Fraser v Bolt Burdon Claims & Ors [2009] EWHC 2906 (QB)

[2009] EWHC 2906 (QB)

Case No HQ03X03242

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/11/2009

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(sitting as a Judge of the High Court)

Between

SUSANNA LISE CLAIRE FRASERClaimant

BOLT BURDON CLAIMSDefendants

Clive Jordan, friend, by leave of the Court for claimant

Michael Davie (instructed by Beale & Company Solicitors LLP) for defendants

Jalil Asif (instructed by Robin Smith LLP) for third parties

Hearing Hearing dates: 13, 14, 16, 19, 20, 21, 22 and 23 October 2009

Judgment

His Honour Judge Richard Seymour Q.C. :

Introduction

[1]The chain of events giving rise to this action really goes back over thirty years. The claimant, Miss Susanna Fraser, was born on 22 December 1940. According to a report (“the Wood Report”) dated 1 September 1997 prepared by Dr. Peter Wood, a psychiatrist, who saw Miss Fraser for the purposes of an action (“the Parlett Kent Action”), which is what this present action is really about, “MISS FRASER told me that she had won a prize in a competition that allowed her to travel round the world. She said that she returned from this intensive period of travel, that had also involved work in connection with her interest in ethnic jewellery, feeling worn out and tired. She had raised blood pressure and she was suffering from insomnia. She had also had an episode of pneumonia and felt run down. Before this time, 1978, she had had an occasional MOGADON but had no regular pattern of consumption of medication of this sort. As a result of her insomnia and debilitated state in 1978 she was prescribed DALMANE. Between 1978 and 1982 her dosage increased from 15-30 mg at night to around 90mg at night. She said that she was being prescribed 100 x 30 mg capsules of DALMANE a month of which she was using 60 to 90 mg of DALMANE at night. She was also prescribed DIAZEPAM during this period. Prior to presenting at St. Bartholomew’s Hospital for physical investigations in August 1982 the plaintiff [Miss Fraser] had been assessed at Moorfields Eye Hospital. She was suffering from blurred vision, a drooping eyelid on one side and slight muscle weakness. She felt generally exhausted and her limbs felt weak at times. She was taking, in addition to DALMANE, the antidepressant SURMONTIL and a drug called REACTIVAN which the plaintiff described as a stimulant preparation. REACTIVAN contains a combination of vitamins and FENCAMFAMINE HYDROCHLORIDE. REACTIVAN is listed as a tonic in Martindale, the Extra Pharmacopeia – 30th edition, page 1792.4. Moorfields Hospital referred her to a physician who in turn suggested she be admitted to St. Bartholomew’s Hospital in London to be tested for myasthenia gravis because of her muscular weakness.”

[2]The account of the drugs which Miss Fraser had been taking prior to her admission to St. Bartholomew’s Hospital (“Bart’s”) and the circumstances giving rise to that admission which Dr. Wood recorded was based upon what Miss Fraser told him, and I did not understand that Miss Fraser considered that account to be inaccurate.

[3]Miss Fraser was dissatisfied with the quality of her treatment at Bart’s to a degree such that proceedings (“the Bart’s Action”) were commenced on her behalf. I shall return to say something more about the Bart’s Action. However, at this stage it is enough to notice that the evidence prepared on behalf of the defendant, City and Hackney Health Authority (“the Authority”), in the Bart’s Action, indicated that the drugs she was taking on admission on 17 August 1982, were rather more numerous, and taken in rather larger quantities, than she told Dr. Wood. In a witness statement dated 12 July 1989 Dr. Kathleen Spencer, who was acting as Senior Registrar in Bart’s at the time, and under whom Dr. David Keeling was acting as House Officer, said:- “Miss Fraser was admitted to the ward on the 17th August 1982 and clerked in by Dr. Keeling. Her complaints consisted of double vision, drooping of the eyelids, difficulty in focusing and weakness of the legs. Dr. Keeling noted that Miss Fraser was on the following drugs:- 1. Reactivan – taken as required. 2. Flurazepam – 60mg nocte. 3. Diazepam – 5 mg nocte. 4. Trimipramine – 50 mg nocte. 5. Senokot 6. Moduretic – taken as required.”

[4]As I understand it, Flurazepam and Diazepam are what is called benzodiazepine drugs (“benzodiazepines”).

[5]In her witness statement dated 12 July 1989 Dr. Spencer set out her assessment of the steps which needed to be taken in the case of Miss Fraser, why, and what the results were. Although it was disputed by Miss Fraser that what Dr. Spencer said in her witness statement was accurate, for reasons which I shall explain it is necessary to consider her account:- “The usual practice would be for Dr. Keeling to discuss a new patient with me, and this would have been done on the 18th August. My comments as to the drug regime which she had been on prior to admission are as follows:- 1. The Flurazepam dosage was well above the manufacturers [sic] recommended dose which is 15 – 30 mg nocte. Flurezepam is a benzodiazepine drug. It is, and was at that time well recognised that it was ill advised for patients to take benzodiazepine drugs in large doses for a long period of time. The reason for this is that there are substantial risks of addiction, side effects of the drug might include transient muscle weakness and drowsiness if the drug was not eliminated by the time the patient woke up in the morning. Most doctors, I think, would be reluctant to prescribe it for more than one month and then only at times of acute stress. A longer prescription would not be made unless the patient was under the direct supervision of a Psychiatrist. The correct course of action would be to find out the cause of the anxiety and deal with that if possible eg. if it was some social problem. 2. The Diazepam which was being prescribed was in a satisfactory dose. Again this is a benzodiazepine drug and it is a very similar drug to Flurezepam and therefore I think it was quite unreasonable for it to be prescribed as well as the Flurazepam. The effects would be additive and therefore the risk of addiction to benzodiazepines would be increased. 3. The Reactivan was a drug which is a central nervous system stimulant. This emphasises the illogicallity of the drug regime which Miss Fraser was on prior to admission. She was being prescribed sedative benzodiazepines in large doses on the one hand, and on the other hand being prescribed a central nervous system stimulant. This, I think, would be indicative of the fact that there were side effects from the benzodiazepine drugs namely drowsiness which prompted the prescription of the stimulant. I suspect that she had complained of fatigue to her General Practitioner hence the prescription. 4. The Trimipramine is an anti-depressant drug. If the patient is depressed then this is a reasonable drug to prescribe and the dosage is also reasonable. If the patient had a prominent anxiety coupled with the depression it was reasonable to have anti-depressant drugs and benzodiazepines prescribed at the same time. Anti-depressant drugs do take several weeks to work and therefore it is sometimes of assistance to give the patient benzodiazepines for a few weeks to cope with anxiety whilst the anti-depressants start working. However, this in no way mitigates my earlier comments as to the size of the benzodiazepine dosages which had been prescribed. 5. Senokot is a drug which is a laxative. However, there is evidence that prolonged usage of this drug can actually exacerbate constipation. 6. Dr. Keeling has noted that the Moduretic, which is a diuretic drug, was prescribed to combat “swollen ankles” when necessary. This is, in my opinion, an improper use of the drug. I would have thought that this lady was suffering from pre-menstrual fluid retention which is very common amongst middle-aged ladies. It would have been appropriate to prescribe Moduretic on a regular basis if the patient was suffering from hypertension. However, this was not the case here because the prescription was not a regular one, and was simply for taking as required. It was clear that Miss Fraser was taking substantial doses of benzodiazepines, and this I felt to be contrary to her health and well being and therefore the proper course of action would be to reduce this intake. Therefore, the drugs were changed to Temazepam 10 mg which is a substantial dosage in itself. However Temazepam is a shorter acting benzodiazepine and by substituting this for the Flurazepam and Diazepam the net intake of benzodiazepines would be reduced. Miss Fraser was hypertensive and had been for some five years or so. On admission her blood pressure was high for her age, at 135/95 and hence she was commenced on Atenolol 100 mg mane. I have to say that by today’s standards a blood pressure reading of this nature would not necessarily be treated in this way. Doctors now have the benefit of more long term studies on blood pressure and drug treatment and having excluded any underlying cause would probably simply keep the patients [sic] blood pressure under regular review and only treat if there was a deterioration. However, seven years ago, doctors were generally more willing to treat hypertension of this severity and hence I think that the treatment prescribed for Miss Fraser was entirely proper. Miss Fraser was placed on Bendrofluozide which is a diuretic for the hypertension. I also prescribed Trifluoperazine. Indeed it is this prescription which confirms in my mind that I saw Miss Fraser on the 18th because it is noted that this prescription was written up then. Trifluoperazine is a drug which I prescribe and I prescribed it in this case because I would have been concerned as to the anxiety which may have been caused by the reduction in the benzodiazepines which this revised regime entailed. Trifluoperazine is a tranquilliser of a different group which is not addictive. It would help to reduce the anxiety when the benzodiazepines were reduced. It certainly was not given because she was suffering any hallucinations, it was used as a substitute to reduce the effects of the reduction in the benzodiazepines. An eventual rationalisation of her drugs was reached on the 21st August when her drugs were Temazepam 30 mgs, the Atenolol 100 mgs, and the Bendrofluozide. Miss Fraser was not depressed and hence the Trimipramine was stopped, and the Trifluoperazine disagreed with Miss Fraser and hence that was stopped. The Atenolol was considered to be a more effective treatment for her blood pressure which is why that was prescribed. The investigation which had been undertaken had not yielded any cause for her presenting symptoms. I considered it likely that her presenting symptoms were actually caused by benzodiazepine side effects and this was why I considered it important to reduce the dosage which she was receiving. I would have seen Miss Fraser on perhaps two or three further occasions during her stay at the hospital. I can categorically say that at no time that I recall did she mention that she was suffering any pain in the rectum and the assertion that she was suffering from irreducible prolapsed piles at this stage is plainly ridiculous. It is noted she was suffering from constipation and this was being treated by Senokot and also the prescription of glycerine suppositories when required. It is inconceivable that the nursing staff would have omitted to see irreducible prolapsed piles during her ten days on the ward. Also, it is not noted anywhere in the nursing records or the medical records that she had irreducible prolapsed piles. This is the only type of piles which would require emergency treatment during a hospital admission for investigation of quite a separate problem. She may well have had a serious degree of piles but it would not have been appropriate to undertake surgery for these during that admission. Further, there are no notes recording the fact that she was suffering from hallucinations, convulsions, distortion of vision and pins and needles. It is noted that she was suffering from strange feelings, and this was attributed to the benzodiazepine withdrawal. Dr. Galton [the consultant responsible for the ward] attended upon Miss Fraser on the 26th August and I do have a recollection of that consultation. Miss Fraser was presented to him and Dr. Galton was informed that there was no obvious organic cause of her presenting symptoms and that it was thought that they could be caused by benzodiazepine side effects. Dr. Galton, accordingly, insisted that all benzodiazepine should be withdrawn from her treatment and that if she required a sedative she should be given a placebo. This was done and Miss Fraser was discharged from the hospital on the 27th August. I had no further dealings with her.”

[6]Miss Fraser considered that after her discharge from Bart’s she suffered serious psychological disturbances. In time she came to attribute those disturbances to the abrupt cessation whilst she was in Bart’s of the benzodiazepines which she had been taking. She also formed the view that she should have been treated whilst at Bart’s in respect of the piles from which she was suffering at the time of her admission.

[7]In June 1985 Miss Fraser retained Messrs. Parlett Kent (“Parlett Kent”) a firm of solicitors, to act on her behalf in relation to claims against the Authority, as the health authority with responsibility for Bart’s, in respect of the alleged consequences of the abrupt withdrawal of the benzodiazepine drugs which she had been taking and in respect of the failure to investigate her complaints of rectal pain and to diagnose the anal fissures from which she was suffering.

[8]On 16 August 1985, on the instructions of Miss Fraser, Parlett Kent caused to be issued on her behalf a writ against the Authority. That writ was not served during the one year period of its validity.

[9]On 29 September 1986 Parlett Kent caused a second writ issued to be issued on behalf of Miss Fraser against the Authority. That writ was served during the period of its validity on or about 24 September 1987.

[10]A Statement of Claim was prepared on behalf of Miss Fraser. That was served on 24 March 1988.

[11]On 7 July 1988 a Defence was served on behalf of the Authority. In the Defence one of the points taken was that the claims made in the second writ were barred by the operation of Limitation Act 1980.

[12]At that stage, if not before, Mr. Oliver Thorold of Counsel was instructed by Parlett Kent on behalf of Miss Fraser. He prepared an Advice dated 9 August 1988 on the issue of limitation and whether it was likely that Miss Fraser would be able to defeat that defence.

[13]On about 27 July 1989 Parlett Kent informed Miss Fraser that they felt that they were no longer able to act on her behalf. Miss Fraser then instructed Messrs. Pannone Napier, which firm subsequently became Messrs. Pannone Blackburn (“Pannone”), to act on her behalf. Pannone instructed new counsel, Mr. Charles Lewis, on behalf of Miss Fraser.

[14]Mr. Lewis was instructed to advise, and did so in an Advice dated 15 December 1989. In the course of his Advice Mr. Lewis expressed some views about the likely value of Miss Fraser’s claim against the Authority:- “3. Parlatt [sic] Kent certainly seem to have been negligent (I doubt they would deny that) in letting the [first] writ expire without even telling the plaintiff. Obviously they overlooked it. But the question is whether they lost her a cause of action which stood more than a minimal chance of success, and, if so, whether the plaintiff stands a reasonable chance of showing that that action was worth more than £3000 [the amount paid into court on behalf of the Authority in the Bart’s Action by this stage]. If the plaintiff did not accept the payment in and then sued Parlatt [sic] she would recover nothing if it was shown that she should have accepted the health authority’s payment in. So she would be £3000 worse off. As will be seen below, I value the claim provisionally at about £15,000. …12. Special damage the claim for the parent’s [sic] losses in Australia through not having the plaintiff there to help them is unsustainable. The claim for loss of earnings may be sustainable, to the extent that sudden withdrawal put the plaintiff out of work for a longer period than gradual withdrawal would have. But we need to know to what extent the prolonged period out of work was caused by the difference between sudden and gradual withdrawal, and not by withdrawal itself and/or by psychiatric symptoms that had nothing to do with withdrawal but everything to do with prolonged use of the drugs and the plaintiff’s own psychiatric condition. For the time being I am thinking in terms of two years loss of earnings, at the previous rate of some £6500 gross, ie about £5000 net (there were no tax returns). The special damage schedule should list: Loss of earnings throughout 1983 and 1984 at £5000 pa net = £10,000 Taxis, [attach lists in every case where available] £355 Medical fees £339 Visits to legal advisers £31 Postage £6.50 Photocopying £45 Special food (after discharge) £42.60 Clothing required after weight loss due to traumatic effect of sudden withdrawal £414.88Prescriptions and medicines £99.80

13. I would assess general damages, thinking of a period of traumatic stress including disorientation and hallucinations for some 2½ years after discharge at a maximum of £5000 and probably somewhat less. If there were any evidence of lasting injury, eg brain damage, the award would of course be more. It can be seen therefore that I value the claim at about £15,000, though this must be read subject to medical evidence substantiating our contention that the negligence cost the plaintiff at least two years misery and loss of earnings.” The special damage schedule should list: £10,000 Medical fees £339 Visits to legal advisers £31 Postage £6.50 Photocopying £45 Special food (after discharge) £42.60

The special damage schedule should list:

[15]Miss Fraser did not accept the sum paid into court on behalf of the Authority.

[16]On, it seems, 20 December 1989 a Schedule of Special Damages was served in the Bart’s Action. In relation to alleged loss of earnings what was said in that Schedule was:- “Loss of Earnings throughout 1983 and 1984 5000pa 10,000”

[17]In response to the reliance on the part of the Authority on the provisions of Limitation Act 1980 Pannone sought, on behalf of Miss Fraser, in a Reply served on 15 December 1989, to rely on the provisions of Limitation Act 1980 s.14. A trial of the issue whether Miss Fraser was able to satisfy the requirements of that section was ordered. That trial took place before Drake J. He delivered his judgment on the issue on 15 February 1991. Drake J. found that Miss Fraser was not able to rely upon the provisions of Limitation Act 1980 s.14. In the course of his judgment Drake J. commented upon the evidence of Miss Fraser:- “(Transcript page 5D to page 11E) That in summary was her evidence. But in cross-examination, as I have said, a number of medical records and notes were put to her. In almost every case she said that the notes were wrong. In many cases she said the contemporaneous medical notes stated the very reverse of what she said at the time or completely and grossly misrepresented her true condition at the time. To start with, on her discharge from St. Bartholomew’s, when she says she was too ill to dress, there is a note which was made in fact on the day before discharge, by a Dr. Rizo Nadi. That states:

“Had a long chat. Has been taking sedatives (antidepressants) for four years. She says they were started by hypertension. Complained of feeling tired and insomnia. I have explained to her that she is probably experiencing withdrawal symptoms and that these will take a long time to disappear.”

She said that that note is a gross misrepresentation of anything discussed at that time and is wrong. On 30th August 1982 St. Bartholomew’s sent a note to her general practitioner, which reads:

“Stopped all other medications … Apart from two stated drugs – “… Investigated the possible causes of hypertension. She is experiencing withdrawal symptoms after stopping her central nervous system depressants, but it is strongly recommended that she does not use these drugs again.”

The hospital followed up that loose note to her general practitioner with a full report, which was written by a senior registrar at St. Bartholomew’s dated 10th September 1982, in which it is stated:

“Progress “The hypertension was treated with phenyl benzoflurazide. It was decided to withdraw her sedatives and antidepressants to see what her condition was without these drugs. She suffered withdrawal symptoms, including insomnia and giddiness. It was explained to her that this was quite natural after taking benzodiazepine but she was advised to persist. Her boyfriend visited her in the ward several times and was extremely argumentative and abusive towards the nurses. It was also explained to him that we were attempting to withdraw the sedatives and antidepressants, but that was causing transient withdrawal symptoms and that she would be reassessed in out patients, when it was hoped that her withdrawal symptoms would have improved.”

It is accepted that the reference to her “boyfriend” was in fact a reference to her close companion, Mr. Clive Jordon [sic]. She says that when she saw her general practitioner following her discharge from the hospital he never revealed to her those parts of the contents of those reports to which I have referred. She says that when she attended the out patient department of St. Bartholomew’s on 30th September, she was sent away without them listening to her complaints. She says that at that time she was in an appallingly bad condition. Yet the note of the out patients department on that date refers to her as “feeling quite well.” Again she says that it is a complete reversal of her true condition. In November when she sought the independent opinion of Dr. Elizabeth Deeman of Bupa Medical Centre, the doctor wrote to the plaintiff herself in these terms:

“It was a pleasure meeting you in consultation at the Bupa Medical Centre on 10th November. You were very concerned at the time of your visit that you were getting feelings of panic following withdrawal symptoms from sleeping tablets which were stopped at St. Bartholomew’s Hospital. You were referred to St. Bartholomew’s Hospital three months ago because of blurred vision. Initially a diagnosis of myasthenia gravis was made. You told me you had been taking Dalmane, Surmontil and Diazepam. The hospital decided to stop all medication and you developed withdrawal symptoms. You were discharged from the hospital after ten days.”

Then it goes on to refer to her rectal condition. Dr. Deeman also wrote to the plaintiff’s general practitioner in a letter dated 17th November 1982 in these terms:

“This patient was seen for routine screening at Bupa Medical Centre on 10th November 1982. At the time of her visit she was very distressed because she had developed withdrawal symptoms from Dalmane, Surmontil and Diazepam. She gave a history of having been admitted to St. Bart’s three months ago because of blurred vision. An initial provisional diagnosis, myasthenia gravis, was made. However she was then told she was addicted to her pills. She had been taking Dalmane, Surmontil and Diazepam daily for the past five or six years. All medication was stopped and she developed withdrawal symptoms.”

Then she saw Dr. Young, a psychiatrist, at St. Thomas’ Hospital on 11th November 1982. He subsequently wrote a letter dated 15th November 1982 to Mr. Thompson, a consultant surgeon at St. Thomas’, in which he states:

“Following her discharge from hospital five weeks ago, she had no major difficulties. Within the past week however she has become decidedly anxious and described typical panic attacks with the usual somatic accompaniments, including palpitations, sweating, frequency of micturition, etc.”

That, if it be a correct assessment of her condition, would at least appear to indicate that her lucid periods at about that time were of significant and appreciable length. Dr. Young sent a report dated 22nd November 1982 to Dr. Lawson, her general practitioner, in which he gave the diagnosis of benzodiazepine addiction/anxiety state. Then in a full report sent by Dr. Young’s registrar, Dr. Bruce, to the general practitioner, the history of her illness is recorded as follows:

“Has been taking Valium orally daily and Dalmane orally at night for six years continuously. Some three months ago following admission to Bart’s Hospital, she suddenly stopped and this induced a severe withdrawal episode, with visual/auditory hallucinations which lasted about one month. At this time doctors told her it was nothing to do with her drugs. Since then she has been reading literature on benzodiazepines and withdrawal and has almost lost faith in the medical profession.”

Then under “Mental State” that report states:

“Insight Feels her symptoms are secondary to her benzodiazepine addiction.”

If that report be right, then it would seem to me clearly to indicate firstly that the severe mental disability which followed her discharge from St. Bartholomew’s lasted only about one month. It refers also to her having read some literature. In her evidence she did say that she had, since discharge, read literature on withdrawal symptoms from benzodiazepine addiction and that about two weeks after her discharge from St. Bartholomew’s she obtained a book from an organisation called Release dealing with drug addiction and symptoms which might follow from withdrawal of benzodiazepine. She said she was not herself in a fit state to read it, but her companion, Mr. Clive Jordon [sic], read it to her. In cross-examination, concerning Dr. Bruce’s full report to which I have just referred, she said:

“I had lost faith in the medical profession, but I didn’t know my illness was due to withdrawal, because I didn’t believe that a hospital would discharge me in such a condition due to withdrawal. But I did feel a lot of my withdrawal symptoms were due to my benzodiazepine addiction.”

When she had left the Psychiatric Unit at St. Thomas’ Hospital on a Friday, they told her, she said, to return if she felt unwell. She said she returned the following Monday and was merely told to go away. I find it difficult to accept that fact. However, on 26th November 1982 she saw a Dr. Brewer also of Bupa. His notes record:

“Major withdrawal symptoms when large doses of benzodiazepines were stopped.”

He summarised his findings in a letter to the plaintiff’s general practitioner dated 2nd December 1982 in these terms:

“Dear Dr. Lawson, “Re Miss Susanna Fraser “Miss Fraser has clearly suffered a major psychological upset since her sleeping medication was suddenly withdrawn a few months ago. I think that her present state is largely a reflection of the loss of confidence which followed the acute withdrawal symptoms and I doubt if genuine pharmacological withdrawal is now playing a major part. I think that she may need some very intense, relatively long term in-patient treatment and she is naturally reluctant to contemplate this.”

As a temporary measure he then suggested she went back on to small doses of benzodiazepines. Also Dr. Brewer in a letter to a Professor Lader of the Maudesley [sic] Hospital dated 12th January 1983 wrote this:

“I am very glad to hear you are seeing this puzzling and complicated case and I shall be very interested to hear how you get on with her. I think you know that her problems really started in earnest about four months ago when she was suddenly withdrawn from rather large doses of benzodiazepines which she had been taking in increasing doses for four or five years. She seems to have had quite severe and I would have thought predictable withdrawal symptoms and although I think the main physical effects of withdrawal have now passed, I think the experience was very unsettling and her main complaints now are psychological in origin rather that pharmacological.”

In the event she never in fact saw Professor Lader. In the face of that formidable amount of contemporaneous medical records and notes, but having regard also to the evidence she gave and the manner in which she gave it in cross-examination, I cannot accept that she did not, during the latter part of 1982 and into 1983, know that her symptoms were at the very least capable of being attributable to the abrupt withdrawal of the benzodiazepine. If one or even two of the medical notes were in contrast to what she says she told the medical men at the time, I would be very hesitant to disbelieve her. But here virtually the whole body of these notes is against her evidence and her response when they were put to her was simply that the notes were wrong and, I have said, in some cases the very reverse of what she told the people at the time or her condition as they found it at the time.” Apart from two stated drugs – Then under “Mental State” that report states: Feels her symptoms are secondary to her benzodiazepine addiction.”

[18]After the dismissal of her claim against the Authority by Drake J. Miss Fraser seems to have paused for some months. However, on about 21 November 1991 she approached the defendants in this action, Messrs. Bolt Burdon (“Bolt Burdon”), for advice in relation to pursuing a claim against Parlett Kent. Those who principally undertook the giving of advice to Miss Fraser on behalf of Bolt Burdon and the pursuance of her claims against Parlett Kent in the Parlett Kent Action, once commenced, were a partner, Mr. Roger Bolt, and an assistant, Miss Sally Holyland.

[19]It was first necessary to seek to obtain Legal Aid for Miss Fraser. Legal Aid, limited to the advice of Counsel, was granted on 27 January 1992.

[20]Instructions to Counsel, Mr. Charles Utley, the second third party, were delivered on 3 July 1992. Mr. Utley advised in writing on 29 July 1992. In summary his conclusions were that Parlett Kent had been negligent, and that the quantum of damages was of the order of £15,000, which needed to be discounted by perhaps one-third to reflect the fact that compensation was for loss of a chance of success in the Bart’s Action.

[21]The writ by which the Parlett Kent Action was commenced was issued on 31 July 1992. That writ was served on 27 November 1992.

[22]A Statement of Claim in the Parlett Kent Action was served on 16 March 1993. A Defence was served on 16 June 1993. The Defence disputed liability on the part of Parlett Kent. On 21 January 1994, on appeal, an order was made for a split trial of liability and quantum.

[23]On 14 April 1994 an order was made that Miss Fraser serve a Schedule of Special Damages. A Schedule was served in response to that order on 31 May 1994. The material part of the Schedule was in these terms:- “As at the date hereof the Plaintiff is unable to identify any special damage losses suffered solely as a result of injuries caused by the Defendant’s negligence. The Plaintiff’s case is that the losses suffered include all the heads of damage that would have been awarded to her in the action against The City & Hackney Health Authority which action did not succeed as a result of the Defendant’s negligence. Such losses do not fall to be calculated within the terms of the Order of 14 April 1994. It is probable however that such losses (or some of them) continue to be suffered by the Plaintiff as a result of the injuries caused by the Defendant’s negligence. Until such time as the value of the Plaintiff’s claim in the original action has been calculated it is not practical to identify which losses (if any) continue as a result of the Plaintiff’s injuries caused by the Defendant’s negligence. The right to serve an amended Schedule is however expressly reserved pursuant to RSC Order 18 Rule 12(1B).”

