Clarke Willmott & Clarke v Evans [2004] EWCA Civ 803

Case No B2/2003/2645[2004] EWCA Civ 803
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(His Honour Judge Rudd)
Venue Royal Courts of JusticeDate Wednesday, 9 June 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
Between
CLARKE WILLMOTT & CLARKERespondent-v-
Between
MARGARET EVANSAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The appellant appeared in person for in person for The respondent was not represented and did not attendJ U D G M E N T

LORD JUSTICE LATHAM:

[1]This is a sad case because of the financial consequences it has had on the applicant and also because there is no doubt that the applicant has felt badly let down by the law, both in terms of the legal representation she has had, and by the way that the court has dealt with her case, or cases to be more exact, and thirdly let down by the fact that the legal profession, which she believes firmly has not provided her with the quality of service to which she is entitled, has cast her adrift and does not wish to pick up the pieces.[2]The background is that the applicant was in dispute with her architect and builder in relation to an addition to her cottage in Dorset which, unhappily, resulted in litigation. The litigation was commenced with the applicant employing a firm of solicitors, with whom she became dissatisfied and so instructed the respondents. They were involved in the proceedings from August 1999 to August 2000. Thereafter their retainer was terminated in circumstances as to which there is and was dispute. In particular, the applicant is clear in her view that they had so structured events by then as to be able to allege, as they subsequently did, that she was in effect impossible to deal with. Thereafter there were further solicitors who acted on her behalf in those proceedings that concluded on 27 May 2001 in a settlement in which, unhappily, the consequences were that the applicant had to pay the builders £7,000 and costs of £14,000 on top. Although the architects had to pay the applicant £1,750, there would appear to have been a payment into court which resulted in their position being essentially protected as to costs. The amount at the end of the day that the applicant appears to have had to pay was in the region of about £85,000. That is the figure, in any event, that the judge at the trial estimated as the financial consequence to the applicant.[3]In January 2002 the respondents pursued the applicant for the balance of their fees which were then outstanding, the applicant having met all previous demands. She filed a defence and counterclaim in which she alleged that the respondents had been professionally negligent in the way that they had handled the case. There were significant particulars given of those allegations. Perhaps the most important one in some respects, from the applicant's point of view, was the allegation that the solicitors had failed adequately to plead her case so as to put her at a significant disadvantage thereafter in the litigation even though she accepted that of course the respondents were not the solicitors who had conducted the proceedings up to the final settlement. Indeed that was an allegation which the judge at the trial ultimately concluded had merit.[4]The judge concluded that her claim had not been, on its face, adequately pleaded if her assertions as to what her case was were correct. She also claimed that the solicitors had failed - in a number of other detailed and significant respects - to carry out her instructions properly, to follow through her instructions in terms of the obtaining of evidence, in particular from the building inspector who had examined the building at a stage when the footings went in and whose report, it was said by the applicant, made it clear that the architect and/or the builder were at that stage in breach of their obligations to her in contract in relation to the way in which the structure had, in fact, been built.[5]The applicant also makes complaints about the way she was dealt with by the solicitors during the course of the proceedings, that she was not listened to, that they failed properly to understand or, alternatively, if they understood, failed to carry through properly the instructions in relation to the way in which the case ought to be presented.[6]That counterclaim was the subject matter of the hearing with which we are concerned. It lasted some five days, during the course of which the applicant, as she had been at the beginning of those proceedings, was unrepresented. She tells me, as she has consistently maintained, that she had sought to obtain legal assistance and legal advice on a number of occasions from a number of solicitors, from the Law Society and from the Bar Council but was provided with no assistance. She clearly believes that that was the result of the fact that she was essentially making a complaint about the way in which the solicitors had conducted themselves and that the legal profession was not interested in pursuing such a complaint.[7]The result was that she appeared in person before the judge for the purposes of the trial. There is no doubt that that imposed a burden on her because, not only is litigation a difficult matter for any litigant in person to pursue, but when the subject matter was, as in this case, essentially, the alleged negligence of her professional advisers it was bound to be a difficult case for her to present in the way that would reflect properly the true nature of the case that she had. It is never easy for a person in a litigant in person's position to appreciate the subtleties and difficulties involved in a professional negligence action. That is doubly the case where, as here, the solicitors against whom she was making the allegations were not the only solicitors who had been instructed during the course of the proceedings which had had such an unfortunate result for her.