Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB)

Case No HQ09XO4861[2011] EWHC 61 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/01/2011
Before
THE HONOURABLE MRS JUSTICE SHARP
Between
Rudyard Kipling ThorpeClaimantFELLOWES SOLICITORS LLPDefendant
Ashitey Ollennu (instructed by Dotcom Solicitors) for ClaimantRuth Holtham den Besten (instructed by Reynolds Colman Bradley LLP) for DefendantHearing Hearing dates: 8-11, 25 November 2010
Judgment

Introduction

[1]Rudyard Kipling Thorpe (“Mr Thorpe”) acting as the Litigation Friend on behalf of his mother, Mrs Leonie Leanthie Hill (“Mrs Hill”), seeks damages from the Defendant firm of solicitors, Fellowes Solicitors LLP (“Fellowes”) in professional negligence. I have in this judgment, followed the description of the parties in the claim form, though the title to the claim should have read “Leonie Leanthie Hill (a protected party by Rudyard Kipling Thorpe, her litigation friend).” PD 21, para. 1.1 It is of course, Mrs Hill who is the Claimant, not, as some of the documents in this case have suggested, Mr Thorpe, though for convenience I shall occasionally refer to him as such. Mrs Hill’s date of birth is 17 November 1925. It is alleged that in 2003 Fellowes acted on the sale of Mrs Hill’s house, a freehold property at 63 Leslie Road, Leytonstone (“the Property”) without proper instructions from Mrs Hill, when she was suffering from dementia; the Property was sold at an undervalue and when it was, in breach of duty Fellowes remitted the proceeds to her daughter (and Mr Thorpe’s sister), Ms Leilith P. Alexander (“Ms Alexander”). Fellowes denies these claims. It is said in summary in its defence that at all material times instructions were properly obtained from Mrs Hill (including in person) in relation to her sale of the Property; there is a presumption that Mrs Hill had capacity to instruct the sale of it, and there is no evidence to suggest that Fellowes was, or ought to have been, on notice of Mrs Hill’s condition. The evidence of the jointly instructed neurological expert in these proceedings, Dr Oliver Cockerell, is that Mrs Hill was suffering from dementia at the time of the sale, but this does not mean she would have lacked capacity to sell the property. In his opinion she did have capacity, and in any event, any lack of capacity by reason of Mrs Hill’s dementia would most probably not have been evident to a competent solicitor.[2]The person dealing with these matters on behalf of Fellowes was Ms Marielyne Butler. In January 2003 Ms Butler was a trainee solicitor with a training contract at Fellowes (she subsequently qualified in April 2003) and her work was supervised by Mr Stephen Fellowes, a partner in the firm. Ms Butler had previously worked as a paralegal for 19 months, including 3 months at Fellowes; and had begun her training contract with Fellowes in April 2002. By January 2003 she had been working in the conveyancing department of Fellowes for about 12 months.[3]Because of the passage of time between the relevant events and this litigation, Ms Butler has no independent recollection of events. The relevant factual evidence as to what occurred is derived for the most part therefore from contemporaneous documents, Ms Butler’s attendance notes in Fellowes’ conveyancing file dealing with the sale of the Property; and from Ms Butler’s evidence as to her usual practice in certain circumstances. I heard oral evidence for the Claimant from Mr Thorpe. The materiality of it was very limited in my view. This was (amongst other reasons: see paragraphs 112-115 below) because he played no part in the relevant events relating to the claim. I heard oral evidence from Ms Butler for the Defendant. There was also the joint expert evidence from Dr Cockerell in the form of a report and supplementary answers to questions.