[24]An amended Schedule was served on 21 February 1995. That Schedule included the original Schedule, to which was added:- “Not withstanding [sic] what is stated above what follows is a schedule served pursuant to the order of Master Murray dated 14 December 1994 as varied by the order of Sir Peter Paine [sic] on appeal dated 26 January 1995. 1. Special Damages that would have been claimed for in the original action at a notional date of trial, say January 1988. (These damages are of course general damages in the present action).a. See schedule of special damage served in the original action against the Health Authority on 20 December 1989. Total £11,640.28

b. In addition, an increased claim for loss of earnings will be claimed in this action for 1983 – 84 and continuing to the notional date of trial:- 2 x £10,000 ie 1983 – 1984 3 x £15,000 ie 1985 – Jan 1988 Future loss of earnings ie for period 1988 – 1992 (issue of writ in this action) a multiplier of 1.5 will be applied to annual loss of earnings 1.5 x £15,000 Please see commentary prepared by Plaintiff in the original action in respect of her lost job opportunities. Also, copy report of Heather Ashton dated 5.12.88, the Plaintiff relies in particular on paragraph 13. Total £87,500.00

c. In addition, loss due to failure to purchase property. (See commentary prepared by Plaintiff in original action). £102,500.00

d. In addition, loss to parents due to Plaintiff’s illness (See commentary by Plaintiff in original action). £4,080.00

e. In addition, cost of leave lost by Mr. Jordan to care for the Plaintiff. (see schedule prepared for original action). £2,960.50 Plus General damages in the original action. and interest on the whole at appropriate judgment rate. 2. Damages from date of trial on liability February 1991 when judgment was awarded against the Plaintiff ie Special damages and future losses in this action. a. Loss of earnings in calculating the loss of earnings the Plaintiff will give credit for such element, if any, of future earnings as is comprised in the general damages claim in 1 above. £15,000 per annum to date hereof (February 1995) £15,000 x 4 Future loss of earnings £15,000 per annum to which a multiplier of 8 shall be applied. £15,000 x 8 See again report of Heather Ashton dated 5.12.88, in particular (b) on page 9 and paragraph 13, and Margaret Ballard’s report dated 27 August 1992. [If appropriate a suitably qualified expert will be instructed to prepare a report on employment issues once the trial of liability has been concluded] Total £180,000.00 b. The cost of counselling for the Plaintiff’s psychological injuries. It is yet to be confirmed how many sessions of counselling the Plaintiff would require but we understand that therapy with a Chartered Clinical Psychologist will cost in the region of £70 to £100 per hour. c. Costs order made against the Plaintiff in the proceedings against the Health Authority. amount unknown Interest will also be claimed from the date of judgment February 1991 on this order d. Costs paid by the legal aid board for the work done in the original action by the Plaintiff’s solicitors. £9,953.83 Interest will also be claimed from the date of judgment February 1991. Plus general damages and interest from issue of writ in this action and interest from February 1991 [special damages in this action]” Total £11,640.28 Total £87,500.00

£102,500.00

£4,080.00

£2,960.50

£15,000 per annum to date hereof (February 1995) £15,000 x 4 £15,000 x 8 Total £180,000.00 amount unknown £9,953.83

Total £180,000.00

[25]On 14 September 1995 the sum of £46,250 was paid into court in the Parlett Kent Action.

[26]On 12 October 1995 it was admitted on behalf of Parlett Kent that it was liable in negligence to Miss Fraser for the loss of the value of her claim against the Authority, but it was made clear that it was not accepted that that claim had been of any value. Judgment for Miss Fraser for causation and damages to be assessed was entered on 25 October 1995.

[27]On 5 September 1996 the trial of the quantum of the claims of Miss Fraser in the Parlett Kent Action was fixed to commence on 20 October 1997.

[28]On 18 June 1997 Bolt Burdon instructed Mr. Robert Smith Q.C., the first third party, to act as Leading Counsel to Miss Fraser.

[29]Both before and after the instruction of Mr. Smith Bolt Burdon had been investigating factual and expert evidence potentially relevant to the trial of the claims of Miss Fraser in the Parlett Kent Action. It will be necessary to return to some of that evidence. However, in the light of the evidence assembled a new Schedule of Damages (“the Trial Schedule”) was served, dated 29 August 1997, which superseded the previous Schedules of Special Damages. It will be necessary to set out the Trial Schedule for the purposes of this judgment, but as it was a long document it is convenient to return to that task. For the present it is enough to notice that the total value of the claims of Miss Fraser as set out in the Trial Schedule totalled £1,407,591.70.

[30]On 24 September 1997 the sum of money paid into court on behalf of Parlett Kent was increased to £151,000. The next day Messrs. Ince & Co. (“Ince”), solicitors acting on behalf of Parlett Kent, notified Bolt Burdon that the insurance cover of Parlett Kent was limited to £500,000, inclusive of costs.

[31]On 8 October 1997 a Counter-Schedule (“the Counter-Schedule”) was served on behalf of Parlett Kent. In the Counter-Schedule the value of the claims of Miss Fraser, including interest, was put at a total of £53,618.91, on the assumption, which was contested, that she had a 100% chance of success in the Bart’s Action.

[32]On 13 October 1997 a consultation took place with Mr. Smith. Mr. Utley, Mr. Bolt, Miss Holyland and various experts instructed on behalf of Miss Fraser attended, in addition to Miss Fraser herself and her close companion Mr. Clive Jordan.

[33]Written skeleton arguments were prepared by Mr. Smith and Mr. Utley, on behalf of Miss Fraser, and by Mr. Richard Lynagh Q.C. and Mr. David Tucker, on behalf of Parlett Kent. It will be necessary to consider those skeleton arguments in some detail later in this judgment. The skeleton arguments were exchanged on 16 or 17 October 1997, the Thursday or Friday before the Monday on which the trial was supposed to begin. The trial was listed before Timothy Walker J.

[34]On 20 October 1997 the Parlett Kent Action was settled before the trial proper commenced, but after Timothy Walker J. had given time to the parties for discussion. The terms of settlement, so far as presently material, were that Parlett Kent agreed to pay to Miss Fraser a total sum of £200,000, together with costs. The offer to pay £200,000, together with costs, was made on behalf of Parlett Kent just as the trial was about to start.

[35]The claim form in this action was issued on 17 October 2003 against Bolt Burdon.

[36]The principal claim of Miss Fraser in this action was that the sum of £200,000, plus costs, which she was advised to accept in settlement of her claim against Parlett Kent was too low. In essence she contended that Bolt Burdon advised her to accept a sum which was lower than any reasonably competent solicitor could have advised accepting. Whilst, in her Amended Particulars of Claim in this action Miss Fraser criticised the advice of Mr. Smith and Mr. Utley to accept the sum offered of £200,000, plus costs, they were not joined as parties. By the time it was appreciated by Miss Fraser that, if she wished to complain about Mr. Smith and Mr. Utley, she needed to join them as defendants, the addition of Mr. Smith and Mr. Utley was barred by the operation of Limitation Act 1980. However, the position of Bolt Burdon was that in advising Miss Fraser to accept the offer of £200,000, plus costs, in settlement of her claims in the Parlett Kent Action they had relied on the advice of counsel, Mr. Smith and Mr. Utley. Thus Mr. Smith and Mr. Utley were joined as third parties to this action. However, that notwithstanding, all of the defendants and the third parties maintained that advising Miss Fraser to accept the offer of £200,000, plus costs, to settle the Parlett Kent Action was advice which fell well within the ambit of advice which reasonably competent solicitors and counsel could have given in the circumstances of the Parlett Kent Action, and how the issues and the evidence in that action stood as at 20 October 1997. The most important issue in this action was whether that assertion was correct.

[37]By way of adding a context and some colour to the allegation that the legal advisers acting for her in the Parlett Kent Action had advised her to accept a sum in settlement of her claims against Parlett Kent which no reasonably competent solicitor or barrister could have given, Miss Fraser contended that she had been placed under undue pressure by Mr. Bolt and Miss Holyland to accept the advice. It was a matter about which, from their evidence, Miss Fraser and her friend, Mr. Jordan, plainly held firm views, and it is therefore necessary to make findings of fact as to what occurred. However, the allegation of undue pressure added nothing to the substance, if such there was, in the complaint of negligence in advising settlement at the figure of £200,000 plus costs.

[38]There were three other matters of complaint raised by Miss Fraser in this action as against Bolt Burdon. In order to explain how they arose it is necessary to set out the Trial Schedule.

The Trial Schedule

[39]The material parts of the Trial Schedule, excluding the summary, were:- “PRELIMINARY NOTE 1 The Plaintiff’s case is that, as a result of the negligence of the Defendant, she lost the value of her cause of action against a health authority and she suffered additional injury and losses. She claims the value of the lost cause of action as at the time when it would have been tried or settled. In addition, she claims damages for the psychiatric injuries and consequential losses which she has sustained as a direct result of the Defendant’s negligence. 2 The overwhelming likelihood is that the Plaintiff would have succeeded in establishing that her treatment had been negligent and that that negligence had caused the injuries of which she complained. 3 The action against the health authority should have come on for trial (or been settled) between 1988 and 1990 (“the notional trial date”). For the purposes of this schedule, the notional trial date will be put at January 1st 1989. 4 At the time that the Defendant was acting for the Plaintiff, it was aware that she was psychiatrically frail. It was reasonably foreseeable to the Defendant that negligent conduct of her case would be likely to cause her further psychiatric injury. In those circumstances, the Defendant is liable to compensate her for the psychiatric injuries which she can prove to have been caused by its negligence. 5 While it is not possible to be absolutely precise about such things, the Plaintiff’s case is that, without the Defendant’s negligence, she would have made a reasonable recovery from the injuries sustained as a result of the medical negligence by early 1990. But her ability to work would have been reduced to 50% for the rest of her working life. As a result of the Defendant’s negligence, her illness has continued to this day and she will not now make any further recovery. 6 The original cause of action is valued on the assumption that, at the notional trial date, the Plaintiff’s prognosis would have been reasonably good. The experts would have said that she would be able to work part-time from early 1990. She would have been awarded special damages, to the notional trial date, as particularised below (Part A). Interest on those would have run from August 1982 to the notional trial date at one half of the special account rate. She would have been awarded general damages for pain and suffering as particularised below (Part A). Interest on those general damages would have been awarded at 2% per annum from the date of service of the Writ (assumed to be 1st January 1986). She would have been awarded special damages for future loss of earnings calculated on the assumption that she would have made a reasonable recovery about one year after the notional trial date. She will seek interest on the sum awarded under this head, from the notional trial date to the date of trial of this action at the full judgment debt rate. 7 The Plaintiff is entitled to recover general damages for the pain and suffering which were directly caused by the Defendant’s negligence. She seeks interest on those damages at 2% per annum from the date of service of this Writ to the date of trial. She is entitled to recover all the past and future losses which were consequential on the injury caused by the Defendant’s negligence. She seeks interest on those damages at one half of the special account rate from the date when the losses were first incurred (1st January 1990) to the date of trial. She is entitled to recover general damages for the future losses which she will suffer as a result of the injuries caused by the Defendant’s negligence. There can be no discount from any of the damages described in this paragraph. 8 The Plaintiff also claims the amount of the costs ordered to be paid by her in February 1991 on the trial of the limitation issues, plus any interest which has accrued on those costs. 9 On behalf of the Legal Aid Board, she claims the costs incurred on her behalf in the original action together with interest at the judgment debt rate from February 1991. 10 In calculating the Plaintiff’s net losses of earnings, the figures set out in appendix VI of the report of Mr. Alan Cushnir have been used. Her principal case is that she would have pursued, and made a success of, her jewellery business. Although it is her case that that business would have thrived, she will also rely on the report of Mr. Keith Carter as demonstrating that she had other talents which would have been deployed in the event of failure of the business or of its not doing as well as forecast by Mr. Cushnir. Although it is her primary case that she would have worked full time in the jewellery business, she will rely, if necessary, on the alternative figures put forward by Mr. Cushnir for part-time work. PART A – LOST CAUSE OF ACTION 1 General damages for pain and suffering This award would have been £25,000 £25,000.00 2 Interest on general damages for pain and suffering 2% per annum from 1st January 1986 to 1st January 1989 £1,500.00 3 Past loss of earnings The total of the figures listed in Appendix VI of Mr. Cushnir’s report for the years 1982 to 1988 inclusive £138,616.00 4 Travel expenses As listed in the original schedule prepared by the Defendant £355.75 5 Medical fees As listed in the original schedule prepared by the Defendant £339.00 6 Special food As listed in the original schedule prepared by the Defendant £42.60 7 Additional clothing expenses As listed in the original schedule prepared by the Defendant £310.93 8 Shoes As listed in the original schedule prepared by the Defendant £103.95 9 Prescriptions and medicines As listed in the original schedule prepared by the Defendant £49.80 10 Loss due to failure to purchase property As a result of her illness, the Plaintiff did not complete a beneficial property transaction (see the commentary she prepared for the Defendant in the original action). At the notional trial date the loss would have been assessed at the figure put forward in that schedule £102,500.00 11 Care given to Plaintiff by Mr. Jordan Mr. Jordan took time off work to care for the Plaintiff. See the figures prepared in the original action £2,960.50 12 Interest on special damages The total special damages awarded at the notional trial date would have been £142,778.53. Interest on that sum would have been awarded at one half of the prevailing special account rate from 17th August 1992 [sic] to 1st January 1989. The cumulative rate amounts to 47.04%. £67,163.02 13 Future loss of earnings The court would have awarded one year’s full future loss of earnings. Thereafter, there would have been a 50% loss of earnings claim to retirement at the age of 65. The appropriate multiplier at 1st January 1989 (including the first year’s full loss) would have been 10.6. The part of the multiplier to be applied to the partial loss of earnings would have been 9.6. The first year’s loss would have been £28,021.00. The multiplicand for the balance would have been £14,010.50. £162,521.80 14 Future loss of pension benefits See the report of Mr. Malcolm Paterson. The total loss of pension benefits (caused by both the medical negligence and the Defendant’s negligence) is £56,000. That loss arises from the Plaintiff’s inability to make pension contributions over a period of 22 years (from 1984 to retirement). The health authority would only have been liable for 5 of those years in full and for half of the remaining 17 years. The Plaintiff would therefore have been awarded £56,000 x 5/22 + £56,000 x 17/22 divided by 2 £34,366.00 TOTAL OF PART A £535,829.35 INTEREST ON PART A FROM 01.01.89 TO DATE OF TRIAL Interest is claimed at the full judgment debt rate. The cumulative rate is 100.17% £536,740.25 PART B – LOSSES DIRECTLY CAUSED BY DEFENDANT’S NEGLIGENCE 1 Past loss of earnings See Mr. Alan Cushnir’s report, Appendix VI. This is the total of the figures for the years from 1990 to 1996 inclusive. In addition, the Plaintiff claims for the period from 1st January 1997 to 20th October 1997 on the assumption that her net annual income would have risen by 2.5% to £33,319 (giving a loss to 20th October of £26,745). All those figures are then divided by 2 to give the additional past loss of earnings above that claimed in Part A as future losses £130,081.00 2 Interest on past loss of earnings Interest on the Plaintiff’s past loss of earnings is claimed at one half of the special account rate from 1st January 1990 to the date of trial. The cumulative rate is 37.62% £48,936.47 3 Future losses of earnings The Plaintiff’s prognosis is now “hopeless” (see report of Dr. Peter Wood). She claims future losses of earnings from the date of trial to retirement (which would have been at age 65). The appropriate multiplier, using 4.5% interest rate and Ogden contingencies for the South East, is 7. The multiplicand is £16,659.00 (see item 1 above) £116,616.50 4 Loss of pension benefits See the report of Mr. Malcolm Paterson. The total loss of pension benefits is £56,000. The Plaintiff gives credit for the sum of £34,366 claimed in Part A. £21,634.00 5 Therapy See the recommendation of Margaret Ballard. The Plaintiff claims for 10 sessions at £100 each. £1,000.00 TOTAL OF PART B £318,267.97 PART C – COSTS OF ORIGINAL ACTION 1. Costs incurred on the Plaintiff’s behalf The Legal Aid Board incurred costs in the sum of £9,953.83 on the Plaintiff’s behalf. £9,953.83 2. Costs ordered to be paid by the Plaintiff The Plaintiff was ordered to pay the health authority’s costs of the original action.Those costs have not been quantified and she will seek an indemnity from the Defendant for the costs and interest thereon. 3. Interest on Legal Aid Board’s costs The Plaintiff claims interest on the costs incurred by the Legal Aid Board at the full judgment debt rate from the date of the limitation judgment (15th February 1991).The cumulative rate is 68.32% £6,800.46 TOTAL OF PART C £16,754,29” PART A – LOST CAUSE OF ACTION This award would have been £25,000

£25,000.00

£1,500.00

£138,616.00

£355.75

£339.00

£42.60

£310.93

£103.95

£49.80

£102,500.00

£2,960.50

£67,163.02

£162,521.80

£34,366.00 INTEREST ON PART A FROM 01.01.89 TO DATE OF TRIAL £536,740.25

£130,081.00

£48,936.47

£116,616.50

£21,634.00

£1,000.00 PART C – COSTS OF ORIGINAL ACTION £9,953.83

£6,800.46

Miss Fraser’s other complaints about Bolt Burdon

[40]The other matters about which Miss Fraser complained in relation to Bolt Burdon related, in two instances, to how her case against Parlett Kent was put in the Trial Schedule.

[41]She contended that the Trial Schedule should not have included the claim at paragraph 10 in Part A in respect of “Loss due to failure to purchase property”. That claim had already been advanced in the amended Schedule of Special Damages dated 21 February 1995. However, Miss Fraser had been advised by Mr. Smith and Mr. Utley that that element of claim was not going to succeed, and that it was desirable that it be omitted from the Trial Schedule, as its presence would suggest that the Trial Schedule had been prepared on an unrealistic basis. Miss Fraser contended that she had accepted that advice, but the element of claim had nonetheless appeared in the Trial Schedule.

[42]It was accepted by Miss Fraser at the trial before me that her claim in the Parlett Kent Action for “Loss due to failure to purchase property” and her claims for “Loss of pension benefits” were bound to fail. It was implicit in that acceptance that Miss Fraser agreed that any reasonably competent barrister or solicitor advising her as to settlement on 20 October 1997 would have discounted these elements of claim entirely.

[43]The second complaint of Miss Fraser about the contents of the Trial Schedule was that, notwithstanding the fact that paragraph 10 in the “Preliminary Note” section of the Trial Schedule laid the ground for an alternative basis for claiming loss of earnings, the Trial Schedule should have been specifically amended to include an alternative claim based on the evidence of Harriet Close, who ran a modelling agency, that Miss Fraser, who had undertaken an extensive modelling career as a young woman, would have been able to earn £20,000 per annum as a part-time mature model if the jewellery business which it was her primary case she had intended to pursue full-time, had not prospered as she hoped.

[44]Whilst these two complaints were in addition to the main complaint concerning the advice to accept the offer of £200,000 plus costs to settle the Parlett Kent Action, they seem to add nothing to that main complaint. The modifications to the Trial Schedule which Miss Fraser contended should have been made appeared to have no significance unless the suggestion was that, had those modifications been made, the sum which Miss Fraser would have recovered in the Parlett Kent Action would have been increased. Nonetheless, I shall consider the evidence in relation to these two matters later in this judgment.

[45]I shall also consider later in this judgment the evidence relevant to the third additional matter of complaint raised by Miss Fraser. That was that Bolt Burdon had failed to prepare her case in the Parlett Kent Action properly because they had failed to find and instruct in good time an expert in Post-Traumatic Stress Disorder (“PTSD”) and had failed to include in her claims a claim in respect of PTSD. Miss Fraser’s view was that the circumstances in which benzodiazepines were withdrawn from her abruptly at Bart’s in August 1982 had caused her to develop PTSD and that that condition had been acerbated by the negligence of Parlett Kent in causing her to lose the Bart’s Action. The position of Bolt Burdon was that they had sought medical advice concerning Miss Fraser’s condition from appropriately qualified sources, that the alleged actual psychological consequences of the abrupt withdrawal of benzodiazepines and the subsequent loss of the Bart’s Action had been covered entirely adequately both in the medical evidence assembled for the trial of the Parlett Kent Action and in the pleading of Miss Fraser’s case, and the medical advice was that it was an unnecessary complication to apply the label PTSD to the alleged actual psychological consequences. Again, in practical terms, nothing seems to turn on the complaints about PTSD unless the suggestion was that, had the label PTSD been adopted, a larger sum would have been recovered in the Parlett Kent Action.

The Counter-Schedule

[46]It is convenient to notice the points deployed in the Counter-Schedule in answer to the contentions advanced in the Trial Schedule, for the points raised in the Counter-Schedule gave some indication of the issues likely to arise at the trial of the Parlett Kent Action:- “1. The Defendants have already admitted that they were negligent in failing to serve the Plaintiff’s writ issued 16.8.85 before 15.8.86. 2. The Defendants accept that the Plaintiff is entitled to damages which reflect the value (if any) of such prospects of success as she had in her claim against the Health Authority. 3. It will be contended that, on the balance of probabilities, the Plaintiff would have failed in her action against the Health Authority, alternatively that her prospects of success were very far from the “overwhelming likelihood” suggested in para. 2 of the preliminary note to the schedule dated 29.8.97, and that there was at least a significant risk of her claim failing. 4. The value (if any) of such prospects of success should be assumed as at the notional trial date by reference to the evidence that would have been available at that date on liability, causation and quantum. Regard should also be had to the contemporaneous views and advice of Counsel instructed on behalf of the Plaintiff at the time. The Defendants do not dissent from a notional trial date in the period 1988 – 90. 5. In respect of such further claim as the Plaintiff now advances alleging additional psychological distress and consequential losses including loss of earnings caused by the Defendant’s negligence, it will be contended:(a) such damages were not reasonably foreseeable at the material time;

(b) in any event such damages are not recoverable in law as they do not fall within the scope of the duty of care owed to the Plaintiff by the Defendants either in contract or tort;

(c) that the damages claimed are significantly overstated. 6. The following comments on the figures put forward in the Schedule are made without prejudice to the above. PART A – LOST CAUSE OF ACTION 1. General damages were valued by experienced Counsel on 15.12.89 and 11.12.90 at a maximum of £5,000 – suggest a likely settlement figure… 4000 2. Rate of interest is agreed. On Defendant’s suggested figure … 240 3. The figures put forward by the Plaintiff for this period in the schedule of 21.2.95 was a total of £80,000. Counsel on 11.12.90 commented on the absence of any contemporaneous documentary proof of the Plaintiff’s earnings and the absence of medical evidence to support more than a few months of suffering. Mr. Cushnir’s figures are based on the Plaintiff’s achieving success in a full time jewellery business, projecting figures forward from a part-time turnover in 1979 of £8,200, despite the fact that turnover in 1981 was less than £5,000. It is not accepted that the Plaintiff would have been able to prove any loss of earnings at a trial in 1988/89 alternatively she might have been able to sustain the £10,000 net or approximately 2 years’ lost earnings estimated by her Counsel in his advice of 15.12.89 … 10,000 4.5.6.7.8.9. Agreed if Plaintiff succeeded in action. Total … 1202 10. This loss was not recoverable in law as advised by Counsel at the time. No expert evidence has been disclosed on this head of loss. 0 11. If the Plaintiff had succeeded, a reasonable sum, not exceeding the commercial cost of care, would have been awarded for the care provided by Mr. Jordan. It is suggested that at the time no more than £750 would have been recovered. … 750 Maximum total 3 to 10 11,952 12. The aggregate rate on specials is agreed at 47.04%. 5,622 13 & 14 It is denied that any future loss would have been recovered. Therefore Defendant’s maximum for Part A based on 100% chance of success equals 21,814 The aggregate interest rate on any sum awarded for the value of the lost chance @ 1.1.89 is agreed @ 100.17% PART B 1. It is denied the Plaintiff has suffered any lost earnings caused by the negligence or breach of contract of the Defendants. The assumptions for a full time jewellery business are not justified on the basis of the Plaintiff’s work history prior to her admission to Bart’s in 1982. 2. If any damages for lost earnings are found by the Court to be recoverable in this part of the Schedule the aggregate of half special account interest rate from 1.1.90 to 31.10.97 is agreed at 33.70% 3. Denied. Comments under Part B para 1 repeated. The pension loss calculation is based on the same assumptions. 4. Denied. Comments under Part B para 1 repeated. 5. The cost of sessions is not disputed. It is denied that the need for them has been caused by the negligence or breach of contract of the Defendants. Defendant’s Total – Part B … Nil PART C 1. The Legal Aid costs are agreed at £9,953.83. However, if the case had gone on and the Plaintiff lost her action against the Health Authority on the merits, the Legal Aid costs would have been substantially higher. 2. If the case had been contested on the merits the Health Authority [as contended in the introduction to this Counter Schedule para 2] would have won and the Plaintiff would have been ordered to pay costs far greater than those now the subject of the order against her.” PART A – LOST CAUSE OF ACTION Total … 1202 Maximum total 3 to 10 11,952 5,622 Therefore Defendant’s maximum for Part A based on 100% chance of success equals 21,814 PART B Defendant’s Total – Part B … Nil

PART C

[47]The main issues raised by the Counter-Schedule were thus whether Miss Fraser had any prospect of success in the Bart’s Action, and, if so, what; whether Miss Fraser was owed a duty of care by Parlett Kent which extended to not exposing her to the risk of psychological injury; what loss of earnings, if any, Miss Fraser had sustained; whether the “loss due to failure to purchase property” was recoverable in law; and whether the loss of pension claims were sustainable.

The Law

[48]Much attention at the trial, particularly on Miss Fraser’s side, was given to the disputes between the parties as to what had actually happened at material points in the history of the Parlett Kent Action, and especially to what had been discussed in the consultation with Mr. Smith on 13 October 1997 and the events immediately leading up to the settlement of the Parlett Kent Action on 20 October 1997. In fact, as it seems to me, given the nature of the claims of Miss Fraser in this action, the approach which the law requires does not involve the need to consider very carefully the immediate circumstances in which the settlement of the Parlett Kent Action was achieved or the actual thoughts of the legal advisers involved.

