Luke v Kingsley Smith & Company & Ors [2003] EWHC 1559 (QB)

Case No 01/TLQ/0084

Case No HQ002X01146

[2003] EWHC 1559 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue The Royal Courts of Justice

Date Monday, 23 rd June 2003

Strand

London WC2A 2LL

Before

MR JUSTICE DAVIS

Between

LukeClaimant

Kingsley Smith & Company & OrsDefendant

WILLIAM JAMES LUKE

CLAIMANT

-v-

KINGSLEY SMITH & COMPANY (1)

WANSBROUGHS (2)

CAROLINE ADDY (3)

DEFNEDANTS

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MR J WARDELL QC (instructed by Wood, Awdry & Ford) appeared on behalf of the Claimant

MR W FLENLEY (instructed by Barlow, Lyde & Gilbert) appeared on behalf of the 1 st Defendant

MR J CROSS (instructed by Eversheds) appeared on behalf of the 2 nd Defendant

MISS S CARR QC (instructed by Manches) appeared on behalf of the 3 rd Defendant

JUDGMENT

Monday, 23 rd June 2003

JUDGMENT

[1]MR JUSTICE DAVIS: On 18th January 2001 the claimant, Mr William Luke, commenced professional negligence proceedings against Kingsley Smith & Co, a firm of solicitors. That firm had previously acted for Mr Luke in an action commenced by Mr Luke on 17th March 1995 against the Ministry of Defence. In around March 2002 Mr Luke terminated the instructions of Kingsley Smith with regard to the conduct of that action. After briefly instructing another firm Mr Luke retained the firm of solicitors, Wansbroughs, to act on his behalf in around May 2000. At that stage the action against the Ministry of Defence had not come on for trial and was nowhere near ready for trial.

[2]Wansbroughs then instructed counsel, Miss Caroline Addy. As it happened, Miss Addy had previously been instructed by Kingsley Smith themselves in 1999 to advise and at that time, that is to say in 1999, Miss Addy had expressed grave concern at the risk of a strike-out in the light of the inactivity and lack of progress in the conduct of the action. In 2000 Miss Addy reiterated that advice with, if anything, even more strongly expressed concern at the likelihood of strike-out, given the further delay and inactivity that had occurred. In consequence, and in reliance on the advice of Miss Addy and Wansbroughs, Mr Luke then settled his claim against the Ministry of Defence in the sum of £10,000 and costs, which costs, so I was told, were estimated at around £25,000. That settlement is to be contrasted with his claim, which had claimed damages particularised at over £240,000 plus interest and costs.

[3]In his present claim against Kingsley Smith, Mr Luke claims damages, in essence for the lost chance of succeeding in the original claim against the Ministry of Defence caused, he says, by the negligence of Kingsley Smith in failing to conduct the claim properly and with due expedition. Mr Luke alleges that, competently handled, his action would and should have come on for hearing by the end of 1997.

[4]In these proceedings as issued by him Mr Luke initially made no claim against Wansbroughs (who, indeed, at that stage were still acting for him) or against Miss Addy. On the contrary, as explained by Mr Wardell QC appearing before me on his behalf, Mr Luke took then, and indeed still takes, the view that they had been in no way negligent, the settlement they had advised (in the sum of £10,000 and costs) being all that could reasonably be achieved given the state of the action as it then stood, having regard to the delay and inactivity, and given the prospect of it being struck out.

[5]However, on 24th June 2002, Kingsley Smith issued a part 20 claim against Wansbroughs, seeking contribution from them under the Civil Liability (Contribution) Act 1978. This in turn prompted a part 20 claim to be issued by Wansbroughs against Miss Addy on 25th July 2002.

[6]The part 20 claims raised the prospect that the loss, or some of it, which Mr Luke claimed to have suffered was not caused by any negligence of Kingsley Smith. This formulation obviously gave rise to a ticklish decision for Mr Luke and his advisors. In the event, Mr Luke’s new advisors took the view, as a matter of caution, that Wansbroughs and Miss Addy should be added as defendants to the action, and this was done on 27th November 2002. The amended particulars of claim, raising allegations of negligence against Wansbroughs and Miss Addy, are verified by a statement of truth. Mr Wardell, however, has made clear that Mr Luke and his advisors remain of the view that the principal case is that the real liability and real cause of the claimed loss is that of Kingsley Smith and it is the primary case of Mr Luke that Wansbroughs and Miss Addy are not liable at all for any of the losses claimed by Mr Luke.

[7]On 25th March 2003, the solicitors acting for Kingsley Smith made certain admissions in an open letter as to the responsibility for periods of delay. They expressly disputed, however, that any delays for which Kingsley Smith were responsible caused loss. They asserted that the negligence alleged by them on the part of Wansbroughs and Miss Addy broke the causal link between their actions and Mr Luke’s alleged loss. They also reiterated an allegation of contributory negligence on the part of Mr Luke, which is part of the pleaded defence. I might add that a detailed amended defence had previously been served by Kingsley Smith on 27th January 2003.

[8]An attempt at mediation failed. The advisors acting for Wansbroughs and Miss Addy then took the view that there was no justification for the respective part 20 claims against Wansbroughs and Miss Addy. On 29th April and 28th April 2003 respectively they issued applications for summary judgment under Civil Procedure Rules part 24 in respect of the respective part 20 claims against them. It is those two applications that come before me for my determination. In addition, the applications included a request to lift a stay of the part 20 claims, as previously ordered by Deputy Master Fontaine on 9th December 2002. At the outset of the hearing before me I ordered that such stay be lifted.

[9]In consequence of those two part 24 applications, Kingsley Smith issued a part 24 application on 21st May 2003. It reads in the relevant respects as follows:

“In the event that the applications for summary judgment succeed then we will seek a determination that at the trial of this action, to the extent that the trial judge holds that any damage to claimant was caused by the breach of duty of the second defendant or third defendant in negligently advising that the claimant’s claim against the Ministry of Defence was settled for a figure that was too low, the claimant shall not be entitled to recover damages from the first defendant in respect of that damage.”

All three applications have thus been before me. Mr Wardell has appeared for Mr Luke; Mr Flenley has appeared for Kingsley Smith; Mr Cross has appeared for Wansbroughs; and Miss Carr QC has appeared for Miss Addy.

[10]I should at this stage say a little more about Mr Luke’s original action against the Ministry of Defence. The position, shortly put, is this. Mr Luke joined the Army in 1976, as a private, at the age of 18. Over the years he received a number of glowing confidential reports and a number of recommendations for promotion. There was a suggestion that a late entry commission may be attainable. By 1993 he was a substantive Sergeant and an Acting Warrant Officer Class 2. He was posted to Kirton-in-Lindsey, Lincolnshire, in that year. Whilst he was there he was instrumental, so it is said, in uncovering a major fraud at the regimental Royal Artillery stores, some £30,000 being said to be involved. According to Mr Luke, his exposure of this fraud was rewarded by a closing of the ranks, by victimisation of him and by an attempt to ruin his army career.

[11]A confidential report relating to Mr Luke, prepared after the uncovering of the fraud, was submitted by his commanding officer in charge of the stores on or around 8th October 1993. It was, so it is said, of a totally different tenor to any previous report relating to Mr Luke. This particular report, in part, said this:

“I know this soldier very well. Personal qualities, adequate; team spirit, adequate; general conduct adequate; physical stamina, weak; ambition, adequate; leadership, adequate; powers of discipline, weak; ability to command respect, adequate; adaptability, weak.”