Factual Background

[4]In January 2003 Ms Alexander contacted Fellowes and spoke to Ms Butler. Ms Alexander said that Mrs Hill wished to sell the Property by means of a private sale for £145,000.[5]Following this conversation, Ms Butler wrote to Mrs Hill on 14 January 2003 enclosing details of basic fees, the firm’s terms of business, notes regarding sale and a sale instruction sheet to Mrs Hill. Ms Butler also sent a further letter on the same day thanking Mrs Hill for instructing Fellowes on the conveyance, and indicating that she would be dealing with the work personally, but that the solicitor with control of the department was Stephen Fellowes.[6]On 21 January 2003, as requested, Mrs Hill signed and returned the sale instruction sheet to Fellowes. She also signed and returned a further sale instruction sheet on 29 January 2003 with some additional details that had been omitted from the first one sent.[7]Although the Claimant’s pleaded case is that Fellowes was in fact instructed by Ms Alexander, it appears from the face of the documents that the client was Mrs Hill and it was she, rather than Ms Alexander who instructed Fellowes on the sale. In the Claimant’s skeleton argument for the trial the matter was put in this way “[I]n 2003, the Claimant (sic) mother sold her house, her only asset, through the Defendants as her duly instructed solicitors.”[8]The Property was subject to a mortgage, and Ms Butler duly contacted the lender, the Kensington Mortgage Company, to obtain a redemption statement which she sent to Mrs Hill asking her to check it. She also wrote to solicitors acting for the proposed purchaser of the Property, identified in the sale instruction sheet as Castleguard Properties Limited (a private company that buys properties from the public for onward sale via estate agents).[9]On 18 February 2003 Ms Butler spoke to Ms Alexander about various inquiries in relation to the Property, and explained that she needed Mrs Hill to come in to Fellowes’ offices in order to sign the contract of sale. Ms Butler’s attendance note of the call says this:
“I also told her [Ms Alexander] that I need her mother to come in to sign the Contract. She said that is fine and for me to let her know when I want her mother to come in.”
[10]The attendance note is then annotated with Ms Butler’s explanation for her request to Ms Alexander:
“The reason why I wish to see the client to sign the Contract, is to check that she has agreed to the sale, etc. Although she has signed the client care letter, I do want to make sure that she does actually want to sell this property and she is not being forced to do so.”
[11]Ms Butler said in evidence that it was her normal practice to meet elderly clients face to face rather than simply accepting instructions from a relative or friend and she has no reason to doubt that she followed her normal practice in this case. At such a meeting she will ask the client a number of questions in an effort to assess whether they understand the transaction and are not being coerced. She will usually ask the client to confirm their name, address and date of birth to confirm they are aware of what is going on, and will then proceed to ask some basic questions regarding the transaction such as whether they know the sale price and why they wish to sell. Ms Butler said if she has any reason to doubt their mental capacity she asks to see a letter from their doctor; if that is not forthcoming, then she refuses to act.[12]Ms Butler’s request to meet Mrs Hill personally was repeated in a conversation with Ms Alexander on 20 February 2003. Her attendance note of that conversation records that she arranged an appointment for Mrs Hill to come and see her on 26 February 2003.[13]On 26 February 2003 Ms Butler met Mrs Hill at Fellowes’ offices. During the course of this meeting Ms Alexander remained present. Ms Butler’s attendance note said that Mrs Hill:
“fully understood what was going on and was adamant that she wants to sell this property and purchase another property with her daughter so that she does not have to deal with any maintenance of the house. Her daughter was also there and she also signed the Contract to confirm that she will vacate the property on completion. She said to me that she is using different solicitors with regard to the purchase of 52 Carmonton Road. Walthamstow, E17, she told me she would contact me with her solicitors’ details. The reason why I wanted to see the mother was because the property is in her name and I just wanted to check that she was not being forced to sell the property but she was adamant that she wanted it sold and wanted to live with her daughter. She also told me that she wants to put towards the purchase of her daughter’s property as well (sic), as she will be living in it.”
[14]On 19 March 2003 Ms Butler wrote to Mrs Hill further to their meeting on the 26 February 2003, asking for confirmation in writing from Mrs Hill that she wished to use the sale proceeds of the Property towards the purchase of 52 Carmarton Road which was being purchased in her daughter’s name, and that she wanted the money transferred to Blatchfords. On 20 March 2003 Mrs Hill duly instructed Ms Butler in writing that she did wish to remit £100,000 for the purchase of 52 Carmonton Road. Ms Butler then liaised with Blatchfords while they awaited a mortgage offer on the part of Ms Alexander, and with the Kensington Mortgage Company in respect of Fellowes’ retention of the Property’s title deeds.[15]By August 2003, the anticipated sale of the Property had not taken place, and Ms Butler was required to return the title deeds to the Kensington Mortgage Company. She accordingly took steps to close Fellowes’ file and informed Mrs Hill of this by letter dated 8 August 2003.[16]Some weeks later, on 18 September 2003 Ms Butler wrote to Mrs Hill saying she had received a call from the buyer’s solicitors stating that Mrs Hill was now proceeding with the sale of the Property to Castleguard Properties, and Ms Butler asked Mrs Hill to contact her to discuss it with her.[17]On 24 September 2003 Ms Alexander telephoned Ms Butler and informed her that Mrs Hill wished to proceed with the sale of the Property; and they were both intending to move into council housing. Ms Butler’s attendance note of this call records that:
“I [Ms Butler] said to her that I need confirmation of this in writing from her mother and I will also be doing a letter to her mother about this as well. She also confirmed that her mother is happy to continue at the price of £145,000. I said to her that she should obtain a valuation from an Estate Agent to make sure that this is the correct price she is selling the property at. I said, again, I will be writing to Ms Hill about this as well”
[18]On 26 September 2003 a handwritten letter, signed by Mrs Hill, was sent or delivered to Ms Butler, which confirmed Mrs Hill’s intention to proceed with the sale of the Property to Castleguard Properties Limited.[19]On 29 September 2003 Ms Butler wrote to Mrs Hill seeking confirmation that she was happy to proceed with the sale of the Property at £145,000 as she had decided to move into council housing. She asked Mrs Hill to confirm this in writing. By then however, the handwritten letter of the 26 September 2003 had already been received by Fellowes. Ms Butler’s letter said:
“I would also suggest that you contact an Estate Agent to check the value of the property, to ensure that you are selling at the correct price…”
[20]On 10 October 2003 Mrs Hill signed the contract of sale and provided Fellowes, at their request, with her signature on a handwritten letter setting out details of an account at Abbey National which she described as “my account” to which the sale proceeds were to be remitted. The sale completed on 31 October 2003, and was recorded on a TR1 form (Transfer of whole of Registered Title) which was also signed by Mrs Hill, whose signature was witnessed by a third party, Ms Samantha Apple, a contract administrator. The completion price was £145,000 of which, £98,980.12 represented the sale proceeds following the redemption of Mrs Hill’s mortgage.[21]In fact, the account details provided to Fellowes were not for Mrs Hill’s own account, but for the account of Ms Alexander. I deal with these events in more detail in paragraphs 97 to 99 below but in summary, when the sale proceeds were sent to Abbey National Mrs Hill was the named beneficiary and they were therefore returned to Fellowes. There is no record on file of any further communication between Mrs Hill and Ms Butler, but Ms Butler’s evidence is that she is fairly sure she spoke to Mrs Hill to confirm the identity of the beneficiary of the account before remitting the proceeds of sale again, which she did to the same account, but naming Ms Alexander as the beneficiary.[22]On 8 December 2003, it appears from the Land Registry that Castleguard Properties Limited sold the Property on to individual purchasers for £186,000.[23]After the sale, Mrs Hill and Ms Alexander did indeed live together. Ms Alexander continued to act as her mother’s carer until in about July 2005 when Mrs Hill went into fulltime residential care.

Procedural History

[24]Because of various issues that arose on the first day of the trial, in particular, an application made on behalf of the Claimant that the court should hear evidence from two doctors who had examined Mrs Hill in or about 2003, it is necessary to set out some of the procedural history of the claim.[25]On 20 December 2004 Dotcom solicitors, instructed by Mr Thorpe, wrote to Fellowes alleging for the first time that Mrs Hill was, and had for two years been suffering from senile dementia and that the Property had been sold without her consent.[26]On 31 July 2006 Mr Thorpe applied to the Court of Protection to be made a Receiver in respect of the management of Mrs Hill’s financial affairs. In the event no such appointment was made.[27]On 29 August 2007 the Court of Protection made an interim order (“the Appointment Order”) which authorised Mr Thorpe to bring these proceedings on behalf of Mrs Hill as her Litigation Friend. The Appointment Order appeared to have been made on the basis that proceedings had already been issued but they were not in fact issued until November 2009. Fellowes filed its Defence on 15 December 2009 and the Claimant’s Reply was filed on 4 January 2010.[28]The Claimant’s pleaded case included an allegation that Fellowes failed to realise that there existed “vast differences in the style of Mrs Hill’s purported handwriting instructions and signature and failed to make the necessary inquiries”. On the issue of causation it was said that:
“If the Defendant had dealt with Mrs Hill’s matter to the standard of a reasonable and competent conveyancing solicitor they would have discovered that Mrs Hill had been suffering from dementia from approximately the year 2000 and at the material time she was not capable of understanding and executing legal documents pertaining to her property. The Claimant will reply [sic] on the Psychiatric Report of Dr. N. Jeganathan dated 12.07.2005”
[29]A copy of the report of Dr Jeganathan was annexed to the Particulars of Claim.[30]Fellowes’ pleaded response was as follows:
“It is denied there were “vast differences” in the style of Mrs Hill’s signature. Further, if and so far as the Claimant alleges that the signatures of Mrs Hill confirming her instructions to Fellowes were (as is implied) forged, the Claimant is required to prove the same by expert evidence. Likewise, if and so far as the Claimant alleges that the signature of Mrs Hill on the agreement for sale was forged, the Claimant is required to prove the same by way of expert evidence and to explain its apparent witness by an independent third party and self-described “contract administrator”
. Further, Ms Butler was in any event present at the signing of the contract therefore there can be no doubt that Mrs Hill did indeed sign the contract. It is admitted that the letter of instructions of 20 March 2003 is in a different hand to that of the letter of instructions given on 26 September 2003 and 13 October 2003, but denied that this difference was material or sufficient to put Fellowes on notice that the instruction for the transfer of the proceeds of sale to Ms Alexander was “suspicious”. These instructions were written on behalf of Mrs Hill by Ms Alexander on Mrs Hill’s instructions. Further, these letters were each signed by Mrs Hill.”[31]As to the allegation of lack of competence, Fellowes denied that at any material time Mrs Hill was not capable of understanding and executing legal documents pertaining to her property. Reliance was placed amongst other matters, on what took place at the meeting between Mrs Hill and Ms Butler on 26 February 2003 and on the other steps taken by Ms Butler to satisfy herself that Mrs Hill properly understood what was going on, authorised the steps taken to sell the Property and to remit the proceeds of sale to Ms Alexander. It was said that Fellowes reserved the right to adduce expert evidence in this regard in due course.[32]Fellowes also denied that the expert report adduced by the Claimant supported the conclusion that at all material times Mrs Hill was not capable of understanding and executing legal documents pertaining to the Property. It was said that:
“Whilst [the report of Dr Jeganathan] states that in June 2003 Mrs Hill had become reliant upon Ms Alexander to manage her financial affairs, at or about this time she required only daytime respite, “responded appropriately during interaction” and “retained her ability to recognise people who were familiar”
. Further, the Claimant’s expert readily admits that he did not evaluate Mrs Hill for testamentary capacity at or about this time. Yet further or alternatively, it is denied that a solicitor acting to the standard or (sic) a reasonable and competent conveyancing solicitor would not have been entitled to conclude that, at all material times, Mrs Hill was capable of understanding and executing legal documents pertaining to her property.”[33]It was clear therefore from the pleadings that expert evidence would be required on the issue of Mrs Hill’s competence, and the associated question of what ought to have been apparent to a reasonably competent solicitor. Expert evidence would also be required on the validity of Mrs Hill’s signature to various documents if the issue was going to be raised or pursued by the Claimant.[34]On 4 February 2010, case management directions were made by Master Foster at a case management hearing at which both sides were represented by Counsel. Those directions provided for the service of witness statements of oral evidence and notices of intention to rely on hearsay evidence by no later than 14 July 2010.[35]In accordance with the usual practice, detailed directions were made in relation to expert evidence. The parties were given permission to call evidence given by the report of a single expert in the field of neurology instructed jointly by the parties on the issue of the Claimant’s mental state and capacity. Neither side was able to tell me at the trial whether this direction had been made by consent or at the instigation of the court: be that as it may, neither side appealed the order. The directions further provided that the expert was to be instructed by 29 July 2010 and his or her report was to be provided to the parties by 14 September 2010. In addition, at the request of the Claimant, each party was given permission to adduce expert evidence “in the field of handwriting” but in the event, neither side did so.[36]The only witness statements of fact were served on 22 and 23 July 2010 (those of Mr Thorpe and Ms Butler).[37]By mid-August 2010, Dr Cockerell had been jointly instructed to write a report on the issue of the Claimant’s mental state and capacity, and his joint instructions were sent to him by the Claimant’s solicitors. Dr Cockerell delivered his report on 29 September 2010.[38]Dr Cockerell is a Clinical Consultant Neurologist who practices at Barts and The London NHS Trust. He has a full medico-legal practice and prepares over 100 medical reports a year. When preparing his report he had Mrs Hill’s hospital records, occupational therapy reports and the pleadings in the case. He had in addition the psychiatric report from Dr Jeganathan, dated 12 July 2005 referred to in the Claimant’s Particulars of Claim; and correspondence from Dr Richard Greenwood dated 8 June 2010.[39]Dr Jeganathan is a staff grade psychiatrist, and he wrote his report at the request of the Claimant’s solicitors before proceedings were issued, on the basis of his clinical knowledge of Mrs Hill when she attended Red Oak Lodge Day Hospital between July 2003 and September 2004, and thereafter for respite admissions at Thorpe Coombe Hospital. He had last examined Mrs Hill on 5 July 2005. His report was in the form of a letter rather than an expert report prepared for the purposes of trial. Dr Greenwood is a Consultant Neurologist who had seen Mrs Hill at various points in his neurology clinic in 2000 and in 2003 for the purpose, it seems, of diagnosing the clinical cause of her problems. He had provided views about Mrs Hill in response to a request from the Claimant’s solicitors made by letter dated 20 January 2010 in which it was asked whether Mrs Hill had testamentary capacity during 2003.