mr Willis wrote to BW (the Defendant’s solicitors) noting that Mr Cunningham was “suffering from severe depression at the moment.” A letter to them on the following day referred to “our Client’s medical difficulties.” In cross-examination Mr Willis said that he could not get assistance from Mr Cunningham at this time.

On 23 June 2005 Mr Willis discussed with Mr Platford the various law suits in which they were involved. He told Mr Platford that Mr Cunningham was asking in relation to the appeal to the Court of Appeal in the Albany litigation that Dr Clein’s report should be put forward to explain why he had not been able to deal with the procedural steps in the litigation. Mr Cunningham also said that the trial needed to start on 3^rd October 2005.

On 27 June 2005 in an e-mail to Mr Willis, Mr Platford raised the direct question of whether Mr Cunningham was fit to manage the litigation. He said:

“Is it possible that Dr Clein thinks RC is presently not fit to manage his litigation affairs so should act through a litigation friend? Do McFaddens want the comfort of Dr Clein advice in the light of Masterman-Lister v Burton & Co [2003] 1WLR 1511?”

Mr Willis said in oral evidence that he had not read Masterman-Lister although it would appear that he did read a summary on the internet. Mr Platford rightly identified this case as the leading authority. Mr Platford said that he had read it in the previous November for a different purpose. He had not read it immediately before he sent the e-mail. McFaddens took no action to follow up Mr Platford’s email.

On 1 July 2005 permission was given to appeal against the judgment of Judge Hamilton in the Luton County Court. The appeal would enter the Court of Appeal warned list on 3 October 2005.

On 4 July 2005 Mr Willis wrote to BW saying that as Mr Cunningham was suffering from reactive depression and that this most probably affected his ability to focus on matters relevant to his witness statement, McFaddens were proposing to obtain counsel’s opinion on whether to make an application that a further witness statement from Mr Cunningham be admitted in evidence. It was envisaged that this application would also require further evidence from a psychiatrist.

Immediately prior to this, on 29 June 2005, the Court of Appeal refused permission to appeal in the City South Project Action. Mr Platford represented Mr Cunningham. Mr Cunningham was not present at the hearing.

On 5 July 2005 Mr Willis wrote to Mr Cunningham pointing out the stringent orders which had been made against him in the Collett & Farmer litigation and insisting that he make progress in addressing them.

On 11 July 2005, in response to an e-mail from Mr Willis referring to the “problems suffered from your depression”, Mr Cunningham appears to have sent an e-mail to Mr Willis, copied to Mr Eppel, suggesting a surprising change of instructions. He said:

“For the record I am not suffering from depression and have never suffered from depression. I was under pressure earlier this year from various personal circumstances and took the opportunity to take counselling on some of the issues but at no time have I been diagnosed as being depressive.”

Mr Willis said in oral evidence that he had not seen this e-mail. There is no evidence that its contents were communicated to Mr Platford.

On 18 July 2005 Mr Platford wrote to Mr Willis before going on holiday. He said:

“I am presently proposing to be in France from 1^st to 24^th August and I suspect little will happen… before September some four weeks before trial with much reduced prospect of the Judge allowing any further evidence.”

This was a clear and sound warning.

The question of payment of McFaddens’ fees had still not been attended to by Mr Cunningham despite a promise on 18 July 2005 that funds were to be transferred to his RBS account on 18 July 2005 and then to McFaddens.

On 21 July 2005 McFaddens sent Mr Cunningham, Ms Good and Gelande an invoice for £41,125 together with a detailed summary of costs. On 22 July 2005 Mr Cunningham paid £10,600 into McFaddens’ account. Out of that sum £4,100 was to be sent to BW in satisfaction of a previous Court Order for costs made against him. This left £6,500 for McFaddens.

On 22 July 2005 Mr Platford sent an e-mail, which was copied to Mr Willis, which included the sentence:

“Presently I have no instructions and I fear that RC is still not fit to give them.”

Mr Platford clearly believed that his Client was suffering from mental problems and that this, rather than funding difficulties, was the reason why his advice had not been acted on.

Despite the large shortfall in the funds paid to McFaddens, they continued to take a relatively proactive approach to the Collett & Farmer litigation. On 26 July 2005 Mr Willis wrote to Mr Platford noting that Mr Platford was about to go on holiday and that “if anything is to be done about the witness statement this should occur very soon. I am in touch with Mr Cunningham to try to get his instructions and I will see what can be done.”

Either immediately before or immediately after this e-mail, Mr Willis spoke to Mr Platford. Mr Platford said again that further evidence needed to be taken from Mr Cunningham soon because the Judge would not accept it if it was too late. He said they would need a report from Dr Clein as to why Mr Cunningham had not been able to give proper instructions in the first place. Mr Platford said that either Mr Cunningham would have to attend the trial and give oral evidence or a Civil Evidence Act Notice would need to be served supported by evidence from Dr Clein. It is clear that although Mr Platford was concerned about Mr Cunningham’s mental state, he was also concentrating on the practicalities of the trial in October.

Not surprisingly McFaddens were not satisfied with their payment of £6,500. On 26 July 2005 Mr Eppel wrote to Mr Cunningham setting out his investigations of the terms of Mr Cunningham taking out a £100,000 loan. The letter noted that Mr Willis was already owed about £35,000 in fees.

Mr Cunningham responded on 27 July 2005 agreeing in principle to the terms. He said that Ms Good would receive £10,000 of the loan and that Mr Willis should receive £10,000. He went on to complain that he had seen no breakdown of costs. He was later also to use this complaint about lack of breakdown of costs as a reason for not paying the lawyers’ fees.

On 5 August 2005 BW wrote to McFaddens asking for an adjournment of the trial because their expert was not available on 4 October 2005. The early October trial date was the subject of much discussion between the parties and the court.

Mr Willis wrote to Mr Cunningham on 10 August 2005, having tried unsuccessfully to reach him on the previous day, to inform him of what he thought would be good news.

Also on 10 August 2005 Mr Willis wrote to Mr Cunningham in connection with a charging order in the City South Projects action. He wrote:

“You mention to me that you would like to apply to set these orders aside on the grounds of a) lack of notice and b) ill health stemming from depression.”

In response to this e-mail Mr Cunningham said that they had already submitted medical evidence saying that he was not well enough to attend and that this had been ignored.

It was also on 12 August 2005 that Mr Willis drafted a letter in the Albany Construction action for Mr Cunningham to send to the Registrar of Civil Appeals which, after giving dates, said:

“I have not been able to deal with paperwork or address the matter because of problems relating to depression.”

I am satisfied that Mr Willis believed this statement to be true.

On 16 August 2005 Mr Cunningham sent Mr Willis an e-mail rejecting the offer of an adjournment in the Collett & Farmer action. It is agreed that Mr Platford did not see this e-mail. Mr Cunningham said that on a personal level the reason for the rejection was because of the disastrous effect the litigation was having on his relationships with Ms Good. Mr Cunningham went on:

“I will produce medical and other evidence demonstrating that this (the adjournment) is detrimental to my health both directly and indirectly.”

He said that he would not be available for the remainder of 2005.

Mr Willis immediately informed the Defendant’s solicitors that Mr Cunningham was not agreeing to the trial being postponed, although as a practical matter the trial would have to be moved within early October so that the Defendant’s expert could give evidence.

Mr Cunningham spoke to his expert, Mr Palos, who told him that the Defendant’s expert had never been available on 4 October. Mr Cunningham then sent Mr Willis an e-mail, copied to Mr Eppel, reinforcing his instructions that the trial should go ahead.

Mr Platford learned at the end of August of Mr Cunningham’s refusal of the offer of an adjournment. He regarded it as thoroughly irrational.

Immediately previous to this, on 11 August 2005, GMR, who had until then been exercising their lien as former solicitors, agreed to lend the files to McFaddens despite their lien for unpaid fees. This was in accordance with the Solicitors’ Practice Rules. I note that GMR was owed a total of £109,079.95 by the Claimants of which £53,691.41 was owed in the Collett & Farmer action.

On 18 August 2005 Mr Cunningham attended Dr Boast to be examined in relation to the Director’s Disqualification proceedings. He e-mailed Mr Berwin on the 19 August 2005. It is accepted that Mr Platford did not see this e-mail. Mr Cunningham reported:

“I think I can safely conclude that he [Dr Boast] understands and will report that I was under major stress in February/March and that he will conclude, subject to the same conditions not prevailing, I will be fit to attend proceedings as and when dates are set.”

Mr Cunningham went on to say that he would prefer the Collett & Farmer case to be heard first, “since this is impinging significantly on my cash flow, on my relationship with Catherine and on other matters relating to Bengeo Hall.” This would have been a rational conclusion if the Collett & Farmer case had been ready for trial and had reasonable prospects of success. It is clear from the uncomplaining note of the e-mail that Mr Cunningham had achieved the outcome of the consultation with Dr Boast which he wanted.

Mr Willis’ reaction was that this e-mail was not rational. After being shown it he talked to Mr Eppel and Mr Berwin. He noted:

“I said I was concerned about the e-mail from Robert Cunningham to Harold Berwin. This appears to be different from everything that Robert Cunningham has told me in the past.”

They agreed to discuss it with Mr Cunningham.

There is no attendance note of either Mr Eppel or Mr Berwin having done so. Mr Willis, rightly, said that he would have expected there to have been an attendance note of such an important conversation. Mr Willis thought that a conversation with Mr Cunningham had taken place. It would be surprising if it had not.