[8]The applicant gave evidence and was cross-examined over a period of approximately three of the five days of the hearing. She complains that much of the time was spent by counsel for the respondents asking her questions which were essentially nothing to do with the case she was making against the respondents, but to do with the way in which the case had been presented by the other solicitors. She was concerned because the judge had made it clear to her that that was to be no part of the case, and in one sense that is true. Clearly she could not improve her case against the respondents by alleging that there was some fault on the part of the other solicitors. On the other hand, the respondents clearly had an interest in establishing that even if there had been any fault on their part, the real reason for the ultimate lack of success in the proceedings was either the applicant's own behaviour in relation to the claim or the unmeritorious nature of the claim or the way that the other solicitors had in fact handled the matter.[9]During the course of not only her evidence but when she was seeking to ask questions of the respondents' witnesses there is no doubt that the judge intervened. The applicant has a clear sense of grievance that the judge was indicating throughout in his interventions what was essentially a bias towards the respondents and a disinclination to accept the applicant's case. She feels that she was put under unreasonable pressure in relation to time and that, as a result, combining that together with the fact that she was a litigant in person, she quite simply had not had a fair trial because the judge ultimately dismissed her counterclaim, found for the respondents and ordered the applicant to pay the costs.[10]The applicant seeks permission to appeal against both the judgment on the merits and in relation to costs, first, on the basis of the complaints that I have already dealt with in relating the story of the unhappy litigation. I have been concerned about the allegations made by Miss Evans because clearly it is important that when the transcript of proceedings discloses that a litigant in person has not been given a fair opportunity to present his or her case, has been prevented from being able to present the evidence that they wish to present or otherwise in any way has been put in a position of significant disadvantage in relation to the trial, this court should ensure, if it can, that that is put right.[11]With a view to that, as I have indicated to Miss Evans, I have looked at the transcripts that have been provided. There is no doubt at all that the judge took a view of the way that the applicant was presenting her case which was not to her advantage. In his judgment he specifically referred to the issue with which I am particularly concerned in the following terms:
"A fair trial is a fair trial for everyone and solicitors of the other side are entitled to a fair trial, as is Mrs Evans. I raise these matters because Mrs Evans has occasionally, during the course of the proceedings, complained that I said she would have a fair trial and she has felt at times that that has not been the case. I have to have regard to the rules. I have to have regard to the amount of time that it is appropriate to expend on a case of this sort ..... I am satisfied, though Mrs Evans may well not be, that she has had a fair trial. I have had to stop her at times and tell her to move to other points when I considered that she was dwelling on points that were not assisting me or if I considered that she was being repetitive on some of the points or, in general terms, simply to stop prolix descent into detail."
[12]From that it can be gleaned that the judge did consider that during the course of the trial the applicant had not been keeping her comments within bounds and was wasting the time of the court. He undoubtedly, when I look at the transcript, expressed that view during the course of the proceedings. The applicant says that in one way - if I can paraphrase her argument - the passage of the judgment to which I have referred is humbug, she did not have a fair trial, and that the judge did not have regard to the rules. He did not take account of the fact that there had been a number of breaches of the rules which should have been reflected in sanctions one way or another during the course of proceedings.[13]I say, having read the material with which the court has been provided, that this was clearly a difficult trial for the judge. It seems to me that it was classically a case where the judge had to exercise a measure of control which was bound to be difficult, and, considering the material dispassionately, I consider that the judge was in fact fair to the applicant. The conclusion that he reached in his judgment was one which cannot properly be the subject of criticism in the sense that it discloses any error of law or other error which would entitle this court to interfere. It follows that neither in the way the trial was conducted, nor the conclusions the judge reached, is there any arguable basis upon which I believe this court could properly intervene.[14]As far as the costs are concerned, those were in the discretion of the judge. The applicant seeks to say that the judge failed to take into account that much time was expended by the respondents on dealing with issues which the judge himself indicated were of no materiality. I have already referred to that earlier in this judgment, indicating the relevance that that material might well have in relation to the respondents' case. I do not consider that there is any basis upon which the judge's exercise of discretion, as far as the costs were concerned, can properly be criticised.[15]As far as the amount of the costs is concerned, the amount that has so far been the subject of the bill of costs is a very substantial sum indeed, some £97,000 or so. The applicant may well be right to consider that that is a grossly inflated sum for the proceedings in question. But that will be a matter for detailed assessment. Until that has been carried out it will not be possible to see the extent to which criticism of that as an amount of costs is appropriate.[16]It follows for the reasons that I have given that the complaints that the applicant makes do not justify the grant of permission to appeal. This court would not interfere with the orders made by this judge, and indeed any further litigation would simply result in more expense incurred by the applicant.[17]Accordingly this application is refused.

Order

Application refused.