[40]In his report, Dr Cockerell set out a summary of the factual observations and opinions of Dr Jeganathan and Dr Greenwood. He noted that Dr Jeganathan said that in October 2003 Mrs Hill’s cognitive functions were significantly impaired and his opinion, she would not be “capable of understanding and executing legal documents pertaining to her property at that time as such.” He also noted that Dr Greenwood’s conclusion was that Mrs Hill’s cognitive function had deteriorated to such an extent that she might well not have had testamentary capacity from earlier and during 2003; but Dr Cockerell said, Dr Greenwood could not be more forthright about this.[41]Having reviewed all the material with which he had been provided Dr Cockerell set out his own opinion (which I set out in more detail at paragraphs 64 to 70 below). In summary it was that Mrs Hill had dementia at the material times, but he said that dementia is not an “all or nothing phenomena”. The evidence in his view strongly suggested Mrs Hill had cognitive difficulties along a range of domains, mainly memory for short term events, but also problem solving and executive function. However his conclusion was that although Mrs Hill had cognitive problems that may have interfered with her decision making, she still had capacity in the sense that her direction to Ms Butler on 26 February 2003 to sell her house and the implications of this was her opinion at the time and the expression of her free will. He was also of the view that her lack of capacity would probably not have been apparent to a competent solicitor.[42]His conclusions were, unsurprisingly, very unwelcome to the Claimant’s side. Despite Dr Cockerell’s professional standing and the fact that in his report he recognises the duties owed to the Court as an expert, the Claimant’s solicitor’s response to Dr Cockerell’s report was that he must be biased. No proper basis for such an assertion was demonstrated then or subsequently, and it appears to have been made solely on the footing that Dr Cockerell had reached a conclusion which was perceived to be adverse to the interests of the Claimant in the litigation. Thus, on 6 October 2010 the Claimant’s solicitors asked the Defendant’s solicitors (Reynolds Colman Bradley LLP (“RCB”)) to advise them of the number of instructions Dr Cockerell had received from RCB, Fellowes and their Insurers “in order that we can be satisfied that his opinions are definitely 100% objective…”.By letter dated 12 October 2010 RCB confirmed that neither they, nor their client or their insurers, had instructed Dr Cockerell before.[43]On 6 and 7 October 2010 the Claimant’s solicitors also wrote to Dr Greenwood and Dr Jeganathan respectively, enclosing Dr Cockerell’s report and asking them to explain the difference in findings, “…as we did partly rely on your professional judgment in continuing to pursue the case”. The letter to Dr Jeganathan concluded “We look forward to hearing from you as soon as possible, especially in view of the professional implications for yourself if Dr Cockerell is in fact correct.” (Emphasis added)[44]It is common for medical professionals to disagree; the fact that they may do so, on the face of it, has no professional implications for them. Whatever was meant by the highlighted words, they were obviously capable of putting pressure on Dr Jeganathan to adhere to what he had said originally, and in my view, he should not have been written to in such terms. It is highly inappropriate to put such pressure on any witness let alone a professional witness – if that is what it was then intended Dr Jeganathan should be – in a system which encourages experts to meet, discuss and reduce the areas of disagreement between them.[45]Meanwhile, Fellowes wished to clarify Mr Thorpe’s locus to bring these proceedings. Because Mr Thorpe repeatedly refused to disclose his application for the Appointment Notice as Fellowes asked him to do, on 13 October 2010 Fellowes applied for disclosure of it, together with a copy of all evidence and any documents supplied to the Court of Protection.[46]On 15 October 2010 the Claimant then issued an application to adjourn the trial (by then assigned a 3 day floating window between 8-12 November 2010) to the first available date in the New Year on two grounds. First, it was said that the content of the joint medical expert’s report was “very biased”. It was also said the Claimant wished to obtain further information in order to cross-examine Dr Cockerell, in particular from Dr Greenwood and Dr Jeganathan. Second, because it was said, the Claimant needed to apply for public funding in order to obtain legal representation at trial.[47]On 20 October 2010 the Claimant’s application was dismissed by Eady J on the ground that the Claimant had sufficient time to seek further information in order to cross-examine Dr Cockerell at trial (if necessary) and ample time to obtain public funding. In the event it appears that the Claimant’s solicitors continued to act under a CFA and obtained the services of counsel (Mr Ollennu) to appear for the Claimant at trial on the same basis. Eady J also ordered that the disclosure sought by Fellowes be made by both the Claimant’s Solicitors (who had acted for Mr Thorpe on his application to the Court of Protection) and also by the Court of Protection, by whom the relevant file was held.