Mr Willis did talk to Mr Cunningham on 25 August 2005. He discussed with him the possibilities of dealing with the timetabling difficulties without moving the trial date. Mr Willis also spoke to Mr Platford (about the Eugena litigation) on 25 August 2005 on his return from holiday. He noted that Mr Cunningham was acting in person and that McFaddens were helping him on an ex gratia basis. McFaddens agreed to give purely formal instructions to Mr Platford so that Mr Platford could assist Mr Cunningham with the documentation in that litigation.

On 30 August 2005 Mr Cunningham e-mailed his thanks to Mr Platford. The series of e-mails from Mr Cunningham which followed relating to the Schedule in the Eugena litigation, appears to have been detailed and rational and not the action of a person who was unable to manage his own affairs.

The question of fees had not been resolved. On 31 August 2005 Mr Willis put on record a conversation of the previous week in which he again raised the subject of fees in the Collett & Farmer litigation. A sum of £86,500 was required. Mr Cunningham said that he would provide £25,000 plus VAT for counsel’s fees. Mr Willis emphasised that since McFaddens had been instructed not to agree to any adjournment of the trial, fees to include the cost of preparing for trial needed to be paid immediately. The confirmatory letter emphasised: “We need to deal with this now, otherwise we cannot proceed”. An attendance note confirmed that the letter was sent with the approval of Mr Eppel.

The detailed proposals for the trial in the Collett & Farmer litigation were being finalised with the Defendant’s solicitors. Mr Willis wrote to Mr Platford to bring him up to date on funding, both for solicitors and counsel, which was urgently required by 2 September 2005. Mr Willis said that he would be surprised if it was received.

Mr Willis sent an email to Mr Platford on 2 September 2005 which the defendant describes as a ‘cri de coeur’:

“As you know, Rob has has [sic] problems with depression as outlined by Dr Clein and with financial matters following the loss of his position with Earthport Limited. He insists that the trial must take place but if funding is not received today we must cease to act.

Also because of the depression we have not had proper instructions and the work done by us has been very restricted…”

In cross-examination Mr Willis said that the note reflected his views. He was very worried and felt that Mr Cunningham’s refusal to agree to an adjournment was illogical.

Mr Platford’s response on the same day was to e-mail that in his view, “Rob’s reaction to the problem is not that of a man capable of managing his affairs.” He went on, “I suspect that if we asked Dr Clein to say if Rob was capable of managing the litigation, given the discussions between you and Rob and given Rob’s reaction, Dr Clein would have to say that Rob should only act by a next friend.”

Mr Platford went on to pose the dilemma as he saw it,

“There is relatively recent authority that the test is whether the litigant is incapable of taking sensible decisions in the litigation by reason of mental illness. Everything that you report indicates precisely that. And if that is correct, then anything done in the litigation from now (or whenever Rob became a patient) is invalid (see CPR 21.2). McFaddens will be liable for the costs wasted by proceeding when they ought to be by a next friend. You are therefore at risk. If you take his instructions and either act on them or go off the record and it later transpires that he is a patient, the wasted costs will be very substantial. On the other hand, if you act against his express instructions and it later transpires that he is not a patient (that is he is capable of managing this litigation despite his depression) Rob would have a good ground to complain. However, his loss from the assumption that he is a patient (so that the trial has to go off) would be nil and I doubt that any judge would even find you in breach of contract/negligent. My advice therefore is that McFaddens must proceed on the basis that the litigation should be conducted on his behalf by a next friend and, until a next friend accepts the post, the trial goes off.

If necessary you and I could put this matter to the judge and try to throw the matter on to him but I am concerned that we should have to reveal that we have not done what we want to do because Rob has not come up with the money.

I suspect that ‘if you put this to Rob’ he would accept that you are in an impossible position unless the trial goes off.”

The Claimants criticise the characterisation of the test as “incapable of making decisions in the litigation” when the test should have been “lacks capacity to conduct proceedings”. Whilst this criticism is undoubtedly technically correct, the issue is whether or not the lawyers, (and in particular Mr Platford), at the time later when the Application was made to put the issue of Mr Cunningham’s mental capacity before the court, did so after applying the correct test.

I note that this e-mail was based to a substantial extent on what Mr Willis told Mr Platford. In evidence Mr Willis said that he agreed with Mr Platford’s observations about Mr Cunningham’s state of mind. I assume that if at the time either Mr Willis or Mr Eppel had disagreed with the factual basis on which the dilemma was posed, they would have had an urgent discussion with Mr Platford to that effect. After all, Mr Platford had not seen Mr Cunningham for some time and McFaddens were in day-to-day contact with their Client.

This was followed by a three-way conversation between Mr Willis, Mr Platford and Mr Cunningham. It lasted one and a quarter hours. The note which Mr Willis took, although a very full one and not challenged in detail, was, of necessity, a compressed account of what occurred. This was the last direct contact which Mr Platford had with Mr Cunningham. Indeed, unlike the solicitors who had extensive contact in the period from 6 June 2005, Mr Platford had met Mr Cunningham briefly at court on 7 June 2005; he had exchanged emails in connection with the Schedule in the Eugena litigation; and he participated in this three-way telephone conversation.

The three-way telephone conversation does not appear to have been very satisfactory. Mr Platford put to Mr Cunningham that he may be having difficulty in managing his affairs and that at the time when he made the witness statement in the Collett & Farmer litigation, he was suffering from depression, as was clear from Dr Clein’s report.

It appears that in the discussion Mr Platford set out the problems with the Claimants’ case and in particular the matters that would have needed to be addressed in Mr Cunningham’s further witness statement.

Mr Cunningham’s response appears to have been that he did not want the case to go on beyond the end of the year and that he did not care if he lost the action.

Mr Platford, in the course of the telephone conversation also referred to funding problems and said that it was too late to address the evidential problems in a further witness statement for a hearing on 4 October 2005. He said that if the action was not stood out of the list on 4 October 2005, there was a good chance that the Claimants would lose the action.

Mr Platford said that there was a need to address Mr Cunningham’s witness evidence, and Mr Willis added “… and counsel and McFaddens need funding to prepare if Dr Clein says you are now able to proceed with the trial. Robert said he needs to know about new date and timing.”

Mr Willis’ conclusion about Mr Cunningham’s response to the telephone call, particularly when he said that he did not care if he lost the action, was that it was not a sensible or rational response or one which weighed up the facts. Mr Willis concluded that it was not rational. He thought that Mr Cunningham’s problems may be connected with his depression. Mr Platford reached a similar conclusion. He thought that Mr Cunningham did not seem to him to be getting his mind around any of the issues.

A letter was sent by Mr Willis to Mr Cunningham a few days later. It was dated 2 September 2005 but from a letter from Mr Willis to Ms Good dated 9 September 2005, it would appear that an edited version of the letter was sent by special delivery on 8 September 2005. It appears that the funding situation was still wholly unsatisfactory. Mr Cunningham said that he was not going to provide more than £10,000 on account of McFaddens’ fees. He had not put them in funds to pay counsel’s fees.

The letter concluded by saying that McFaddens could not carry out any further work except to seek an adjournment. “If funds are not provided and an adjournment is not obtained, this is contrary to our advice and you must now act in person as (and) we cannot reasonably continue to act especially with a lack of funding of this level.” I am told that this letter probably was sent to Mr Cunningham. It certainly reflected what McFaddens were saying at the time about the work they were prepared to undertake in the event that they were not placed in funds, although they continued to act for Mr Cunningham.

It is clear that there were also funding problems in the Director’s disqualification proceedings now due to be heard in December 2005. In that matter Mr Berwin sent an e-mail on 2^nd September 2005 saying that unless funding was settled by 7 September 2005, they would have to inform leading counsel of the position.

On 5^th September 2005 Mr Willis discussed the possibility of an adjournment with his opposite number at BW. He suggested that they should find a later date for the trial convenient to the parties, provided a date could be found before the end of 2005. He followed it up with a letter which he copied to Mr Cunningham.

Also on 5 September 2005 McFaddens sent Mr Cunningham a new retainer letter in relation to the Eugena Appeal.

There are two letters from Mr Cunningham to Mr Willis dated 6 September 2005. One of them was not received by Mr Willis until 19 September 2005 and was copied to Mr Platford on that date. I shall refer to it later.

The other letter was sent by Mr Cunningham to Mr Willis in response to Mr Willis’ letter dated 31 August 2005. Although I have no note of the conversation, the letter indicated that Mr Cunningham had also talked to Mr Eppel in the preceding few days as well as having the three-way telephone conference to which I have already referred. Mr Cunningham said that the further £10,000 promised by 31 August 2005 would be paid by 9 September 2005. Apart from this, the letter requested further information and breakdown of fees.

On 9 September 2005 Mr Willis reported to Ms Good saying that he was trying to persuade Mr Cunningham to agree to adjourn the case to next year so that essential steps could be taken. He warned her that if the case was to proceed on 4 October 2005, “the prospect of success would be small”.

On 12 September 2005 Mr Willis talked to Mr Eppel on the telephone. He suggested a discussion on the following Tuesday. He said that he mentioned the following concerns to Mr Eppel:

“1)

Whether RC has funds

2)

Whether there is a conflict between RC and CG (Ms Good)

3)

[Evidential] points raised by counsel

4)

Lack of funding all along means we would not proceed on matters if not funded

5)

Problems referred to in medical reports

6)

Therefore we have had to restrict work done and counsel’s advice that could have been given to us because it has not been funded and proper instructions have not been given.”