Against the question, “Do you consider this soldier is ready for promotion to the next higher substantive rank?” Answer, “No.” Then this comment:

“He has not achieved his full potential due to an overly subjective stance on a number of issues, demonstrated by a conceited and condescending attitude towards the organisation he supports. Socially and professionally, Acting Warrant Officer 2 Luke is a pariah. He does not command the respect of his subordinates or superiors. He sets a very poor example, both in his low standard of physical fitness and in the management of his personal affairs. He has real family welfare problems, which on occasions appear to be used to achieve his own ends. In addition, he illustrates a paranoia of persecution if any of his actions or decisions are questioned. He can be petulant and overreact in these situations. Acting Warrant Officer 2 Luke has not shown any objectivity, maturity or leadership to perform adequately as a warrant officer. I cannot recommend him for promotion.”

[12]The Regimental Commanding Officer said this in the report. Against the question as to whether he was to be recommended for consideration for a late entry, short service commission, the answer was “No”. The Commanding Officer’s report goes on:

“Warrant Officer Class 2 Luke has not done himself justice. Most of the criticisms levelled at him by the initiating officer are self-inflicted. He must now take stock of his career, and if he is to have any future in the Army he must begin to act and display the qualities of a warrant officer in his professional and personal life. I cannot recommend him for promotion on his current performance.”

[13]A further report was prepared by the officer commanding the workshop stores in question on 25th October 1993; and in part in this report this is stated by that officer:

“He has repeatedly subverted the chain of command for his personal gain. He also has an unjustifiably conceited and condescending attitude to external organisations, repeated in his views on the technical views and opinions of his peers and subordinates. This has all been exacerbated by a paranoid fear of persecution, again, completely unjustifiable. He has had the full support of his superiors. Warrant Officer 2 Luke is professionally and socially a pariah, at best tolerated by his peers and disliked and disrespected by his subordinates. He is unable to manage or command objectively, and personal and physical fitness is unacceptably low. He has shown himself to be thoroughly disloyal and I believe he has reached his ceiling in the rank of Staff Sergeant.”

One might query, if those reports are accurate, how Mr Luke managed to get even as far as Sergeant and Acting Warrant Officer as he did.

[14]In the light of those reports, which seem shortly thereafter to have become relatively common knowledge, Mr Luke considered his position to be untenable. He in due course applied for voluntary release from the Army and left the Army during the course of 1994.

[15]By this time he had consulted Kingsley Smith on, it would appear, 24th November 1993. Mr Luke gave Kingsley Smith a number of names of officers of senior rank (one subsequently becoming, it would appear, a General, and two others becoming Lieutenant Colonels) and of at least one Sergeant, who, he believed, would strongly support him and would give evidence supporting his case.

[16]Counsel, Mr Garnier, was instructed. Counsel’s written advice of 17th May 1994 included the following passage:

“In this case my instructions lead me to conclude that not only has Mr Luke a more than reasonable chance of proving falsity and malice, but also that he can show that he has suffered damage as a consequence of the publications complained of. I see no reason why he should not recover his future losses of salary and other benefits for a reasonable period of years. I also believe that Mr Luke has a good arguable case to claim exemplary damages on the understanding that the two officers deliberately set out to destroy his career.”

Proceedings were then issued in March 1995, the essence of the claim being put in malicious falsehood. Legal aid had previously been sought and obtained on behalf of Mr Luke in order to enable those proceedings to be prosecuted.

[17]During the next few years virtually no steps appear to have been taken by Kingsley Smith to advance the action. No witness statements were obtained, although, as has been mentioned, Mr Luke had given to the firm the names of a number of individuals who might have been able to support his case. There was a belated summons for directions and belated discovery. The action was due to be set down for trial by 23rd December 1996. It never was. It is alleged that some instructions were sent to Mr Garnier on 31st July 1997. In the absence of any detailed witness statements Mr Garnier could only give very limited advice. It is said that Mr Garnier was in his advice also very critical of the delay, but that advice was not, so it is alleged, sent to Mr Luke himself. In May 1999 Kingsley Smith instructed Miss Addy, Mr Garnier in the meantime having taken silk. A written note of advice in May 1999 indicated a view that an application to strike out was inevitable; and the prospects of successfully resisting such an application were assessed by Miss Addy as being no more than 10 per cent. Ultimately, Mr Luke instructed Wansbroughs, and, as has been mentioned, Miss Addy then repeated her gloomy prediction and advised settlement, which in the result was achieved in the sum of £10,000 and costs. It might be added that at the stage when Wansbroughs were instructed they were further hampered in that Kingsley Smith, so it is said, asserted a lien over the papers.

[18]The matters in the current action are pleaded in great detail in the amended particulars of claim. The background is fully set out, and then at paragraph 25 this is pleaded:

“Thereafter, Wansbroughs, on behalf of the claimant and in mitigation of the claimant’s loss, negotiated a settlement with the Ministry of Defence, which reflected the very poor prospects of avoiding the original action being struck out. By a consent order dated 2nd October 2000 the Ministry of Defence agreed to pay the claimant the sum of £10,000, together with costs on the standard basis.”

That clearly reflected the view held at that stage that the settlement reflected the benchmark of what was then attainable, and that was the benchmark to be deployed as against Kingsley Smith. A little further on in the pleading, at paragraph 36, it is expressly pleaded that the matter should, under the conduct of Kingsley Smith, have progressed to trial within a reasonable period of time, namely, within two years of the action commencing.

[19]Then it is said in some detail in paragraph 32 just what the alleged delay was. Full particulars are given and at paragraph 35 this is then pleaded:

“By reason of the said breaches the claimant has suffered loss and damage. The claimant’s loss is the lost chance of succeeding in the original action. The claimant had been advised by Mr Garnier and by the defendant that he had a good claim.”

There then follows some pleaded particulars of loss, which, with all respect to the pleader, are not really orthodox particulars of loss as such but correspond more to various further allegations of negligence and other such matters. Then, at paragraph 36 and following, come the amended parts of the particulars of claim, introduced to reflect the case now being brought against Wansbroughs and Miss Addy. Paragraph 36 reads as follows:

“Further, or in the alternative, if contrary to the claimant’s primary case the first defendant was not the sole or any cause of the claimant’s losses, the claimant will seek damages from the second and/or third defendant on the grounds set out below.”

The second and third defendants I add, are, of course, Wansbroughs and Miss Addy. There are then pleaded orthodox allegations about the existence of a duty of care. Then at paragraph 40 this is said:

“In the first part 20 claim the first defendant contends that the advice given by the second defendant as to the claimant’s prospects of successfully resisting the strikeout application was negligent with the result that the chain of causation is broken and that the second defendant was solely responsible for the claimant’s losses.”

There then follows a paragraph referring to the second part 20 claim, whereby the second defendant made contentions as against the third defendant. In paragraph 42 Mr Luke repeated and relied upon the allegations of negligence made by the first defendant against the second defendant in the first part 20 claim, and the allegations of negligence made by the second defendant against the third defendant in the second part 20 claim.

[20]This is then pleaded at paragraph 43:

“As a result of that negligence the second and/or third defendants caused or contributed to the claimant’s losses set out in paragraph 35 above.”

On the face of it, therefore, there is now an allegation that Wansbroughs and Miss Addy caused, or alternatively contributed to, the claimant’s losses set out in paragraph 35: that is, as it seems to me on a fair and natural reading of the pleading, the “lost chance of succeeding in the original action”.