[48]Fellowes was awarded the costs of its application and of the Claimant’s application to adjourn the trial, summarily assessed in the sum of £2,000. In accordance with the order made by Eady J, this sum should have been received by Fellowes by 3 November 2010, but it was not. The Claimant’s solicitors failed to respond to RCB’s correspondence on this issue. Moreover, when the issue was raised again during the course of the trial by Ms Holtham den Besten for Fellowes, the Claimant’s solicitors were apparently without instructions from Mr Thorpe as to why the order made by Eady J had not been complied with. I therefore directed that instructions be obtained from Mr Thorpe overnight so the matter could be addressed the following day. Mr Thorpe did not attend at court again however; Mr Ollennu remained without instructions and was therefore unable to explain why the sum had not been paid, or when it would be.[49]The Claimant’s solicitors had indicated to the court on 20 October 2010 that they did not think Dr Cockerell was available for the forthcoming trial. Nevertheless on 26 October 2010 they wrote to him, enclosing a witness summons “ordering [him] to attend the High Court on 8th and 9th November” and asking him to answer the following five questions:
“1. In section 1.2 you quote that you are asked whether Mrs Hill’s state would have been apparent to a reasonably competent solicitor, but you omit the other question as to whether Mrs Hill would have had the capacity to instruct a Solicitor in the first place. Why? 2. Secondly, you state in paragraph 3.4 of your Report that Dr Jeganathan’s comments were rather vague. In which way? 3. You also state in that paragraph that you believe that Mrs Hill had the capacity to make decisions. How can you state this, when Dr Greenwood and Dr Jeganathan who had both examined the client and came to a totally different conclusion? 4. Similarly…you state that Mrs Hill had “mild to moderate” dementia. Why have you reached a different opinion to your two colleagues who had actually examined her at the time and both believed her mental functions to be severely impaired? 5. Finally, how badly does a patient need to be mentally impaired in your expert opinion to cease to have the capacity to make decisions?”
[50]Dr Cockerell provided answers the same day which were these:
“1. I do think that Mrs Hill was competent to instruct a solicitor in the first place. I see no reason why she shouldn’t have been competent because she had dementia and I feel she did have capacity. 2. Dr Jeganathan’s comments were vague because they didn’t answer specific points. 3. I can state this because my own reading of the information is different to that of Dr Jeganathan and Dr Greenwood. 4. I think the evidence argues against this being a severe dementia. 5. A patient may be mentally impaired, yet still have the capacity to make decisions. From my reading of the case Mrs Hill was able to instruct a solicitor. The solicitor did not feel there were any issues with her capacity. This to me means that she probably did have capacity and ability to make a perfectly valued opinion.”
[51]Also on 20 October, the Claimant’s solicitors indicated to RCB, that they had issued witness summons to Dr Cockerell, Dr Greenwood and Dr Jeganathan to attend the trial. Upon RCB questioning the basis upon which such witnesses were to attend, the Claimant’s solicitors said that they were to be called as witnesses of fact, and there was nothing to stop them being called. Witness summaries for each doctor dated 29 October 2010 were subsequently served by the Claimant.[52]The witness summaries were extremely brief. The witness summary for Dr Cockerell indicated the Claimant intended to question him as to why he took a different view as to the capacity of Mrs Hill to the doctors who examined her at the time and on the matters raised in the Claimant’s written questions to him which it was said, had not been satisfactorily answered. It further appeared from the witness summaries for Dr Jeganathan and Dr Greenwood, that the Claimant intended to adduce evidence as to the opinions each had given as to Mrs Hill’s capacity in their letters/reports (which I have referred to above), whether those remained their opinions, and whether they adhered to them in the light of Dr Cockerell’s report.[53]On the first morning of the trial, therefore the three doctors attended at court. No permission for Dr Jeganathan and Dr Greenwood to be called as experts had been asked for by the Claimant (let alone given); and the time for service of factual evidence in accordance with the directions of the court, had long since passed. None of the doctors had been asked in advance whether their attendance conflicted with their professional clinical commitments; and it was apparent they had been summonsed without regard to the considerable inconvenience this would cause to them, and, more important to their patients as a result (Dr Cockerell indicated that as a result of the summons, he had had to cancel a full clinical list for the 9 November 2010 for example). Though he had attempted to speak to the Claimant’s solicitors about the summons, and the timing of his appearance at court, they had refused to speak to him, presumably in the mistaken belief that it would not be proper for them to do so. The restrictions on one side seeing joint experts in conference to which the court referred in Peet v Mid-Kent Healthcare Trust [2001] EWCA Civ 1703, of course do not apply to speaking to them for what might broadly be described as logistical reasons.[54]No reference at all was made to the fact that the three doctors had been summonsed to attend, in the Claimant’s very brief skeleton argument served the day before the trial. Indeed Mr Ollennu on behalf of the Claimant did not even make an oral application that the evidence of Dr Jeganathan and Dr Greenwood should be admitted, or that the court should permit Dr Cockerell to be cross-examined until I asked him to explain why the three doctors were all sitting in court. Mr Ollennu’s application then was, baldly, that the evidence of Doctors Jeganathan and Greenwood should now be heard, because it was in the interests of justice that the court should hear evidence from two doctors who had examined Mrs Hill at the material time as to the factual context.