I understand that “counsel’s advice” refers to advice on evidence and “work done” includes bundles for the trial. I do not attach any particular significance to the fact that “Problems referred to in medical reports” was listed number 5.

On 12 September 2005 Mr Willis circulated possible dates for the trial of the Collett & Farmer litigation from late October to December 2005. On 13^th September 2005 Mr Cunningham responded that the only dates before Christmas were 6 to 12 December 2005 and that he was not interested in any dates in 2006.

Also on 13 September 2005 BW wrote that the listing difficulties had been resolved so that the trial should take place on 4 October 2005 as planned.

In the Director’s Disqualification litigation, on Tuesday 13 September 2005 Howes Percival faxed to Mr Berwin a copy of Dr Boast’s report and covering letter dated Friday 9 September 2005. No doubt as the partner in charge, Mr Eppel saw them when they were received. They were not brought to Mr Platford’s attention until 15 September 2005. Equally surprisingly they were also apparently not brought to Mr Willis’ attention until 15 September 2005. The covering letter said:

“As you will read, I think that Mr Cunningham has recovered and is therefore fit for trial. The only concern would be if he were to suffer significant stress which could destabilise him again.”

The report was, of course, prepared for the opposing party in the Director’s disqualification proceedings. It contained no reference to Dr Clein’s report after his consultation on 15 June 2005, just over two months before Dr Boast’s consultation on 18 August 2005. Mr Cunningham appeared to present himself to Dr Boast as a person who was entirely mentally fit. He told Dr Boast that in the last few months his mental condition had improved and that he could cope with things. Dr Boast described him as a “pleasant and cooperative man who answered all the questions in a straightforward manner”.

It appears that Mr Cunningham gave Dr Boast a history of stress but did not tell him that he had ever been depressed or had ever had disturbed sleep let alone that earlier he had been talking about suicide. Dr Boast described his condition as “an adjustment disorder”.

When Mr Willis saw it and told Mr Platford of the substance of its contents, both were concerned about the report because Dr Boast had not been told about the later report of Dr Clein and Mr Cunningham had presented himself to Dr Boast in a manner entirely contrary to Mr Willis’ and Mr Platford’s experience in dealing with Mr Cunningham. Mr Platford said that he was particularly concerned about Mr Cunningham presenting himself as being entirely fit.

Mr Berwin forwarded a copy of the report to Mr Cunningham and copied the e-mail to Mr Eppel. In relation to the Director’s disqualification, Mr Berwin said:

“Neither Tim (Eppel) nor I have ever heard from you properly in relation to the payment of outstanding costs and disbursements and the ongoing cost requirements for preparation up to and including trial.

Accordingly, but regrettably, you will appreciate that we are no longer in a position to represent you in this matter.”

However, McFaddens did not come off the record.

Even without sight of Dr Boast’s Report, Mr Willis was concerned as to what to do next. Also on 13 September 2005 he telephoned the Law Society for advice. He gave them an outline of the problem of possible psychiatric difficulties including reference to the earlier psychiatric report. The Law Society said that if there were a number of psychiatric reports of similar situations “this might give reason for further enquiry.” They advised that the matter should be put to the Client to see if he would agree to a further report. The Law Society went on to say that if there was any conflict of interest or potential conflict the firm must cease to act.

Mr Willis then spoke to Mr Platford. Mr Willis told Mr Platford that there was nowhere near adequate financial coverage for the work which they had done. He said that he had arranged a meeting with Mr Cunningham, “but may have to come off the record.” Mr Platford referred to a CPR Part 42.3 order which required notice of application supported by evidence and Part 42.2 which imposed a duty to give notice and dealt with problems relating to the giving and receiving of instructions.

McFaddens then sent Mr Cunningham a letter, signed by Mr Eppel, saying that they were ceasing to represent Mr Cunningham in the Collett & Farmer litigation.

Mr Willis said that he did not know to whom he spoke at the Law Society. He said that he made this sensible enquiry on his own initiative. At 5.00 pm that day there was a telephone discussion between Mr Cunningham, Mr Eppel and Mr Berwin with Mr Willis listening in from his house in Oxfordshire. They discussed the fact that the trial would start on 4 October 2005, three weeks later. There is a handwritten note of the conversation but a fuller attendance note from Mr Willis was written on the following day.

Apparently, Mr Cunningham now wanted to see if an adjournment could be obtained in the Collett & Farmer litigation. He was now prepared to put matters before the court “and try to fit in”. The handwritten note says that Mr Cunningham would put McFaddens in funds within five working days. In his typewritten note Mr Willis comments: “We have heard that many times before.” There is no suggestion that McFaddens were carrying through their threat to go off the record (which also had been made a number of times before).

On 14 September 2005 Mr Willis outlined the conversations of the previous day to Mr Platford. Mr Platford suggested that Mr Cunningham should put a further witness statement before the court. Further evidence needed to be obtained from Dr Clein and this would be put to the defendants to see if they were able to agree that Mr Cunningham should be able to submit further evidence. Mr Platford and Mr Willis agreed that Mr Cunningham should outline the difficulties set out in Dr Clein’s report and contend that the current disadvantage that the claimants were having was not Mr Cunningham’s fault “because of his illness and it has taken many months but he has recently recovered financially and mentally”.

The strategy agreed at this meeting was that Mr Cunningham should explain himself fully to the court in the hope of obtaining an adjournment to the trial on 4 October 2005. There was no suggestion either that McFaddens would come off the record or that Mr Cunningham was, as of that date, unfit to conduct the litigation by reason of mental illness, although Mr Willis said in the course of the discussion that Mr Cunningham was under mental pressure and would not be able to attend the trial to give evidence in person. Mr Willis did not mention the advice which he had received from the Law Society on the previous day.

Later on the 14 September 2005 Mr Willis sent Mr Platford a draft of a witness statement which he had prepared for Mr Cunningham to sign. Mr Platford had said that it might also be necessary for Mr Willis to sign a witness statement in support of Mr Cunningham’s application to adjourn the trial. Mr Willis set out what he was prepared to put in the witness statement. In relation to BW’s original offer of an adjournment on 5^th August 2005, he said “at that time Mr Cunningham lost his temper and I could not properly talk to him about the instructions. I did not feel that he was behaving sensibly or logically because it would have been sensible to accept their request as he had not provided instructions or funding and I advised him of this”. In relation to the current request for an adjournment he said “at times he seemed that he did agree and at other times that he did not”.

Mr Willis had two further discussions with the Law Society on 14 September 2005. He said that he discussed the service of witness evidence and he also told the Law Society about Mr Cunningham’s mental problems.

The draft witness statement of Mr Cunningham was sent to him on 14 September 2005. The parties have endeavoured to piece together what followed. There is no doubt that the draft, which was sent, set out the problems that Mr Cunningham had encountered and said that “as a result of these problems my life “fell apart” and I suffered extremely severe depression and anxiety”. (Para. 3) The draft also referred to Dr Clein’s first and second reports. It said that because of Mr Cunningham’s mental condition and general disorganisation in his life he had not been able to give instructions to his solicitors.

In paragraph 7, the draft said “I am at a great disadvantage in proceeding with the trial because of the factors that I have explained. I have relatively recovered from the anxiety and depression now and I am willing to undergo a further examination and provide new evidence on this.”

The draft concluded “I am now in a position to provide instructions for work to be carried out on my behalf…by solicitors and counsel but there is a need for time to be given for this to be done as I have only recently managed to recover financially and mentally and therefore I can only now begin to instruct my solicitors and counsel thoroughly on matters relating to these proceedings.”

Mr Willis said in evidence that he thought that his draft (commented on by Mr Platford) was a fair summary of the position. He said, and I believe him, that he would not have put it before the court if he had thought that it was misleading.

The draft demonstrates again that McFaddens were continuing to act for Mr Cunningham despite not being in funds.

Before returning the draft with his amendments, Mr Cunningham sent an e-mail to Mr Willis and Mr Eppel on 15 September 2005. He said “I wish to make it clear, and have it acknowledged, that at no time have I ever suffered from anxiety or depression or have been diagnosed as suffering from anxiety or depression.

It is clear that Mr Willis also spoke to Mr Cunningham before Mr Cunningham returned the draft as amended. In addition Mr Cunningham also sent an e-mail to Mr Eppel saying that “Once again Graham (Willis) has included anxiety and depression in a statement of the condition which I suffered which is not true and specifically not something I would want on my record.”

On receipt of Mr Cunningham’s e-mail, Mr Eppel sent an e-mail to Mr Willis saying “as to the depression – is he being paranoid?” Mr Eppel explained this in oral evidence by saying that he felt that Mr Cunningham was not considering properly how to deal with his affairs.

Mr Willis said that he was “astonished” when he received Mr Cunningham’s amended draft. In his opinion it was inconsistent with what had gone before.

Mr Cunningham in his amended statement set out the earlier medical history. He said that as a result of his various problems “he suffered extreme stress in the period November 2004 to May 2005”. He went on to say that from 23 May 2005, because of his temporary accommodation and his loss of employment, he had to put these papers into storage but by 5 September 2005 he had re-established his office and was able to move back into permanent accommodation.

In his amended draft he deleted the references to his mental condition. All references to anxiety and depression were deleted. He said that he had been recently examined by a specialist appointed for another matter who had confirmed that “I am no longer suffering from any stress related issues”. He also said “I am willing to undergo further examination and provide new evidence on this”.

Had Mr Cunningham then undergone a further medical examination from Dr Clein, in the next few days it is likely that the question of his mental fitness would have been resolved.