[21]I turn then to the part 24 applications. On at least an initial view of the situation, and at all events it was an initial view of mine, it might be queried as to how it could realistically be said that Wansbroughs or Miss Addy were negligent at all. All the delays occurring before May 2000 were absolutely no fault of theirs. They inherited an action assessed by them as being, at the lowest, very vulnerable to a strike-out (and by then, moreover, the putative limitation period had expired); and they advised, as a matter of professional judgment, that the case be settled accordingly. That Wansbroughs and Miss Addy were pessimistic seems unsurprising, and even if it can be said that they were over pessimistic that may perhaps connote an erroneous assessment but it by no means follows that such assessment, even if wrong, was negligent.

[22]I did raise these points with Mr Flenley. Mr Flenley, however, drew my attention to a number of matters; thus, for example, he said that the Ministry of Defence had previously intimated the making of a strikeout application but had never followed that up, and, moreover, even at this time (that is to say, in 2000) in correspondence the Ministry of Defence, on one view, were prevaricating about whether to apply for a strike-out at all and were, on one view, indicating hesitation as to whether the action would be struck out and as to whether they, the Ministry of Defence, would be able to adduce sufficient evidence of prejudice.

[23]Ultimately, it is perhaps inappropriate for me to say more, for Mr Cross and Miss Carr make clear that these part 24 applications are not based on any such grounds; that is to say, they are not based on what might be called “the merits”. They accept, albeit purely for present purposes, that triable issues are raised as to whether Wansbroughs and Miss Addy were negligent, as alleged: although they emphasise their view that these claims as against Wansbroughs and Miss Addy are without substance, and on an examination of the facts at any trial Wansbroughs and Miss Addy would, they say, be wholly vindicated.

[24]As for Mr Wardell, in general terms he in effect agreed with that assessment of the position. His position is that although Mr Luke has been in effect compelled, as he would say, to join Wansbroughs and Miss Addy as co-defendants, by reasons of the assertions of Kingsley Smith, if Wansbroughs and Miss Addy are exonerated at any trial - and that appears to be Mr Wardell’s current assessment of the position - then he would be inviting the trial judge to make an appropriate order as to costs in Bullock or Sanderson form.

[25]The sole basis for these part 24 applications by Wansbroughs and Miss Addy, therefore, is that the part 20 claims issued do not fall within the ambit of the 1978 Act. The relevant part of that Act read as follows. The preamble of the Act says this:

“An Act to make new provision for contribution between persons who are jointly or severally, or both jointly and severally, liable for same damage and in certain other similar cases where two or more persons have paid, or may be required to pay, compensation for the same damage, and to amend the law relating to proceedings against persons jointly liable for the same debts, or jointly or severally, or both jointly and severally, liable for the same damage.”

Section 1(1) reads as follows:

“Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).”

Section 2(1) reads as follows:

“Subject to 3(1) below in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

Section 6(1) provides as follows:

“A person is liable in respect of any damage for the purposes of this Act if the person who suffered it, or anyone representing his estate or dependants, is entitled to recover compensation from him in respect of that damage, whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise.” “Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).” “Subject to 3(1) below in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.” “A person is liable in respect of any damage for the purposes of this Act if the person who suffered it, or anyone representing his estate or dependants, is entitled to recover compensation from him in respect of that damage, whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise.”

[26]Very shortly put, Wansbroughs and Miss Addy say that Kingsley Smith have no reasonable prospects of establishing a successful claim under the 1978 Act since they cannot be liable for the “same damage” as Kingsley Smith. If they are right on that the further tactical advantages to them are that Mr Luke has indicated his agreement to discontinue his claim against them as co-defendants in the main action (on the footing that he will be free if thereafter it became necessary to commence fresh proceedings against them: albeit that the shared view is that it is unlikely that it ever would become necessary).

[27]In approaching these applications I direct myself by reference to the provisions of part 24 of the Civil Procedure Rules, and in particular Rule 24.2, and the by now well-established approach of the court in such a context. It is for Mr Flenley, as he accepts, to show that he has a real prospect of success; that is, a prospect which has to be more than fanciful or even merely arguable. At the same time I must bear in mind - and in view of some of the arguments addressed to me I have sought throughout this hearing to bear in mind - that this is a summary procedure and it is no function of the court to engage in a mini trial, let alone to engage in guesswork.

[28]I turn then to the issues. In making their applications, Mr Cross and Miss Carr make common cause. They accept for present purposes that there can be no differentiation between their position on these applications. Either they both succeed or they both fail. They each adopted the other’s arguments.

[29]The essential purpose behind the 1978 Act and its predecessor is succinctly set out by Laws LJ in his judgment in the case of Rahman v Arearose Limited

[2001] QB 351

. In paragraph 17 of his judgment Laws LJ dealt with the position relating to concurrent tortfeasors; and he observed that tortfeasors are concurrent when their wrongful acts of omissions cause a single indivisible injury. He went on to deal with certain other matters; then stated the characteristics of such torts is the logical impossibility of apportioning the damage among the different tortfeasors; and then referred to a leading American textbook. He then said this at paragraph 18 of his judgment: “The reason for the rule that each concurrent tortfeasor is liable to compensate for the whole of the damage is not hard to find. In any such case, the claimant cannot prove that either tortfeasor singly caused the damage, or caused any particular part or portion of the damage. Accordingly his claim would fall to be dismissed, for want of proof of causation. But that would be the plainest injustice; hence the rule. However, the rule was a potential source of another injustice. A defendant against whom judgment had been given, under the rule, for the whole of the claimant’s damages had at common law no cause of action against his fellow concurrent tortfeasor to recover any part of what he had to pay under the judgment; so that the second tortfeasor, if for whatever reason he was not sued by the claimant, might escape scot free. Hence the Act of 1978 and its predecessor the Law Reform (Married Women and Tortfeasors) Act 1935. It provides a right of contribution between concurrent tortfeasors. The expression ‘same damage’ in s.1(1) therefore means (and means only) the kind of single indivisible injury as arises at common law in a case of concurrent torts. The crucial question for present purpose therefore is to determine whether Wansbroughs and Miss Addy are potentially liable in respect of the “same damage” as Kingsley Smith.

[30]In that context there has been the recent authority of the House of Lords decision in Royal Brompton Hospital NHS Trust v Hammond

[2002] 1 WLR 1397

; 2002 UKHL14. In that case the employer, under a standard form building contract, claimed damages against the contractor for the failure to deliver a building by the due completion date. Those claims were eventually compromised. The employer also claimed damages from the architect, alleging negligence in respect of the issue of extension certificates (which relieved the contractor from making payment for delay in completion), for alleged negligent advice and for negligent instructions to lay a damp-proof membrane. The architect then sought contribution under the 1978 Act from the contractor. It was held that the claims against the contractor were for delay, and against the architect for the impairment of the employer’s liability to proceed against the contractor, and thus the statutory criterion that the two claims be in respect of the same damage was not satisfied.