[49]As is extremely well-known to lawyers, but was new to Miss Fraser and Mr. Jordan, who presented her case on her behalf, with my permission, in the case of professional people the standard to be expected, if a duty of care is to be performed without negligence, was that explained to the jury by McNair J. in Bolam v. Friern Hospital Management Committee

[1957] 2 All ER 118

at page 121:- “Before I turn to that, I must explain what in law we mean by “negligence”. In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. Counsel for the plaintiff was also right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis which is laid by counsel for the defendants is on this aspect of negligence: He submitted to you that the real question on which you have to make up your mind on each of the three major points to be considered is whether the defendants, in acting in the way in which they did, were acting in accordance with a practice of competent respected professional opinion. Counsel for the defendants submitted that if you are satisfied that they were then it would be wrong for you to hold that negligence was established.”

[50]The principles set out in that passage were of significance in this action in two separate ways. Although the claims in Bolam v. Friern Hospital Management Committee arose out of alleged negligence by medical men, the underlying principles apply to any profession, including lawyers. Thus the first matter of importance to recognise is that the passage quoted set out the standard to be applied in determining whether any of Mr. Bolt, Miss Holyland, Mr. Smith or Mr. Utley had been negligent in advising Miss Fraser to accept the offer of £200,000 plus costs in settlement of the Parlett Kent Action. In order to consider that broad issue, however, it is necessary to address the question whether no reasonably competent solicitor or barrister could have advised settlement on those terms. Only if no reasonably competent solicitor or barrister could have advised settlement on those terms would Mr. Bolt, Miss Holyland, Mr. Smith or Mr. Utley have been negligent in advising Miss Fraser to accept the offer. However, in order to address the question whether no reasonably competent solicitor or barrister could have advised Miss Fraser to accept £200,000 plus costs in settlement of the Parlett Kent Action, it is necessary to consider what a reasonably competent solicitor or barrister would have assessed were the prospects of success of Miss Fraser’s claims in that action and what was the sum likely to be recovered had the Parlett Kent Action been tried. That consideration involves looking at the issues of law and fact in the Parlett Kent Action and evaluating the strengths and weaknesses of Miss Fraser’s case on each of the relevant issues of law and fact. An important aspect of that exercise is considering the value of the claim against the Authority which had been lost by the negligence of Parlett Kent. That claim had no value if Miss Fraser had been bound to lose the Bart’s Action in any event. The main issue in the Bart’s Action relevant to liability had been whether the doctors who treated Miss Fraser in August 1982 had been negligent in withdrawing her abruptly from benzodiazepines and in failing to deal with her piles. The standard to be applied in determining whether those doctors had been negligent was again that set out in the passage from the judgment of McNair J. in Bolam v. Friern Hospital Management Committee from which I have quoted.

[51]Given the importance to the issues in the present action of the principles set out in the decision of McNair J., it is worth emphasising a number of features set out in, or material to, the passage quoted.

[52]First, it is important to identify the profession the standards of which are relevant. In the medical context, for example, there is a wide range of specialisations. Some doctors are general practitioners. Others specialise in conditions affecting particular parts of the body. The standard of care to be expected of a general practitioner is that of a reasonably competent general practitioner, not that of some specialist. It is no proper criticism of a general practitioner treating a victim of a heart attack, for example, that he has not the knowledge and skill of a heart surgeon. Consequently, it is no proper criticism of a hospital doctor on a general ward that he has not the knowledge and skill of a psychiatrist in diagnosing or treating psychiatric problems. In the legal context, it is no proper criticism of a solicitor in general practice that he has not the advocacy skills or specialist experience of a barrister. Each professional person falls to be judged by the standards of his fellows in his particular profession, not by the standards of a different profession or those of a more specialised branch of his profession than that of which he is part.

[53]Second, it is not negligent for a professional person to follow a practice accepted as satisfactory by a significant body of opinion in the relevant profession, notwithstanding that another body, or other bodies, of opinion in that profession takes a different view.

[54]Third, the standard to be achieved is that of “the ordinary skilled man exercising and professing to have [his] special skill”. As McNair J. said in terms, “A man need not possess the highest expert skill at the risk of being found negligent”. That means, as it seems to me, that the standard to be achieved is the same no matter what the reputation of the professional individual concerned, or the reputation of any institution with which he may be associated. Thus, for example, a higher standard is not expected of a doctor working in a well-known teaching hospital than what would be expected of a doctor in a similar discipline working in a less august institution simply because the first is working where he is.

[55]Fourth, in considering whether a professional person has been negligent the judgment has to be made as at the date of the alleged negligence based on the state of knowledge in the relevant profession at that date. A professional person cannot properly be criticised for failing to anticipate later knowledge or, indeed, for being unaware of information which was not generally known at the material time, albeit that that information was known, for example in research or academic circles.

[56]Fifth, the commission of an error of judgment by a professional person is not, of itself, negligent. This aspect of the potential liability of professional people was emphasised by Lord Diplock in the House of Lords in Saif Ali v. Sidney Mitchell & Co.

[1980] AC 198

, a case concerned with the liability of barristers. At pages 220D – 221A of the report Lord Diplock said:- “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 that profession could have made. … If subsequently a barrister is sued by his own client for negligence on what he advised or did in the particular case, he has the protection that the judge before whom the action for negligence will be tried is well qualified, without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take.”

[57]In the same case, at page 214F – G, Lord Wilberforce said:- “Much if not most of a barrister’s work involves exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel 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 very unlikely to succeed.”

[58]Again, at page 231C – D, Lord Salmon emphasised the axiom which governs all questions of alleged negligence on the part of a professional person – the duty of such a person is not to be right, but to be careful:- “I am far from saying that if the advice or document turns out to be wrong, it necessarily follows that he who gave or drew it is liable for any loss caused by its imperfection. The barrister is under no duty to be right; he is only under a duty to exercise reasonable care and competence. Lawyers are often faced with finely balanced problems. Diametrically opposite views may and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent.”

[59]That principle applies equally to medical people. In making a diagnosis, or prescribing a course of treatment, there is no duty to be right, only a duty to be careful. That the diagnosis, or course of treatment, turned out to be wrong is an essential foundation for any claim for damages for negligence, but, on its own, is not evidence of negligence.

[60]The House of Lords has recently, in Moy v. Pettman Smith [2005] PNLR 426, considered the duty of counsel in relation to the giving of advice to settle an action. The leading speech was that of Lord Carswell. In the course of his speech, at pages 443 – 444, he referred to the judgment of Anderson J. in the Canadian case in the High Court of Ontario Karpenko v. Paroian, Courey, Cohen & Houston (1981) 117 DLR (3d) 383. Lord Carswell quoted from pages 397 – 398 of that judgment. The passage quoted was part of the following:- “In my view, an important element of public policy is involved. It is in the interests of public policy to discourage suits and encourage settlements. The vast majority of suits are settled. It is the almost universal practice among responsible members of the legal profession to pursue settlement until some circumstance or combination of circumstances leads them to conclude that a particular dispute can only be resolved by a trial. I say nothing of the suits which are settled by reason of sloth, or inexperience, or lack of stomach for the fight. They have nothing to do with this case. What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him that he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a law-suit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what at worst constitutes an error of judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error … that negligence would be found. ”

[61]After citing that passage, bar the first five sentences, Lord Carswell went on:- “As Latham L.J. acknowledged, the difficulties faced by an advocate who is advising on acceptance or rejection of a settlement are manifold and the pressures, especially if the advice has to be given at the door of the court, can be heavy. In such circumstances it would be surprising if every such piece of advice were reasoned with as much comprehensive precision as may be applied in hindsight by an appellate tribunal which has had the benefit of extensive argument and leisurely reflection. Since the decision in Hall (Arthur JS) & Co v. Simons advocates have been liable to their clients for negligence in the same way as other professional persons. It would not be in the interests of those clients if they 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. I would endorse the view expressed by Brooke L.J. in the Court of Appeal, to which I have already referred, that it would be unfortunate if they felt that they had to hedge their opinions about with qualifications. It would be equally unfortunate if another effect of the same syndrome were to be an abdication of responsibility for decisions relating to the conduct of litigation and a reluctance to give clients the advice which they require in their own best interests.”

[62]The themes that settlements are to be encouraged and that challenging advice to settle after the event as having been given negligently was difficult echoed the views of Judge L.J. expressed in Kelley v. Corston

[1998] QB 686

at page 700C – F:- “Settlements of litigation are to be encouraged, and as early as possible. Many settlements are advised before litigation is started, and many more cases are settled long before the date of the substantive hearing. Some cases settle a day or two before the hearing, some at the door of the court, and some indeed after the substantive hearing has begun. Yet others settle on appeal. The advice on which settlements are based will reflect many different considerations. For example in one case the advice to settle may arise from the non-availability of a witness in circumstances where the costs of an adjournment would be disproportionate to the value of a claim. In another the settlement of a claim for personal injuries may be woefully inadequate simply because inexperienced counsel has grossly underestimated the value of the claim. In another case, for reasons of his own the client may insist that the case should be settled on the best available terms because there are no circumstances in which he wishes the case to be heard in court. The circumstances are infinite. One specific feature relating to all settlements needs attention. Every lawyer in practice and every judge knows that there is no such thing as the case which is bound to succeed. Experience shows that cases with the brightest prospects of success somehow fail and it is difficult to underestimate the value of certainty provided by a settlement as opposed to the continuing risks of litigation through to judgment. This factor alone should militate against successful proceedings based on criticism of advice leading to a settlement.”

[63]Sir Murray Stuart-Smith in the Court of Appeal returned to the latter theme in Griffin v. Denise Kingsmill [2001] Ll. Rep (PN) 716 at page 725:- “63. The circumstances in which barristers and solicitors have to exercise their judgment vary enormously. On the one hand decisions have frequently to be made in court with little time for mature consideration or discussion. That is a situation familiar to any advocate. It is one in which it may be very difficult to categorise the advocate’s decision as negligent even if later events proved it to have been wrong. Or in a very complex case it may be that in advising settlement too much weight is given to some factors and not enough to others. Here again a difficult judgment has to be made; and unless the advice was blatantly wrong, ie such as no competent and experienced practitioner would give it, it cannot be impugned and the prospects of successfully doing so would seem very slight.”

[64]However, lest it be thought that the authorities point to it being almost impossible to complain successfully of negligence on the part of a solicitor or a barrister in relation to the giving of advice to settle an action, it is useful to remind oneself of these observations of Davis J. in Luke v. Wansbroughs [2005] PNLR 2 at pages 41 – 42:- “86. It was common ground before me that in advising Mr. Luke Mr. Prees was under a duty to exercise the skill and care of a reasonably skilful and careful litigation solicitor; and in advising Mr. Luke Miss Addy was under a duty to exercise the skill and care of a reasonably skilful and careful barrister specialising in defamation and malicious falsehood matters. 87. The relevant principles and approach can, for present purposes, be found conveniently exemplified in Saif Ali v.Sydney Mitchell & Co

[1980] AC 198

: see in particular at p 220 (per Lord Diplock). There is no doubt, of course, that such duty is owed when a solicitor or barrister advises on settlement. The fact that an exercise of judgment is called for is, although a relevant factor, in no way an abrogation of the requirement that reasonable skill and care must be exercised. The case of Griffin v. Kingsmill

[2001] EWCA Civ 934

, [2001] Lloyds Rep PN 716 is a good illustration of that.”

[65]In the end, as it seems to me, in relation to giving advice about a settlement of an action, both a solicitor and a barrister owes a duty of care to the client to give such advice with the care and skill to be expected of a reasonably competent solicitor, or barrister, as the case may be. Advice given without such skill and care is negligent. If there is a want of skill and care, it is no answer that the advice to settle, or not, was a matter of judgment, or had to be given without an opportunity for calm reflection.

[66]An issue raised in the present case was the respective duties to a client of a solicitor and a barrister when both are instructed in a particular case. I think that the issue related more to the particular facts of the present case than to the legal principles applicable. The relevant principles were conveniently summarised by Taylor L.J. in Locke v. Camberwell Health Authority [1991] 2 Med LR 249 at page 254:- “(1) In general, a solicitor is entitled to rely upon the advice of counsel properly instructed. (2) For a solicitor without specialist experience in a particular field to rely on counsel’s advice is to make normal and proper use of the Bar. (3) However, he must not do so blindly, but must exercise his own independent judgment. If he reasonably thinks counsel’s advice is obviously or glaringly wrong, it is his duty to reject it. (4) Although a solicitor should not assist a litigant where prosecution of a claim amounts to an abuse of process, it is not his duty to attempt to assess the result of a conflict of evidence or to impose a pre-trial screen on a litigant’s claim.”

[67]A solicitor has a mind of his or her own and has, by virtue of the qualifications for admission to the profession and the training which he or she has received, a knowledge of the law, at least in the fields in which he or she practises. Consequently, a solicitor is bound to apply his or her mind, knowledge and experience to advice given by counsel and to consider whether the advice seems likely to be correct, or at least arguably to be so. Having considered the advice the position of the solicitor might be, “I positively agree. The advice given accords with my own knowledge, experience and assessment.” Or the position of the solicitor might be, “I positively disagree. I consider that counsel has overlooked this or that point.” In such a case, plainly the duty of the solicitor is not to accept the advice of counsel. The third, and perhaps most common, position of the solicitor, could be, “I don’t know whether this advice is correct or not. It is not obviously wrong, but I do not have the knowledge or experience to challenge counsel on this point.” It is in the latter type of case, and also in a case in which, whilst having doubts, the solicitor nonetheless defers to the greater knowledge and experience of the barrister, that the solicitor can properly say that he or she relied upon the advice of counsel properly instructed. These principles were illustrated in Ridehalgh v. Horsefield

[1994] Ch. 205

, where, at page 237G, Sir Thomas Bingham M. R., delivering the judgment of the court, said:- “A solicitor does not abdicate his professional responsibility when he seeks the advice of counsel. He must apply his mind to the advice received. But the more specialist the nature of the advice, the more reasonable is it likely to be for a solicitor to accept it and act on it.”

[68]Specialist advice is not the critical issue, however. An issue may arise as to how a court would be likely to evaluate evidence at a trial, a matter also particularly within the sphere of a barrister. Such was the case in Reaveley v. Safeway Stores plc [1998] PNLR 526. In that case Aldous L.J., delivering the only substantive judgment, said, at page 533:- “Upon receiving the second Calderbank letter in January 1997, the appellants reviewed the case. That was the action of a competent firm of solicitors. Upon review they had doubts. As the trial showed, they had a right to have doubts, but should they at that stage have concluded that the claim for loss of earnings was unsustainable without seeking counsel’s advice? In any case they did not, they sought the advice of counsel. Was that an act which no competent firm of solicitors would take? I do not believe that can be so. As stated by Taylor L.J., a solicitor, in general, is entitled to rely on the advice of counsel properly instructed. No doubt he must not do so blindly but must exercise his own independent judgment. In this case the medical evidence did not go so far as to make it clear that the plaintiff could not succeed in establishing that he was not capable at the date of the accident of working as a painter and decorator. The case depended upon the plaintiff’s evidence that he had the motivation. In those circumstances I do not believe that it was negligent for the solicitors to seek the advice of counsel and to act upon it. The plaintiff had a valid claim for general damages of around £3,850. Recovery depended on the plaintiff being believed when he said that he would have set up as a painter and decorator and would have succeeded. He was likely to be accepted as an honest person, therefore his chances could not be rated to be so low as to require the case to be settled without the expenditure of taking counsel’s advice and if so advised continuing the action in accordance with that advice. In my view the solicitors did not act negligently when they took the advice of counsel and acted upon it. They applied their mind to the situation first and then proceeded to act.”

[69]In the present case the live issue as between Bolt Burdon, on the one hand, and Mr. Smith and Mr. Utley, on the other, was not the legal principles applicable in a case in which solicitors rely on the advice of counsel, but whether, as a matter of fact, Bolt Burdon relied upon the advice of Mr. Smith or that of Mr. Utley in deciding to advise Miss Fraser to accept the offer of £200,000 plus costs in settlement of the Parlett Kent Action.

[70]The remaining matter of law which it is convenient to address at this point is the nature of the case of Miss Fraser against Parlett Kent, which, ironically, is identical to the nature of her case against Bolt Burdon, namely a case in which what was contended was that, as a result of negligence on the part of lawyers, Miss Fraser had lost the value of a claim against someone else. In the case of Parlett Kent the someone else was the Authority. In the case of Bolt Burdon the someone else was Parlett Kent. The conceptual nature of the claim is not affected by the fact that, as against the Authority, Miss Fraser recovered nothing, whilst, as against Parlett Kent, she recovered £200,000 plus costs. The point is that the case against each of Parlett Kent and Bolt Burdon depended upon the contention that, but for the negligence complained of, Miss Fraser had a prospect of a better outcome of the original claim than was in fact achieved.

[71]The approach in law to a claim against a lawyer that by his or her negligence he or she has deprived the claimant of the value of a claim against someone else was described in this way by Lord Evershed M.R. in Kitchen v. Royal Air Force Association

[1958] 1 WLR 563

at pages 574 – 575:- “If, in this kind of action, it is plain that an action could have been brought, and if it had been brought that it must have succeeded, of course the answer is easy. The damaged plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated, then it is equally plain that the answer is that she can get nothing save nominal damages for the solicitors’ negligence. I would add, as was conceded by Mr. Neil Lawson, that in such a case it is not enough for the plaintiff to say:

“Though I had no claim in law, still, I had a nuisance value which I could have so utilised as to extract something from the other side and they would have had to pay something to me in order to persuade me to go away”

. But the present case falls into neither one nor the other of the categories which I have mentioned. There may be cases where it would be quite impossible to try “the action within the action” as Mr. O’Connor asks. It may be that for one reason or another the action of negligence is not brought till, say, twenty years after the event and in the process of time the material witnesses or many of them may have died or become quite out of reach for the purpose of being called to give evidence. In my judgment, what the court has to do (assuming that the plaintiff has established negligence) in such a case as the present, is to determine what the plaintiff has by that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can.”

[72]The determination of the value of the claim lost, if negligence is established, and it is not clear either that the claim, if made, must have succeeded in total or must have failed totally, is undertaken by considering the prospects of success in percentage terms of the claim. While the identification of the approach might make the exercise seem easy, in fact it is potentially very difficult. It is necessary to consider each issue in the claim lost which was relevant to establishing liability, to see what the prospects of making any recovery at all were. It is then necessary to consider each issue in the claim lost which was relevant to the quantification of damage, to see what the prospects were of recovering that element of loss. Thus, in theory, at least, a lost claim might be assessed as having a 100% chance of establishing liability, and a 0% chance of establishing loss consequent upon that liability. In practice, of course, each element relevant to liability or to quantum has to be assessed separately, having regard to the issues of fact and law relevant to that element. Only at the last stage do the individual assessments of each element come together to produce an overall figure of compensation for the value of the lost claim.

[73]The exercise which I have described was in fact that which had to be undertaken in the Parlett Kent Action, had that action not been settled. For that reason the evidence assembled in the Parlett Kent Action included evidence relevant to what were the prospects of success of the Bart’s Action, if tried on the substantive merits as to whether there had been negligence on the part of the doctors treating Miss Fraser in August 1982. Witness statements from at least some of the doctors involved, Dr. Spencer, Dr. Rizzo-Naudi and Dr. Keeling were prepared and served on behalf of Parlett Kent. Expert evidence directed to whether the doctors at Bart’s had been negligent in treating Miss Fraser in August 1982 was also assembled on behalf of Parlett Kent. In particular, expert reports were obtained from Professor Morris Brown and Dr. Cosmo Hallstrom. Plainly, therefore, the intention on behalf of Parlett Kent was in effect to seek to try the Bart’s Action on the issue of negligence within the context of the trial of the Parlett Kent Action. That was an entirely appropriate course for those seeking to defend Parlett Kent to adopt, with a view to persuading the trial judge in the Parlett Kent Action that the prospects of success of the Bart’s Action, had it proceeded, were negligible or slim. Because the Parlett Kent Action settled, the evidence of the assembled doctors and experts never was led. It was not proposed that that evidence should be led in this action. As it seems to me, the decision not to seek to lead in this action direct evidence as to the prospects of success of the Bart’s Action, had it proceeded, was entirely correct. The relevant issue in this action was not, as it had potentially been in the Parlett Kent Action, what were the prospects of success of the Bart’s Action, had it proceeded, but rather what any reasonably competent solicitor or barrister would have assessed them as being as at the date of the advice to accept the offer of £200,000 plus costs in settlement, that is to say, as at 20 October 1997. The reasonably competent solicitor or barrister could only have made his or her assessment of that issue at that date on paper. Thus in judging whether the advice to settle at £200,000 plus costs was negligent I have to consider what assessment of the strength of the case a reasonably competent solicitor or barrister would have made simply on the papers.

The identified issues in the Parlett Kent Action

[74]Whilst the prospects of success of establishing negligence against the Authority in the Bart’s Action was an important issue in the Parlett Kent Action, and was an important issue in this action, it was not the only issue in the Parlett Kent Action, as I have already pointed out. As part of their preparation for the anticipated trial of the Parlett Kent Action Mr. Lynagh and Mr. Tucker produced a “Defendant’s List of Suggested Issues”. The issues in the list were:- “1. What, if any, were the Plaintiff’s prospects of success in her claim against the City and Hackney Health Authority at a trial in 1988/89? 2. Was the treatment which the Plaintiff received at St. Bartholomew’s Hospital in 1982 such as no reasonably competent doctor would have administered or was the treatment reasonable in the light of:(a) the prevailing level of knowledge of benzodiazepines and their effects;

(b) the Plaintiff’s condition and the need for a diagnosis;

(d) the level of withdrawal symptoms observed by the medical and nursing staff and/or reported to them by the Plaintiff?

(e) the nature of any bowel problems experienced by the Plaintiff and/or reported to the medical and nursing staff. 3. What award of damages would the Plaintiff have received in 1988/89 if she had been successful in her claim against the Health Authority? This issue involves several sub-issues including the following: (i) for what period did the relatively abrupt, as opposed to gradual, withdrawal of benzodiazepines cause the Plaintiff to suffer what withdrawal symptoms? (ii) if the Plaintiff continued to suffer symptoms beyond the timescale of a reasonable withdrawal syndrome were such symptoms still due to the abrupt withdrawal or were they due to a pre-existing underlying depressive illness which had probably been masked by the drugs being taken up to August 1982? (iii) what would the likely award in respect to general damages for pain, suffering and loss of amenity have been in 1988/89? (iv) what, if any, financial loss would the Plaintiff have proved as having flowed from any negligence on the part of the Health Authority? 4. If the Plaintiff would have failed in her action against the Health Authority then has any negligence on the part of the Defendant caused any injury or damage to the Plaintiff over and above the position in which the Plaintiff would have found herself in any event? 5. Is the Defendant liable to the Plaintiff for any “damages for psychiatric injuries and consequential losses” allegedly sustained as a result of the Defendant’s negligence in the conduct of her claim against the Health Authority? This question involves inter alia the following sub-issues: (i) has the Plaintiff suffered any, and if so what, psychiatric injury and consequential loss as a result of the Defendant’s negligence? (ii) has the Plaintiff suffered only distress, anger, frustration or annoyance as a result of such negligence as was committed by the Defendant in its conduct of her claim – whether or not superimposed upon a pre-existing depressive illness? (iii) has the Plaintiff suffered a genuine psychiatric injury as a result of such negligence as occurred in the conduct of her claim? If so: (a) was it reasonably foreseeable to the Defendants or not, and, (b) was it also within the scope of the duty owed by the Defendant to the Plaintiff or not? 6. If the Defendant is liable to the Plaintiff for damages over and above those which represent any value which her prospects of success against the Health Authority may be found to have had then (i) what psychiatric injury if any over and above any injury caused by the Health Authority has the Plaintiff suffered as a result of the Defendant’s negligence? (ii) what financial losses, if any, over and above those caused by the Health Authority’s alleged negligence has the Plaintiff suffered as a result of the Defendant’s negligence?” This issue involves several sub-issues including the following:

This question involves inter alia the following sub-issues:

[75]Those issues involved, on their face, a challenge to all parts of Miss Fraser’s claims against Parlett Kent. Some of the issues were further refined in the “Opening Submissions of the Defendant” (“the Parlett Kent Skeleton”) prepared by Mr. Lynagh and Mr. Tucker and in expert evidence prepared on behalf of Parlett Kent. The knowledge of Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland as at 20 October 1997 of the issues and the evidence in the Parlett Kent Action

[76]For the reasons which I have already explained, it is necessary for the purposes of this judgment to consider the evidence which was available to be deployed on behalf of Miss Fraser and on behalf of Parlett Kent on each relevant issue at the trial on 20 October 1997, had that trial proceeded, so as to reach conclusions as to what any reasonably competent solicitor or barrister would have considered to be the prospects of success on each issue. Mr. Smith and Mr. Utley, as counsel instructed on behalf of Miss Fraser for the trial, must be taken to have been entirely familiar with the evidence, and also with the legal issues, because they had prepared the case for trial. In the course of that preparation, as it seems to me, they must have given some consideration to the likely value of the claim, not least because the making of offers of settlement at the door of the court is a circumstance of fairly common occurrence in an action which gets as far as the door of the court, and they needed to be prepared, if necessary, to give appropriate advice to their client in relation to any offers of settlement made. I make these points because some of the passages from authorities which I have quoted earlier in this judgment rather emphasise that counsel can be taken unawares and have to make a decision in a short period of time, without an opportunity to conduct research or to reflect. That can happen, but it is not the situation in which counsel should be in relation to the issues and evidence, or appropriate levels of settlement, at the start of a trial in which he is instructed.

[77]For ease of reference I shall describe hereafter in this judgment a reasonably competent barrister instructed on behalf of Miss Fraser in the trial about to commence of the Parlett Kent Action and who has therefore prepared the case of his client for trial as “a Barrister”.

[78]A solicitor instructed to attend counsel at a trial does not bear the burden of presenting the client’s case and so need not be as thoroughly familiar with the issues and evidence as counsel. Nonetheless, in my judgment, a solicitor so instructed should be generally familiar with the issues and evidence.

[79]For ease of reference I shall describe hereafter in this judgment a reasonably competent solicitor acting on behalf of Miss Fraser and attending counsel for the trial of the Parlett Kent Action as “a Solicitor”.

[80]It is appropriate next to consider each of the issues which arose in the Parlett Kent Action which needed to be taken into account in deciding what a Solicitor or a Barrister should have advised Miss Fraser in relation to an offer to settle for £200,000 plus costs. The prospects of establishing in the Parlett Kent Action that the Authority was liable in negligence for the treatment of Miss Fraser in August 1982

[81]Logically the place to begin the consideration of the issues is with the prospects of establishing that doctors for whom the Authority was responsible had been negligent in treating Miss Fraser in Bart’s in August 1982.