Mr Willis sent a copy of Mr Cunningham’s amended statement and e-mail to Mr Platford. Mr Willis and Mr Platford then spoke on the telephone. Mr Willis had been advised by the Law Society that he should make a full note of the conversation which occurred just after 2pm. In the course of the telephone conversation concerns were expressed over funding the litigation and over a possible conflict of interest with Ms Good. Above all, Mr Willis and Mr Platford were concerned by Mr Cunningham’s denial that he had ever been suffering from anxiety and depression. Both were genuinely concerned about Mr Cunningham’s mental state.

In oral evidence Mr Willis said that he had been concerned about it since he became involved since the beginning of June 2005. He was “astonished” by Mr Cunningham’s change and “disturbed” that Mr Cunningham was now saying the opposite to what he said before.

Mr Willis also told Mr Platford about problems relating to other litigation – Albany, Eugene and City South. He said that Mr Cunningham had “not proved to be able to get on with taking fairly basic steps and had raised the problem of his depression as a reason for not being able to proceed with a Court of Appeal matter and another appeal and was going to raise it in respect of setting aside charging orders”.

Mr Willis then referred to the Report by Dr Boast which he said that he only knew about that morning (although the firm had known about it for two days). He gave Mr Platford an account of the substance of the Report over the telephone but entered the caveat “not sure if Boast seen medical records or earlier reports of Clein”.

Mr Platford said that it did not take matters further because it was another report by another psychiatrist instructed by the Official Receiver. He noted that Dr Boast’s examination had been some weeks previously and he said “we still need to get a report of a psychiatrist that says that he is able to manage his affairs”.

Mr Platford advised that Mr Willis should have another conversation with Mr Cunningham “because he fears that Robert Cunningham may be incapable of managing his affairs in relation to the litigation. Therefore he cannot continue to act further as counsel and both he and McFaddens may be at risk if we do not refer the matter to the court. Counsel cannot proceed unless such a report is obtained so he must cease to act as counsel in any event unless Cunningham is found to be able to manage his affairs or a litigation friend is appointed for him.”

Mr Willis, as a very experienced solicitor, thought that it was a reasonable approach to put the matter to the court.

The claimant has criticised Mr Platford for not obtaining a copy of Dr Boast’s Report and putting it before the court. On that basis, it is argued, Judge Coulson QC and Mr Mort would have been satisfied that Mr Cunningham did have the appropriate mental capacity. Mr Platford would have done his duty and the adjournment would have been refused.

This is a serious allegation. Mr Platford and Mr Willis’ conduct must be seen in the context of their duty, as they saw it to their Client, Mr Cunningham and to the court. Neither regarded Dr Boast’s Report as resolving the renewed doubts in their minds as to Mr Cunningham’s mental capacity – a) because the Report was out of date and b) the evidence in it was in conflict with the facts as Mr Platford and Mr Willis understood them to be. Mr Platford said in evidence that he did not know whether Mr Cunningham was presenting himself as entirely fit honestly or dishonestly, or because he was so affected by his disease that he did not know what the truth was. Further, Mr Cunningham was at that stage offering to undergo a further and definitive examination which should resolve the question one way or the other.

It should also be noted that McFaddens were in possession of Dr Boast’s report two days earlier. They did not make either Mr Willis or Mr Platford aware of it at that stage when there would have been more time to investigate it. Mr Platford was only made aware of it in the course of the conversation in which Mr Platford and Mr Willis were discussing subsequent events which concerned them both and in the context that urgent decisions needed to be taken.

After his conversation with Mr Platford, Mr Willis then telephoned Mr Cunningham. It was clearly a long conversation. Mr Willis said that it was an acrimonious conversation in the course of which Mr Cunningham disparaged both Dr Clein and Mr Platford. Mr Willis outlined Mr Platford’s advice. Mr Cunningham said “in a considerable temper” that he would not permit any further medical report – contrary to what was in his draft amended witness statement.

Mr Willis told him that he was very likely to fail in the litigation if it went ahead on 4 October 2005. He said that an ordinary person would wish to act rationally and want to succeed in the litigation and therefore to agree to an adjournment. He told Mr Cunningham that counsel was still of the view that there was reason to doubt whether he was making rational decisions in relation to the litigation.

Mr Cunningham said that he was not going to have a further psychiatric examination. He went on, “These things can have serious implications. He was lucky that Dr Boast had confirmed that there was not a problem. He had been advised by a top legal adviser that if he was to be anxious or depressed this could have legal and other ramifications…He had had top advice on it.” The “top advice” has not been explained.

Mr Willis said in his note that “on about 10 different occasions I was trying to explain things to Mr Cunningham and he simply would not allow me to take his instructions. In particular I asked him what he thought would happen if an adjournment was not granted. He said he had other plans.

Later in the conversation Mr Cunningham said that an adjournment would be granted and, if not, he would find some other way to solve the matter, for example, by having an accident when the trial was on.

Mr Willis said in oral evidence that Mr Cunningham showed a lack of insight into his own circumstances throughout the conversation. He was disturbed and troubled by Mr Cunningham’s change of evidence. This he said in evidence was his own worry independent of the views of Mr Platford. He agreed with my proposition that the dilemma in which he found himself was one of the most difficult that any litigation solicitor would have to resolve.

Mr Willis then spoke to Mr Eppel and explained his discussions with Mr Platford and Mr Cunningham. He said in oral evidence that he probably also sent him a copy of his notes of the telephone conversations when they had been prepared. This conversation is recorded as having taken 12 minutes.

A further note from Mr Willis also refers to two conversations with Mr Eppel. In the first conversation he mentioned that he had spoken to the Law Society “about questions to be considered concerning a Client who is said to be incapable of managing his own affairs in litigation and my discussion with counsel.” Mr Eppel said in relation to that that he would speak to Mr Cunningham. The second note from Mr Willis is “attending him (Mr Eppel) later that day. He said we should rely on counsel’s advice. Counsel was clearly asked to put his opinion in writing.”

In oral evidence Mr Eppel said that not only was Mr Willis troubled by the position but that he, Mr Eppel, also was troubled from the point of view of his firm. He said that he relied on Mr Platford’s advice as to what to do about the consequences of a situation on which they were all agreed.

At 3:52 pm that day Mr Platford sent the following e-mail “in view of what I have heard and seen since 24 August 2005, I am not prepared to act further for Mr Cunningham unless either a litigation friend acts for him or I see the report of a psychiatrist which takes account of these recent events and concludes that Mr Cunningham is not incapable of managing this litigation by reason of mental disorder as explained in Masterman-Lister v. Brutton & Co ...however I will do whatever is necessary to assist you and the court to resolve the problem.”

At about 4pm Mr Willis telephoned Mr Platford, probably after speaking to Mr Eppel. Mr Willis explained his conversation with Mr Cunningham at 2:30pm. He said that he covered this in some detail in his conversation with Mr Platford. In oral evidence Mr Willis said that he had had an impossible conversation with Mr Cunningham. The note records the following advice “Counsel believes that in view of the matters stated by Cunningham, and what we have already seen, we must proceed with the Application”. Mr Platford, like the claimants was on uncharted territory. Neither he nor the solicitors had been involved in any similar application in their long professional careers.

The note does not record any questioning, let alone dissent by Mr Eppel to the course which was being proposed. In giving his advice Mr Platford was necessarily relying heavily on the solicitors’ impressions gained in their conversations with Mr Cunningham over a long period of time and particularly on the conversations on that day.

It is agreed that this was the moment when the decision was reached to proceed with the Application to the court for an adjournment of the trial although it was subject to the further overriding decision of the two partners, Mr Eppel and Mr Berwin, both of whom had long personal experience in dealing with Mr Cunningham. Mr Platford said that before reaching his decision he discussed the issue informally with members of his Chambers.

In oral evidence Mr Platford said, and I accept his evidence, that in his view “it was unthinkable to my mind, just unthinkable to obtain an adjournment on any other basis. He explained his reasons for making an inter partes application as 1) the application was going to make “a tremendous impact on the court and the opposing party”. 2) The litigation was due for trial within a very short period. 3) What was being put before the court went no further than what had already been put before the court with Mr Cunningham’s authority. 4) He thought that the Judge would, as he put it, “laugh the application out of court” unless they gave notice to the other party.

The Application was filed on 16 September 2005. It was issued by McFaddens as an Application for an Adjournment but was not served until 19 September 2005 after the course of action had been approved by Mr Eppel and Mr Berwin as the McFaddens partners.

In the Application for an Adjournment the reason given for the Application was “there is good reason to believe by reason of illness that the First Claimant is not fit to conduct the action”. Appended to the Application was Mr Willis’ statement. The Application itself also referred to “the difficulties in obtaining instructions from Mr Cunningham”.

Mr Willis’ statement in support went through a first draft by him and then the draft was amended in manuscript by Mr Platford. Mr Willis was prepared to insert that Mr Platford had good reason to believe that by reason of mental illness Mr Cunningham was not fit to conduct the action (Para. 3).

Mr Willis agreed with Mr Platford that “there is good reason to believe RC’s action should be conducted by a litigation friend”. (para.5) In paragraph 6 he said “counsel and I recognise that we are not experts and might be completely wrong about RC’s mental health in which case we shall have to face RC’s wrath for interfering in the conduct of the action but the alternative threatens a dreadful waste of the court’s time and the parties’ money”. I have no reason to believe that Mr Willis was pressurised by Mr Platford into saying anything to which he could not properly depose.