[31]In the course of his speech, and after reciting the background to the 1978 Act and its predecessor, Lord Bingham of Cornhill said this:

“5. It is plain beyond argument that one important object of the 1978 Act was to widen the classes of person between whom claims for contribution would lie and to enlarge the hitherto restricted category of causes of action capable of giving rise of such a claim. It is, however, as I understand, a constant theme of the law of contribution from the beginning that B’s claim to share with others his liability to A rests upon the fact that they (whether equally with B or not) are subject to a common liability to A. I find nothing in section 6(I)(c) of the 1935 Act or in section 1(1) of the 1978 Act, or in the reports which preceded those Acts, which in any way weakens that requirement. Indeed both sections, by using the words ‘in respect of the same damage’, emphasise the need for one loss to be apportioned among those liable. 6. When any claim for contribution falls to be decided the following questions in my opinion arise. (I) What damage has A suffered? (2) Is B liable to A in respect of that damage? (3) Is C also liable to A in respect of that damage or some of it? At the striking-out stage the questions must be recast to reflect the rule that is arguability and not liability which then falls for decision, but their essential thrust is the same. I do not think it matters greatly whether, in phrasing these questions, one speaks (as the 1978 Act does) of ‘damage’ or of ‘loss’ or ‘harm’, provided it is borne in mind that ‘damage’ does not mean ‘damages’ (as pointed out by Roch LJ in Birse Construction Ltd v Haiste Ltd [1996] 1 WLR 675, 682) and that B’s right to contribution by C depends on the damage, loss or harm for which B is liable to A corresponding (even if in part only) with the damage, loss or harm for which C is liable to A. This seems to me to accord with the underlying equity of the situation: it is obviously fair that C contributes to B a fair share of what both B and C owe in law to A, but obviously unfair that C should contribute to B any share of what B may owe in law to A but C does not. 7. Approached in this way, the claim made by the architect against the contractor must in my opinion fail in principle. It so happens that the employer and the contractor have resolved their mutual claims and counterclaims in arbitration whereas the employer seeks redress against the architect in the High Court. But for purposes of contribution the parties’ rights must be the same as if the employer had sued both the contractor and the architect in the High Court and they had exchanged contribution notices. The question would then be whether the employer was advancing a claim for damage, loss or harm for which both the contractor and the architect were liable, in which case (if the claim were established) the court would have to apportion the common liability between the two parties responsible, or whether the employer was advancing separate claims for damage, loss or harm for which the contractor and the architect were independently liable, in which case (if the claims were established) the court would have to assess the sum for which each party was liable but could not apportion a single liability between the two. It would seem to me clear that any liability the employer might prove against the contractor and the architect would be independent and not common. The employer’s claim against the contractor would be based on the contractor’s delay in performing the contract and the disruption caused by the delay, and the employer’s damage would be the increased cost it incurred, the sums it overpaid and the liquidated damages to which it was entitled. Its claim against the architect, based on negligent advice and certification, would not lead to the same damage because it could not be suggested that the architect’s negligence had led to any delay in performing the contract.”

It is to be noted that Lord Bingham there stresses in paragraph 6 of his speech that one of the questions to be asked is whether C is also liable to A in respect of that damage or some of it, and that the right to contribution by C depends on the damage, loss or harm for which B is liable to A corresponding, even ifinpart only, with the damage, loss or harm for which C is liable to A (emphasis added). To my mind, that connotes that an overlapping element of damage, for which both B and C are liable to A, is at least capable of bringing a claim for contribution within the Act.

[32]It has, in fact, been said on a number of occasions in the Court of Appeal that a broad approach should be adopted with regard to the 1978 Act. The 1978 Act, it has been said on one particular occasion in the Court of Appeal, has a “expansionist philosophy”. In his speech, Lord Steyn referred to some of those authorities and commented, with regard to the statement that the 1978 Act is to be given a broad interpretation, that “in large measure” that was correct. Lord Steyn went on, however, to say this:

“27. But this purposive and enlarged view of the reach of the statute does not assist on the central issue of construction before the House. The critical words are ‘liable in respect of the same damage’. Section 1(1) refers to ‘damage’ and not to ‘damages’: see Birse Construction Ltd v Haiste Ltd [1996] 1 WLR 675, 682 per Roch LJ. It was common ground that the closest synonym of damage is harm. The focus is, however, on the composite expression ‘the same damage’. As my noble and learned friend Lord Bingham of Cornhill has convincingly shown by an historical examination the notion of a common liability, and of sharing that common liability, lies at the root of the principle of contribution: see also Current Law Statutes Annotated (1978), vol 2, ‘Background to the Act’, at ch 47. The legislative technique of limiting the contribution principle under the 1978 Act to the same damage was a considered policy decision. The context does not therefore justify an expansive interpretation of the words ‘the same damage’ so as to mean substantially or materially similar damage. Such solutions could have been adopted but considerations of unfairness to parties who did not in truth cause or contribute to the same damage would have militated against them. Moreover, the adoption of such solutions would have led to uncertainty in the application of the law. That is the context of section 1(1) and the phrase ‘the same damage’. It must be interpreted and applied on a correct evaluation and comparison of claims alleged to qualify for contribution under section 1(1). No glosses, extensive or restrictive, are warranted. The natural and ordinary meaning of ‘the same damage’ is controlling. 28. In Howkins & Harrison v Tyler [2001] Lloyd’s Rep PN 1, 4, para 17 Sir Richard Scott V-C (now Lord Scott of Foscote) suggested a test to be applied to determine the statutory criterion of ‘the same damage’. With the agreement of Aldous and Sedley LJJ he observed: ‘Suppose that A and B are the two parties who are said each to be liable to C in respect of ‘the same damage’ that has been suffered by C. So C must have a right of action of some sort against A and a right of action of some sort against B. There are two questions that should then be asked. If A pays C a sum of money in satisfaction, or on account, of A’s liability to, will that sum operate to reduce or extinguish, depending upon the amount, B’s liability to C, would that operate to reduce or extinguish A’s liability to C? It seems to me that unless both of those questions can be given an affirmative answer, the case is not one to which the 1978 Act can be applied. If the payment by A or B to C does not pro tanto relieve the other of his obligations to C, there cannot, it seems to me, possibly be a case for contending that the non-paying party, whose liability to C remains un-reduced, will also have an obligation under section 1(1) to contribute to the payment made by the paying party.’ If this test is regarded as a necessary threshold question for the purpose of identifying whether a claim for contribution is capable of being a claim to which the 1978 Act could apply, questions of contribution might become unnecessarily complex: see on this point Eastgate Group Ltd v Lindsey Morden Group Inc [2002] 1 WLR 642, 652, per Longmore LJ. It is best regarded as a practical test to be used in considering the very statutory question whether two claims under consideration are for ‘the same damage’. Its usefulness may, however, vary depending on the circumstances of individual cases. Ultimately, the safest course is to apply the statutory test.” ‘Suppose that A and B are the two parties who are said each to be liable to C in respect of ‘the same damage’ that has been suffered by C. So C must have a right of action of some sort against A and a right of action of some sort against B. There are two questions that should then be asked. If A pays C a sum of money in satisfaction, or on account, of A’s liability to, will that sum operate to reduce or extinguish, depending upon the amount, B’s liability to C, would that operate to reduce or extinguish A’s liability to C? It seems to me that unless both of those questions can be given an affirmative answer, the case is not one to which the 1978 Act can be applied. If the payment by A or B to C does not pro tanto relieve the other of his obligations to C, there cannot, it seems to me, possibly be a case for contending that the non-paying party, whose liability to C remains un-reduced, will also have an obligation under section 1(1) to contribute to the payment made by the paying party.’ If this test is regarded as a necessary threshold question for the purpose of identifying whether a claim for contribution is capable of being a claim to which the 1978 Act could apply, questions of contribution might become unnecessarily complex: see on this point Eastgate Group Ltd v Lindsey Morden Group Inc [2002] 1 WLR 642, 652, per Longmore LJ. It is best regarded as a practical test to be used in considering the very statutory question whether two claims under consideration are for ‘the same damage’. Its usefulness may, however, vary depending on the circumstances of individual cases. Ultimately, the safest course is to apply the statutory test.”

[33]Lord Steyn then went on to cite at length, and with approval, from the Canadian decision of Wallace v Litwiniuk [2001] 29 Al Law Rep 3rd Division 249, where - to my mind, unsurprisingly - it was held that damage suffered by a claimant in respect of a car accident could not be said to be the “same damage” as that occasioned by solicitors who thereafter allowed her claim against the other driver to become time barred.