[82]In the Parlett Kent Skeleton the issue of the value of the prospects of success of Miss Fraser against the Authority was addressed in Section D. The first part of Section D was concerned with liability and causation. It began with a narrative and was followed by comments on a number of the medical reports served in the Parlett Kent Action. It is unnecessary in this judgment to consider the comments on the medical reports separately from considering the reports themselves, to which I shall come. The narrative part of the first part of Section D was in these terms:- “The Statement of Claim which was served on 24th March 1988 alleged(i) negligence in the abrupt discontinuation of Benzodiazepine drugs;

(ii) negligence in failing to diagnose and treat the Plaintiff’s anal fissures and haemorrhoids thereby delaying treatment in respect thereof. The Amended Defence in that action contains firm denials of negligence and it was contended by the Health Authority inter alia as follows: (i) there were good reasons for taking the Plaintiff off Benzodiazepines including the fact that the Plaintiff was complaining of (and being investigated for) double vision, drooping eyelids, difficulty in focusing and weakness of the legs. The drugs being taken by the Plaintiff in excessive doses were recognised as capable of causing visual disturbances and as being muscle relaxants. Thus it was possible that the drugs were the cause of her complaints. (ii) The Benzodiazepines would have been reduced more slowly or even re-started at a lower dose if necessary if the Plaintiff had shown marked withdrawal symptoms. In fact her symptoms were mild (insomnia and giddiness).

(iii) When the Plaintiff attended hospital for review on 30th September 1982 she made no complaint apart from one of occasional constipation.

(iv) The Plaintiff had not complained of abdominal pain but had described, on admission, a tendency to constipation as a result of which she was treated with a high fibre diet and laxatives. The doctors involved in the Plaintiff’s treatment at St. Bartholomew’s Hospital were and are prepared to defend their actions. It will be contended that the doctors acted reasonably in the light of knowledge and practice at the material time particularly when exercising clinical judgment to reduce and discontinue the Benzodiapezines in establishing a diagnosis. The likely level and duration of discomfort which might arise must be weighed against the need to investigate the Plaintiff’s condition. The lack of complaint by the Plaintiff of any severe withdrawal symptoms at the time must also be borne in mind.”

[83]In the light of that passage from the Parlett Kent Skeleton it was plain that the question of the prospects of success of establishing liability against the Authority in the Bart’s Action was going to be a major issue at the trial, had it taken place.

[84]It is, I think, important to understand that it was never suggested as against the Authority that the doctors were negligent in deciding that the benzodiazepines which Miss Fraser had been taking up to August 1982 should be withdrawn. One of the important medical expert witnesses whose evidence had been obtained on behalf of Miss Fraser was Professor Heather Ashton, Emeritus Professor of Clinical Psychopharmacology at the University of Newcastle-upon-Tyne. In a report dated 19 August 1997, at section 1, Professor Ashton wrote, so far as is presently material:- “1.1 Management of benzodiazepine withdrawal The decision to withdraw benzodiazepines was reasonable under the circumstances, but the actual withdrawal was carried out in a haphazard, unskilled, and even dangerous manner which was not up to the standards expected of a competent doctor in 1982. In particular:(a) No explanation was given to Miss Fraser, and her consent to this line of treatment was not obtained.

(b) No information was given to Miss Fraser on the symptoms she might experience as a result of benzodiazepine withdrawal.

(c) No attempt was made to establish the exact dose of benzodiazepines Miss Fraser was taking on admission to hospital. The hospital notes on 17.8.82 stated that she was taking flurazepam 60mg nocte, diazepam 5 mg nocte. In fact, Miss Fraser was taking flurazepam 60-90 mg nocte and diazepam 15-20 mg daily. (According to her statement and the case notes from two other hospitals which she subsequently attended). In either case, these were large doses of benzodiazepines; a withdrawal reaction could have been anticipated and the doctors should have been alerted that a very careful withdrawal was indicated.

(d) No planned schedule of dosage reduction was made. Instead, both flurazepam and diazepam were abruptly stopped, and over the next few days, very haphazard and irregular prescriptions of different benzodiazepines in lower doses and with shorter duration of action than the ones she was used to were given to Miss Fraser. For example she received 20 or 30 mg of temazepam on some occasions and 2 mg of lorazepam on one occasion. On two days she received no benzodiazepines at all, according to hospital records. This treatment would have amounted to the equivalent reduction of Miss Fraser’s benzodiazepine dosage by about 75% over a few days (100% on the days she received no benzodiazepines).

(e) On the evening of the 10th day, all the benzodiazepines were abruptly replaced with a placebo and she was discharged on the 11th day with no benzodiazepines. This treatment constituted an extremely and dangerously rapid withdrawal for a person who had been on high doses of benzodiazepines for five years. 1.2 Management of benzodiazepine withdrawal symptoms From about the fifth day in hospital, after the flurazepam and diazepam had been withdrawn, Miss Fraser developed typical and characteristic benzodiazepine withdrawal symptoms. These had already been described in the medical literature in 1981 and should have been known to any competent doctor in 1982, yet they were largely ignored by the hospital staff.”

[85]The latter comment, and various other comments in the report of Professor Ashton dated 19 August 1997, rather suggested that her impression was that the doctors who treated Miss Fraser in Bart’s in August 1982 were unaware of the possibility that withdrawal of benzodiazepine drugs might produce a reaction, or were ignorant of the symptoms of a withdrawal reaction. However, it seems clear from the note made by Dr. Rizzo-Naudi on 26 August 1982 quoted by Drake J. in the passage from his judgment which I have cited, that he, at least, was aware of the fact that withdrawal of benzodiazepines could produce a reaction, and that he considered at the time that the signs he observed on 26 August 1982 were of such reaction. In the witness statements of Dr. Spencer, Dr. Rizzo-Naudi and Dr. Keeling prepared for the trial of the Parlett Kent Action each professed an awareness in August 1982 of the possibility of a reaction to a withdrawal of benzodiazepines. Dr. Rizzo-Naudi said that he had noticed what he considered to be signs of such reaction in Miss Fraser and had discussed that with her on 26 August 1982. Dr. Keeling in his witness statement said that it was possible, although he did not recall it, that he too had discussed with Miss Fraser, on 24 August 1982, that she was suffering from withdrawal symptoms following the reduction in the benzodiazepines which she had been taking. Particularly in the light of the contemporaneous note of Dr. Rizzo-Naudi, it seems to me that a Solicitor or a Barrister would have considered that it was overwhelmingly likely that the trial judge in the Parlett Kent Action would conclude that the doctors treating Miss Fraser in August 1982 were aware of the possibility of a reaction to withdrawal of benzodiazepines and that they did diagnose symptoms of such reaction in Miss Fraser. Thus the real issue in relation to negligence concerning the treatment of Miss Fraser at Bart’s was whether no reasonably competent doctor could have determined that it was appropriate to withdraw benzodiazepines from Miss Fraser over the time-scale in fact adopted.

[86]In expressing the view which I have in the preceding paragraph I have not overlooked a comment of Dr. Rizzo-Naudi at paragraph 8 of his witness statement that, “I would have been aware of the common symptoms of benzodiazepine withdrawal such as rebound insomnia but I do not think that I would have known the whole range of possible withdrawal symptoms.” Mr. Jordan, on behalf of Miss Fraser, placed great reliance upon that sentence. He contended that it indicated that, contrary to Dr. Rizzo-Naudi’s contemporaneous note dated 26 August 1982, he in fact was unaware of the symptoms of benzodiazepine withdrawal and could not have had the discussion or given the advice apparently recorded in that note. That contention logically involved the proposition that the apparently contemporaneous note had been forged or altered after it was originally made. Any such suggestion seems to me to be so fanciful as to be unworthy of serious consideration. In fact, on the face of the sentence relied upon, all Dr. Rizzo-Naudi was saying was that he was aware of the usually-encountered symptoms of benzodiazepine withdrawal, but not of the full range of possible symptoms.

[87]Professor Ashton in her report dated 19 August 1997 in fact mingled the issues whether a reasonably competent doctor in August 1982 should have been aware of the possibility of symptoms on withdrawal of benzodiazepines, whether a reasonably competent doctor should have been aware of what the symptoms were, and whether a reasonably competent doctor should have appreciated that there were particular dangers associated with rapid withdrawal. On the latter issue, as it seems to me, Professor Ashton was weak. At paragraph 1.3 of her report she considered “Knowledge about benzodiazepine withdrawal in 1982”. She wrote:- “(a) The benzodiazepine withdrawal syndrome had been fully described in at least five authoritative reports in medical journals in 1981 (refs. 1 – 5) and in another in 1982 (ref. 6). Lader and Petursson, 1981 (ref. 1) stated:

“It has now been shown that in some cases the changes on withdrawal of normal, therapeutic doses are indistinguishable from those on withdrawal of high doses … “The fully developed benzodiazepine withdrawal syndrome has been described as severe sleep disturbances, irritability, increased tension and anxiety, panic attacks, hand tremor, profuse sweating, difficulty in concentration, dry retching and nausea, weight loss, palpitations, muscular pains and stiffness, and perceptual disturbances … Instances are also reported of more serious developments such as epileptic fits [7 references given], psychotic reactions [9 references given] and even death [one reference].” (NB Miss Fraser complained of almost all of these symptoms). (b) In addition, there had been at least 14 reports of physical withdrawal reactions from benzodiazepines in prescribed doses and 9 reports of psychological dependence in the medical literature between 1963 – 1974. (These papers are cited in ref. 4). (c) Furthermore, at least two drug companies manufacturing benzodiazepines issued warnings about dependence in their drug data sheets, making it clear that this applied to all benzodiazepines and advising gradual rather than sudden withdrawal (Drug Data Sheet Compendium 1980 – 1 and 1982 – 3). (d) Fourthly, advice on methods of gradual benzodiazepine withdrawal was available in 1982. One method recommended by academic staff at St. Bartholomew’s Hospital at that time (ref. 7) [Salkind (1982) Topics in Drug Therapy] was reduction by one eighth of the previous dose every 2 – 4 weeks. Similar methods were recommended by Self Help organisations such as Release in 1982 (ref. 8) and TRANX (UK) Ltd. which was founded in 1982 and received funding from DHSS in 1983. (e) Thus medical practitioners, especially medical staff in a prestigious London teaching hospital, should have known that it was dangerous to discontinue benzodiazepines abruptly, should have anticipated a withdrawal reaction, should have recognised it when it occurred, and should have treated it sympathetically.”

[88]There was no clear statement in the report of Professor Ashton that no reasonably competent doctor in August 1982 could have failed to follow some particular course of withdrawing benzodiazepines, or could have failed to reduce the drugs at some particular rate or over some particular period. The closest she really came to grappling with these questions was in paragraph 2.2 of her report, entitled “Dosage reduction”:- “(a) Drug dosage should be tapered smoothly and gradually; abrupt or rapid withdrawal can give rise to severe and even life-threatening complications (including convulsions and severe anxiety or psychotic states). (b) The rate of gradual dosage reduction is an individual matter, depending on such factors as the lifestyle and wishes of the patient, the severity of the symptoms experienced, and the dosage and type of benzodiazepine drug. (c) A regimen of benzodiazepine withdrawal recommended in 1982 by academic staff at St. Bartholomew’s Hospital (reference 7) was reduction by one eighth of the previous dose every 2 – 4 weeks. If Miss Fraser was taking flurazepam 60 mg and diazepam 5 mg each day on admission to St. Bartholomew’s Hospital (approximately equivalent in potency to 25 – 45 mg diazepam), reduction on this system would have involved an initial drop in dosage of about 3 to 5.5 mg diazepam with progressively smaller reductions thereafter. This process would have taken 6 – 18 months, with adequate out-patient support and supervision. (d) Patients treated in hospital in the 1980s were often withdrawn at a faster rate by tailing off the dosage over 2 – 4 weeks, but this required close supervision and was often at the cost of severe symptoms which required major support from therapists and the use of other drugs to alleviate symptoms. (e) A further factor in benzodiazepine withdrawal is the duration of action of the particular benzodiazepine. It was known in 1982 that withdrawal from long-acting benzodiazepines, such as diazepam, produced less acute symptoms than withdrawal from shorter-acting benzodiazepines such as temazepam and lorazepam. Thus Miss Fraser should have been withdrawn slowly from a long-acting benzodiazepine such as diazepam. (f) Allowing for possible variations in dosage reduction regimes as outlined above, and bearing in mind the doubt about the actual dosage Miss Fraser was taking on admission to hospital, a reasonable course of withdrawal in 1982 (having first obtained Miss Fraser’s consent) would have been in general as follows. [I do not think that the detail of that course need be set out for the purposes of this judgment] The approximate time-scale for such a withdrawal would have been of the order of about 12 months.”

[89]From that passage, as it seems to me, it emerges that the focus of this part of the report was inappropriate. The issue was not what a reasonable course of withdrawal would have been, but what course of withdrawal no reasonably competent doctor could have failed to adopt. In sub-paragraph (d) Professor Ashton herself acknowledged that in the 1980s a course different from that which she recommended had often been adopted. The periods of time which Professor Ashton contemplated might have been involved in a proper withdrawal of benzodiazepine drugs from Miss Fraser – either between 6 and 18 months, or about 12 months – demonstrated fairly clearly that what she was considering, and all that she was considering, was how a doctor whose only concern was to wean a patient away from benzodiazepines ought to have proceeded. However, that was not in fact the reason why Miss Fraser was admitted to Bart’s in August 1982. She had a history of high blood pressure and in August 1982 was suffering from hypertension. It was suspected that she might have myasthenia gravis and the admission to Bart’s was so that investigations could be undertaken to see whether she in fact had that condition. Parlett Kent instructed Professor Morris Brown, Professor of Clinical Pharmacology at the University of Cambridge Clinical School, whilst conducting the Bart’s Action on behalf of Miss Fraser. Professor Brown was not supportive of the allegation that the doctors at Bart’s had been negligent in withdrawing benzodiazepines from Miss Fraser abruptly. He gave his reasons in a letter to Parlett Kent dated 21 December 1987:- “In 1982 it is unlikely that the physicians suspected, at least fully, what symptoms might ensue. However, even when these occurred and were suspected to be due in part to benzodiazepine withdrawal, the physicians did not restart the drugs even at lower doses. Is this justified, and in the light of today’s knowledge [can] “sudden withdrawal” ever be justified? There are two main medical grounds for justification. The first is that the unquestionably excessive doses of benzodiazepines had led to complications whose nature and/or risk outweighed the likely discomfort/risk of sudden withdrawal. In the case of Ms Fraser, the complication was of neurological weakness sufficient to lead to the differential diagnosis of myasthenia gravis. This is a potentially serious disease itself for which the treatment is not particularly pleasant, and the physicians might reasonably argue that the diagnostic value of sudden benzodiazepine withdrawal (in order to determine whether the patient’s weakness disappeared – as indeed it did) justifies the symptoms of the withdrawal and that the latter are preferable to unnecessary treatment with drugs such as Neostigmine for the condition of myasthenia. The second and obviously related way in which sudden withdrawal could be justified is that the symptoms are transient, without long-term complications and that this even today might be preferable to the prolonged spells in hospital to which some patients are now subjected while undergoing benzodiazepine withdrawal.”

[90]Professor Brown was instructed on behalf of Parlett Kent in the Parlett Kent Action. In a letter dated 29 September 1997 to Ince he confirmed his view that what he had written in his report of 1987 was fair. Thus an issue in the Parlett Kent Action, had it not settled, was going to be whether a reasonably competent doctor in August 1982 could have taken the view that abrupt withdrawal of benzodiazepines from Miss Fraser was justified in order to enable a decision to be reached as to whether she was suffering from myasthenia gravis. Even to the non-medically qualified the point is obvious. In order to be able to reach a conclusion as to whether Miss Fraser was suffering from myasthenia gravis, a condition which was serious and required treatment, if she had it, the possibly masking effect of benzodiazepines had to be eliminated. Thus formulated, it seems pretty obvious that a reasonably competent doctor could have decided to withdraw benzodiazepines abruptly, especially if, as Professor Brown contended, the symptoms of withdrawal were considered to be transient and capable of management by prescribing quantities of benzodiazepines of lower strength than those which Miss Fraser had been taking.

[91]So what was the answer to this important point on behalf of Miss Fraser? It does not seem that there was one. Certainly none of the medical experts whose reports were exchanged in anticipation of the trial of the Parlett Kent Action mentioned in any report any reason for not withdrawing benzodiazepines in order to be able to diagnose other suspected conditions. From the terms of the last paragraph of her report on Miss Fraser dated 7 April 1987, to which I shall come, it seems that in fact Professor Ashton agreed with Professor Brown on this point. The highest that it seems that it could have been put on behalf of Miss Fraser at the trial of the Parlett Kent Action was that the ultimate decision to withdraw all benzodiazepines was not related to investigation of the condition of myasthenia gravis. That ultimate decision was taken by Dr. Galton, the consultant. In her witness statement dated 12 July 1989 Dr. Spencer wrote about that decision. I have quoted the relevant part of the witness statement of Dr. Spencer at paragraph 5 of this judgment, where it is the last paragraph cited.

[92]From that passage it appears that at least a reason for the reduction in the benzodiazepines taken by Miss Fraser at Bart’s had been to facilitate reaching a conclusion on the issue of myasthenia gravis. However, the decision to withdraw all benzodiazepines appears to have been taken simply because Miss Fraser’s presenting symptoms were attributed to taking those drugs. It seems, therefore, that on analysis of the evidence available for the trial of the Parlett Kent Action the prospects of success of establishing negligence against the Authority depended on the one point, whether Dr. Galton, in withdrawing all benzodiazepines at once, took a decision which no reasonably competent doctor could have taken. That decision was taken against the background that the levels of benzodiazepines taken by Miss Fraser had been reduced whilst she had been at Bart’s and that there had been some withdrawal symptoms.

[93]On the material assembled in advance of the trial of the Parlett Kent Action there were conflicting views as between experts on the issue of whether any reasonably competent doctor should have realised in August 1982 that abrupt withdrawal of benzodiazepines exposed the patient who had been taking those drugs to unpleasant, long-lasting and dangerous reactions. Even Professor Ashton was somewhat equivocal on what was, or should have been, known. She had originally been instructed by Parlett Kent for the purposes of the Bart’s Action. At that time she had prepared a report dated 5 December 1988. In that report also she set out what she considered would have been a reasonable course towards reduction in the case of Miss Fraser. However, there she added a note, not reproduced in her 19 August 1997 report, but about which she was bound to have been cross-examined at a trial of the Parlett Kent Action. The material part of the note was in these terms:- “the above schedule may represent a counsel of perfection. Detailed guidelines on benzodiazepine withdrawal, although available, were not widely read in 1982. However, any competent physician should have tempered his management to the clinical state of the patient and should have had enough knowledge to withdraw the drugs slowly and to handle a distressed patient with sympathy.”

[94]The report dated 5 December 1988 was not, however, the first report of Professor Ashton concerning the case of Miss Fraser. Her first report, also commissioned by Parlett Kent for the purposes of the Bart’s Action, was dated 7 April 1987. Again that report was available for use in the trial of the Parlett Kent Action. It included the following passages:- “However, I should point out that a book entitled “The benzodiazepines. Use, overuse, misuse, abuse” J. Marks (1978) greatly influenced medical opinion for several years. This book reviewed the many reports of isolated cases of benzodiazepine dependence which had appeared in the medical literature and concluded that, considering their widespread use, the dependence-producing potential of benzodiazepines was extremely low, and was largely confined to abusers of alcohol and other drugs. Although this conclusion has subsequently been shown to be wrong, there were certainly differences of opinion with [sic – presumably “within” was meant] the medical profession regarding the importance of benzodiazepine dependence at the time Ms Fraser was in St. Bartholomew’s Hospital. Nevertheless, in my opinion the doctors should have adopted a more sympathetic and open-minded attitude towards Ms Fraser’s symptoms. … Whether or not the doctors’ management of Ms Fraser’s case constitutes negligence in the legal sense, I am not qualified to judge. While in fact, the management exposed Ms Fraser to risk and suffering, and led to the development of a severe illness, it must also be stated that(a) there were differences of opinion within the medical profession concerning the incidence and severity of the benzodiazepine withdrawal syndrome, and

(b) multiple psychological symptoms can obscure the significance of specific physical symptoms and make the diagnosis of a surgical condition extremely difficult.”

[95]The passages in Professor Ashton’s reports dated 5 December 1988 and 7April 1987 to which I have drawn attention would seem to raise considerable difficulties in the way of the court at a trial of the Parlett Kent Action concluding that there would have been a good prospect of success of establishing negligence against the Authority in respect of the abrupt withdrawal of benzodiazepines. These difficulties, of course, were to be found within Miss Fraser’s own evidence. The difficulties were multiplied when one had regard to the evidence available to Parlett Kent and which it was intended to adduce at trial. I have already mentioned Professor Brown. In his letter dated 29 September 1997 to Ince he commented:- “Benzodiazepine withdrawal syndrome had only recently been described; by definition therefore no long-term withdrawal effects had been reported, and it would be unreasonable to expect all physicians (who do not usually read specialist literature on psychiatric drug withdrawal) to be well informed in 1982 of the syndrome.”

[96]Moreover, another expert lined up to give evidence at the trial of the Parlett Kent Action on behalf of Parlett Kent was Dr. Hallstrom, a consultant psychiatrist. Dr. Hallstrom had also in the first instance become involved in the case of Miss Fraser because he was instructed by Parlett Kent in the Bart’s Action. His first report was dated 24 February 1988. That report included:- “… The notes are unclear as to the precise strategy the doctors were pursuing, but one can believe that they were concerned about the development of new symptoms in Ms. Fraser and, therefore, decided to stop all medication in order to assess the clinical problem. This is not uncommon since a significant number of admissions to a medical ward arise out of problems with medication and when these things are unclear with the treatment of patients it is usual to stop all medication and reassess the situation. … The account in the British National Formulary 1981, clearly sets out the problem of dependence on Benzodiazepines and from the notes the doctors were aware of the problem and in fact correctly diagnosed that as Ms. Fraser’s problems. What the doctors did wrong was to discontinue the medication abruptly. The British National Formulary suggests that withdrawal should be gradual, but does not specify over what period of time. Gradual withdrawal would probably mean a period of weeks, not abrupt withdrawal in two stages that Ms. Fraser suffered over a period of about one week. To make matters worse, Ms. Fraser had her drugs reduced from about 75% of her normal dose to nothing abruptly and was then discharged the next day. It is generally assumed that the withdrawal syndrome becomes maximal two to three days after stopping the medication so it is not surprising that her condition continued to deteriorate after leaving hospital. What is of concern is that her condition was not recognised by the doctors who saw her subsequently in the Casualty Department, although she did present with a problem relating to her rectum rather than her nervous condition. A key issue in this case is that although it is recommended that Benzodiazepines be discontinued gradually as opposed to abruptly I don’t know that the rate of reduction necessarily effects [sic] the outcome. The reason to reduce the drugs gradually is to reduce the acute withdrawal reaction at the time of stopping the drug. I know of patients who have managed to reduce the drugs over a long period of time who still suffer symptoms over a period of years. So the abrupt discontinuation of the drugs may not necessarily have adversely affected the long-term outcome. … Whereas there are clear examples of bad practice, in retrospect, I would not be able to comment at this point whether these constitute negligence or not.”

[97]The point raised in the latter part of the passage quoted, prior to the last sentence, raises a further issue which needed to be considered in the context of advice to settle the Parlett Kent Action. It is one to which I shall return.

[98]Dr. Hallstrom was asked to prepare a report especially for use in the Parlett Kent Action. He produced a report dated 23 September 1997. About his earlier report he said, at paragraph 6:- “I stand by my report prepared in 1988 on Ms Fraser. I was instructed by the plaintiffs, [sic] then solicitors Parlett Kent. I acknowledged that the treatment provided by St. Bartholomew’s Hospital was not ideal but I was not satisfied that they were negligent.”

[99]Dr. Peter Wood, a forensic psychiatrist, was instructed on behalf of Miss Fraser in the Parlett Kent Action. He produced a report (“the Wood Report”) dated 1 September 1997. His views on the question whether the doctors at Bart’s had been negligent in relation to the treatment of Miss Fraser in August 1982 were these:- “It is my view that by 1982 the dangers of BENZODIAZEPINE drugs were recognised by doctors generally, in terms of there being knowledge of the likelihood of an addiction developing when such drugs were prescribed on a long-term basis and that, particularly when given in large doses, there were specific dangers from the sudden withdrawal of such preparations. It is almost certain that at a leading teaching hospital such as St. Bartholomew’s Hospital, all under-graduates would have been introduced to the issues affecting the prescription of BENZODIAZEPINES and their withdrawal, thus even newly qualified doctors in 1982 should have had an awareness of this subject. More experienced medical staff should have been familiar with the problems of BENZODIAZEPINE dependency. A patient addicted to a variety of BENZODIAZEPINE drugs, in my experience, would usually be prescribed one BENZODIAZEPINE preparation, preferably a long-acting one such as Diazepam, in a sufficient dose to substitute their total dose of such tranquillisers. Once the situation had been stabilised in this way and provided the psychological preparation of the patient was adequate, the process of a gradual withdrawal would begin. The pace of withdrawal in the early 1980’s, would probably have been adjusted against the symptoms developed by the patient so as to restrict the degree of discomfort suffered by patients under these circumstances. In the early 1980’s, the slow speed at which such withdrawal could be best achieved was not necessarily fully appreciated. As the 1980’s progressed the need to withdraw such patients slowly became better recognised. The process of maintaining the patient’s morale and co-operation has invariably been an essential component to any successful treatment of an individual with an addiction. Supporting the patient via an understanding of his or her symptoms and regular discussion of these, together with the introduction of other appropriate treatment, such as anti-depressant therapy in individuals who have become clinically depressed during this process, are each essential components of the management of BENZODIAZEPINE withdrawal. Commenting as to Miss Fraser’s management, I have reviewed the records in relationship to Miss Fraser’s management and the reports of Professor Heather Ashton. I agree that Miss Fraser’s management was negligent in 1982 in that she was not counselled and supported during the process of benzodiazepine withdrawal, her symptoms were not recognised and she was not counselled appropriately as a result. The drug regime introduced would be sudden reduction of Benzodiazepine and a change to Temazepam for a few nights was inappropriate and the introduction of a major tranquilliser, Trifluoperazine, was not appropriate.”