Early on 16 September 2005 Mr Willis sent Mr Eppel an e-mail explaining in detail the course of action that was being taken and asking that the partners make a decision as to how to proceed. This was a very sensible course for him to take. It seems likely that an unrecorded telephone conversation preceded the e-mail.

In the e-mail Mr Willis said that he had had conversations with Mr Platford, Mr Cunningham and Mr Eppel and had spoken to the Law Society Professional Ethics Unit (LSPEU) about the case on 3 occasions. Mr Willis noted that Mr Platford was unwilling to continue because he was not reasonably confident that Mr Cunningham was addressing the issue in an ordinary rational way. He felt that he could not continue unless a psychiatrist certified that Mr Cunningham was competent to manage his own affairs in the litigation.

Mr Willis then raised the question of conflict of interest with Ms Good and the need to keep her informed in the course of the litigation. He then posed the question to Mr Eppel “if we do not follow counsel’s view and we continue we will be at risk if Robert Cunningham later states that we knew that he had mental difficulties and we should have considered his position in the manner that counsel describes. Also we have a duty to the other claimants in the litigation and to the court”.

Mr Willis then described in the e-mail his recent experience with Mr Cunningham. He described Mr Cunningham as “hostile, bullying sometimes and at other times he has taken a rather outlandish view in that he has said that he is going to skip the country and leave Catherine Good with the bill… He refuses to listen to us or Counsel” (about matters which if not done will have a serious adverse effect on his case) “He has given instructions and then changed them later, he has become devious in his manner of instructions. This has occurred in various ways and I would prefer to discuss this.”

Mr Willis concluded the email by saying “could you consider what partnership view there is on it and send an email to me so that I know how to approach this today as although we have remained on the record and have received promises that Robert C will pay and is able to give full instructions, this matter is now approaching hearing on 4 October 2005 and we need to make a decision now even if we have not ceased to act in the past.”

On the same morning Mr Cunningham sent an email to Mr Eppel saying that he had instructed his bank to send £5,000 so that he could discuss with Mr Eppel, Mr Willis and Mr Platford the tactics to achieve an adjournment on the 4October 2005.

A few minutes later Mr Cunningham sent another email to Mr Eppel saying that he was discussing an attempt to mount a hostile take over of Earthport. This, he said, would raise £275,000.

A little later that morning, but still only at 9.46 am, Mr Cunningham sent an email to Mr Eppel saying that he had instructed his bank to send £5,000 on account to enable the conference call to take place.

Also that morning Mr Eppel sent Mr Willis an email giving details of a conversation that he and Mr Cunningham had had that morning. Mr Eppel reported that Mr Cunningham had told him that he should not be described as being clinically depressed. Mr Eppel explained Mr Platford’s position to Mr Cunningham. Apparently the conversation turned to money and Mr Cunningham said that he would send some money that morning. Mr Eppel said that he suspected that it would be a token £2,000 which would not be acceptable. Mr Eppel’s email to Mr Willis ended “you should also be aware that he is saying that he and Catherine have issues with you and would not want you handling the matter in due course [yet more paranoia?]”. Mr Eppel also said that he told Mr Cunningham that Mr Willis had his full support.

In evidence Mr Eppel said that he could not work out why Mr Cunningham was saying that he had not been suffering from depression. He agreed that to him the word paranoia meant delusions of some sort. The word gave a flavour of what he was feeling at the time.

In the medical context it denotes mental illness and, in particular, delusions. Medically, paranoia may or may not prevent a person dealing with his or her litigation. But it raises concerns about potential mental health problems.

In his oral evidence Mr Eppel also said in relation to the possibility of Mr Cunningham suffering from mental illness, “I was not surprised that this could be a possibility because when I started to think about his personality and his conduct it was a possibility.”

Later on the 16^th September 2005 Mr Willis sent a further copy of the firm’s bill of costs to Mr Cunningham. He also sent an email to Mr Eppel saying that tentatively a conference had been set up with Mr Platford for 11 am on the following Monday. In this email he rehearsed the previous arguments including the advice that McFaddens risked an adverse order for costs if Mr Cunningham were to say later that he was not competent to continue the litigation and the firm did not have a medical opinion providing the answer one way or the other. Mr Willis ended the email by stating his clear understanding that “the main problem is that the Order of 7 June made a strict provision on evidence.”

The sequence of events as set out in the bundle of documents is rather confused. Doing the best I can, there seems to have been a conference at Mr Platford’s chambers starting at 11.25 am. Unfortunately there is only a brief handwritten note from Mr Eppel. There is no suggestion that either Mr Willis or Mr Eppel queried the advice that Mr Platford gave nor the factual basis on which it was given. The note says “consistent with the ravages of depression… - not fit to run the litigation therefore no option but to tell Court real risk our Client is a patient i.e. he should be acting through a litigation friend”. The note then rehearses the pros and cons of raising the issue or doing nothing. The note ends “he may complain that we are raising this publicly – but we must. Test – is he unfit to manage this litigation by reason of mental instability.”

Mr Eppel said in evidence that if he had had no confidence in Mr Platford’s advice he would have considered obtaining another opinion. I should note that McFaddens do not appear themselves to have considered the Mental Health Act, the relevant CPR or the judgment in Masterman-Lister but to have relied on Mr Platford’s opinion on the law.

Mr Platford also explained why, in his view, the application could not be heard ex parte. He also advised that not only Mr Cunningham but his Co-Claimants, Miss Good and Gelande needed to be told about the application.

Later on the 19 September 2005, at some time after 6pm, Mr Willis sent Mr Platford a letter dated the 6 September 2005 from Mr Cunningham which he had just received. In the letter Mr Cunningham admitted that he had been suffering from stress but not depression. He said that he was more than capable of dealing with issues which may arise.

Earlier that afternoon Ms Wharton of BW saw Mr Willis’s witness statement. She sent a correct but sympathetic email saying that she did not anticipate that the Defendants would be opposing the adjournment but that they wanted to keep the litigation on track. I should perhaps make it clear that in what must have been difficult circumstances for her, Ms Wharton behaved impeccably throughout.

Mr Willis sent a letter to Mr Cunningham after discussing the draft with Mr Eppel. It attached the Notice of Application and the witness statement. The letter said that the firm had been advised by Counsel that it was their duty as Officers of the Court to make the application. The letter concluded by saying “as Counsel has advised that we must make the Application, we have done this but you stated that you may wish to have a further discussion with Counsel and we will try to facilitate this if you can confirm that you still do require this.”

Mr Platford gave a written advice on the 20 September 2005. He emphasized that a patient must have a litigation friend to conduct proceedings. He also emphasized that the Overriding Objective was to enable the Court to deal justly with cases and that it was the duty of the Claimant’s legal advisors to alert the Court to the problem of whether or not Mr Cunningham was a patient. This issue could only be resolved by a psychiatrist examining the patient and reporting to the Court on Mr Cunningham’s fitness. Mr Platford raised the problem that Dr Clein was now away and he thought that the appointment needed to be made promptly.

Mr Cunningham telephoned Mr Willis on the 20 September 2005 and said that he agreed to see Dr Clein. He had previously made it clear that he would not see him again. If he had consented to do so a few days earlier the consultation and the report could have been concluded before Dr Clein went away.

It is not clear which came first: Mr Platford’s email was timed at 10.14 am. Mr Cunningham’s telephone call is noted as being at 10.15 am approximately.

When he heard of the impending application on the 20 September 2005 Judge Coulson QC wrote to the parties making it clear that the Application must not be used to delay the trial preparation.

Counsel discussed the impending Application. As BW put it in a letter dated the 21 September 2005 “(2) The real application, or the real purpose of the application is not adjournment of the trial as such, but directions to be made by the Court for a) examination of Mr Cunningham by a Court-appointed medical expert in order to ascertain whether or not Mr Cunningham is a patient within the meaning of the relevant legislation followed by b) the appointment of a litigation friend as appropriate for the purposes of the subsequent conduct of the case”.

BW’s letter noted that these issues were specifically discussed in June 2005 at the previous hearing albeit without reference to CPR 21. BW complained reasonably that if Mr Cunningham’s legal advisors had had concerns about their position and/or the effectiveness of the proceedings, the time to resolve those issues was immediately after the previous hearing.

Very sensibly, in advance of the hearing on the 23 September 2005, BW sent a letter to the Court on the 21 September 2005 (copied to Mr Willis). BW proposed that the Court should make an order requiring Mr Cunningham to attend the hearing on the 23 September 2005. The order which BW proposed at the hearing was

“1.

In the absence of a medical report, Mr Cunningham’s attendance will enable HHJ Coulson QC to gain a clearer understanding of the issue and therefore make an order which HHJ Coulson QC is satisfied, so far as he can be, is appropriate under the circumstances and moreover

2.

To enable HHJ Coulson QC to explain to Mr Cunningham the situation that the Court and the parties are in and to request that he submit to the medical examination so that the situation can be resolved.”

On the 21 September 2005 Judge Coulson QC ordered:

“…the First Claimant in this action is required to attend the hearing of the Claimant’s application listed for Friday 23^rd September 2005 at 12 noon for the purpose of explaining to the Court why he will not submit to a medical examination”

Mr Willis immediately sent an email at 3.04pm that Mr Cunningham was prepared to be examined by Dr Clein. Judge Coulson QC saw the response and emailed immediately at 16.21 pm (through his Clerk) emphasizing that a medical examination needed to take place as soon as possible and that if the 23 September 2005 hearing was to take place, Mr Cunningham must be present.