[34]Lord Steyn, having referred to that case, went on in paragraph 29 of his speech to record that counsel for the architect rightly conceded by reference to the Wallace case that that was a correct analysis, which in a similar situation an English court would be bound to follow. Lord Steyn went on to say this:

“He asserted that the present case is different, apparently on the basis that there is greater proximity between the two claims. This is, however, not a material distinction. The analogy of the Wallace case militates strongly against the claims, in the present case being for ‘the same damage’. A further analogy was put forward by counsel for the contractor. He postulated a sale of the shares in a Company. An accountant had negligently valued the shares at £7.5m. The vendor warranted that the shares were worth the price of £10m. In truth, the shares were worth only £5m. The vendor was liable for damages in the sum of £5m. Counsel for the contractor said that the accountant could only be liable to the extent of the common liability, i.e. £2.5m. Counsel for the architect accepted that this analysis is correct. Again, the architect is in difficulties because the example demonstrates the unavailability of a right of contribution to the extent that there is no common liability. It points in the present case to the conclusion that the architect is not liable for ‘the same damage’ as the contractor.”

It is, I think, of some note that Lord Steyn clearly accepted counsel’s argument with regard to the example given concerning the shares. That is at least consistent with Lord Bingham’s reference to liability in respect of the damage “or some of it”. One also may dwell on Lord Steyn’s reference to the unavailability of a right of contribution “to the extent that there is no common liability”.

[35]Lord Steyn then went on to say this at paragraph 30 of his speech:

“Counsel for the architect urged the House to eschew an overly analytical approach to the nature of the claims. He said that in the application of the statute a flexible and broad view should be adopted. But loyalty to the statutory criterion of ‘the same damage’ demands legal analysis of claims. Moreover, counsel for the architect rightly did not contest the legal characterisation of the claim set out in paragraphs 22 and 23 of above in respect of section G (extensions of time). In my view the conclusion is inescapable, that the claims are not for the same damage.”

[36]In the course of his speech Lord Hope of Craighead said this, after consideration of some of the relevant authorities and the Law Commission Report, at paragraph 47:

“The effect of those words is that the entitlement to contribution applies only where the person from whom the contribution is sought is liable for the same harm or damage, whatever the legal basis of his liability. But the mere fact that two or more wrongs lead to a common result does not of itself mean that the wrongdoers are liable in respect of the same damage. The facts must be examined more closely in order to determine whether or not the damage is the same.”

Those comments of Lord Hope of Craighead, incidentally, confirm to my mind that the issue in such a situation is fact sensitive. The issue is not simply one of law. It is, as I see it, one of mixed fact and law.

[37]I heard an amount of argument about the proper approach to be adopted in such cases. Miss Carr submitted that the approach enjoined by Lord Steyn disapproves a broad brush approach, and she submits that the court should not shy away from a minute analysis of the circumstances. She frankly accepts that what the court may sometimes have done in the past may no longer represent the right approach in the light of the Royal Brompton decision. For his part, Mr Flenley accepts that the facts must indeed be examined closely but the approach of the court should not, as it were, he submits, descend into pedantry or sophistry.

[38]As I see it, the court has to try and steer a path between the Scylla of a broad brush approach and the Charybdis of an over-analytical approach. But what is clear from the Royal Brompton case is that no gloss of the statutory language is warranted, and the ultimate task is to apply the language of section 1(1) to the circumstances of each case.

[39]The submissions of Mr Cross and Miss Carr can be summarised, I think, in this way. They start from the proposition, founded on Lord Steyn’s comments in the Royal Brompton case, that the issue here requires legal analysis of the claims. I agree with that. They then submit, in reliance on the judgment of Laws LJ in the Rahman case and on the observations of Lord Bingham and Lord Steyn and Lord Hope in the Royal Brompton case, that for there to be contribution the would be contributors are subject to a common shared liability, and there has to be one loss to be apportioned among those liable. They stress, further, that the word “damage”, as used in the 1978 Act, is not to be equated with “damages”; that the word “same” is not to be equated with the word “similar”; and that the mere fact that two or more wrongs may lead to a common result does not of itself necessarily mean that the wrongdoers are liable in respect of the same damage. With all those submissions, I also agree.

[40]The argument then proceeds as follows. They submit that while the allegations of negligence here as against Kingsley Smith, Wansbroughs and Miss Addy are the same, in the sense of being allegations of professional negligence as lawyers, they are also different in that Kingsley Smith are accused of being negligent in their unreasonably dilatory conduct of the action whereas Wansbroughs and Miss Addy are accused of negligence in wrongly assessing the risk of a strike-out and wrongly advising a settlement at an alleged undervalue of £10,000 and costs. Then - and this is really at the heart of their argument - they submit that the nature of the damage alleged is different. Kingsley Smith, they say, caused damage to the action as originally constituted by reason of their delay and the consequential exposure to the risk of strikeout for want of prosecution. The nature of the damage caused by Wansbroughs and Miss Addy, on the other hand, they say, was not damage to the value of the original action; rather, their alleged negligence lay in undervaluing the residual value of the action as inherited by them from Kingsley Smith, and so never caused damage to the value of that original action. That, they say, is damage of a different character to the damage caused by Kingsley Smith and is not the same damage. Further, they say, this analysis is reflected by what they submit would be the measure of a damages that would be adopted and which would differ as between Kingsley Smith on the one hand and Wansbroughs and Miss Addy on the other hand. Moreover, even if there was some overlap between the damages recovered from Kingsley Smith and Wansbroughs and Miss Addy, that would be, they submit, simply the product of the rules relating to causation and assessment. It would not of itself denote that the “damage” was the same. They cite the Northern Irish case of Dingle Building Limited v Brooks [2003] PNLR 8 as an illustration of that.

[41]In the result, they say, there is no single harm for which the parties share responsibility. Wansbroughs and Miss Addy did not damage the original value of the original action; indeed, in temporal terms they only came on the scene in 2000, by which time the original action was, as they submit, already damaged.

[42]Both Mr Cross and Miss Carr place considerable emphasis on the judgment of Laws LJ in the Rahman case. In the course of his judgment, Laws LJ had, as I have already mentioned, observed that the characteristic of concurrent torts is the logical impossibility of apportioning the damage among the different tortfeasors. Laws LJ then went on to say this: “19. The justice which lies behind the rule as to concurrent tortfeasors, that is the rule that each is liable for the whole of the damage constituted by the single indivisible injury suffered by the claimant, casts much light on what is meant by ‘single indivisible injury’ and thus ‘same damage’. Professor Glanville Williams, at p 17, referred to ‘the logical impossibility of apportioning the damage among the different tortfeasors’ (my emphasis). This, I think, sits somewhat uneasily with a passage from the judgment of Devlin LJ in Dingle v Associated Newspapers Ltd