[100]Again the main thrust of Dr. Wood’s observations seems to have been based on the hypothesis that what was sought to be achieved by the doctors in Bart’s was withdrawal of benzodiazepines from Miss Fraser, rather than investigating whether she had myasthenia gravis and how that investigation should have been undertaken in the circumstances. Dr. Wood asserted, contrary to the evidence of the doctors concerned, that they did not recognise Miss Fraser’s withdrawal symptoms. However, what was most striking, in the light of what the issue of negligence really seemed to come down to, the decision of Dr. Galton to withdraw all benzodiazepines from Miss Fraser abruptly, was that Dr. Wood did not express himself clearly on that question at all. He seemed to recognise that the desirability of slow speed of withdrawal was not necessarily fully appreciated in the early 1980s. What he actually characterised in terms as negligence on the part of the Bart’s doctors was failure to give counselling and support and failure to recognise the symptoms of withdrawal.

[101]I think that it must have been plain, on 20 October 1997, to a Barrister that success in the Parlett Kent Action in establishing negligence against the Authority, if the Bart’s Action had been permitted to proceed, was far from assured. Professor Brown and Dr. Hallstrom, the experts instructed on behalf of Parlett Kent, were positive that there had not been negligence in the decision to withdraw benzodiazepines abruptly, and their views had remained constant since first instructed by Parlett Kent. Professor Ashton’s ultimate view on the question of negligence was vulnerable to formidable attack on the grounds that she appeared to accept that withdrawal of benzodiazepines to enable another suspected condition to be investigated was a proper course of action, and that in her two earliest reports she seemed to accept that the state of knowledge about the desirability of gradual withdrawal was not as developed in 1982 as it subsequently became. Indeed, taking Professor Ashton’s three reports as a whole, it seemed that her views were not very different from those of Professor Brown. Dr. Wood also did not, in the Wood Report, address the important question of withdrawing benzodiazepines to enable another suspected condition to be investigated. He appeared to recognise that the state of knowledge of the desirability of gradual withdrawal was not as well developed in 1982 as it later became. His actual allegations of negligence seemed to be based in part on a misunderstanding of the factual evidence (whether the doctors had recognised the symptoms of benzodiazepine withdrawal) and otherwise appeared not to address the vital issue of abruptness of withdrawal.

[102]In the circumstances, in my judgment, a Barrister must have realised that the prospects of success on the issue of negligence depended critically on how each of the relevant expert witnesses would fare in cross-examination in the witness box, with the scales perhaps being tipped against Professor Ashton and Dr. Wood as a result of the hostages to fortune lurking in their exchanged reports.

[103]It seems to me that a Barrister should be recognised as perhaps inclined to optimism or perhaps inclined to pessimism. Thus a range of assessments of the prospects of success on the issue of negligence could reasonably have been held. Mr. Utley was recorded as having expressed the view on 20 October 1997 that the prospects of success on the negligence issue were 60%. In my view that was an optimistic, but nonetheless reasonable, view. The appropriate range of views of a Barrister, in my judgment, was 40% - 60%. In other words, a Barrister could have taken the view that the prospects of success fell somewhere in the bracket ranging 10% either side of evens.

[104]It does not seem to me that a Solicitor should be expected to have analysed the expert evidence and its strengths and weaknesses in the way a Barrister would need to have done. This was really a matter for counsel, and in my judgment a Solicitor would rely on the views of counsel on matters of this kind.

[105]While the issue of the failure of the doctors at Bart’s in August 1982 to treat Miss Fraser’s piles was an issue in the Parlett Kent Action, it seemed to attract little attention. It was hardly mentioned in the “Skeleton Opening Submissions on behalf of the Plaintiff” (“the Fraser Skeleton”) prepared for the trial by Mr. Smith and Mr. Utley. The reason is that it was a very minor matter, as made plain by Miss Fraser’s own expert, Professor Allen-Mersh, Professor of Gastrointestinal Surgery at Chelsea and Westminster Hospital, in his report dated 19 September 1997:- “4.07 I would regard it as standard practice that a rectal examination be undertaken during hospital admission where a patient develops severe constipation or anal pain or a combination of the two. The comment ascribed to Dr. Rizza Nandy [sic] that a rectal examination would be undertaken at the outpatient clinic in four weeks is not recorded in the contemporaneous case notes, but there is no record in the case notes of a rectal examination being performed during the admission to St. Bartholomew’s Hospital between 17th and 27th August 1982. This was unacceptable in a patient with these symptoms … However the consequences of the failure to carry out a rectal examination are limited, because a rectal examination was performed when Miss Fraser attended the Accident and Emergency Department at Barts on 1.9.82. The rectal examination at that time did not alter the previous management which emphasised control of constipation. … 5.01 The prolapsed haemorrhoids and chronic anal fissure were a consequence of fluctuations in bowel habit which occurred at the time of withdrawal of benzodiazepines at St. Bartholomew’s Hospital between 17th and 27th August 1982. It was unacceptable that a rectal examination was not performed during the admission to St. Bartholomew’s Hospital in response to Miss Fraser’s complaints about difficulty with constipation and difficulty with defaecation. The condition was correctly treated by haemorrhoidectomy and anal sphincterotomy, and there are no long-term physical disabilities in anal function.”

[106]Notwithstanding that the allegations in relation to failure to investigate Miss Fraser’s piles were a very minor matter, the position of Parlett Kent was that the doctors treating Miss Fraser at Bart’s in August 1982 had acted entirely properly because she had not complained of symptoms which should have prompted a rectal examination. The issue as to whether she had complained of such symptoms was a matter of fact on which the evidence of Miss Fraser was different from that of the relevant doctors. For reasons to which I am about to come, it seems to me that a Solicitor or a Barrister ought to have recognised that on this factual issue it was more likely that the evidence of Miss Fraser would not be accepted than that it would. However, it does not seem to me that the significance of this complaint of Miss Fraser was such as to require a Barrister or a Solicitor to consider it separately in forming a view as to the advice to be given to Miss Fraser concerning settlement.

Loss suffered as a result of negligence on the part of Bart’s

[107]If the trial judge in the Parlett Kent Action had been satisfied that negligence against the Authority would not have been established in the Bart’s Action, that wiped out all of Miss Fraser’s claims against Parlett Kent in relation to matters occurring before she instructed Parlett Kent. Although a possible outcome of the Parlett Kent Action, it was an extreme one. It was much more likely that the trial judge would find that there was some prospect of success in establishing negligence and I have indicated my view as to the percentage chance of success which a Barrister could have thought was appropriate. However, the establishing of a prospect of success on the issue of negligence simply brought into focus the next issue, what were the consequences for Miss Fraser of that negligence.

[108]In the Parlett Kent Skeleton it was submitted that:- “…even if the Plaintiff established negligence she would probably have failed to establish that such negligence was causative of anything other than an exacerbation of the withdrawal symptoms over a period of up to 6 months plus a delay in the treatment of her bowel problems of about 5 weeks.”

[109]The question of the consequences for her of the alleged negligence of the doctors at Bart’s was in fact a difficult issue for Miss Fraser. The principal evidence as to the consequences for her of the abrupt withdrawal of benzodiazepines actually had to come from her. She was the person who had suffered whatever the physical and psychological consequences were. However, she had been along this particular track to some extent before and had not done well. It is correct that the focus of attention at the trial before Drake J. had been Miss Fraser’s state of knowledge as to the cause of the symptoms of which she complained consequent upon the abrupt withdrawal of the benzodiazepines, but, inevitably, in the course of the consideration of that issue it was necessary to consider to an extent what the symptoms had been the cause of which she had to have had knowledge of in order to be able to make a claim. The only evidence of her symptoms from time to time after August 1982, other than whatever she could give herself, which was available for deployment at the trial of the Parlett Kent Action was the contemporaneous medical records. These were the very records which had been considered at the trial before Drake J., and concerning some of which Drake J. had made findings. One of his findings, tentatively, was that a report from Dr. Bruce at St. Thomas’ Hospital indicated that the severe mental disturbance which followed Miss Fraser’s discharge from Bart’s on 27 August 1982 lasted only about one month. Drake J. found in terms that the evidence contained in the contemporaneous medical records as to Miss Fraser’s complaints and condition from time to time was to be preferred to her own evidence, where the two differed.

[110]At any trial of the Parlett Kent Action Miss Fraser would have had to have given evidence, otherwise she would have had no real prospect of success at all. That need was recognised, and a total of three witness statements from her, dated, respectively 1 November 1994, 1 November 1996 and 7 October 1997 were prepared and served. The principal witness statement was that dated 1 November 1996. In this judgment I shall refer to that witness statement as “the Fraser Statement”. At paragraphs 4 to 68 inclusive of the Fraser Statement Miss Fraser explained what she contended had been the consequences for her of her treatment at Bart’s from 17 August 1982. In summary, what she described was a long history of frightening and disturbing symptoms. Her descriptions were different from, and not supported by, the contemporaneous medical records. Thus matters were set up for a re-run of the hearing before Drake J., with Miss Fraser’s evidence of the consequences for her of the abrupt withdrawal of the benzodiazepines being at variance from the contemporaneous records. Theoretically, I suppose, if Miss Fraser had been called to give evidence at a trial of the Parlett Kent Action she could have disowned the contents of paragraphs 4 to 68 inclusive of the Fraser Statement and modified her evidence so that it coincided with what was recorded in the contemporaneous medical notes. However, that was both unlikely and not an answer to the problem presented by the difference between the contemporaneous medical notes and the evidence of Miss Fraser in the Fraser Statement. As long as she maintained a position not supported by the contemporaneous notes there was a very strong possibility that the evidence of the medical notes would be accepted in preference to her evidence, as Drake J. did. However, if she changed her evidence, she would be challenged as to the reasons for the change. She would have been bound to have been cross-examined at a trial of the Parlett Kent Action concerning the conclusions of Drake J. as to her credibility. In my judgment, a Barrister or a Solicitor advising Miss Fraser on settlement on 20 October 1997 would have been bound to recognise that there was a very substantial risk that the evidence of Miss Fraser as to the consequences for her of the abrupt withdrawal of benzodiazepines in August 1982 would not be accepted. I think that a Barrister or a Solicitor would have put that risk somewhere in the bracket 75% to 90%.

[111]Although both Professor Ashton and Dr. Wood, in their respective reports, and also Margaret Ballard, a psychologist instructed on behalf of Miss Fraser, who prepared reports dated 27 August 1992 and 18 April 1996, respectively, accepted at face value what Miss Fraser had told them about the consequences for her of the abrupt withdrawal of benzodiazepines in August 1982, a Barrister or a Solicitor advising Miss Fraser concerning settlement on 20 October 1997 must, I think, have appreciated that the assessment of the reliability of Miss Fraser’s account was for the trial judge, and not any expert, and that that assessment was going to be influenced to a large degree by the extent to which it was supported by, or conflicted with, the contemporaneous medical records. However, evidence to be called on the Parlett Kent side from Dr. Hallstrom had some relevance to this issue. I have already quoted a passage from Dr. Hallstrom’s letter dated 24 February 1988 in which he envisaged that Miss Fraser might have suffered withdrawal symptoms over a long period even if she had had her benzodiazepine intake reduced gradually. However, another possibility which he canvassed in a delicate way in the same report was that whatever symptoms Miss Fraser suffered after the abrupt withdrawal of benzodiazepines were not, or were not wholly, due to that withdrawal. How he put it in his letter dated 24 February 1988 was:- “I note that Ms. Fraser has subsequently seen Dr. Young and been an in-patient at St. Thomas’ Hospital three months after her discharge from St. Barts and prior to that had seen Dr. Colin Brewer. Both of these doctors should have been skilled at recognizing her condition and presumably made the correct diagnosis, but apparently were unable to improve her condition dramatically. I note that even seeing Dr. Higgitt an authority on tranquilliser dependence, does not seem to have dramatically improved Ms. Fraser’s condition. It is of interest to read that her GP prescribed Diazepam for Ms. Fraser after her discharge from St. Thomas’ Hospital, but there is no record of whether they were helpful or not and if they were why she didn’t continue taking them. I would have thought that if Ms. Fraser was suffering from tranquilliser withdrawal then starting on Diazepam again would very rapidly improve the situation.”

[112]The point Dr. Hallstrom was making, I think, was that the obvious way in which to combat symptoms of withdrawal consequent on ceasing to take benzodiazepines was to administer those drugs so that there was no longer any withdrawal. Plainly the failure of the doctors consulted by Miss Fraser to identify that she was suffering from benzodiazepine withdrawal, and her failure to respond to the treatment for withdrawal, were suggestive of the cause of her symptoms not being benzodiazepine withdrawal. That picture was perhaps more consistent with the contemporaneous medical records than the account given by Miss Fraser.

[113]In his report dated 23 September 1997 Dr. Hallstrom was less oblique than he had been in his letter dated 24 February 1988:- “7. Of note even if the hospital had been negligent in abrupt discontinuation, it would only have resulted in a temporary increase in her symptoms (say a few months) and this would presumably only have attracted modest damages had negligence been proved. I did not believe at the time [of the letter dated 24 February 1988] and I do not believe that abrupt discontinuation necessarily has longterm harmful effects. …14. Ms Fraser was known to have suffered severe nervous symptoms prior to her benzodiazepine withdrawal then suffered a further period of depression following her withdrawal. We know that many people who had benzodiazepine withdrawal suffer long-term symptoms subsequently and in my experience and published evidence this does not have anything to do with the rate of withdrawal but their underlying long term chronic neurosis (by neurosis I mean long term mood disorder).

15. We know that she has a family history of serious mental illness. Her mother had a leucotomy, presumably for intractable depression so she had a strong genetic loading and risk for developing the illness herself. We know that she was previously treated with electro-convulsive therapy and LSD. We know that her personality or life circumstances were distorted by an affair with her treating psychiatrist. … 17. A far more likely explanation of events is that Ms Fraser had a long standing chronic depressive illness as demonstrated by her sleep disorder, which was partly being treated by benzodiazepines. She was more prone to withdrawal problems because of the high dose and duration of usage. By withdrawing the benzodiazepines, her illness got worse and thereby she reacted adversely. Some of the symptoms she described were quite clearly withdrawal symptoms but these should have been relatively short-lived. What remained long term was the symptoms of her underlying depression and anxiety. Abrupt withdrawal probably made the withdrawal symptoms worse, but for at most a few months.”

[114]The expert evidence of Dr. Hallstrom, if accepted, was thus consistent with the picture created by the contemporaneous medical records. He was not alone in identifying Miss Fraser as someone with a fragile personality. Dr. Wood, in the Wood Report, described Miss Fraser in this way:- “It seems likely that as a person with a sensitive and artistic nature, Miss Fraser was vulnerable in her personality at the time she was withdrawn from Benzodiazepines and that this will have been an important factor in perpetuating symptoms which usually subside in a matter of months in the majority of cases.”

[115]In the light of the expert evidence which was to be adduced at the trial of the Parlett Kent Action, therefore, it was entirely possible that the trial judge might have felt that the assessment to which Drake J. seemed inclined in the light of the contemporaneous medical records, that the withdrawal symptoms affected Miss Fraser for a short period of a month or so, was reinforced by the views of Dr. Hallstrom and of Dr. Wood that Miss Fraser had a vulnerable personality. On the assumption that Miss Fraser’s claims against Bart’s were established as to liability, she only had a substantial loss as a result of the negligence complained of if the withdrawal symptoms consequent upon cessation of taking benzodiazepines had endured for a significant time and had had the effect that she was, whilst suffering from the withdrawal symptoms, incapable of significant gainful work.

[116]There were available to the legal advisers of Parlett Kent the advices of counsel who had acted for Miss Fraser prior to her commencing the Parlett Kent Action. How Mr. Lynagh and Mr. Tucker intended to deploy that material was set out in the Parlett Kent Skeleton:- “Reference will be made at trial to the contemporaneous records and documents and pleadings. It is of interest however to note the view(a) of Mr. Oliver Thorold of Counsel expressed at conference on 8th September 1988 that the claim was worth at most around £9,000;

(b) of Mr. Charles Lewis of Counsel in writing on 15th December 1989 provisionally valuing the claim at £15,000;

(c) of Mr. Charles Lewis in writing on 11th December 1990 that any offer above about £6,000 must be carefully considered;

(d) the Plaintiff’s willingness to accept £50,000 in settlement of her claim which was regarded by her then solicitors Pannone Blackburn as an unrealistic expectation. The Defendant relies in particular upon the report of Mr. Ian Hobbs and reserves any further comment upon the likely quantum of the Plaintiff’s claim against the health authority until all relevant factual and expert evidence has been heard.”

[117]The purpose of referring to the earlier opinions of counsel plainly was to suggest that even on Miss Fraser’s own side at earlier points in the history the effects of the abrupt withdrawal of benzodiazepines had been considered to be of limited duration. I have already quoted from the Advice of Mr. Lewis dated 15 December 1989. He was looking at general damages for pain and suffering of a maximum of £5,000, some incidental small expenses claims, plus two years loss of earnings at £5,000 net per annum.

[118]Whilst, conceptually, the focus of the trial judge was not so much on what would have been proved had a trial of the Bart’s Action on the merits taken place, but what was the value of the chance of a satisfactory outcome, I think that it is quite unrealistic to suppose that on the issue of the consequences for Miss Fraser of the abrupt withdrawal of benzodiazepines the trial judge would not in fact have decided what the consequences were, on the evidence. He would not have considered what were the chances of Miss Fraser’s account of the consequences being accepted. He would have decided whether he accepted that evidence. As I have explained, it was a vital matter on which Miss Fraser had to succeed in order to demonstrate that the chance of her claim in the Bart’s Action was of a significant value. If the trial judge had concluded that the effects of abrupt withdrawal only endured for about one month, even if she had succeeded in establishing negligence in the Bart’s Action the worth of the claim was small.

[119]Miss Fraser’s case was that she had never undertaken significant gainful work since August 1982, at least initially as a result of the effects upon her of the abrupt withdrawal of benzodiazepines, but from learning that Parlett Kent had failed to serve the first writ in time, in part also from the effect upon her of that knowledge. It will be necessary to return to the causes of the alleged financial losses, but it is convenient to consider next the quality of the evidence in support of those alleged financial losses.

The evidence of alleged financial losses

[120]Expert evidence in relation to alleged financial losses was prepared on behalf of Miss Fraser by Mr. Alan Cushnir, an accountant. Mr. Cushnir prepared two reports, one dated 19 August 1997 and one dated 1 September 1997. The main report was the first one. In that report Mr. Cushnir calculated that, but for the events of August 1982, Miss Fraser would have made net profits of £561,281 up to 31 December 1996. The principal steps in that calculation he explained in this way:- “2.3 As a result of her leaning towards the arts in general and her travels with Mr. Jordan in particular, she developed an interest in traditional and ethnic art and in particular ethnic jewellery. Her travels took her throughout Africa, the Middle East, the Far East and the Caribbean and as a result she increasingly studied the art and jewellery styles of the countries that she visited. Although at that time she continued some modelling and PR work, by 1979 she was actively engaged in the design and manufacture of jewellery in the styles of the countries that she had visited. She was also researching this subject with a view to publishing a book. 2.4 Her jewellery products, mainly necklaces and earrings, were composed of silver and semi-precious stones. This activity became a part-time commercial venture by the beginning of 1979. She was working approximately 10 hours per week making the jewellery and selling it from stalls in Camden Passage and, initially, to a lesser extent, Bermondsey Market. …4.1 Firstly, we calculated the total recorded sales from the amounts entered in Miss Fraser’s diaries and the amounts shown on the copy invoices and compared the total with the figures shown on Exhibit 1. There were some differences between these figures but it had been possible to demonstrate that the earnings record that she prepared is approximately correct. The results of our comparison are as follows (there being no diary records for 1982) Year to 31st December 1979 1980 1981 £ £ £ Aggregate of invoices and diary record 8,189 4,306 4,129 Sales per Exhibit 1 8,200 6,100 4,790 Difference 11 1,794 661 I regard the difference of £11 in 1979 as immaterial. The differences in 1980 and 1981 were explained by Miss Fraser as arising from sales to customers abroad and remaking jewellery for people using their own materials, the receipts from which she did not record in her diaries, nor did she issue invoices. While the differences in those two years are larger than could be expected, I believe that her explanation is acceptable As far as 1982 is concerned, I annualised total sales for the period which are shown on Exhibit 1 as £4,308. An annual equivalent of this figure is approximately £6,900 which is not unduly different from annual sales in earlier years. In my opinion, it is reasonable to accept her earnings record as the total sales for the period from the 1st January 1979 to 17th August 1982.

4.2 I asked Miss Fraser how she calculated her selling price. She told me that this was, on average, 3 times the material cost, i.e. the cost of materials was approximately one-third of selling price. We attempted to prove this. We referred to the note books. Although these are not dated, it was possible to identify the earliest items with the earliest recorded sales and thus identify some of the note book entries with the diary entries. The results are shown as Appendix I. It will be seen that, on average, the material cost was approximately one-third of sales, thus substantiating Miss Fraser’s contention in this respect.

4.3 I asked Miss Fraser if she could give me details of her expenses and overheads so that I could calculate the net profit which she actually earned during this period. She informed me as follows: [it is not necessary to set out the detail in this judgment] 4.3.7 I reproduce as Appendix II my reconstruction of her profit and loss accounts for the period of trading. Net profits are as follows Year to 31st December 1979 £4,623 Year to 31st December 1980 £3,347 Year to 31st December 1981 £2,533 Period to 17th August 1982 £2,412 Miss Fraser explained the downward trend in sales and income in 1980 and 1981. Her Bermondsey outlet ceased in July 1980, thus leading to reduced sales in that year, and in 1981 her parents were seriously ill and she devoted a great deal of her time to their health and welfare, which took her away from her jewellery manufacturing business. However, she was able to devote more time to the business by early 1982. …

5.1 Miss Fraser appears to be highly intelligent and extremely adaptable. In my opinion she has undoubtedly lost the opportunity to earn substantial income from being unable to apply her various skills. She informed me that she still received offers of work from modelling agencies and public relations consultants up to the late 1980s. I refer to this in more detail in paragraph 8. Miss Fraser told me that she so enjoyed making the jewellery on a part-time basis that, by the beginning of 1982, she had decided to expand the business and work full time. She expected that, by the beginning of 1983, this plan would have come to fruition. My approach to this claim is therefore based upon the reasonable assumption that the loss of earnings should be calculated by reference to a full time business commencing on the 1st January 1983. I therefore considered the quantum of profits achieved during the part time business and extrapolated my figures from the results arrived at Appendix III. Miss Fraser confirmed that she had considered this expansion in great detail and gave me the following additional information.

5.2 Turnover As explained, the sales to August 1982 were achieved after working a maximum of 10 hours per week actually making jewellery. Selling took place mainly on weekends. Miss Fraser estimates that, on the business becoming full time, she could have worked up to 50 hours per week making the jewellery, apart from the time that would have been required selling it. Thus, if she was able to generate sales of approximately £8,200 per annum working 10 hours per week (i.e. the total sales in 1979), it is reasonable to assume that the turnover that could be generated working 50 hours per week would be 5 times this, viz. £41,000 per annum. However, Miss Fraser also told me that the prices that she could command working part time were well below their full potential. Most of her sales were to other dealers, either in the UK or in France and they bought her products for resale after adding their own mark-ups. She said that their mark-ups were substantial, mentioning anything up to 3 times the price that they paid her for the jewellery. She estimates that, were she to work full time, a substantial part of her sales would have been direct to members of the public and therefore she also could have achieved these increased mark-ups. She says that at least one half of her total sales would have been at retail prices, leaving one half only to dealers. She confirmed that it was her intention to maintain the same mark-up of one-third of the sale price as material cost, but that her retail selling price would have been at least double the price to dealers. … Based on the sales achieved in the year to 31st December 1979 as a minimum, I believe that total turnover that could have been achieved in the full time business in 1983 can be arrived at as follows: £ Annual sales achievable working 10 hours per week 8,200 Annual sales achievable working 50 hours per week 41,000 Add: further mark-up on retail sales 50% of total sales 20,500 Extrapolated annual sales achievable in 1983 £61,000” The results of our comparison are as follows (there being no diary records for 1982) £ £ £ diary record 8,189 4,306 4,129 Sales per Exhibit 1 8,200 6,100 4,790 Difference 11 1,794 661 Year to 31st December 1979 £4,623 Year to 31st December 1980 £3,347 Year to 31st December 1981 £2,533 Period to 17th August 1982 £2,412 £ Annual sales achievable working 50 hours per week 41,000 Add: further mark-up on retail sales Extrapolated annual sales achievable in 1983 £61,000”

Add: further mark-up on retail sales

[121]Mr. Cushnir went on to calculate anticipated costs of the full-time business which he postulated, including premises and part-time staff. He set out at Appendix III to his principal report a calculation of a net profit of £30,120 for the year ended 31 December 1983, which he rounded down to £30,000. However, in Appendix IV Mr. Cushnir set out his calculation of the figure of £561,281 which I have mentioned. The calculation was simply based on assuming that his net profit figure of £30,000 for the year ended 31 December 1983 would have increased in each succeeding year, other than in the years 1990 to 1994 inclusive, which were assumed to be years of no growth, until the year ended 31 December 1996 by the increase in the Retail Prices Index. In expressing his view as to the past losses of Miss Fraser Mr. Cushnir allowed for the incidence of income tax and National Insurance contributions, and reduced the figure of £561,281 to £400,054. Having made the same allowance, Mr. Cushnir assessed Miss Fraser’s continuing losses at £33,084 net per annum.

[122]Mr. Cushnir’s calculations were, of course, just that – calculations. In order to prove at the trial of the Parlett Kent Action that she had lost, by Parlett Kent’s negligence, the chance of recovering damages including substantial compensation for loss of earnings from the Authority Miss Fraser had, in reality, to prove in the Parlett Kent Action that she had lost the earnings which Mr. Cushnir had calculated. Again, in theory what had to be proved was that she had lost the chance of recovering damages calculated on the basis for which Mr. Cushnir contended, but once more I think that it is unrealistic to expect the court to proceed on that theoretical basis when the evidence which would have been relied upon in the notional trial of the Bart’s Action was in fact before the court.

[123]There was no prospect of Mr. Cushnir’s calculations being accepted without a substratum of fact for the hypotheses upon which he based his calculations being accepted. It was not enough for Mr. Cushnir to postulate that, but for the consequences for her of the abrupt withdrawal of the benzodiazepines, Miss Fraser would have established a full-time jewellery business. That contention had to be demonstrated as correct by evidence, and at least the most important of that evidence had to come from Miss Fraser. She had to say that, but for the events of August 1982, she would have set up the jewellery business, and that evidence had to be accepted by the trial judge.

[124]Unfortunately for this part of the case there was in fact no direct evidence that Miss Fraser had any intention of establishing a full-time jewellery business. Certainly she did not say in terms in any of her witness statements prepared for the purposes of the Parlett Kent Action that that was what she had intended to do. The closest she got was to say, in her witness statement dated 7 October 1997, at paragraph 3:- “I have read the report of Mr. Alan Cushnir, and I confirm that the facts and figures referred to in the report are accurate.”