[55]I refused the application. Despite the submissions of Mr Ollennu, which suggested the court might be helped by the doctors’ evidence as to the facts, it was clear in my view, that the real reason the Claimant wished to call both doctors was to contradict the expert opinion evidence of Dr Cockerell despite the order made at the case management conference for a single joint expert evidence, which order had not been appealed. That this was the real reason was clear for example, from the witness summaries the Claimant had served for each doctor a matter of days before the trial. The suggestion that they should give factual evidence was a mere device it seemed to me to enable their opinion evidence to be given via “the back door”. Dr Cockerell had been jointly instructed and had given his opinion. The Claimant obviously did not like the opinion he expressed. But that in itself was not a reason to permit the Claimant to go behind it, or to allow further expert evidence in particular at this very late stage without regard to the carefully structured civil procedure rules contained in CPR Part 35 which provide for the controlled admission of expert evidence only with the permission of the court, having regard to issues of proportionality and the overriding objective; and when Fellowes would have been substantially prejudiced as a result.[56]Though as Lord Woolf said in MP v Mid Kent Healthcare NHS Trust [2001] EWCA Civ. 1703, even where a report from a single joint expert is ordered, it is nonetheless possible that the court may permit a party to instruct and then call his or her own expert at trial, such an exceptional course will only be permitted if very good reasons are advanced by the party wishing to call the further expert, and none were here. As I have said, the mere fact that one or other party disagrees with the conclusion of the joint expert is plainly not a sufficient reason on its own. It was in any event the position that Dr Cockerell had reviewed the factual information provided by both Dr Jeganathan and Dr Greenwood in his own report, with which he did not essentially disagree, and that he had given his opinion as the joint expert, having considered their views.[57]But in whichever capacity the evidence was to be proffered (factual or expert), there was no formal application of any sort before the court asking for permission for the evidence to be given, there was no explanation as to why witness statements (as opposed to witness summaries) had not been obtained from either doctor in accordance with the case management directions given by the court, or asking for relief from sanction for the failure to comply with the court’s directions with regard to the service of evidence. The witness summaries were wholly inadequate to provide any clear indication of the evidence the Claimant intended to rely on; and there was no explanation as to why the summaries had been served, a matter of days before the trial.[58]As Ms Holtham den Besten pointed out, Fellowes therefore had no clear idea of what either doctor would say or the purpose for which the Claimant intended to call them; and it had not had the opportunity to prepare to meet their evidence in whichever capacity it was given (for example, by obtaining further factual evidence if necessary from occupational therapists who had also seen Mrs Hill at the material time). Nor had there been any material disclosure of the doctors’ respective notes or other material relating to their treatment of Mrs Hill (Dr Jeganathan’s psychiatric case notes for example). No permission had been granted to adduce psychiatric evidence at trial, nor to adduce the expert evidence of single (opposing) neurological experts. Had such permission been asked for or given, Fellowes would she submitted, have sought to obtain their own equivalent evidence. Fellowes had been deprived of this opportunity, and prejudiced accordingly.[59]No formal application to adjourn was made on behalf of the Claimant, but even if it had been, it would not have been right to allow it in my view, in respect of a claim for professional negligence against a solicitor which was first intimated as long ago as 2004 and which had been outstanding ever since. Nor would it have been right to allow the Claimant to achieve by dint of a wholesale disregard of the rules relating to case management and the procedures relating to the service of evidence, whether factual or expert the adjournment earlier refused by Eady J. It was also the case that Fellowes was unlikely to recover the costs of an adjournment, as a matter of reality even if one was granted.[60]So far as oral examination of Dr Cockerell was concerned, as was made clear by Lord Woolf MR in MP v Mid Kent Healthcare NHS Trust at [28] “in the normal way…there should be no need for that report to be amplified or tested in cross examination. If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. ..either prior to the hearing or at the hearing. But the assumption should be that the single joint expert’s report is the evidence. Any amplification or any cross-examination should be restricted as far as possible.”[61]In addition, as Lord Woolf went on to say:
“It is obviously sensible that if a single joint expert is (unusually) to be subject to cross-examination, then he or she should know in advance what topics are to be covered, and where fresh evidence is to be adduced for his or her consideration, and this should be done in advance of the hearing.”