[1961] 2 QB 162

, 189 (cited by Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd

[1984] QB 405

, 440, to which I shall make further reference): ‘If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law.’ This approach seems to me to differ somewhat from one based on a logical impossibility of apportioning damage between tortfeasors. But that distinction may be too fine. The reality, I think with respect, is that both Professor Williams and Devlin LJ are referring to a class of case where there is simply no rational basis for an objective apportionment of causative responsibility for the injury between the tortfeasors; and the expression ‘single indivisible injury’ is a shorthand description for that class of case. Now, the clearest instance of concurrent torts is one where the injury in question would not have occurred but for both torts: where, if only one had been committed, the injury would not have occurred at all. An example is afforded by a variant of the case given by Devlin LJ. Suppose that two assailants, not acting in concert, shoot a man, who does in consequence; but the expert evidence is that either shot on its own, while causing grave injuries, would not have been fatal. The death is entirely and only the result of both shots. This case is like that given by the American author Prosser, in which the oil put in the stream by both defendants is ignited, and burns the plaintiff’s barn. It is also like the wholly artificial case which I put to counsel in the course of argument, where two surgeons are simultaneously but independently operating on the claimant, each on one eye. Both are negligent, so that the sight in each eye is lost when it should not have been. But of course the combined effect is that the claimant is entirely blind: that is the single indivisible damage for which he is entitled to be compensated in full by either defendant. 20. But this is not the only kind of instance of concurrent torts. It is the first of the two types identified by Professor Glanville Williams in the passage from his work which I have cited. The second, it will be remembered, was ‘where either cause would be sufficient of itself to produce the consequence, as where two persons independently shoot at another at the same time, both shots being fatal’. Is there a third kind of instance? I have in mind a case where it is shown that(a) each tortfeasor caused some part of the damage, but

(b) neither caused the whole, and

(c) some part (but not all) of the damage would therefore have been occasioned to the claimant if only one tort - either of them - had been committed, but (c) on the evidence it is impossible to identify with any precision what part or element of the damage had been caused by which defendant. 21. This putative third instance corresponds, broadly at least, to the facts of the present case, though (c) above perhaps overstates the position at least as regards some of the facts as they are set out in the medical experts’ agreed document which I have cited in full above at paragraph 7. However that may be, there is I think an objection in principle to the inclusion of this kind of case within the class of concurrent torts. I would express it thus. It would plainly be unjust to proceed on the footing that a defendant is responsible for the whole of the claimant’s damage when, demonstrably, he is not. It has to be remembered that once a case is categorised as one of concurrent torts, then the rule is that each tortfeasor is liable for the whole of the damage in question; this is the principle of the common law, and it is temporally and logically prior to the 1935 and 1978 statutes, by whose construction it is entirely unaffected.” ‘If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law.’ This approach seems to me to differ somewhat from one based on a logical impossibility of apportioning damage between tortfeasors. But that distinction may be too fine. The reality, I think with respect, is that both Professor Williams and Devlin LJ are referring to a class of case where there is simply no rational basis for an objective apportionment of causative responsibility for the injury between the tortfeasors; and the expression ‘single indivisible injury’ is a shorthand description for that class of case. Now, the clearest instance of concurrent torts is one where the injury in question would not have occurred but for both torts: where, if only one had been committed, the injury would not have occurred at all. An example is afforded by a variant of the case given by Devlin LJ. Suppose that two assailants, not acting in concert, shoot a man, who does in consequence; but the expert evidence is that either shot on its own, while causing grave injuries, would not have been fatal. The death is entirely and only the result of both shots. This case is like that given by the American author Prosser, in which the oil put in the stream by both defendants is ignited, and burns the plaintiff’s barn. It is also like the wholly artificial case which I put to counsel in the course of argument, where two surgeons are simultaneously but independently operating on the claimant, each on one eye. Both are negligent, so that the sight in each eye is lost when it should not have been. But of course the combined effect is that the claimant is entirely blind: that is the single indivisible damage for which he is entitled to be compensated in full by either defendant.

[43]Mr Cross and Miss Carr, founding themselves on these observations of Laws LJ, submit that these considerations are not satisfied in the present case. How, for example they ask rhetorically, could Wansbroughs or Miss Addy be liable for damage occasioned by the acts and omissions of Kingsley Smith which occurred before Wansbroughs and Miss Addy were even instructed? At most, they say, this present case would approximate, if at all, to the putative third instance postulated by Laws LJ; and that, as Laws LJ makes clear, as they observe, is not enough.

[44]In my judgment, this argument breaks down at a number of stages.

[45]The first point is that Mr Cross’s and Miss Carr’s case is that damage had already and separately been suffered by the time Wansbroughs inherited the action in 2000. I can see some prima facie force in that argument, but I am not ultimately, for the purposes of these part 24 applications and on the evidence as it currently stands before me, satisfied that that is necessarily so.

[46]It is pleaded by Mr Luke that Kingsley Smith should have got the action on for trial by the end of 1997; but even if one accepts that it is by no means obvious that the action at that time was vulnerable to strikeout. I am not aware on the evidence before me that the Ministry of Defence was in a position to allege an contumelious default of compliance with a court order justifying a strikeout, and as to inordinate delay, the principle of Birket v James still then held sway, and at that time the putative limitation period had not expired. Of course, the putative limitation period had expired by the end of October 1999, and at that stage at least the action would, to say the least, have been potentially vulnerable to a strikeout. However, even on that basis the materials before me indicate - and I have already alluded to this - that the Ministry of Defence were not actively seeking to pursue a strikeout application. They had failed, for example, to comply with a time limit given, as I understand it, by the court within which to issue such an application, and, as I have also mentioned, in correspondence they were on one view indicating that they were considering whether they had sufficient evidence at all to show any prejudice had been occasioned by the delay.

[47]Miss Carr, however, referred me to the case of Khan v R M Falvey & Co [2002] PNLR 28; 2002 EWCA (Civ) 400. That was a case on limitation. In the course of his judgment Chadwick LJ, after considering the case of Hopkins v McKenzie [1995] PIQR 43, made these (obiter) comments at paragraph 56 of his judgment:

“Typically, the effect of cumulative delay has been that it becomes increasingly difficult to resist an application to strike out based on the contention that it is no longer possible to have a fair trial. Although it may be possible to say in such cases that before a certain date the claim is not vulnerable to being struck out, and after another and later date it was so vulnerable, there would usually be a period of some months in respect of which there is room for a legitimate difference of view. But what can be said with some confidence is that during that period the value of the claim is diminishing as its vulnerability to strike out increases. It seems to me that once the action has entered that period it is impossible to say that damage has not occurred as a consequence of the previous delay. It is no answer that the damage may be difficult to quantify.”

It is unnecessary to read more.

[48]However, these observations have to be read in the light of the more recent Court of Appeal decision in the case of Hatton v Chafes

[2003] EWCA Civ 341

, to which Mr Flenley referred me. In the course of his judgment, Clarke LJ, with whom Peter Gibson LJ agreed, said this:

“16. Khan v Falvey is authority for the proposition that it is not a condition precedent for any claim against defendant solicitors that the underlying action should have been struck out. That is because the claimant may have suffered relevant damage before an order is made striking the action out. The question remains by what criteria to judge when that moment arises. Although that question was discussed in the judgments in Khan v Falvey, as I read them it was not necessary to decide it for the purposes of the decision in that case. Nor is it to my mind necessary for it to be determined for the purposes of the decision in this appeal. 17. It seems to me that there are three possibilities as to when damage is caused by negligence in such a case so that the claimant’s cause of action has accrued and time begins to run against him. The first is when the claimant has no arguable basis for avoiding the claim being struck out, the second is when it is more probable than not that the claim will be struck out and the third is when there is a real (as opposed to a minimal or fanciful) risk of the claim being struck out. The reason why it is not necessary to determine which of those possibilities is correct here is that, in my opinion, this is an example of the first class of case on the facts. 18. As I read it, Khan v Falvey was also an example of such a case. This can be seen with particular clarity in the judgment of Schiemann LJ. He noted in paragraphs 65 and 66 that in both Case 1 and Case 3 (which were the first two of the cases being considered) the claimant had pleaded that by a certain date his claim (or in one case counterclaim) was ‘amenable to be struck out for want of prosecution’. Schiemann LJ said in paragraph 65: ‘By the phrase ‘amenable to be struck out’ the pleader intended to convey that after 1990 there was no arguable defence to an application to strike out. This is common ground. On that basis the claimant had suffered damage from the defendant’s negligence by, at the latest, January 1, 1991 and his cause of action had arisen then. What had been (let us assume) a right of action against the debtor which was worth something, had become a right of action which was worth nothing. All the alleged negligence by the solicitor had occurred by then. The present action was not started until more than six years later. In those circumstances it is time barred.’”