[125]That assertion was not very impressive compared with what she said about her circumstances and her work in the Fraser Statement:- “95. At the time I was admitted to St. Bartholomew’s in August 1982 I was engaged to be married to Mr. Jordan. We had first planned to be married in 1975, but I put it off so that Mr. Jordan, who had long wanted to become a freelance writer, would not be inhibited in his wish to leave his permanent post at the BBC (which he did in 1976) and fulfil his long-held ambition. I did not want him to feel responsible for earning money, and to have to take work he did not want purely for financial reasons, which I felt marriage might impose on him. Although he was not altogether happy about this, it was not the reason that four years’ [sic] later he decided to stop freelance writing and take up a permanent position offered to him at the Commonwealth Secretariat in July 1980. 96. We had wanted to buy a property before having a child and it was extremely difficult to get a mortgage without a guaranteed income. While we were searching for a suitable property, my father became seriously ill and then so did my mother. I was unable to continue looking at that time, and had to switch my attention to attending to my parents’ concerns, including finding more suitable accommodation for my father and mother. However, the opportunity arose to buy the rented flat in which we lived and our neighbour’s as well. My illness wrecked these plans. I have suffered a breakdown of my emotional relationship with Mr. Jordan. Cancellation of our engagement and marriage plans were due to my changed views and personality. As a result of this, I did not have the child I wanted and planned. …138. In 1979 while working part-time my earnings were £6,200 with a further £2,000 received from the Marco Polo Art gallery and other buyers abroad. My earnings for 1979 thus totalled £8,200.00.

139. In 1980 I continued to work part-time with a great part of my time spent on research and preparation for my book. My earnings for 1980 were approximately £6,100.00.

140. In 1980 I independently attended the Commonwealth Film and Television Festival in Cyprus. During the Festival the director of the London-based Interaction Theatre Group asked me if I would be interested in theatrical work and I told him I would actively consider it. As Mr. Jordan had taken up salaried employment in July 1980 and could get a mortgage, I was looking for a house to purchase as well as fulfilling orders for my jewellery for the Marco Polo Gallery in Paris. However, the possibility of stage work was something which I wished to return to when other commitments permitted. These intentions were disrupted, first by my father’s illness, followed by that of my mother and then by my own illness at the hands of St. Bartholomew’s Hospital. I was also offered the prospect of a jewellery exhibition at the Commonwealth Institute, London. I was working towards responding to opportunities such as these when, in May 1981 my father suffered a massive stroke which eventually rendered him unable to speak or move. My mother was unable to care for him; some months later, just before I was admitted to St. Bartholomew’s Hospital, she had two severe heart attacks, and was admitted to hospital. I took Power of Attorney for my father and assumed responsibility for both my parents.

141. Because I was taking care of my parents I was unable to undertake much work in the second half of 1981, as I had to deal with my father’s affairs and organise his care and nursing. I had to lobby to get him moved from unsuitable hospitals to ensure proper treatment which included speaking to MPs at the Houses of Parliament. My earnings for 1981 were £4,790. My earnings for 1982 until 17th August 1982 were £4,308.

142. Apart from the problems with my parents’ health, when I entered St. Bartholomew’s Hospital I was in a position to launch my career properly. I had several years experience as a jewellery designer and had begun to develop an international clientele. I was selling jewellery to clients from as far afield as Paris, Geneva, Italy (Lucca and Naples), Holland, Spain, Portugal, Munich, Beirut, Mexico City, USA (Detroit, San Francisco, Florida).

143. After August 1982 I had to drop all ideas of holding exhibitions at the Marco Polo Gallery in Paris and the Commonwealth Institute in London. I had also hoped to organise an exhibition at Sante [sic] Fe in New Mexico, through the good offices of the interior designer Jack Beresford of San Diego, California, who collected my jewellery. I suffered damage to my reputation as I was unable to fulfil my commitments. I was also unable to continue with my projected book on ethnic jewellery and have suffered loss accordingly as the book would have extended my professional reputation and would also have brought in some remuneration.

144. From the time of my treatment at St. Bartholomew’s Hospital in August 1982, I was not able to resume any sort of work until late 1985. During this period, some of my jewellery-making materials were sold off because I did not think I would work at this again. I sold other possessions including paintings which had upset me when I was ill. I had some money from my parents, and Mr. Jordan assisted with basic costs. … 147. I have not been able to work properly since August 1982. Although I have done a little sporadic and part-time work from 1985 onwards, my earnings have been negligible. Only in 1988 did I feel able to try to put together my jewellery career again. In that year some of my jewellery was selected for a fashion shoot for ‘Country Life’ magazine … However, I have never felt well enough to work properly as I could before August 1982, and although I have gone on trying, I completely lack the required concentration and organisational ability, being troubled by disturbing flashbacks to my experiences. I also have seriously diminished technical skills. In 1988 I took an evening course in small business management at the City of London Polytechnic to try and organise myself but found it impossible to follow and I could not benefit from it, although I completed the course. By contrast, I had previously shown some flair for business management. 148. My earning abilities have never recovered, and earnings have been very small. In the tax years since 1988 I have declared profits as follows: £856 (1988/9), £1030 (1989/90), £1208 (1990/91), £1295 (1991/2), £1232 (1992/3), £1488 (1993/4). My earnings since then have declined even further. 149. In addition to pursuing my jewellery career had I been able I would have also relaunched my modelling career. As the 1980s progressed it became clear that this goal could indeed have been achieved because former models of the 1960s and 1970s became very sought-after in the 1980s and early 1990s. … 153. I consider that if my career had not been cut short by the negligent treatment at the hands of St. Bartholomew’s Hospital, followed by the further mental distress caused by the first solicitor’s negligence, I would have enjoyed substantial success as a jewellery designer in the affluent eighties with the prospect of selling exhibitions in several countries as well as the prospect of an ongoing long-term career.”

[126]There was not a single reference in the passage quoted, or in the entire witness statement, to Miss Fraser intending to establish a full-time jewellery business. Many references in the passage quoted were in fact inconsistent with the operation of a full-time jewellery business. Miss Fraser said that in August 1982 she was planning to marry Mr. Jordan and to have a child. At that time she was 41 years of age. It may well be that the burdens of child care would have been significant. Certainly it is not obvious that Miss Fraser would have had time to spend 50 hours a week – an average of 7 hours each day of the week – designing and making jewellery, as well as running a shop in which the jewellery could be sold. Apart from, and as well as, marrying and having a child, Miss Fraser was thinking about taking up theatrical work, planning jewellery exhibitions, one in the United States, writing a book and re-launching her modelling career. Again, it is not easy to see how these activities could conveniently have been combined with working 50 hours a week designing and making jewellery and operating a shop in which the jewellery could be sold. The possibilities covered in the passages quoted from the Fraser Statement rather suggest that in August 1982 Miss Fraser had no particular future plans, apart from marrying Mr. Jordan and having a child. Her only gainful activity for several years had been making and selling jewellery at market stalls.

[127]Amongst the material available for a trial of the Parlett Kent Action were other obstacles to the acceptance by the trial judge of the proposition that Miss Fraser was, in August 1982, about to establish a full-time jewellery business. She said nothing about that to Dr. Wood, when she saw him. In the section of the Wood Report entitled “WORK” he recorded this, so far as is presently material:- “MISS FRASER told me that prior to her admission to hospital in 1982 she designed jewellery. She had worked in public relations. She had done photographic modelling work, although this aspect of her career had receded somewhat at that time and she had also worked as a photo engraver. She had designed covers using her artistic talent, having studied fine arts and obtained a preliminary diploma in this at Auckland University in New Zealand in 1957. Her principal involvement was designing jewellery and working in public relations in 1982. She worked doing TV commercials in the 1960’s in particular. She anticipated that her modelling career would have continued after 1982 had she not become ill.”

[128]It is unclear why Dr. Wood noted that Miss Fraser was working in public relations in 1982. There was no other evidence to that effect. Dr. Wood did, however, note that Miss Fraser told him that she was intending in 1982 to marry Mr. Jordan. That was also noted in the 27 August 1992 report of Margaret Ballard.

[129]Mr. Ian Hobbs was instructed on behalf of Parlett Kent to give expert accountancy evidence for the purposes of the Parlett Kent Action. He prepared a report dated 7 October 1997. At paragraph 2.9 of that report he quoted from a letter dated 30 April 1989 written by Miss Fraser to Caroline Jenkins of Parlett Kent:- “Concerning the matter of my own earnings, this again is not straightforward. As you know I was preparing for an exhibition in a Paris gallery, but this never took place as I could not continue my work due to my condition, so years of preparation were wasted. Since I had been helping with the care of my father after his serious stroke in 1981, I had not been able to pursue my work full-time prior to entering hospital. For that reason it is not possible to give yearly earning figures, and difficult to estimate a figure. I have put a figure of £10,000 for this, but the loss is potential as well as actual. I would appreciate your advice on this.”

[130]Once Miss Fraser had instructed Pannone in place of Parlett Kent she had a discussion with Magi Young on 30 August 1989. Magi Young made an attendance note of the discussion. At paragraph 2.10 of his report Mr. Hobbs quoted from the attendance note. The quotation included:- “I asked how she had arrived at the figure of £10,000 for loss of earnings. Miss Fraser said she had just picked on this figure which she seemed [sic] a conservative one to her. I said that we would need proof of her pre-accident earnings and if possible evidence relating to the likelihood of these earnings continuing or increasing. One problem which Mr. Jordan was concerned about was the fact that Miss Fraser had not accounted to the Inland Revenue for monies earned.”

[131]At paragraph 2.22 of his report Mr. Hobbs drew together his views on the contention that, but for the events of August 1982, Miss Fraser would have established a full-time jewellery business:- “My reasons for doubting Mr. Cushnir’s conclusion that any full-time jewellery business would have generated £30,000 profit in the year ended 31 December 1983, and consistently thereafter, include the following;- 1. Prior to her admission to St. Bartholomew’s Hospital on 17 August 1982, Miss Fraser was suffering from various physical and psychological ailments. She still apparently suffers from some of these ailments. 2. So far as I can tell, Miss Fraser has never worked full-time at anything after her arrival in England and before August 1982. 3. Professor Ashton says, in her report, that while she was being weaned off her drug dependency, which would take between six and eighteen months, Miss Fraser would not have been able to work part-time. Professor Ashton does not suggest that Miss Fraser could have worked full-time during the drug withdrawal process. It therefore seems unlikely that Miss Fraser could have commenced worked [sic] full-time until 1 January 1984 at the earliest. 4. Dr. Hallstrom suggests, in his report that Miss Fraser’s chances of recovery from her drug addiction may have been no more than 50%. If that is right then there is no good reason to suppose that, if the drug withdrawal programme was not successful, Miss Fraser would have been in a better position to carry on full-time work after 17 August 1982 than she was before. 5. Miss Fraser does not say, in her Witness Statement, that she had any intention to work as a jeweller full-time. 6. Miss Fraser did not explain to any of her previous legal advisers her intention to work full-time in the jewellery business. 7. Even if she had worked full-time in the jewellery business there was at least a 50% chance, and perhaps an 80% chance, of the business failing. 8. Miss Fraser’s parents remained ill and needed care. Her father died in 1988 and her mother died in early 1997. 9. It was, prior to 17 August 1992 [sic], Miss Fraser’s intention to marry Mr. Jordan and have a child (see paragraphs 95 and 96 of Miss Fraser’s Witness Statement).”

[132]These are powerful points. Their inclusion in this summary of Mr. Hobbs’s views made it plain, I think, to a Barrister or a Solicitor that there was going to be a serious and sustained attack on the proposition that, but for the abrupt withdrawal of the benzodiazepines in August 1982 and the alleged consequences of that withdrawal for Miss Fraser, she would have established a full-time jewellery business in which she would have made the sums projected by Mr. Cushnir. In my judgment, a Barrister or a Solicitor in the circumstances must have recognised that the prospects of satisfying the trial judge that Miss Fraser would have established a full-time jewellery business were slim, and that the probability was that the trial judge would assess the damages which Miss Fraser would have recovered, if successful in the Bart’s Action, on the basis of his assessment of the evidence as to the period for which the consequences of the abrupt withdrawal of the benzodiazepines affected Miss Fraser and the income which she had in fact been making on a part-time basis up to 17 August 1982. I think that a Barrister or a Solicitor would have recognised that there would have been a considerable temptation to the trial judge to consider the figures suggested by Mr. Lewis in his Advice dated 15 December 1989. In other words, it seems to me that a Barrister or a Solicitor would have considered that there was a substantial risk that the trial judge would assess the value of Miss Fraser’s claims in the Bart’s Action, if negligence had been 100% established, at a figure of the order of £15,000 plus interest. It was agreed in the Parlett Kent Action that interest would double the amount which would have been recovered in the Bart’s Action, as the agreed interest factor was 100.17%. On the hypothesis that the worth of the claims in the Bart’s Action, if tried on 1 January 1989, was £15,000, the recovery in the Parlett Kent Action would have been £30,025.50. However, in valuing the loss of the chance of success in the Bart’s Action for the purposes of the present action, account had to be taken of the prospects of establishing liability against the Authority. If the prospects of success a Barrister should have considered lay in the range 40% to 60%, the value of the lost claims was £12,010.20 to £18,015.30.

[133]Given the other difficulties in relation to the claims for loss of earnings it is perhaps a minor matter, but I do not think that a Barrister or a Solicitor could have ignored, in the context of the alleged continuing loss of earnings, the possibly negative evidence of Margaret Ballard in her report dated 18 April 1996 at paragraph 7, concerned with “Prognosis”:- “Until the injustice which occupies her thoughts has been resolved and righted she is likely to go on as before. If anything her psychological state seems somewhat worse than in 1992. A settlement would make it more probable that she would be able to settle again to some creative work and thus become independent again.”

[134]It was the view of Dr. Wood that:- “MISS FRASER had some prospect of achieving a partial return to work had the legal negligence not occurred and had the medical negligence case been resolved in the late 1980’s. This prospect would have been higher had the medical negligence case succeeded. Under these circumstances I estimate that she would have worked at at least 50% capacity. This allows for periods of ill health to have disrupted her work pattern. As it is, the legal negligence has prevented her from having any prospect of working in recent years as a result of the chronic exacerbation of her mental condition. She is most unlikely to recover to any appreciable extent at this stage and there is no realistic prospect of MISS FRASER returning to any form of gainful employment.”

[135]It is possible that the trial judge hearing the Parlett Kent Action might have been persuaded to prefer the view of Dr. Wood to that of Margaret Ballard. However, the evidence of some earnings by Miss Fraser from designing and making jewellery in the period 1988 to 1994 of which she spoke at paragraph 148 of the Fraser Statement did not really support the proposition that Miss Fraser had no chance of returning to any form of gainful employment.

[136]While, as I have said, it seems to me that a Barrister or a Solicitor needed to take into account the risk that the trial judge would find that Miss Fraser would be able to return to some form of gainful employment once the Parlett Kent Action was resolved, it was as part of the consideration of the risks of not recovering damages for loss of earnings calculated on the basis for which Mr. Cushnir contended, rather than as a separate point.

The claims against Parlett Kent in respect of the alleged psychological consequences of its negligence

[137]The claims against Parlett Kent in respect of the alleged psychological consequences for Miss Fraser of its negligence were conceptually quite separate from the claims based on the loss of the prospects of success of the Bart’s Action. The worth of the chance of success in the Bart’s Action could be assessed at nil without affecting, in theory at least, the claims founded on the psychological consequences of the negligence of Parlett Kent.

[138]However, the claims based on the alleged psychological consequences were difficult from a legal point of view and depended critically upon findings of fact as to whether Parlett Kent should have recognised that negligence on its part in failing to serve the first writ in time was likely to cause Miss Fraser psychological harm.

[139]The problem in law which had to be addressed on behalf of Miss Fraser, if the claims based on alleged psychological injury were to succeed, was whether a solicitor taking on a claim on behalf of a client who complains of medical negligence owes a duty of care to that client which extends to not exposing him or her to the risk of psychological harm.

[140]Interestingly, in the Parlett Kent Skeleton the question of the existence of a duty of care to Miss Fraser which extended to not exposing her to the risk of psychological harm was tackled at an early point, and in advance of grappling with the prospects of success of Miss Fraser’s claims against the Authority. The tactical decision to advance the point beyond perhaps where it logically appeared, after the issues relating to the Bart’s Action, was perhaps suggestive of Mr. Lynagh and Mr. Tucker considering that Parlett Kent’s position on this issue was strong. Certainly it was addressed in detail in the Parlett Kent Skeleton:- “In Cook v. Swinfen

[1967] 1 WLR 457

the Plaintiff’s solicitors had been negligent in their conduct of matrimonial proceedings as a result of which she lost the chance of obtaining a more favourable financial outcome and maintenance for her son. Damages were awarded for the loss of such chances but damages for her ensuing ill-health and loss of earnings were refused on the grounds that they were not a reasonably foreseeable result of the Plaintiff’s failure to conduct the proceedings properly. At page 461 Lord Denning MR said:

“In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. So the question became this: when a client goes to a solicitor, is it a reasonably foreseeable consequence that, if anything goes wrong with the litigation owing to the solicitor’s negligence, there will be a breakdown in health? It can be foreseen that there will be injured feelings; mental distress; anger, and annoyance; but for none of these can damages be recovered. It was so held in Groom v. Crocker on the same lines as Addis v. Gramophone Company. Is it reasonably foreseeable that there may be an actual breakdown in health? I do not think so. It was suggested in this case that there were special circumstances in that Mrs. Cook was peculiarly liable to nervous shock. I am afraid she was. The history of her life shows one nervous breakdown after another. If this special circumstance was brought home to Mr. Swinfen, it might enlarge the area of foreseeability so as to make him liable. But it was not pleaded. And when Mr. Moloney put questions to Mr. Swinfen, he did not succeed in showing that special circumstances were brought home to him. All Mr. Swinfen knew was that she was a woman obviously highly strung and worried as any woman would be in the circumstances. But that does not mean that he should foresee that, if he was negligent, she would suffer injury to health. In all these cases of nervous shock and breakdown in mental health, it is very difficult to draw the line. In King v. Phillips I asked: ‘Where is the line to be drawn?’ And I found the answer given by Lord Wright: ‘Only where “in the particular case the good sense of the judge decides”

. In this present case the judge thought the damages for the breakdown in health were too remote. I am not prepared to disturb his ruling. On this point the appeal fails.” It is of interest that the Statement of Claim in the present action does not allege that the Defendant solicitor knew of any special circumstances which ought to have alerted them to the fact that the Plaintiff was likely to suffer injury to her health as opposed to mental distress, anger or annoyance if her claim was not properly handled. The Schedule of Loss dated 21st February 1995 made no such assertion. Only in the latest Schedule dated 29th August 1997 is it suggested that the Defendant was aware that the Plaintiff was “psychologically frail” and that it was reasonably foreseeable to the Defendant that negligent conduct of her case would be likely to cause her further psychiatric injury. This is denied. In Malyon v. Lawrance Messer & Co. [1968] 2 Lloyds LR 539, a Plaintiff whose solicitors had failed to commence proceedings in respect of a road accident recovered damages against them in respect of inter alia “a genuine neurosis” due to the accident and which, an early medical report received by the solicitors had said, had every prospect of clearing up as soon as the action (against the other driver) was settled. The solicitors’ inertia was held to have helped “fan the Plaintiff’s mental condition and keep it alive”. Brabin J held that it must have been “obvious to the defendants that the plaintiff’s condition was worsening certainly not improving, by reason of the inordinate delays admittedly due to the defendant’s negligence.” That case, it [is] submitted differs from the present case in that (a) the Plaintiff, Mr. Malyon, had already suffered a very severe anxiety neurosis before instructing the defendants; (b) the defendants, who were negligent in not issuing proceedings before September 1961, knew from April 1960 by virtue of their receipt of a medical report that the plaintiff’s neurosis would not disappear until his claim against the other driver was disposed of; (c) the expert medical evidence available to the Defendant in the present case did not show that there was every prospect of the Plaintiff’s condition clearing up as soon as the claim against the Health Authority was finalised. Such evidence as there was was quite ambivalent on the subject. In Heywood v. Wellers

[1976] 1 QB 446

the Plaintiff instructed a solicitor to apply for an injunction to restrain a man from persistent pestering of her. The solicitor negligently failed to obtain such an injunction and the Plaintiff recovered damages for mental distress due to the continued molestation which an injunction would have prevented. Having referred to the cases of Jarvis v. Swans Tours Ltd.

[1973] QB 233

and Jackson v. Horizon Holidays Ltd.

[1975] 1 WLR 1468

in connection with damages for disappointment, upset and mental distress, Lord Denning MR said “Owing to their want of care she was molested by this man on three or four occasions. This molestation caused her much mental distress and upset. It must have been in their contemplation that if they failed in their duty she might be further molested and suffer much upset and distress.” Lord Denning then distinguished inter alia Cook v. Swinfen saying “here the solicitors were employed to protect her from molestation causing mental distress – and should be responsible in damages for their failure.” At page 463 Lord Justice Bridge said:

“There is I think a clear distinction to be drawn between mental distress which is an incidental consequence to the clients of misconduct of litigation by his solicitor, on the one hand, or mental distress on the other hand which is the direct and inevitable consequence of the solicitor’s negligent failure to obtain the very relief which was the sole purpose of the litigation to secure. The first does not sound in damages; the second does.”

It is submitted that the Plaintiff’s claim in the present action clearly falls within the category of claims which do not sound in damages. The Defendant was retained by the Plaintiff to bring a claim against the health authority for damages. The Defendant was not retained to provide revenge, justification, peace of mind or freedom from distress. More recently the Court has considered the question of psychological damage caused by the negligent handling of litigation in Keyes v. Blake Lapthorn 30.6.97 (unreported) Douglas Brown J. The Learned Judge dismissed the Plaintiff’s claim for psychological damage both on the facts and as a matter of law. In doing so he rejected any analogy between cases of solicitors’ negligence and the holiday cases and referred to both Cook v. Swinfen and Heywood v. Wellers. In Hayes v. Dodd

[1990] 2 All ER 815

the Court of Appeal overturned an award of damages for anguish and vexation which had been made in favour of the Plaintiff whose solicitors had negligently and incorrectly advised him that the property which he was about to purchase enjoyed a particular right of way. At page 824 Staughton LJ said:

“I am not convinced that it is enough to ask whether mental distress was reasonably foreseeable as a consequence, or even whether it should reasonably have been contemplated as not unlikely to result from a breach of contract. It seems to me that damages for mental distress in contract are, as a matter of policy, limited to certain classes of case. I would broadly follow the classification provided by Dillon LJ in Bliss v. South East Thames Regional Health Authority [1987] ICR 700 at 718: ‘…where the contract which has been broken was itself a contract to provide peace of mind or freedom from distress …’ It may be that the class is somewhat wider than that. But it should not, in my judgment, include any case where the object of the contract was not comfort or pleasure, or the relief or [sic] discomfort, but simply carrying on a commercial activity with a view to profit. So I would disallow the item of damages for anguish and vexation.”

At page 826 Purchas LJ said:

“I agree with the approach adopted by Staughton LJ reflecting, as it does, the judgment of Dillon LJ in Bliss v. South East Thames Regional Health Authority [1987] ICR 700 at 718, namely that damages of this kind are only recoverable when the subject matter of the contract or duty in tort is to provide peace of mind or freedom from distress. I would approach this special and restricted head of damage rather in the same way as the Courts approach the question of pecuniary loss dissociated from physical damage caused by negligence. Damages of that nature are recoverable only when the special relationship between the parties demonstrates that the one has in mind the liability to pay pecuniary loss and the other relies on that assumption of responsibility. It is a very far cry from a submission that damages can be recovered by a litigant who is involved in the frustration and hassle inevitably arising out of a breach of contract or tort of this sort, including that involved in seeking his remedies at Court. Even in the cases of persons unduly susceptible to those pressures, I doubt whether damages would be recoverable under this head.”

In Watts v. Morrow

[1991] 1 WLR 1421

the Court of Appeal awarded the Plaintiffs damages for the physical discomfort suffered during building works which had been required to rectify defects which their surveyor had negligently failed to notice and for the mental distress directly related to such physical discomfort. The Plaintiff failed to recover damages for the wider distress and inconvenience which was not directly linked to physical damage. It is submitted that the cases appear to indicate as follows: (i) damages are not recoverable for anger, mental distress, anguish, frustration or disappointment, unless (a) there is a breach of a contract to provide entertainment, enjoyment or peace of mind; or (b) the mental distress is caused by reasonably foreseeable physical discomfort or inconvenience; (ii) damages may be recoverable for psychiatric injury which goes beyond anger, mental distress, anguish, frustration or disappointment, provided (a) that such psychiatric injury is reasonably foreseeable to the Defendant; and (b) that such injury falls within the scope of the duty of care assumed by the Defendant to the Plaintiff. A Defendant is not liable for any loss or damage that was unforeseeable but that does not mean that he is liable for everything that was foreseeable. McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 AER 1621 and Dorset Yacht Co. Ltd. v. Home Office

[1970] AC 1004

. It is submitted that the relevant question is whether the Defendant ought to have contemplated such loss or damage in respect of which damages are claimed by reason of the responsibility or duty which it assumed by its contract with the Plaintiff: Caparo Industries PLC v. Dickman

[1990] 2 AC 605

; Henderson v. Merrett Syndicates Ltd.