Also on the 21 September 2005 Mr Berwin sent an email to Mr Cunningham in the Directors Disqualification Litigation. The email was copied to Mr Eppel. The email raised the question of the most cost efficient way of dealing with those proceedings. It was implicit in the email that McFaddens were continuing to act for Mr Cunningham in those proceedings. Mr Platford, of course, was not involved and would not have seen the email.

At 6.35 pm on the 21 September 2005 Mr Willis spoke to Mr Cunningham. It is clear from Mr Willis’ note of the conversation that Mr Willis told Mr Cunningham in the clearest terms that the Application was for directions on the grounds that Mr Cunningham was not fit to manage the litigation and that Mr Cunningham did not agree. He told Mr Cunningham that the Court had made an order that Mr Cunningham was required to attend on the 23 September 2005 to explain why he would not submit to a medical examination. Mr Cunningham said that he had agreed to see Dr Clein and had already booked a holiday abroad and could not attend Court. He said that he would be away from 23 September to 30 September. The note has a cryptic comment “discussed requirements for compliance”. I find that Mr Willis did notify Mr Cunningham of the hearing and Mr Cunningham chose not to attend.

Mr Willis followed up the conversation with an email on the 22 September 2005 at 9.22 am. He wrote that they were finding out when Dr Clein could see Mr Cunningham. Mr Willis did not mention that the Defendants might press for an earlier report by another psychiatrist.

On the 21 September 2005 both Mr Platford for the Claimants and Mr Mort for the Defendants exchanged skeleton arguments for the hearing on the 23 September 2005. In his skeleton (para. 10) Mr Platford said that McFaddens were in an impossible position. “Mr Cunningham’s instructions led them to believe that he is a patient. If they act on those and he is a patient he would have good reason to complain. If he is a patient McFaddens must investigate his instructions carefully and consult with the litigation friend and C2 and C3…but if he is not a patient, they must take his instructions at face value and act upon them.”

In his skeleton argument Mr Mort, was, entirely reasonably (from the Defendant’s standpoint), very critical of the way that the litigation had been conducted by the Claimant’s solicitors. He could not understand why the following three issues had not been concluded (a) determination of whether Mr Cunningham was under an incapacity (b) medical evidence, if necessary, to assist the Court in making a determination and (c) the appointment of a litigation friend if necessary. He said that the Defendant’s solicitors had identified a suitably qualified medical expert who was available, if necessary, to examine Mr Cunningham and to report.

A letter dated the 22 September 2005 from Mr Willis to Mr Platford makes it clear that (as they were fully entitled to do) McFaddens were still consulting the Law Society. The letter noted that Claimant 2 (Ms Good) and 3 (Gelande) were not aware of the application as McFaddens had been informed by the Law Society that they should not tell them about Mr Cunningham’s potential incapacity if Mr Cunningham had informed them in writing that they should not do so. In this respect McFaddens exercised their own independent judgement and overrode Mr Platford’s previous advice that the other Claimants should be notified of the hearing.

Mr Willis’ letter said that Mr Cunningham had been at various times in denial about his problems. “To abandon the parties in this litigation seemed to be inappropriate as Mr Cunningham has always said that he was suffering from the effects of previous difficult circumstances and was trying to get out of his problems. Mr Cunningham’s failure to comply earlier in the proceedings with Court Orders may be a demonstration of his lack of capacity.”

On the 22 September 2005 McFaddens wrote to BW informing them of their instructions from Mr Cunningham that he had a long standing commitment to travel abroad and would not be attending Court on the following day despite the Court Order and would be out of the country until the 29 September i.e. less than a week before the commencement of the trial. The letter also notified BW of Dr Clein’s availability only from the 26 September 2005.

At the hearing on the 23^rd September 2005 Judge Coulson QC heard the Application. Mr Cunningham did not attend although I understand that he was in fact in the country and could have done so. Mr Cunningham claimed in a witness statement dated the 19 October 2005 pursuant to his application to set aside the Order made on the 23 September 2005 that he was unaware of the nature of the application that a medical examination should take place to report on whether Mr Cunningham was unable to manage his affairs.

I find that this was incorrect. He was told of the nature of the proceedings and of the Order that he should attend. He was also told of the Application that he should be ordered to undergo a further medical examination. He chose not to attend.

Mr Cunningham gives no explanation as to why he did not in fact attend Court when he was ordered to do so. If he had attended Court, Judge Coulson QC, would have been in a much better position to know what was the best course to follow. As it was, the learned Judge was clearly annoyed by the fact that, as he put it, Mr Cunningham was able to “swan off to America in the face of a Court Order and in the clear position that the trial is due to start on the 4 October”.

Mr Platford started the hearing by saying “I appear in theory at least for the Claimants but in reality I am attending today on behalf of my solicitors, McFaddens”. He went on to say that Mr Cunningham was not there but that he had been advised that Mr Cunningham was abroad in the United States and would be returning on the 30 September 2005.

Mr Platford went on in a manner much criticized by the Claimants “My Lord, my difficulty is that I am not a psychiatrist. I am not qualified to say whether or not Mr Cunningham’s conduct is, to put it in the vernacular, whether he is mad or bad. I do not know whether his present conduct was because of his depression and he is simply not able to face up to this litigation or whether he is using it as a ruse, being a perfectly fit, sane and sensible person to escape the rigors of this action. So, My Lord, I come today to ask effectively the Court to help McFaddens out of the difficulty”. It was agreed before me that the comment “mad or bad” was in the context that Mr Cunningham was understood to be abroad when he had been ordered to be at the hearing – what Mr Nicol described as “contumacious conduct”.

This statement, in somewhat colourful terms, must be seen in the context of the course of the hearing as a whole and Judge Coulson QC’s observations on the previous occasion in June when an adjournment had been asked for and had been most reluctantly given. It must also be seen against the professional advice that unless Mr Cunningham’s witness statement could be supplemented the Claimants would in all probability lose the action.

Judge Coulson QC was, not surprisingly, sceptical at the suggestion, made so soon before the trial that Mr Cunningham was not fit to conduct the litigation.

Mr Platford said that if the trial was to take place on the 4 October 2005 McFaddens would come off the record because of the conflict between their instructions from Mr Cunningham and their duty to the court and because they had not been put in funds. Only if Mr Cunningham was represented by a next friend would solicitors and counsel be able to continue to act for all three Claimants.

Under questioning from the learned Judge, Mr Platford explained that

“Until 15/16 September he (Mr Cunningham) seemed to be acting rationally, albeit wanting an adjournment for reasons that perhaps have become apparent…”

Judge Coulson QC, in considering the application, made it clear that he had no information beyond Dr Clein’s one and a half page manuscript report in June 2005.

Mr Platford is criticised by McFaddens for referring to the fact that they were shown another report (that from Dr Boast) in the period since June 2005 but he neither identified it nor told the court that the report rejected any suggestion that Mr Cunningham was unfit to manage his affairs. This may be unfair as Judge Coulson QC said immediately after the report had been mentioned:

“Anyway, if I ordered an examination I could order that that be by an independent psychiatrist one that had not seen him before.”

The course proposed by the learned judge was one which would determine the issue of Mr Cunningham’s fitness to give instruction in the litigation in circumstances where both Mr Platford and Mr Willis had serious and understandable misgivings about the value of Dr Boast’s report.

No doubt if Mr Cunningham had been present and the learned judge had been in a position to assess him in person, reference would have been made to Dr Boast’s report. I have no means of knowing whether or not a reference to Dr Boast’s report by Mr Cunningham would have enabled Judge Coulson QC to determine at that hearing that Mr Cunningham was fit to manage his own affairs or whether he would have ordered a further independent medical report.

In relation to the stark choice which the Claimants faced, Mr Platford said this:

“If this trial goes on on the 4 October, it will not be properly prepared because Mr Cunningham will not have the benefit of solicitors advice nor will either of the other Claimants because they will have to go to someone else in the meantime. Now if Mr Cunningham is not a patient he has brought that on his own head and so have the other Claimants. Nobody would have any cause to complain if the action comes on in such a state that it is immediately dismissed.”

Mr Platford went on to say that Mr Cunningham would have every reason to complain if he could prove he was a patient.

At the hearing before me on Day 4 Page 13, Mr Platford said that he did not think that the case had any chance of success unless further steps were taken “It had real prospects of success if, but only if, the substantial issues were addressed. Until I left the case they had not been addressed and that was my cri de coeur”. I accept Mr Platford’s evidence to the court.

Judge Coulson QC took the view that by absenting himself from the country and by breaching the Order which he had made earlier in the week, Mr Cunningham, was, himself, taking steps to prevent the determination of the issue of whether or not he was a patient within the meaning of the 1993 Mental Health Act.

Mr Mort for the Defendants urged the judge to order Mr Cunningham to be examined because,

“we have got this unquantifiable risk that he is mad and pulls out the sort of ultimate ace of trumps and gets everything set aside.”

Judge Coulson QC made the order that:

“(1)

Unless the parties have agreed otherwise by 4:30pm on the 30 September 2005 the Defendant’s appointed expert for the purpose of examining the first Claimant will be Dr RW Latcham

(2)

Unless by 4:30pm on 3 October 2005 the First Claimant provide a form of consent permitting the Defendant’s appointed expert to obtain and to inspect the First Claimant’s Medical Records, the first Claimant’s claim against the Defendant and the first Claimants defence of the Defendant’s counter-claim against the first Claimant stands struck-out without further order, judgment be entered for the Defendant on the counter-claim and the first Claimant will pay the Defendants costs of the litigation…”

(3)

A similar unless order was made that Mr Cunningham attend a medical examination by the Defendant’s appointed medical expert.