[49]Sir Anthony Evans agreed with the judgment of Clarke LJ and agreed that the action at the relevant time was “doomed to failure”. He also added this:

“79. This is clear, in my judgment, because any attempt to proceed with the action against the accountants in October 1994 would have been met with an application to dismiss the claim for want of prosecution, and the application would certainly have succeeded. The action was, on any view, ‘amenable to striking out.’ The fact that the striking out order was not made until June 1999, after an even more belated attempt to revive the proceedings in January 1999, does not alter the circumstances as they were in 1994. 80. It is unnecessary, therefore, in the present case to define the precise nature of the evidential burden which rests upon the claimant in cases of this sort. Nevertheless, an issue does arise, which was argued before us. Is it sufficient to prove that there was some chance - a ‘real’ or ‘substantial’ chance - that the claim would have been struck out at the relevant date, if an application had been made? Or must the claimant prove something more - perhaps, that an application would probably have succeeded, if one had been made? 81. The former view receives some support from statements which are found in the authorities to the effect that the relevant kind of loss is the diminished value of the claim. Some diminution occurs when a striking out application would have some prospect of success, though falling short of 50 per cent. Yet in such a case it could not be said that the application would probably succeed or that the claim was probably worthless. 82. The relevant kind of damage (compare Nykredit [1997] 1 WLR 1627 at 1630F), in my judgment, is the loss of the right to proceed further with the original action. The measure of that loss, when it occurs, is the value of the chance of that action succeeding. But the loss is not suffered until the action is lost. That occurs when the action is struck out in fact (Hopkins v McKenzie [1995] 6 Med LR 26} or when it becomes amenable to striking out’ i.e. doomed to failure (Khan v Falvey). The claimant must prove that that was the state of the action at the relevant date. Consistently with general principle, he must prove this on the balance of probabilities. So the issue becomes, would a striking out application probably have succeeded, if one had been made at the relevant date?”

It seems to me, certainly for the purposes of these part 24 application, that I should direct myself by reference to Hatton v Chafes if it can be said to be in conflict in any way with the observations made in Khan v Falvey.

[50]That being so, the question is, consistently with the way Sir Anthony Evans puts it, to ask: when was the action lost? That is, in this case, when did the loss of the right to proceed further with the action occur? In my view, applying that approach, it cannot be said with sufficient confidence for the purposes of these part 24 applications, that such loss had been suffered prior to Kingsley Smith ceasing to act. Looking at the matter in 2003, I can see that a robust approach would suggest that some, and perhaps many, masters or judges would indeed have struck out the action had an application to strike out been made back in 2000; but this was an unusual case, and the evidence before me indicates a realistic argument that the Ministry of Defence may well not have applied to strike out at all, or even if they had, that the action was not doomed to be struck out. I am fortified in this view by the reflection that if this action was, as at May 2000, “doomed to be struck out” and (had an application been made) would have been struck out, then there could be no possible claim in negligence against Wansbroughs or Miss Addy at all. Not only would their assessment that the action would be struck out, be seen not to be wrong, let alone negligently wrong, but it would have been shown to have been positively right. On that view of the matter the question of contribution would then fall away entirely. But, I repeat, it has been accepted for present purposes that there is a viable claim in negligence against Wansbroughs and Miss Addy.

[51]This leads to the second point. It of course remains the case that it is to be presumed that the negligence of Kingsley Smith had caused some damage: otherwise the precondition for claiming contribution in the first place simply is not there. But in my view there is, on the materials before me, at least a respectable case (assuming, as I must for present purposes, negligence on the part of Wansbroughs and Miss Addy) that the loss here occasioned to Mr Luke would not have occurred but for both torts; that is, of Kingsley Smith on the one hand and of Wansbroughs and Miss Addy on the other hand: that is to say, that the case falls within the first category postulated by Laws LJ on the Rahman case.

[52]It can to my mind at least realistically be argued in the circumstances of this particular case, and on the assumption that I am currently required to make, that the combined effect of the negligence of Kingsley Smith and of Wansbroughs and of Miss Addy caused the damage (being, in the phrase of Laws LJ, “single, indivisible damage”) to Mr Luke: that is to say, the loss of the chance of successfully pursuing his action to trial. It is in my view by no means a denial of analysis to approach this case in that way.

[53]In this context I found Mr Cross’s and Miss Carr’s submission that there were here two separate torts and separate damage to be, with respect, rather artificial. Their argument connotes that the negligence of Kingsley Smith caused loss to Mr Luke in reducing the value of his action by exposing it to the risk of being struck out, and the damages are to be assessed by reference to the diminution in the value of the chance to bring the action successfully onto trial by reason of that: whereas on their case the damage caused by Wansbroughs and Miss Addy is quite separate, namely, in the assumedly negligent undervaluing of the residual value of the already damaged action. They acknowledge that this would (if right) involve quite a complex assessment exercise for the court, albeit they point out that the courts are in any case already accustomed to quite complex assessments in loss of chance cases. They acknowledge, too, that this may represent a departure from the approach which the courts may previously have adopted; and they further acknowledge that their approach in essence shifts the burden away from a defendant in contribution proceedings onto the claimant in the action - although as to that their riposte is that this is consistent with the traditional common law approach, which ordinarily puts the burden on a claimant to prove all elements of liability and causation and loss.

[54]In my judgment, however, and accepting Mr Flenley’s submissions, it is at the very least as respectable an analysis to consider the position here as giving rise to one loss, to one damage; that is, the loss of the chance to pursue the action successfully to trial; and that that loss was occasioned by the combined effect of the torts of Kingsley Smith and of Wansbroughs and Miss Addy. The position seems to me, in fact, potentially to correspond analogously with Laws LJ’s example set out in paragraph 19 of his judgment in the Rahman case with regard to the two eye surgeons.

[55]Moreover, the doubt I feel with regard to Mr Cross’s and to Miss Carr’s arguments generally was increased by a consideration of some of the examples mooted in argument. Suppose a firm of solicitors, A, delay negligently in the conduct of litigation for four years? Suppose a successor firm, B, also negligently delays a further four years? The action is then struck out. One would have thought that that potentially would be a case where a claimant would say that he could not say which of the two singly had caused the damage or any part of it, but that they both have; and thus would sue both A and B as concurrent tortfeasors, leaving them to claim contribution between themselves in the ordinary way. But the logic of Mr Cross’s and Miss Carr’s submissions, if right (and as they accept), is that each firm is separately liable for separate damage, and the claimant must proceed accordingly; and that contribution cannot be claimed as between A and B. Further examples raised in argument - for example, where an injury caused by a negligent driver is then exacerbated by negligent treatment in hospital - caused Mr Cross and Miss Carr to give the same response.

[56]In this context reference should be made to the Court of Appeal decision in the case of Webb v Barclays Bank Plc

[2001] Lloyd’s Rep 500

. In that case the claimant, who had a pre-existing polio affected left knee, tripped over a paving stone in the forecourt of a Barclays Bank branch where she worked, injuring her knee. She was taken to hospital. Ultimately, an amputation was advised and in due course her leg was amputated above the knee by surgical operation. She commenced proceedings against the Bank, her employer, for failing properly to maintain the forecourt. The Bank asserted in its defence that the amputation and consequent problems were due to the negligence of the hospital.