[1995] 2 AC 145

. In the present case the Defendant assumed a responsibility only to conduct the Plaintiff’s claim against the health authority competently with a view to obtaining damages. In failing to do so the Defendant becomes liable to compensate the Plaintiff for the value of the lost chance of success in such claim. Conversely the Defendant did not assume a responsibility to provide the Plaintiff with peace of mind and satisfaction or to protect her health whether physical or mental. It is irrelevant that the Plaintiff may have hoped or expected to achieve some peace of mind or satisfaction from the litigation. A Plaintiff must prove that there was a duty owed to him and that it was a duty in respect of the kind of loss which he has suffered Banque Bruxelles SA v. Eagle Star

[1997] AC 191

per Lord Hoffmann at 211H – 212C. The Defendant’s submissions in respect of the application of the law relating to this aspect of the case can be summarised as follows: (a) The Defendant is not liable for any anger, mental distress, anguish or frustration suffered by the Plaintiff as a result of its negligence or breach of contract even if the same were found to be reasonably foreseeable. (b) If, which is denied, the Plaintiff suffered anything more than anger, mental distress, anguish or frustration namely some identifiable psychiatric injury then the Defendant is not liable in respect thereof (i) because the same was not reasonably foreseeable on the facts of this case and/or (ii) because such injury and any consequent loss would fall outside the scope of any duty of care which the Defendant assumed to the Plaintiff.” At page 461 Lord Denning MR said: That case, it [is] submitted differs from the present case in that At page 463 Lord Justice Bridge said: At page 824 Staughton LJ said: At page 826 Purchas LJ said: It is submitted that the cases appear to indicate as follows:

That case, it [is] submitted differs from the present case in that

[141]In the Fraser Skeleton the submissions on behalf of Miss Fraser on this point were:- “It was obvious to the Defendants at that time that Miss Fraser was a vulnerable and psychiatrically frail individual who had been rendered so by the treatment she had received at St. Bartholomew’s Hospital. … Here there is an additional element which forms an important part of the Plaintiff’s claim. Since the Plaintiff had been rendered vulnerable and psychiatrically frail by the negligence of the hospital authorities, the Defendants are also liable to compensate her for that degree of pain and suffering and financial loss which she has suffered as a consequence of their breach of contract/negligence. This aspect of the case finds its basis in the expert medical evidence and the facts surrounding the original retainer. … The Plaintiff must establish not only that the damage was caused by the Defendant’s breach of duty but that the damage was foreseeable. The point at which the damage must have been reasonably foreseeable may be different for the purposes of a claim in contract or in negligence: see Cook v. Swinfen [1967] 1 W.L.R. 457 and Malyon v. Lawrence Messer & Co.

[1968] 2 Lloyd’s Rep 539

. The Plaintiff will contend that it was reasonably foreseeable by the Defendants at the date of the retainer that, since the Plaintiff was psychiatrically frail and still suffering from the consequences of the health authority’s negligence, any act or omission on the part of the Defendants in relation to the conduct of her claim which either would or might have the effect of depriving her of her avenue of redress was likely to result in further injury, damage, shock and distress and aggravate or worsen her condition. Since negligence is also pleaded … in addition to breach of contract, the issue of foreseeability would not be confined to the approximate date of the retainer but would also extend to the Defendants’ state of knowledge of their client’s condition when they were in breach of duty both as to failure to serve the first writ and failure to disclose that fact until 1988 (expressly pleaded). By that date they also had the first medical report of Professor Ashton …”

[142]Thus it does not seem that there was in fact any difference as to the principles of law applicable, although in the Fraser Skeleton focus was concentrated on the factual issue of what Parlett Kent knew about Miss Fraser’s psychological state.

[143]Unlike in relation to those claims of Miss Fraser in the Parlett Kent Action which concerned the claims in the Bart’s Action directly, where the issue for the trial judge was what was the value of that which had been lost, which involved considering, at least in theory, the chances of success on each relevant aspect of the claims made in the Bart’s Action, the claims made on the foundation of the alleged psychological injury to Miss Fraser as a result of the negligence of Parlett Kent were claims on which Miss Fraser had to succeed totally. The trial judge thus had to decide, for example, whether, as a matter of law, a duty of care was owed to Miss Fraser by Parlett Kent which extended to not exposing her to the risk of psychological damage. That issue raised two sub-issues, as identified in the Parlett Kent Skeleton, namely whether it was reasonably foreseeable that Miss Fraser would suffer psychological harm if Parlett Kent was negligent in the conduct of the Bart’s Action and, if so, whether, as a matter of policy, the harm of which she complained fell within the scope of a duty of care. If the trial judge was satisfied that such a duty of care was owed, he then had to decide whether on the facts there had been a breach of such duty.

[144]The issue of foreseeability in the circumstances of the present case was an issue of fact, and intimately connected with the issue of breach.

[145]The person with conduct of the Bart’s Action on behalf of Parlett Kent for much of the period of Parlett Kent’s involvement was Caroline Jenkins. She made a number of witness statements for the purposes of the Parlett Kent Action. In a witness statement dated 30 September 1997 she said, at paragraph 9:- “I recall that when I saw Miss Fraser on the various occasions throughout the period during which I acted for her she appeared intelligent, lucid, well-presented and rational. Certainly her various detailed letters and comments on her treatment the medical records and the pleadings did not alert me to the fact that she needed any special care over and above that which any other client required. Miss Fraser’s problems stemmed from a chemical dependency on the drugs and subsequent withdrawal, from which I understood she had largely recovered. I knew from Mr. Jordan that she was very distressed and angry about the treatment which she had received from the Health Authority but such a reaction is not unusual among those who consider that they are the victims of medical negligence. I know that she was distressed and angry at the Health Authority and understand that she is, quite naturally and understandably distressed and angry at the way her case was conducted by my firm. I do not, however, believe that the extent and nature of the damage that she now claims was reasonably foreseeable by me at the time.”

[146]That passage raised the issue of foreseeability in its most naked form. Caroline Jenkins contended that she simply did not think that Miss Fraser would suffer any psychological harm if Parlett Kent were negligent, and that she had no reason to do so. An answer to her contentions could be that there was information available to her, for example in the first medical report of Professor Ashton, which ought to have alerted her, as a reasonable solicitor, to the risk. However, no clear indications of the risk of psychological harm were contained in the material available to Caroline Jenkins which was put before me. The first report of Professor Ashton, for example, did not contain any indication that Miss Fraser was continuing to suffer any psychiatric symptoms, or, indeed, that she had ever suffered from psychiatric symptoms other than those to be expected as a result of an abrupt withdrawal of benzodiazepines. Given that Professor Ashton is a professor of clinical psychopharmacology, and not a psychiatrist, and given that she had not examined Miss Fraser before producing her first report, it would have been surprising if she had expressed any view as to the then current mental state of Miss Fraser.

[147]Miss Fraser was asked in cross-examination about the description of her in paragraph 9 of the witness statement of Caroline Jenkins dated 30 September 1997 as appearing “intelligent, lucid, well-presented and rational”. She told me that she hoped that she had indeed seemed like that to Caroline Jenkins, although at the time she had been very ill.

[148]If there had been a trial of the Parlett Kent Action the trial judge would have had to have assessed the evidence of Caroline Jenkins in paragraph 9 of her witness statement dated 30 September 1997. A Barrister or a Solicitor must have appreciated that circumstance. In considering possible settlement of the Parlett Kent Action it was obviously necessary to take a view as to the prospects of establishing that a duty of care was owed by Parlett Kent to Miss Fraser which extended to not exposing her to the risk of psychological harm. That would have involved, as it seems to me, trying to evaluate the likelihood of the evidence of Caroline Jenkins which I have quoted being accepted. If it was accepted, that would have been the end of this part of the case, because the trial judge would have decided that foreseeability of harm was not established. The only obvious means of trying to assess the likelihood of the evidence of Caroline Jenkins being accepted was to form a view as to how Miss Fraser seemed from a psychological point of view. The value of forming such a view was limited, for the question was not how she seemed in 1997, but how she would have seemed in the period when Parlett Kent was acting for her. Nonetheless, if Miss Fraser struck the members of her legal team in 1997 as Caroline Jenkins said she had struck her in her dealings with Miss Fraser, that increased, rather than reduced, the risks of failure on this part of the case.

[149]For the purposes of this action a witness statement was obtained on behalf of Miss Fraser from Dr. Joanne Stubley, consultant psychiatrist in psychotherapy at the Tavistock Clinic. Dr. Stubley said in her witness statement that Miss Fraser seemed to her to suffer from chronic PTSD with complications of chronic anxiety and depression. It was common ground at the trial that Dr. Stubley had made that diagnosis. At the start of the trial Mr. Jordan applied for permission to represent Miss Fraser because of her condition. I acceded to that application. Subsequently Miss Fraser was called to give evidence on her own behalf. Consequently I saw and heard her give evidence. I formed a view of Miss Fraser very similar to that of Caroline Jenkins formed over 20 years previously. Miss Fraser was extremely well-presented. She struck me as intelligent, organised, and in good command of her case and of the facts, issues and documents which were relevant to her case. She was able, and inclined, to debate keenly with counsel on occasions the propositions which were put to her in cross-examination. If I had had the benefit of seeing and hearing Miss Fraser give evidence before considering the application of Mr. Jordan, I should not have acceded to the application, because it seemed to me that Miss Fraser was well able effectively to present her case herself. In fact, she assisted Mr. Jordan ably in his presentation by reminding him of particular documents, and drawing points to his attention. The materiality of my assessment to the issue presently under consideration is simply that if Miss Fraser had struck members of her legal team in 1997 as she struck Caroline Jenkins in the 1980s and as she struck me in 2009, I would have thought that that must have caused a Barrister or a Solicitor to recognise that there was a real risk that the claims against Parlett Kent based on the proposition that their negligence had caused psychological damage to Miss Fraser would fail for want of proof of foreseeability. However, there was no evidence before me of how Miss Fraser did strike any members of her legal team in 1997. Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland all gave evidence, but none was asked about this aspect.

[150]Quite apart from the issue of foreseeability, however, it seems to me that a Barrister or a Solicitor must have appreciated that there was a risk that, whether because the trial judge decided that it was not foreseeable that Miss Fraser would suffer psychological damage as a result of negligence on the part of Parlett Kent, or because the judge determined that, as a matter of policy, the duty of care owed by Parlett Kent did not extend to not exposing her to the risk of psychological damage, Miss Fraser would fail totally on the claims based on the alleged psychological consequences for her of the negligence. Undoubtedly a Barrister or a Solicitor could differ as to the extent of the risk. The margin of appreciation, I think, is a broad one. However, I find it difficult to suppose that a Barrister or a Solicitor could have assessed the risk of failure at less than 20%.

[151]Assuming that Miss Fraser was able to establish that she had been owed by Parlett Kent a duty of care extending to not exposing her to the risk of psychological damage as a result of negligence, I think that it is likely that the trial judge would then have gone on to find that there had been a breach of that duty. It seems to me that that is so likely that a Barrister or a Solicitor would not have allowed, in considering any issue of settlement, for a separate risk of failure on this point. Losses caused by any breach of a duty not to expose Miss Fraser to the risk of psychological harm

[152]The evidence as to the psychological consequences of the negligence of Parlett Kent was essentially expert. In her report dated 19 August 1997 Professor Ashton set out at paragraph5.1 a number of symptoms which Miss Fraser had recounted to her on 24 June 1996. At paragraph

5.2 Professor Ashton continued:- “These symptoms were undoubtedly initiated by the abrupt withdrawal of the benzodiazepines …though exacerbated and prolonged by the stress and anxiety caused by the negligent handling of her legal case by her former solicitor. The incorrect handling of the benzodiazepine withdrawal was a traumatic experience in itself and left Miss Fraser in a psychologically vulnerable state. On top of this was added the further traumatic experience of a festering sense of personal injustice caused by the mishandled litigation. These two sources of stress seem now to have become inextricably combined and are quite sufficient, either alone or in combination, to produce a condition similar to post-traumatic stress disorder (PTSD). This disorder, in which the patient is unable to escape from the previous traumatic experiences is characterised by nightmares, flashbacks to previous traumatic events, intrusive memories, anxiety, panics, impaired social relationships, lack of motivation, as well as physical and other psychological symptoms, often including depression. It can last for many years and be extremely disabling. Miss Fraser appears to have the main elements of this condition but after all this time it is now not possible to separate the various causes of the disorder and to say what proportion of the symptoms are due to withdrawal and what proportion to the litigation. It seems likely, however, bearing in mind that her symptoms started to improve when she first attended the Maudsley Hospital in 1983, that she would have recovered more quickly and completely if it had not been for the litigation. Although Miss Fraser continued to improve slowly while attending the Maudsley Hospital between 1983 and 1989 when she was discharged from their tranquilliser clinic, her recovery was undoubtedly hindered by the continuing stress, uncertainty and growing doubts and fears surrounding the handling of her litigation against St. Bartholomew’s Hospital. If she had not had this added burden she would in my opinion, and on the balance of probabilities, have recovered enough to return to work by 1990.”

[153]The view of Dr. Wood was similar. In the “Opinion” section of the Wood Report he wrote:- “I am of the opinion that SUSANNA LISE CLAIRE FRASER has suffered continuous psychiatric harm since August 1982. In the first instance this was as a result of negligent treatment, the abrupt and inappropriate withdrawal from the BENZODIAZEPINE drugs, DALMANE and DIAZEPAM. Her condition appears to have been particularly acute in the early stages and left her with major psychological problems to deal with at the time she embarked on legal action to recover damages for the harm arising from her negligent treatment. Having made a partial recovery from her BENZODIAZEPINE withdrawal MISS FRASER was left moderately intensely affected by the psychological symptoms caused by the alleged medical negligence. Once MISS FRASER began to believe that this litigation was not progressing, because of the manner in which this was being conducted by her solicitors perhaps around the end of 1986 and early 1987, her ambivalence and lack of confidence increased, exacerbating the pre-existing mental condition. This exacerbation was aggravated by material events around February 1988 and particularly in July 1988, when the defence to her medical negligence case was served. Her nervous reaction in July 1988 was very acute, briefly, but was offset to some extent after a week or so by her solicitor’s reassurance that all would be well. This left MISS FRASER in a situation of limbo from the psychological point of view, with a continuing exacerbation of her nervous condition until February 1991 when it became apparent that there was no possibility of pursuing her medial [sic] negligence case. After the events of February 1991 MISS FRASER suffered an acute exacerbation of her nervous condition, particularly with insomnia and suicidal feelings coupled with denial. She was unable to fully admit to herself that her case for medical negligence could go no further. The frustration of being unable to pursue the health authority and the doctors concerned in her allegedly negligent treatment has proved a chronic and now probably permanent problem for her to deal with, rendering her chronically frustrated. She is in effect, stuck with the feelings of bitterness and resentment that had followed on the management she experienced in August, 1982, at St. Bartholomew’s Hospital. It seems that MISS FRASER’S symptoms have generalised in that she is mistrustful of virtually all professional people as well as her former partner, MR. JORDAN. She finds it difficult to believe that people are well motivated and caring because of her experiences. It is likely that there is continuing additional suffering on top of that which followed on the abrupt BENZODIAZEPINE withdrawal. A condition that would have probably have been chronically of “moderate” intensity has been rendered “moderately severe”. A prognosis that would in all probability have been guarded in any case, has been rendered hopeless by the delays in the case and the additional blows to her self esteem that have occurred as a result of the legal negligence. [There then followed the paragraph about the prospects of returning to work which I have quoted at paragraph 134 above.]”

[154]The effect of these opinions really was that it was impossible to separate the psychological consequences of the negligence of Parlett Kent from the psychological consequences of the abrupt withdrawal of benzodiazepines in August 1982. That inability would have been important if there had been a claim for general damages for pain and suffering and loss of amenity in respect of the psychological consequences of the negligence of Parlett Kent because, if Miss Fraser succeeded in her claim that Parlett Kent’s negligence had caused her psychological damage, she was entitled at least to general damages for pain and suffering and loss of amenity calculated at the full value of her loss. In relation to her claims for the loss of the value of the chance of success in the Bart’s Action she was entitled, if she succeeded, to whatever percentage of the full value of the general damages for pain and suffering and loss of amenity the trial judge found. The trial judge could hardly attribute all of the symptoms from which Miss Fraser suffered to the negligence of Parlett Kent. He could either make some apportionment on a basis not clearly identified in the medical evidence, or he could say that Miss Fraser had failed to prove what the consequences just of the negligence of Parlett Kent had been. In fact the need to reach any conclusion in order to assess general damages for pain and suffering and loss of amenity was avoided by the fact that no claim for general damages was included in the Trial Schedule.

[155]However, that did not mean that the trial judge did not have to consider what actually had been the psychological consequences of the negligence of Parlett Kent because of the claims for loss of earnings and therapy. In fact the way the matter was pleaded in the Trial Schedule was that all loss of earnings up to and including 1989 was attributed to the abrupt withdrawal of the benzodiazepines, and half of the loss of earnings thereafter was similarly attributed. The balance of the loss of earnings alleged was attributed to the psychological consequences of the negligence of Parlett Kent. The trial judge would have needed to have considered whether that apportionment was appropriate. If, for example, the trial judge reached the conclusion that the effect of the abrupt withdrawal of the benzodiazepines was that Miss Fraser was never able to work again, she suffered no financial loss in relation to loss of earnings as a result of the alleged psychological consequences of the negligence of Parlett Kent.

[156]The matter of the alleged actual psychological consequences of the negligence of Parlett Kent was further complicated by the issue identified by Dr. Hallstrom of what would have been the psychological condition of Miss Fraser if the abrupt withdrawal of benzodiazepines had never happened and there had been no negligence by Parlett Kent. Miss Fraser obviously had some problems before August 1982, because that is why she was taking benzodiazepines in the first place. Another complicating consideration was that one of the sources of Miss Fraser’s dissatisfaction was the performance of Pannone, for whom Parlett Kent was not responsible. In addition, the view of Dr. Wood that Miss Fraser had been unable to work since August 1982 was not in fact correct. I have already quoted paragraph 148 of the Fraser Statement in which Miss Fraser set out what her earnings had been in the period 1988 to 1994. The earnings seem in fact to have increased year on year in the very period Dr. Wood identified as particularly difficult for Miss Fraser, 1988 to 1991.

[157]In my judgment, a Barrister or a Solicitor must have realised that demonstrating the psychological consequences for Miss Fraser of the negligence of Parlett Kent separately from the psychological consequences of the abrupt withdrawal of the benzodiazepines was very difficult. It was plainly a factor to bear in mind in considering any offers of settlement, but incapable of separate evaluation in terms of percentages of success or failure.

[158]The main claim which depended upon the alleged psychological consequences for Miss Fraser of the negligence of Parlett Kent was the claim for a proportion of her alleged loss of earnings. That claim faced the same difficulties as I have identified earlier in this judgment concerning the calculations of Mr. Cushnir. In addition, the evidence of actual earnings in the period 1988 to 1994 cast doubt on the proposition that Miss Fraser was incapable of earning as a result of the psychological consequences of the negligence of Parlett Kent. The very substantial input of Miss Fraser to the pursuit of the Parlett Kent Action once Bolt Burdon had been instructed was suggestive of the lack of earnings after 1994 having more to do with the time she was spending on the litigation than with her inability to work. In my judgment a Barrister or a Solicitor must have considered that there was a substantial risk that the loss of earnings claim would fail in its entirety and that the best realistic outcome was that loss of earnings would be assessed at the levels of the earnings Miss Fraser had actually made when working part-time up to August 1982, adjusted for inflation since that time.

The circumstances in which the Parlett Kent Action was settled

[159]There was a vigorous difference between Miss Fraser and Mr. Jordan, on the one hand, and Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland, on the other, as to the precise circumstances in which the advice to accept the sum of £200,000 plus costs was given to, and accepted by, Miss Fraser.

[160]On 23 September 1997 Bolt Burdon delivered trial briefs to both Mr. Smith and Mr. Utley. Each brief was endorsed:- “Counsel is asked to note that unless instructed to the contrary above, these instructions specifically do not include authority for counsel to negotiate, make proposals for settlement or give valuations of any claim to any other party to the action, or their representatives (including opposing counsel) whether formally or informally at trial or beforehand. Counsel is asked to consult with the instructing solicitor dealing with the matter directly should any question of compromise in part or whole of the client’s claim be proposed. Counsel is asked to note that it is probable that the instructing solicitor will wish either to conduct settlement negotiations personally or to be present during any negotiations between counsel.”

[161]It was common ground that a week before the date fixed for the trial, in fact on 13 October 1997, a consultation was held with Mr. Smith. Those who attended were Mr. Utley, Mr. Bolt, Miss Holyland, Fiona Murray (a para legal), Miss Fraser, Mr. Jordan, Mr. Cushnir and Margaret Ballard. Miss Holyland made an attendance note of the consultation. Miss Fraser or Mr. Jordan taped the consultation, without the knowledge of the others in attendance. Subsequently Miss Fraser and Mr. Jordan made alterations and additions to the attendance note as prepared by Miss Holyland. It is not necessary for the purposes of this judgment to determine whether the alterations and additions made by Miss Fraser and Mr. Jordan were justified, for what was not in dispute were the matters discussed.

[162]At an early point Mr. Smith commented on the medical evidence, in particular that of Dr. Hallstrom. As recorded in an unaltered passage in the attendance note Mr. Smith said, “the Judge may be impressed by what Hallstrom has to say and that we cannot forget this.” Mr. Smith thus clearly recognised the risk that the trial judge might find that the Bart’s doctors were not negligent, and shared that view with the others present at the consultation.

[163]By the date of the consultation the payment into court totalling £151,000 had been made. That was discussed. The attendance note recorded:- “Discussing the payment into court. Robert Smith saying that nobody is suggesting we should grab the money. There may come a time that we have to worry about this … Robert Smith saying that he does not consider that it is the end of what they have to offer. … Robert Smith saying that Mr. Bolt’s original broad assessment of the claim was a sensible figure (i.e. £250,000.00).”

[164]From those passages it is apparent that Mr. Smith recognised, and shared with those present at the consultation, that the amount of the payment into court was something which might need to be considered, especially if a further offer was forthcoming from Parlett Kent. He also advised that he considered that the claims made in the Parlett Kent Action were worth about £250,000. He had thus given some consideration to what Miss Fraser was likely to recover in the Parlett Kent Action.

[165]Another important issue considered in the consultation was the loss of earnings claim. From the attendance note it seems that much time was spent discussing it. Mr. Smith called attention to the fact that Miss Fraser did not have a track record to support the hypotheses of Mr. Cushnir as she had not worked full-time prior to August 1982. Another point covered was that Professor Ashton contemplated that gradual withdrawal from benzodiazepines could have taken 18 months. That consideration could postpone the start of any loss of earnings claim to early 1984. Mr. Smith also raised the question of whether Miss Fraser had told her previous legal advisers that she intended to start a full-time jewellery business. He emphasised that to recover the full value of the loss of earnings claim the trial judge would have to be persuaded that Miss Fraser had intended to work full-time. Consideration was given to Mr. Hobbs’ report and the points raised in it. Towards the end of the part of the attendance note concerned with the loss of earnings claim this was recorded:- “Robert saying that the other side are going to look for every weakness. They are going to push this point. The Judge could be persuaded that Susanna was not being frank. If the Judge felt this, it would discredit the action itself. It could have a knock-on effect. Charles Utley saying that Susanna is going to be pressed by the Defendants and they are going to be tougher. They are not just going to be accepting. They will press what she was living on. Susanna saying my father left me money. They will ask how much. They will ask where her money is coming from. Both she and Clive will be pushed on these points.”

[166]Consequently it is plain from the matters discussed at the consultation that a number of important risk factors which could affect the outcome of the Parlett Kent Action were recognised.

[167]The principal differences between Miss Fraser and Mr. Jordan, on the one hand, and Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland, on the other, concerning the events of 20 October 1997 were, first, whether Mr. Bolt and Miss Holyland sought to persuade Miss Fraser to accept the payment into court; second, whether at any point Miss Fraser authorised the making of a counter-offer to accept £250,000; and, third, whether Miss Fraser and Mr. Jordan were placed under undue pressure to accept offers made on behalf of Parlett Kent.

[168]Miss Holyland and Mr. Bolt both made attendance notes of what had happened on 20 October 1997. Both of those attendance notes were put in evidence. Miss Fraser and Mr. Jordan challenged the accuracy of each of the notes. They also contended that the two notes were inconsistent.

[169]The material part of Miss Holyland’s attendance note was in the following terms:- “Taking boxes into court. Starting to set up court. Robert Smith having a word with SAH [Miss Holyland], Susanna and Clive. Robert explaining that the Defendants had indicated that they would be prepared to increase their offer. Robert had said that they would have to give a proposed increase rather than they go back with a figure. Robert wanted to know what Susanna thought of this and whether she was prepared to settle the case. Robert explaining the costs consequences of the payment into court and, of course, that all we could get for Susanna was money. Susanna saying that she would be willing to settle, but she wanted a substantial sum. … Discussing with Clive and Susanna the implications of the present money in court and the possible implications of not accepting any higher increase. Susanna is of the view that the truth will come through. SAH saying that even though we may be strong from a medical point of view, the loss of earnings claim is less certain and it only takes a finding that Susanna would not have worked full time for them not to beat the payment into court. She may win the case but she will not receive anything if we do not beat the payment into court. Robert Smith returning. RB [Mr. Bolt] arriving. Robert Smith explaining the situation to RB. Having time to discuss with Susanna and Clive. Agreeing that the best thing to do would be to hear what they have on the table and to take it from there. Robert Smith departing to negotiate with the Defendant’s solicitors. Meanwhile RB and SAH discussing issues with Susanna and Clive. Robert Smith coming back. They are prepared to go up to £175,000.00. Robert Smith is of the view that RB and SAH should explain the offer to Susanna and the implications. It is his advice that £175,000.00 should be accepted. Charles Utley is of the view that there is more there. However, if there is no more there, he firmly advises that we should accept it. He says that there are problems with establishing that the medical negligence claim would have been successful in the first place. He puts the possibility of winning at no more than 60%. In addition, we have to persuade the court that Susanna would have worked full time. This again is going to be difficult. RB and SAH going to speak with Susanna. She immediately says that the payment in of £175,000.00 is not acceptable. RB explaining that if it is not acceptable we should go back with a counter-proposal. Asking Susanna what would be acceptable. She says that it is a substantial amount and £175,000.00 is not enough. RB suggesting what he would do, i.e. go back with a counter-proposal. He puts forward a suggestion of £250,000.00. She says that this would have to be her bottom line. SAH saying that in all likelihood they would not come back with £250,000.00 – more like £200,000.00 or so. She said in that case, why don’t we ask for £260,000.00 or £270,000.00. RB suggesting that £250,000.00 was a good figure. Firm instructions are given to put forward that offer. RB informing Robert Smith. Robert Smith entering into negotiations with the Defendants. Robert Smith informing SAH and RB that they have offered £200,000.00. This is inclusive of everything. SAH confirming inclusive of Defendant’s costs (consider that the health authority are now out of time to make a claim for these costs), in addition includes legal aid costs. RB and SAH considering offer with Susanna. Clive thinks Susanna should accept it. So does SAH and RB. Judge is anxious to start. Going into court at 11.40. Susanna has given RB firm instructions to accept the £200,000.00. Robert Smith informs the Judge accordingly.”