The order required any medical report to be disclosed and filed by 4pm 10 October 2005 and that the issue of whether or not Mr Cunningham was a patient would be determined by Judge Coulson QC on the 13 October 2005.

Mr Willis sent an email to Mr Cunningham informing him of the position in an email timed at 1:53am on 25 September 2005.

On 26 September 2005 Mr Cunningham replied to Mr Willis that he would like to see what was submitted to the court on his behalf as he would like to approve it. He said that he would not agree to see Dr Latcham but he could see Dr Clein in the course of the week although Dr Clein would be away untill the following Wednesday.

Immediately after he had sent this email, Mr Cunningham sent two emails to Mr Eppel posing various questions and asking for a face to face meeting. The second email said that he was taking separate advice.

Later that morning Mr Cunningham sent Mr Platford an email thanking him for securing an adjournment but asking for the details provided to the court and the court order. Despite the fact that he was supposed to be on holiday in the United States he said,

“because of my commitments this week and next I have a very tight schedule.”

In response to Mr Platford’s email on the 26 September 2005 setting out the position, Mr Cunningham said that Mr Platford had been misled by Mr Willis in relation to his mental state

“as the reports from Dr Clein who I saw yesterday and Dr Boast whom I saw on the 18 August can testify.”

The email said that Mr Cunningham had had a consultation with Dr Clein on the 12 August 2005 prior to meeting Dr Boast. Mr Willis said in evidence, and I accept, that this was the first time he had heard of this examination by Dr Clein. Mr Cunningham emphasised in the email that he was not suffering from anxiety or depression. Mr Cunningham said he would rely on Dr Boast and Dr Clein’s reports as evidence of his competence from the 18 August 2005 onwards. The email said that the Claimants were asking that Mr Willis no longer act for them.

An email on the 27 September 2005 from Mr Cunningham said that he undertook a further consultation with Dr Clein on that day. I have not seen any report relating to this. Further, the court did not see any report arising out of this consultation. This is important because, so it seems to me, if Dr Clein had concluded that Mr Cunningham had been fit to manage his own affairs the matter could have been bought back before the court very quickly and the Order requiring the examination by Dr Latcham could have been varied.

On the evening of 27 September 2005 Mr Berwin sent an e-mail to Mr Cunningham in relation to the Directors Disqualification proceedings to say that Mr Eppel and Mr Berwin had to consider whether or not McFaddens could continue to represent Mr Cunningham.

By the 28 September 2005 it was becoming clear that Mr Cunningham would be changing his solicitors. Mr Platford wrote a note suggesting a final letter which McFaddens might write to Mr Cunningham summarising the position as they saw it.

The note explained that “I understand that you are concerned about any repercussions in the Director’s Disqualification Proceedings. A decision by Dr Latcham that you are not fit (to) attend trial in these proceedings would not affect your right or ability to attend trial in the disqualification proceedings. Equally Dr Latcham’s views on your capacity to conduct this litigation would have no bearing on your capacity to manage a company and in any event his report may not be disclosed or used outside these proceedings.”

This draft was incorporated in Mr Eppel’s e-mail to Mr Cunningham sent at 2pm on the 28 September 2005. Mr Willis agreed with the following paragraph in the e-mail.

“If you were fit, in the light of your instructions we could not continue to act for any of you (the Claimants) or brief Graham Platford or anyone for the trial because we were without funds. The trial that was starting on 4 October 2005 would have been a shambles and in all probability the claim and the defence to counterclaim would have been struck out. There was no chance of the judge further adjourning the trial simply because you had not sorted out funding.”

This paragraph gives an interesting insight into McFaddens’ view of Mr Cunningham’s prospects of success in the litigation on the evidence as it stood.

On 29 September 2005 Mr Berwin emailed Mr Cunningham saying that McFaddens needed to be put in funds in the sum of £17,460.50p so that a conference in the Directors Disqualification could take place. This received an immediate response from Mr Cunningham “accepting your resignation.”

Also on 29 September 2005 Mr Cunningham severed his relationship with Mr Eppel in the Collett & Farmer Litigation.

Still later on the 29 September 2005 Mr Willis sent an e-mail to Mr Eppel explaining formally the thought process of him and Mr Platford. He said,

“the fact that he is so adamantly against being examined and has suggested that he will not comply with the court order tends to show that he is at the very least irrational. A sensible person would presumably decide that if they are of full capacity and are able to show this, they have no fear in doing so and they certainly would not want an action to be struck out for failure to attend for examination or provide medical records.”

Mr Cunningham did not attend Dr Latcham for the examination on the 3 October 2005. It appears that Ms Wharton of BW, very conscientiously, telephoned Mr Cunningham three times on her mobile phone and left messages and may have spoken to him on the 4 October 2005.

Mr Willis did speak to Dr Latcham on the 3 October 2005. I am not at all sure what authority he had for doing so. Equally I am rather surprised that Dr Latcham was, in effect, able to provide a short report without seeing Mr Cunningham or even speaking to him. As a result of the telephone call, Dr Latcham wrote to Ms Wharton of BW that

“I think it is highly unlikely that Mr Cunningham suffers from a psychiatric illness which precludes him from instructing his lawyers.”

In Mr Willis’ account of the phone call with Dr Latcham, Mr Willis added,

“In our conversation you expressed the view that you felt we may have had great difficulty in obtaining instructions because Mr Cunningham has a personality disorder and that reactive depression is a very wide term. You have clarified that in your opinion you do not think that Mr Cunningham is suffering from a depressive illness which makes instructions to lawyers impossible. I believe that you do fully recognise the difficulties that I explain and you did mention that if you had time you would put into the report that from the matters explained, there were difficulties in obtaining instructions but this did not arise from mental incapacity such that Mr Cunningham was incapable of managing his own affairs.”

The Claimants contend that the ease with which Dr Latcham was able to reach his conclusion supports their contention that there was never any real issue about Mr Cunningham’s mental capacity on the 23 September 2005. I am unable to agree. There clearly was an issue about Mr Cunningham’s mental capacity in the minds of each of the lawyers who Mr Cunningham had retained.

On the 6 October 2005 Sherrards filed a Notice of Change of Solicitor and started to represent the Claimants.

On the 7 October 2005 Sherrards wrote to McFaddens making the claim that the Claimants were potentially liable for the loss of Mr Cunningham’s right to pursue the litigation.

In a witness statement dated 12 October 2005 Mr Cunningham gave his version of events. He claimed that he was not told about the application which was made on the 16 September 2005 and heard on the 23 September 2005. The witness statement made no reference to why, despite the court order, he failed to attend before Judge Coulson QC.

On 12 October 2005 Sherrards, on behalf of Mr Cunningham, applied for court orders that McFaddens should pay the cost of the application to set aside the order of the 23 September 2005 personally.

I was not referred to any document relating to a hearing on the 13 October 2005 or any order drawn up as a consequence of that hearing although I asked that they should be produced. It would appear from his manuscript note that Jonathan Rich, of counsel appeared and said that the McFaddens partners could not attend. It may well be that after discussions the various Applications were adjourned to a subsequent hearing.

On the 18 October 2005 McFaddens applied to come off the record in the Directors Disqualification litigation. It was so ordered by Mr Justice Mann on the 26 October 2005.

The Applications in Collett & Farmer were heard on the 29 November 2005. Patrick Lawrence QC appeared on behalf of the Claimants. Andrew Nicol again appeared on behalf of McFaddens and Justin Mort appeared on behalf of the Defendants.

At the hearing on 29 November 2005 it was agreed that the Unless Orders of the 23 September 2005 would be revoked and that McFaddens would pay:

As to the claim that the Application heard on 23 September 2005 could not have been issued and served by competent and skilful lawyers, I find that Mr Platford’s advice as to the appropriate course of action to be taken was given on the factual basis of his own knowledge of Mr Cunningham and that of the solicitors in McFaddens. I find that in giving the advice to proceed with that application, Mr Platford relied particularly on Mr Willis’ assessment of Mr Cunningham on 15 September 2005 (which renewed earlier concerns). Mr Willis confirmed his assessment in a witness statement which he swore in support of the Application dated 16 September 2005.

By the time the decision was taken by the McFaddens partners on 19 September 2005, Mr Eppel and Mr Berwin had also supported the factual basis on which the instructions to advise had been put to Mr Platford, namely that there was a serious concern on the part of Mr Eppel, Mr Willis and Mr Berwin, as well as Mr Platford, that Mr Cunningham may not have the capacity to conduct the Collett and Farmer litigation by reason of mental illness. Mr Eppel explained in evidence how he had come to that view.

This concern on the part of the three solicitors and counsel, particularly in relation to the events in the few days immediately before 16 September 2005 (but in the case of each with his particular first hand knowledge of the history well in mind), went beyond the circumstance that Mr Cunningham was making decisions with which they did not agree and which would not have been made by persons of reasonable prudence and raised the questions of whether or not he had the capacity to deal with the litigation and, if he did not, have that capacity whether or not it was by reason of mental illness (see Masterman-Lister v Brutton [2003] 1 WLR 1511.

In making the factual assessment Mr Platford was bound to rely to a large extent on the factual evidence of Mr Willis, Mr Eppel and Mr Berwin, each of whom had had closer and more direct dealings with Mr Cunningham than he had.