[57]The claimant then joined the hospital as an additional defendant, and the Bank in turn sought contribution against the Hospital Trust under the 1978 Act. The Bank then settled the claimant’s action in respect of all injuries flowing both from the fall and the amputation, but pursued its contribution claim against the hospital. It was held by the Court of Appeal that the intervening negligence of the doctor did not absolve the Bank, as employer, from liability, that the chain of causation was not broken and that the Bank retained a liability for its share of the amputation damage; and that in the contribution proceedings the Bank was liable for a share of the total damage, which, as a matter of contribution, was assessed at 25 per cent, and the Hospital Trust’s share was put at 75 per cent.

[58]That decision in Webb, came in point of time, after the decision of the Court of Appeal in the Royal Brompton case, which decision was upheld by the House of Lords, but came in point of time before the House of Lords’ decision itself. The judgment of the court in Webb, I might add, was delivered by Henry LJ. It is to be observed that Henry LJ plainly thought there was nothing inconsistent in the court’s decision in that case with the decision in Rahman, which had been cited in Webb; indeed, Henry LJ had himself been a member of the Court of Appeal in the Rahman case.

[59]Much of the argument in Webb was devoted to the question of causation and novus actus interveniens (assuming the phrase in Latin is still allowed to be used). Clearly there was a respectable argument in that case that the chain of causation was broken by the intervening negligence of the hospital, but the Court of Appeal decided that in the circumstances of that particular case that was not so. There was some debate before the Court of Appeal as to whether the liability to make contribution had been properly raised before the trial judge, but the Court of Appeal expressly stated that they had themselves considered the point as a matter of substance.

[60]Having decided that there was no novus actus interveniens and that the chain of causation was not broken, Henry LJ, delivering the judgment of the court, went on to say this:

“57. In short, the negligence in advising amputation did not eclipse the original wrongdoing. The Bank remained responsible for their share of the amputation damages. The negligence of Mr Jeffrey was not an intervening act breaking the chain of causation. 58. Lastly, the question of apportionment or contribution between the two defendants in relation to what we have held to be the same damage. We have not heard argument on questions of factual detail in relation to this matter, but are merely asked to arrive at a figure: …such as may be found to the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question. (section 2(2) of the 1978 Act) 59. The Bank, by their negligent maintenance of the forecourt, was responsible for getting the vulnerable Mrs Webb before the doctors employed by the Trust. But it was the latters’ negligence that was much more responsible for the amputation and all that went with it. In all the circumstances, we assess the Bank’s responsibility at 25 per cent and the Trust’s at 75 per cent.”

[61]Against that citation of Webb it is appropriate to revert to paragraph 43 of the amended particulars of claim, whereby it is pleaded, “As a result of that negligence the second and/or third defendants caused or contributed to the claimant’s losses set out in paragraph 35 above”. That pleading of itself tells strongly against Mr Cross’s and Miss Carr’s submissions; and is a pleading which is wholly consistent with Kingsley Smith and Wansbroughs and Miss Addy having liability for the same damage.

[62]Mr Cross and Miss Carr invite me, however, not to regard the pleading as determinative, but have regard to what they submit is the proper analysis of the position. But no-one has sought to strike out that part of the pleading or seek summary judgment in respect of it. Mr Wardell, moreover, made clear that he did not resile from that pleading or seek to amend it. He made clear that at trial he would indeed be arguing as part of his case that if, contrary to Mr Luke’s primary case, Wansbroughs and Miss Addy were themselves negligent as alleged, there was here no novus actus interveniens and no break in the chain of causation, and that Kingsley Smith had a liability for the entirety of the loss occasioned to Mr Luke. He further submitted (and in this regard Mr Flenley agreed with Mr Wardell) supported by ample citation of authority to me, that issues such as causation and novus actus interveniens are pre-eminently matters of fact to be decided by the trial judge after a consideration of all the evidence. I readily accept that submission.

[63]All that being so, it is extremely difficult - at all events for part 24 purposes - to see how Mr Cross’s and Mr Carr’s position can be sustained. It is true that issues of causation are not the same as issues of contribution and liability to make contribution. But in Webb, for example, the Bank was adjudged liable to the claimant for the whole of her loss, notwithstanding the intermediate medical negligence. The Hospital Trust was held liable to contribute 75 per cent of the loss, notwithstanding that it could have had no responsibility for the injury ante-dating the claimant’s admission to hospital. The decision of the Court of Appeal can only have been on the basis that some part of the loss for which the Bank was liable was loss for which the Hospital Trust was also liable concurrently. Nor, as it seems to me, is that approach of the Court of Appeal obviously inconsistent with Lord Bingham’s statements in the Royal Brompton case. But it certainly is inconsistent as a matter of approach with the approach urged upon me by Mr Cross and Miss Carr. Their analysis would require that Mrs Webb should have sued the Bank for the injury caused to her before her admission to the hospital and the Hospital Trust separately for the separate damage, as they would categorise it, arising thereafter and there being, moreover, no right of contribution between the Bank and the Hospital Trust. But that was not the approach of the Court of Appeal in the Webb case itself.

[64]The answer of Mr Cross and Miss Carr as to this was bluntly to submit that Webb was wrongly decided, could no longer stand in the light of the Royal Brompton case and should not be followed. As first instance judge (the more so when I am dealing with this matter on a summary judgment application under part 24, when the full facts of the present case have not been established and when the full legal implications and arguments have not been exhaustively investigated before me) I decline to do that. Moreover, the case before me is, if anything - and I am not here just speaking about the issue of causation - a stronger case on the facts than Webb. For here the alleged negligence on the part of all the alleged tortfeasors was professional negligence as lawyers in the conduct of Mr Luke’s legal action against the Ministry of Defence, and the ultimate, overall result was, as is alleged in the amended particulars of claim, (and as I have indicated is realistically alleged) that Mr Luke lost the right to pursue that action to a successful trial. The scenario of the present case, I might add, is also completely different on the facts from the factual position in the Royal Brompton case and from the position in the Canadian case of Wallace v Litwiniuk.

[65]For these various reasons I have reached the clear conclusion that these part 24 applications should fail. In my judgment, on the evidence currently before me, on the assumptions that I am currently required to make and on the case as currently pleaded, Kingsley Smith have established a realistic prospect of success on these points. The overall position as between the parties, both on the facts and on the law as it falls to be applied by reference to those facts, whether as to liability or causation or contribution, when found, will be, and should properly be, a matter for the trial judge.

[66]That being so, Kingsley Smith’s application as against Mr Luke falls away since it was purely responsive to the possibility that the part 24 applications might succeed. I had a good deal of sympathy with that application; indeed, Mr Cross and Miss Carr were naturally themselves supportive of it. It seems hard indeed that on one possible scenario Kingsley Smith could end up with liability for the whole loss of Kingsley Smith, even where Wansbroughs and Miss Addy may themselves have been found to be negligent, without having any right of contribution from Wansbroughs or Miss Addy. Mr Cross submitted that if that were to be so that was the consequence of the drafting of the 1978 Act and it was a matter for Parliament to put right. That is one way of approaching it. Another way of approaching it is that a fair assessment of the facts as proved at trial, and a proper application of the law without any gloss on the wording of the 1978 Act, would operate to prevent such an injustice arising at all.

[67]In the result, these part 24 applications fail; and there is no need to consider further Kingsley Smith’s own application against Mr Luke. I will hear counsel on the question of costs.