[170]Mr. Bolt’s attendance note included the following which is presently material:- “Meeting with junior and leading counsel, client, Clive Jordan, Margaret Ballard, Peter Wood and Heather Ashton. Leading counsel confirming that there have been discussions with the other side who are willing to pay some more money – no firm offer has been made. Advising client that notwithstanding the fact that she perceived the case to be one where “truth was on her side”, it would nevertheless be sensible to explore further the settlement negotiations. Pointing out that failure to beat the Payment into Court would almost certainly result in a nil payment to client. Advising also that after deduction of the Statutory Charge and other incidentals it was likely that the present Payment into Court would yield approximately £130,000 to client. By agreement with leading counsel negotiations largely conducted on the basis that RB and SAH talk direct to client without counsel being present on the basis that client has known RB and SAH longer and may be still slightly suspicious of counsel. Confirming to leading counsel that he should go back and enquire what increase is on offer – although indicating that any nominal increase of £10,000 or £15,000 will not be of any interest to client. Negotiations continuing – judge’s clerk being anxious that case should start – the other side improve their offer to £175,000 in total plus payment of the interim payment Summons costs – RB putting this offer to client having first spoken privately to leading and junior counsel – both counsel consider this is an offer which should be accepted. They regard the risk of the Judge finding that the original claim did not stand 100% chance of success to be of some concern – he may only regard the original case as having 50% or 60% chance of success. The other main danger in junior counsel’s view is the fact that when client’s time is freed up i.e. when she no longer has to deal with this court case she will have time available to which she could devote her jewellery skills to earn a living. Both counsel firmly of the view that client should accept £175,000 – returning to client without counsel being present – client saying straight away that the offer is not acceptable and on closer enquiry she thinks that we should return with an offer of £400,000. Indicating to client that I think it would be unwise to even consider going back with that offer because it is completely unrealistic and will be regarded as such by the defendants. Reminding client that she has been advised throughout that the figures in the schedule are optimistic in the extreme and that it has never been suggested that she would recover anything like those figures although they are of course put forward on a reasoned basis. Suggesting to client that she might like to consider returning with a counter offer of £250,000 more particularly as this was the amount that was mentioned to the defendants in correspondence on a without prejudice basis some 2 years ago. Eventually receiving instructions to do that – relaying to counsel who says he thinks this is most unlikely to be acceptable to the other side. Preparing to go into court when it became apparent that the defendant’s counsel was still willing to continue negotiations – thereafter being advised by senior counsel that the offer had been improved to £200,000 “a very final figure” – returning to client and urging her very strongly to accept this sum – reminding her that this really does represent a major advance on the Payment into Court and moreover when considered in the light of the advice she received from the original counsel namely £15,000 odd it is quite clear that she could regard acceptance of £200,00 [sic] as a major victory. Confirming however that we were ready, willing and able to fight the case although I would personally be sad to see client fight for 10 days and then receive nothing. Discussing whether we should let the case open to see how client’s evidence influences the parties but advising client this is a dangerous strategy – finally just prior to the case commencing receiving instructions from client (after she had spoken privately to Clive) that £200,000 plus costs would be acceptable. Advising counsel accordingly.”

[171]Each of Miss Holyland and Mr. Bolt confirmed to me in evidence that the attendance note of which she or he was the author was accurate to the best of her or his recollection.

[172]The evidence of Mr. Smith was that, when he arrived at court, Mr. Lynagh told him that Parlett Kent was intending to make an increased offer of settlement, although he did not at that stage say what the offer was. Mr. Smith said that he reported what Mr. Lynagh had said. Subsequently he spoke to Mr. Lynagh again and was told that the offer was of £175,000 plus costs. Mr. Smith advised that that offer be accepted. Mr. Utley took the view that an increased offer could be obtained, but that, if not, the £175,000 offer should be accepted. Mr. Smith and Mr. Utley conveyed their views to Mr. Bolt and Miss Holyland, not directly to Miss Fraser and Mr. Jordan. Mr. Bolt and Miss Holyland, they each told me, spoke to Miss Fraser and Mr. Jordan. They conveyed the views of counsel that the offer of £175,000 plus costs should be accepted. Miss Fraser, however, rejected the offer. Mr. Bolt told me that he advised her to make a counter-offer of £250,000 plus costs. His account was that she did give those instructions. Mr. Smith’s evidence was that he was given instructions to make an offer to accept £250,000 plus costs and that he conveyed that to Mr. Lynagh. Mr. Smith told me that he had actually gone into court and was setting out his papers with a view to the commencement of the trial when Mr. Lynagh came over to him and made the offer of £200,000 plus costs. Mr. Smith passed that offer on to Mr. Bolt and Miss Holyland. They, they told me, discussed it with Miss Fraser, Mr. Bolt urging her strongly to accept. Miss Fraser then gave instructions to accept the offer. In the course of discussing offers with Miss Fraser and Mr. Jordan Mr. Bolt and Miss Holyland emphasised that, if an offer was not accepted, the trial proceeded, and Miss Fraser did not beat the payment into court, she would probably recover nothing after costs had been paid.

[173]Miss Fraser and Mr. Jordan were adamant that the initial advice given by Mr. Bolt and Miss Holyland on 20 October 1997 was to accept the payment into court. They were also adamant that Miss Fraser had never authorised the making of a counter-offer to accept £250,000 plus costs. They emphasised that Mr. Bolt and Miss Holyland placed both of them under undue pressure to accept first the payment into court, then the offer of £175,000 plus costs and finally the offer of £200,000 plus costs.

[174]In terms of the claims of Miss Fraser in this action the precise circumstances in which she came to accept the offer of £200,000 plus costs to settle the Parlett Kent Action are not material. All that matters is whether the advice to accept that sum was such as no reasonably competent barrister or solicitor could have given. However, in fairness to Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland I have to say that I accept their account of the circumstances in which the settlement was achieved in preference to that of Miss Fraser and Mr. Jordan. I am satisfied that, at this remove from the events in question, both Miss Fraser and Mr. Jordan have become confused as to what actually happened, insofar as their account differs from that of Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland.

[175]I am satisfied that the attendance notes of the events on 20 October 1997 made by Miss Holyland and Mr. Bolt, respectively, were made contemporaneously and were intended to be accurate. The notes in fact agree on the essential sequence of events. They differ insofar as points recorded and emphasised by Miss Holyland are not always the same as the points recorded and emphasised by Mr. Bolt. However, it is the common experience of the court that, in the absence of collaboration between the individuals making the notes, no two notes of the same events are ever identical. Different people see fit to record different aspects of what they have seen or heard. I accept that each of the notes of Miss Holyland and Mr. Bolt are substantially accurate.

[176]The period within which Miss Fraser was entitled to accept the payment into court of £151,000 made on 24 September 1997 had expired by 20 October 1997, but not by the date of the consultation, 13 October 1997. Whether to accept the payment into court was thus something which sensibly fell to be discussed at the consultation, but not on 20 October 1997. I think that Miss Fraser and Mr. Jordan have become muddled by the discussion on 20 October 1997 of the consequences of failing to beat the payment into court into believing that Miss Fraser was on that occasion being advised to accept the payment into court. The significance of an increased offer was that there was an opportunity to achieve certainty and to walk away from court with a substantial sum if the offer were accepted. The consequences of not accepting an increased offer were that that offer was no longer available to be accepted, the trial would proceed, and unless the sum recovered at the conclusion of the trial exceeded the sum paid into court, Miss Fraser would have to pay the costs of the defendants from the date of the payment into court, as well as her own costs from that date.

[177]Quite apart from the fact that I accept the evidence of Mr. Smith, Mr. Utley, Mr. Bolt and Miss Holyland, it is overwhelmingly likely that Mr. Smith did put a counter-offer to Mr. Lynagh, because otherwise it is not likely that the offer of £200,000 plus costs would have been made. It is obviously possible that a party who has offered £175,000 plus costs, and had it rejected, will then make an increased offer of £200,000 plus costs, but it is not what one would ordinarily expect. Increasing an offer after the first offer has been rejected and without having received a counter-offer carries with it the danger that the party making the offer will be perceived by the other party as desperate to settle, thereby encouraging the other party to adopt a firm stand. A negotiation with a view to settle an action ordinarily proceeds by offer and counter-offer until acceptance, with the offers usually going up and the counter-offers going down until there is a meeting of minds. Consequently, one would expect that an increase in the offer made on behalf of Parlett Kent had been induced by a counter-offer made on behalf of Miss Fraser. I am entirely confident that Mr. Smith would not have made a counter-offer without instructions to do so, and that Mr. Bolt would not have given those instructions without instructions from Miss Fraser.

[178]I have no doubt that Miss Fraser and Mr. Jordan felt under pressure on 20 October 1997 to make decisions about offers. However, the pressure arose, I find, from the circumstances and that no undue pressure was applied by Mr. Bolt or Miss Holyland. The main difficulty facing a litigant to whom an offer is made at the door of the court is that a decision to accept or reject the offer has to be made very quickly. The offer is effectively an offer to settle before the trial starts, so it has to be accepted or rejected in that time-scale. There is no time for leisurely reflection. A decision has to be made more or less instantly. For a litigant, what decision to make is likely to depend in part, at least, upon the advice given by the lawyers. The lawyers have to make a quick decision what advice to give, and to communicate that advice clearly. If the lawyers fear that the litigant is in danger of failing to take a decision in his or her own best interests, then the advice is likely to be given firmly. For the litigant the whole of the circumstances is fraught. However, at that stage the lawyers have no more control over how much time is available to consider an offer than the litigant has. Was the advice to accept £200,000 plus costs such as no reasonably competent barrister or solicitor could have given?

[179]I am completely satisfied that the advice given to Miss Fraser to accept the offer of £200,000 plus costs to settle the Parlett Kent Action was not only such as a Barrister or a Solicitor could have given, but extremely good advice. For the reasons which I have explained earlier in this judgment, Miss Fraser’s case on just about every issue in the Parlett Kent Action was attended by considerable difficulties. Her prospects of establishing liability against the Authority in negligence, as it seems to me, would have been assessed by a Barrister at no better than 60%. The probability was that her evidence as to the effects upon her of the abrupt withdrawal of benzodiazepines, being inconsistent with the contemporaneous medical records, would be rejected. The rejection of her evidence on that point would be likely to taint her evidence on other aspects of her case which depended critically upon her evidence, in particular her alleged plan to establish a full-time jewellery business. That professed plan was not only not supported by other evidence, but inconsistent with evidence of what she had said on other occasions. There was a good chance that the value of the Bart’s Action, if it had succeeded 100%, would be assessed at a figure of the order of £15,000, which would have been doubled by interest. The claims based on the alleged psychological consequences of the negligence of Parlett Kent faced significant difficulties as a matter of law and as a matter of fact. There was a significant chance that nothing would be recovered in respect of such claims, even if it was established that a duty of care was owed. I accept the submission of Mr. Michael Davie, who appeared on behalf of Bolt Burdon, that a reasonably competent barrister or solicitor does not inevitably focus solely on the bad points in a client’s case in assessing what a reasonable figure for settlement would be. However, faced with an offer of settlement at the door of the court, what a reasonably competent barrister or solicitor has to consider is how confident he or she is that a higher figure than the sum offered is likely to be recovered if the trial takes place and a judgment is delivered. He or she cannot assume that any further offer will be forthcoming once the trial has started, although that is a possibility. In the present case I do not think that a Barrister or a Solicitor could have had any confidence that Miss Fraser would have recovered more than £200,000 had the Parlett Kent Action been tried. The overwhelming likelihood was that she would have recovered significantly less.

[180]In the circumstances it is not necessary to reach any conclusion on the issue of the extent to which Mr. Bolt and Miss Holyland relied on the advice of Mr. Smith and Mr. Utley in advising Miss Fraser to accept the offer of £200,000 plus costs in settlement of the Parlett Kent Action. I have no doubt that Mr. Bolt and Miss Holyland were interested in the views of counsel. However, Mr. Bolt was a solicitor of long experience in personal injury and professional negligence claims. I am satisfied that he had his own views about the case of Miss Fraser and what it was worth. Since, as I find, his views coincided with those of Mr. Smith and Mr. Utley on 20 October 1997, it was not really necessary for him to address the issue whether he should accept the advice of counsel. However, the present case was certainly not the sort of case which one sometimes finds of a solicitor deferring to the views of counsel or being persuaded from his initial view by the opinion of counsel.

The failure to allege that Miss Fraser suffered from PTSD

[181]I have already quoted the passage from the report of Professor Ashton dated 19 August 1997 in which she mentioned Miss Fraser suffering from a condition similar to PTSD. She had first made an observation to that effect in an earlier draft report dated 24 January 1997. Miss Fraser herself was, in 1997, convinced that she did suffer from PTSD as a result of the abrupt withdrawal of benzodiazepines, having been diagnosed as having that condition by a Professor Lader.

[182]Miss Fraser saw Dr. Wood on 15 July 1997 for the purposes of him preparing the Wood Report. The next day Miss Holyland wrote to him. Her letter included:- “In the meantime, Miss Fraser has asked me to mention to you that she has recently been referred by her GP to the Post-Traumatic Stress Unit at Middlesex Hospital. She is awaiting an appointment.”

[183]In a letter to Dr. Wood dated 24 July 1997 Miss Fraser herself said:- “In regard to my condition at the moment, perhaps I should have mentioned I have recently been referred to the Post-Traumatic Stress Clinic at the Middlesex Hospital for treatment.”

[184]Miss Fraser saw a draft of Dr. Wood’s report and was not happy with how he dealt with the matter of PTSD. She asked that the matter be raised with him. Both Mr. Smith and Miss Holyland did so. Miss Holyland made an attendance note of her discussion with Dr. Wood on 23 August 1997. She recorded:- “SAH speaking with Dr. Wood. He has dealt with the report as Robert Smith has requested. He has also dealt with post-traumatic stress disorder in more detail. He says that hers is such a complex case that it should not be further complicated by post-traumatic stress disorder. There is enough there. He has considered her comments.” He has considered her comments.”

[185]In the Wood Report Dr. Wood opined:- “Some of the plaintiff’s symptoms overlap with Post Traumatic Stress Disorder arising from the prolonged stress of abrupt BENZODIAZEPINE withdrawal, however the psychopathology in this case is much more complex than that usually identified in this condition.”

[186]The revised report, including that passage, was forwarded to Miss Fraser. She commented on the report in a letter dated 28 August 1997. In that letter she made no reference to PTSD or how Dr. Wood had dealt with it. However, in cross-examination before me she contended that Dr. Wood had not been an appropriate person to consider whether she was suffering from PTSD.

[187]In a letter dated 8 October 1997 to Miss Holyland Dr. Wood said about Miss Fraser and PTSD:- “The non-specific nature of such symptoms is a problem in Miss Fraser’s case together with the lack of a single traumatic event. I think ‘PTSD’ confuses the issue as far as litigation is concerned and I believe we have already had discussions on this point. The concept of PTSD and associated treatment approaches may well be valuable in the clinical management of this case but this is a separate issue.”

[188]Miss Fraser did, however, raise the issue again at the consultation with Mr. Smith on 13 October 1997. When asked, Miss Fraser agreed that she was happy with the report of Dr. Wood. Mr. Smith said that the trial judge would have to decide the case on the medical evidence.

[189]Notwithstanding that Miss Fraser told me that she thought that Dr. Wood was not an appropriate person to consider whether she suffered from PTSD, Dr. Wood is a forensic psychiatrist, and therefore by training and experience one would expect that he was an appropriate person to consider PTSD. Mr. Smith confirmed in his evidence that he considered Dr. Wood, whom he has known for many years, to be appropriate to advise about PTSD.

[190]It is plain that Dr. Wood was invited by Bolt Burdon, and by Miss Fraser herself, to consider the issue of whether Miss Fraser suffered from PTSD. He did consider that and expressed a view about it in the Wood Report. His view was that the label PTSD did not really meet the complexities of Miss Fraser’s case. The Wood Report set out the symptoms of which Miss Fraser had complained and was continuing to complain.

[191]In my judgment there is no substance in the complaints of Miss Fraser concerning PTSD. Bolt Burdon instructed Dr. Wood properly to consider the issue whether Miss Fraser suffered from PTSD. Dr. Wood did consider it. He was properly qualified to address the issue. His conclusion that the label PTSD was not helpful was reinforced by the views of Dr. Hallstrom to the same effect. In his report dated 23 September 1997 Dr. Hallstrom wrote, at paragraph 16:- “I find it impossible to agree with Dr. Margaret Ballard that the symptoms that Susanna Fraser suffers from are a Post Traumatic Stress Disorder. Many of the symptoms of Post Traumatic Stress Disorder are those of a generalised anxiety disorder with or without panic attacks. The sine qua non of a Post Traumatic Stress Disorder is a serious life-threatening catastrophic event that the victim was involved in such as a major disaster or near fatal car crash. This is clearly not the case for Ms Fraser.”

[192]Even if the expression PTSD might have been used appropriately as a label to describe the condition of Miss Fraser, as her alleged actual condition and its development over time from August 1982 were fully set out in the Wood Report, nothing turns on the fact that the label was not used.

[193]Miss Fraser suggested in her evidence that she needed treatment for PTSD, but it seems that that is what she received at the Middlesex Hospital. She accepted that her treatment had been provided under the National Health Service. Her concern seemed to be that there should have been a claim for long-term PTSD counselling in the Parlett Kent Action so that she could have received her treatment privately, to the benefit of others needing access to treatment under the National Health Service. That, however, is not a proper justification for a claim. What was important was that no one advised that Miss Fraser needed any continuing treatment apart from the counselling considered in the report of Margaret Ballard dated 18 April 1996, which was included in the Trial Schedule.

The failure to omit the claim for loss of the purchase of a property

[194]The claim for loss of the purchase of a property, as I have noted, was included in the amended Schedule of Special Damages served on 21 February 1995. Insofar as any point could be made that such a claim should never have been made, that point could be made, whether or not the element of claim was included in the Trial Schedule.

[195]While I agree with Mr. Smith that this element of loss was irrecoverable and that it was better, in presentational terms, not to include it in the Trial Schedule, it may be doubted whether including an element of loss which was irrecoverable would have had any real impact on the mind of someone reading the Trial Schedule as to whether the elements included were realistic or not. The most attention was likely to be given to the largest numbers and, as I have noted, the claims for loss of earnings presented difficulties of their own.

[196]The case of Miss Fraser in relation to the claim for loss of the purchase of a property was that she, by Mr. Jordan, instructed Bolt Burdon, through Miss Holyland on 28 August 1997 that she accepted the advice of Mr. Smith not to include it in the Trial Schedule. Miss Holyland made an attendance note of a discussion with Mr. Jordan on 28 August 1997. It included:- “Turning to the Schedule of Special Damages. Clive saying that SAH [Miss Holyland] is fully aware of their views on the problems of the Schedule and they don’t feel it is worth arguing the point any more. They do feel they have a property claim and would prefer it to be included. They do not, even now, fully understand the importance of putting forward another scenario. They accept, however, that this is what we all think is the best thing and, therefore, will go with it. They therefore approve the Schedule in the form we think it should be disclosed in. He wants to know whether the Schedule could be amended at a later stage. SAH confirming that it could be.”

[197]As it seems to me, in that passage what was recorded was the preference of Miss Fraser and Mr. Jordan for including the loss of the purchase of a property claim, but a preparedness to accept the view of the lawyers as to the form of the Trial Schedule. The attendance note does not seem to record specific instructions to omit the loss of the purchase of a property claim.

[198]On 29 August 1997 Miss Holyland discussed with Mr. Bolt her conversation with Mr. Jordan. Miss Holyland made an attendance note of that discussion. In it she wrote, so far as is presently material:- “RB [Mr. Bolt] questioning whether the property should be included, whilst he agrees with Robert Smith that it will not be awarded, on the other hand we have to act on our client’s instructions. If it is their instructions to pursue such a claim, should we not abide by them? We could always take it out just before trial so that we don’t accept [sic] the trial Judge. We could see what comes back in the Counter-Schedule. However, if we do pursue this, we need further evidence from Colin Evans and it needs to be made clear to Susanna and Clive that if we are not successful in that part of the claim, then it will not be recoverable from the Defendants. When liaising with Robert Smith we will tell him that in view of the strength of feeling by the clients about the claim, we felt it necessary to include it, that serving the Schedule without it was contrary to our instructions and that it placed us in a difficult position.”

[199]The Trial Schedule was served on 1 September 1997. On the same day Miss Holyland wrote to Mr. Jordan enclosing a copy. She also commented:- “You will see that we have included the property claim. Whilst we remain of the view that it will not be accepted by the court, we are well aware of your instructions to include the claim and so do so, contrary to leading counsel’ s advice. However, we do need to substantiate the claim further and so I have written to Colin Evans of Evans Baker to arrange an appointment to come and look at your property. It is extremely important that the appointment is arranged to take place as soon as possible. Please therefore when he contacts you arrange an early date.”

[200]According to an attendance note made by Miss Holyland of a telephone conversation with Mr. Jordan on 17 September 1997, in that telephone conversation he asked why the loss of the purchase of a property claim had been included in the Trial Schedule. The material part of the note was:- “Asking why the property claim was put in. SH saying we’ve done that, because ultimately Susannah [sic] is our client, and we follow our client’s instructions. Whilst we are still firmly of the view that it will be unsuccessful we have included it.”

[201]Mr. Jordan did not, according to the attendance note, dispute that Miss Fraser’s instructions were to include the claim. In a letter dated 11 October 1997 to Miss Holyland Miss Fraser wrote four pages on the subject of “Loss due to failure to purchase property”. It began:- “As you know, I am claiming that the effects of the abrupt benzodiazepine withdrawal by St. Bartholomew’s Hospital distorted my perception of the building, and caused me to fail to purchase the property. We of course already have Mr. Evan [sic] valuation of the flats.”

[202]On the evidence it is clear, as it seems to me, that Miss Fraser at the time of the preparation of the Trial Schedule wished the claim for loss of the purchase of a property to be included, despite the advice of Mr. Smith and Bolt Burdon that it should not be. While the instructions given by Mr. Jordan on 28 August 1997 would seem to have entitled Bolt Burdon to omit the claim if they thought fit, he did not instruct them to do so. Given the plain wishes of Miss Fraser to include the claim, I do not see that any proper criticism can be made of the service of the Trial Schedule with the claim included.

[203]In any event, nothing seems to turn on the inclusion of the claim in the Trial Schedule. There was no suggestion that Miss Fraser had somehow sustained a loss as a result of the inclusion of the claim. If and insofar as there was any implicit suggestion that she would have recovered more in the Parlett Kent Action had the claim not been included, I have covered that possibility in my observations on the claim that the advice to settle at £200,000 plus costs was negligent.

The alleged failure to include a claim for loss of the opportunity to undertake modelling

[204]Another complaint of Miss Fraser in this action upon which nothing seemed to turn related to not amending the Trial Schedule to include specific reference to the possibility that Miss Fraser might have earned £20,000 as a part-time model after August 1982, but for the alleged negligence of the doctors at Bart’s. The Trial Schedule in paragraph 10 of the “Preliminary Note” section laid the ground for a claim for loss of earnings alternative to that based on the hypothesis that Miss Fraser would have established a full-time jewellery business. It referred specifically to Miss Fraser having “other talents” set out in the report of Keith Carter. That report, dated 11 August 1997, specifically covered possible earnings in the fields of marketing, events organising, modelling and public relations. Thus it was open to Miss Fraser, if it seemed appropriate, to put forward a case at the trial of the Parlett Kent Action that she had lost the opportunity to earn money from modelling.

[205]In Mr. Carter’s report figures were advanced in relation to what Miss Fraser might have earned modelling.

[206]Miss Fraser contended that specific reference should have been made in the Trial Schedule by amendment to a witness statement of Harriet Close dated 1 October 1997 or to the contents of that witness statement. The witness statement was short. All that was said in it was:- “1. I own the Close Management model agency which I founded in January 1997. 2. Prior to starting my own agency I worked at the Laraine Ashton Agency, as a model booker. I began working there in the office in 1990, on a part-time basis whilst still modelling. The company became known as IMG Models and I was made joint managing director of the company, from January 1996, before deciding to start my own company in January 1997. 3. In addition to the above experience of running an agency, I also have 25 years experience of being a model. 4. I am 45 years old. I still do modelling assignments on a regular basis. 5. I have been asked to prepare this statement in support of Ms Fraser’s claim for loss of earnings. I do not know Ms Fraser personally. 6. I have been shown a portfolio containing photographs of Ms Fraser up until 1986. I have also seen a portfolio of press cuttings. 7. It is my view that had Ms Fraser been in a position to work as a mature model in the 1980’s and 1990’s, on the balance of probabilities she would have been able to. 8. The older model market really began in the 1980’s. There are more older models in the market now than 10 years ago. Ms Fraser would probably have been able to use the contacts she developed in the 1960’s and 1970’s to get work. She is clearly a professional, and knows how to behave in front of a camera. Photographers like to work with models with experience. Many younger models today don’t have this experience. 9. Ms Fraser has a classic look that could be used by commercial advertisers to project a life-style. 10. I have thirty models on my books at the moment whose ages range from 25 to about 65. Five of the models are over 45. 11. As to earnings a lot depends on the right contract coming up at the right time. I think that she would be able to earn in the region of £20,000 per annum. For advertising work she would be able to earn between £90 and £150 per hour.”

[207]This witness statement, as it seems to me, was of almost no value. Harriet Close did not know Miss Fraser. She had only run her own model agency since January 1997. She did not profess to have any knowledge of running a model agency in 1982. She said that there were more older models in the market “now than 10 years ago”, suggesting that the demand for older models was higher in 1997 than it had been in 1987. The earnings of which she spoke, “in the region of £20,000 per annum”, seemed to be as at October 1997, rather than as at any earlier point in time, but it was unclear whether Harriet Close considered that that was what Miss Fraser aged 56 in 1997 could earn or what Miss Fraser, had she been 41, as she was in 1982, could earn.

[208]I do not see how it could be suggested that no reasonably competent solicitor could have taken the view that it was not appropriate to amend the Trial Schedule to take specific account of the witness statement of Harriet Close.

Conclusion

[209]In the result the claims of Miss Fraser against Bolt Burdon all fail and are dismissed.

[210]The third party claims of Bolt Burdon against Mr. Smith and Mr. Utley also fail and are dismissed.

Mr. Jordan

[211]Although I have indicated that, had I heard and seen Miss Fraser give evidence before having to decide whether to give permission to Mr. Jordan to present her case on her behalf, I should not have given permission, I wish to express my appreciation of the most courteous fashion in which Mr. Jordan did present Miss Fraser’s case. He drew to my attention clearly all of the points which Miss Fraser wished me to take into account. Unfortunately, but most understandably, given that the issues in this case were essentially technical matters of law, I have not been persuaded that any of those matters pointed to the conclusion that Bolt Burdon had been negligent in advising Miss Fraser to accept the sum of £200,000, together with costs, in settlement of her claims in the Parlett Kent Action.