Mr Platford had to advise at very short notice on what course needed to be taken because of the impending trial. While this was not the same as making a decision in the heat of the moment in the course of a trial, it carried with it a considerable element of urgency in circumstances which had not been encountered before by Mr Platford in over 30 years of practice see Ridehalgh v Horsefield [1994] Ch 205.

I find that Mr Platford’s decision to place the issue before the court was not negligent on the basis of his own knowledge and, more especially, the factual input from the solicitors. I conclude that Mr Platford was right, taking into account the terms of the Mental Health Act 1993 and the relevant Civil Procedure Rules, together with the guidance in Masterman-Lister, to place the matter before the court on the grounds that there was a real risk that Mr Cunningham lacked capacity with the meaning of the 1993 Act i.e. by reason of mental illness and may require a litigation friend to conduct proceedings on his behalf. I have already rejected the Claimant’s contention that the test must be related only to cases of very obvious and severe mental and physical disability.

I find therefore that Mr Platford’s conduct in so advising did not fall below the standard of professional skill to be required of a barrister of ordinary skill and competence to handle this type and weight of work. I would have expected this case to be handled by a member of the Junior Bar experienced in general civil litigation but not necessarily one of Mr Platford’s great seniority (or experience) see Hall v Simons [2002] 1AC 615 and Saif Ali v Sydney Mitchell & Co. [1980] AC 198.

If I have to consider the matter afresh and factor in Mr Platford’s seniority of upwards of thirty years call, I would still reach the same conclusion (see Moy v Pettman Smith [2005] 1 WLR 581). This was a most unusual and unexpected situation for any barrister (or solicitor) of whatever seniority.

If I had concluded that Mr Platford could properly be criticised for giving the advice which he did, I should have concluded, bearing in mind that he considered the relevant options, that he consulted members of his chanbers informally, that he had very little time in which to make a decision and that this was a unique situation for him, that any fault on his part amounted to a mere error of judgment for which he should not be held liable see Ridehalgh, Saif Ali and Moy.

As to the nature of the application which was made, it would, of course, have been convenient for the solicitors if the Application could have been made simply for the solicitors to come off the record. In my view it was not open to the solicitors to take this course on 16 September 2005 (although it might well have been open to them to have done so earlier). Once the solicitors themselves were concerned about Mr Cunningham’s mental capacity they were under an obligation to put this concern before the court if it could not otherwise be resolved. In normal circumstances the issue of Mr Cunningham’s mental state would have been resolved by obtaining a further report from Dr Clein but at the relevant time Mr Cunningham refused to be further examined by him (although he later agreed to do so).

The solicitors owed an independent duty to assist in the administration of justice and not to mislead the court. They were obliged to put their genuine concerns before the court. Incidentally I find that Mr Platford’s assessment of the risk to the solicitors in taking the course which they did as negligible, to be a reasonable assessment in the circumstances of this case.

It is argued that Mr Platford could and should have advised that an application should have been made ex parte in the course of which the issue of Mr Cunningham’s mental capacity could have been aired. Mr Platford concluded at the time that this was not an appropriate course for the reasons which I have set out in paragraph [281] above and, in particular, because a) he concluded that the learned Judge would not treat such an application as a serious application so soon before the trial unless the opposing party was notified and b) the factual background of Mr Cunningham not being able to manage his own affairs had been discussed in detail (on Mr Cunningham’s instructions) at the hearing on 16 June 2005, when an application to adjourn the trial was made. I conclude that Mr Platford had a difficult decision to make but I cannot conclude, in the circumstances in which it was taken, that it was the wrong decision. Still less can I find that it was a negligent decision. If I had found that Mr Platford was at fault I should have concluded that he was guilty of no more than an error of judgment for reasons similar to those set out in paragraph [377] above.

If the hearing had gone ahead ex parte on 23 September 2005 and Mr Cunningham had not attended, it is not at all clear that the Learned Judge would have made a different Order or one more favourable to Mr Cunningham. The two most likely Orders would have been to dismiss the Application or to order Mr Cunningham to be examined by an independent expert.

I find that McFaddens had an independent duty to instruct Mr Platford properly and fully on the facts which would form the basis of the advice which he was being asked to give. The instructions must inevitably have included the assessment, both individually and collectively, of Mr Cunningham’s capacity to make rational decisions in the conduct of the litigation. This obligation was discharged individually by Mr Willis. There does not appear to have been any pooling of information by the three solicitors as perhaps there should have been.

I find also that McFaddens had an independent duty to consider and form their own judgment on the advice which Mr Platford gave see Locke v Camberwell Health Authority [1991] 2Med LR 249 CA. McFaddens were not bound to follow Mr Platford’s advice as they acknowledged by Mr Eppel and Mr Berwin going through the process of ratifying the decision to implement Mr Platford’s advice. In fact in relation to Mr Platford’s advice that the co-defendants should be notified of the hearing on 23 September 2003, they obtained separate advice from the Law Society and followed that advice rather than Mr Platford’s advice. In relation to the course to be followed in relation to Mr Cunningham’s capacity to conduct litigation, I find that they did consult the Law Society but that they relied primarily on Mr Platford’s advice on the law and the course which he advised that they should follow. That advice was based to a very significant extent on the facts which had been reported to him.

In any event, was Mr Platford’s advice and the bringing of the Application on 23 September 2005 the cause of, or a contributory factor to any loss which subsequently occurred? I find that it was not, a) Mr Cunningham acted unreasonably in failing to appear at the hearing on 23 September 2005 when he was ordered to do so. I find that he was notified of the hearing and should have attended, and b) Mr Cunningham also unreasonably refused to attend Dr Latcham for a medical assessment and thus comply with the Unless Order made by HH Judge Coulson QC on 23 September 2005.

Both Mr Cunningham’s failure to attend the hearing and failure to attend for the medical examination broke the chain of causation. If he had attended the hearing HH Judge Coulson QC could have made up his mind as to what (if any) further steps needed to be taken to resolve the issue of Mr Cunningham’s fitness to continue to conduct the litigation. If he had attended Dr Latcham, the Action would not have been struck out and there would have been no need for an Application to revive it. I note in relation to Dr Latcham that, having refused to see Dr Clein before 16 September 2005 to resolve the issue of his capacity to conduct the litigation, he was later prepared to see him. He should have seen Dr Latcham.

The claim is made by McFaddens that as a result of the strike out Mr Cunningham (and the other defendants) lost something of value namely a claim with what Mr Nicol put at a 30% chance of success. It is said that if solicitors and counsel had withdrawn, Mr Cunningham could have represented the Claimants himself and an indulgent Judge would, despite the Unless Order, have permitted him to fill in the gaps in a thoroughly defective statement. This raises a number of issues which I will deal with in the succeeding paragraphs. For loss of a chance I have well in mind the principles set out in Mount v Barker Austin (a firm) [1998] PNLR 483 and the summary set out in Pritchard Joyce v Batcup [2008] EWHC 20 (QB).

I accept, of course, that in normal circumstances solicitors do not continue to act in litigation unless they are of the opinion that their clients have a realistic and substantial chance of success. The onus is therefore on the solicitors to prove otherwise.

The evidence in this case, taken as a whole, and including the evidence at trial, in particular that of Mr Platford which I accept, is that on the evidence as it stood, Mr Cunningham and the other joint claimants had no realistic or substantial chance of success. Solicitors and Counsel had continued to act on the basis that if the deficiencies in the evidence had been explained by Mr Cunningham’s illness and had been addressed a sufficient time before the trial, so that Collett and Farmer were not prejudiced, there was a real prospect that the Judge might have admitted the evidence despite the “Unless Order”. This would have given the joint Claimants a real and substantial chance of success.

I find that there is no basis on which to conclude that HH Judge Coulson QC (or any other TCC Judge) would, in the face of the litigation history, an Unless Order and the failure earlier to make an application to admit further evidence, have permitted Mr Cunningham to fill in gaps in the defective witness statement which had been served. The trial would have gone ahead on 4 October 2005 on the evidence as it stood.

I find therefore that Mr Platford has discharged the burden of proving that if a trial had taken place in October 2005, which would have happened if there had been no adjournment, Mr Cunningham and the other joint claimants would have had no realistic or substantial chance of success. If I had concluded otherwise I should have accepted Mr Nicol’s estimate of a 30 percent chance of success in the absence of any argument to the contrary.

In order to be in a position where damages needed to be apportioned between solicitors and counsel, I should have had to have concluded that a) Mr Platford was negligent in the advice which he gave and b) that it was the proximate cause of the damage i.e. that the chain of causation had not been broken by Mr Cunningham and c) that Mr Cunningham (and the co-claimants) had lost a worthwhile cause of action. I would then have had to have considered the account of the facts given by McFaddens, the absence of any query in relation to the advice given by Mr Platford and the obligation of McFaddens independently to make their own assessment of Mr Platford’s advice based on their own assessment of Mr Cunningham in deciding whether or not to implement Mr Platford’s advice. I should also have had to have taken account of the fact that if they had had such misgivings McFaddens should a) have put them in detail to Mr Platford and recorded the fact that they had done so and b) have obtained a second opinion.

In these circumstances, far removed from my findings and which are wholly different to those in Pritchard Joyce, I should have apportioned the blame as 75% to McFaddens and 25% to Mr Platford.

I am not entirely clear as to the position on the sum claimed and I will amend this judgment in the light of any further representations. I conclude tentatively on the balance of probability that McFaddens would in any event have had to attend one further hearing, but that is not a final view.

In all the circumstances I find for the defendant, Mr Platford.