[62]I was far from satisfied from the terms of the witness summary served in respect of Dr Cockerell that it would be proper to allow him to be cross-examined given the clarity of his report and its conclusions, and the answers already given to the written questions sent to him by the Claimant’s solicitors. Nonetheless I gave the Claimant the opportunity to draft further written questions with a view to determining whether it would be necessary for Dr Cockerell to attend on a subsequent day for oral examination, or whether such questions as I decided it was appropriate for him to be asked, could be dealt with in writing.[63]In the event, I permitted only three further questions to be asked for the purposes of further limited clarification of Dr Cockerell’s report, and directed they should be answered in writing since in my view it was not necessary and would have been disproportionate and contrary to the overriding objective to require Dr Cockerell to re-attend to answer them. I disallowed other questions for a number of reasons: in summary, they inappropriately raised matters already dealt with and answered in Dr Cockerell’s report or answers he had already given, they were not designed to elicit helpful or relevant neurological expert evidence, and would not have assisted in determining whether Fellowes would have been on notice of Mrs Hill’s declining health, and so ought to have sought medical evidence in respect of her capacity before acting for her on the sale of the Property; or whether they had otherwise breached the duties of care which they owed Mrs Hill.

Dr Cockerell’s evidence

[64]In response to his initial instructions, Dr Cockerell’s expert opinion was that in 2003 Mrs Hill was suffering from mixed degenerative and vascular dementia. He concluded it is likely that this would have caused Mrs Hill cognitive difficulties. However, in his view:
“cognitive function can be quite impaired and yet a patient can still have free will and sense of what they want and what they do not want. It would be egregious to deny patients with dementia a say in their own care and a say in the disposal of their possessions. Just because their intellectual capacity is reduced it does not mean that they do not have the right to still make decisions. It is impossible ever to know exactly when the capacity to make decisions is completely lost, but when assessing this medically one would question the patient about how she understands the effect of her decision on other people and if the patient does understand this, even if there is profound cognitive compromise, then I would suggest that capacity is retained. There is evidence from the solicitors that they met the client and she did understand the instructions and was, in fact, quite vehement in her direction to make a sale of the house and she understood the implications of this. Therefore my conclusion is that although she had cognitive problems that may have interfered with her decision making [s]he still had capacity in the sense that this was her opinion at the time and this was the expression of her free will.”
[65]He concluded it is unlikely that Mrs Hill’s dementia would have been apparent to a competent solicitor:
“Many patients with dementia actually come across as quite sociable and engaging and are able to … answer a number of questions reasonably coherently. This all depends on what type of dementia is occurring but I think it would be entirely plausible that someone with mild to moderate dementia, as Mrs Hill, was suffering from, would not be apparent to a solicitor who engages her in conversation for the first time.”
[66]It was only if a solicitor perceived that there might be medical issues that a doctor’s report would be obtained:
“but as far as I understand it the medical circumstances surrounding Mrs Hill were never discussed with the solicitor and one would not expect them to be discussed.”
[67]He said that overall, he shared some disquiet about this case and the sense that Mrs Hill’s intellectual function was definitely impaired at the time she made these decisions. Nevertheless, his conclusion was that:
“… there is no reason to suppose that actually [Mrs Hill] was not acting with capacity at the time and this was not the expression of her free will.”
[68]Dr Cockerell subsequently confirmed his conclusions in his responses to the questions posed of him by the Claimant following service of his report (see paragraph 50 above):
“…From my reading of the case Mrs Hill was able to instruct a solicitor. The solicitor did not feel that there were any issues with her capacity. This to me means that she probably did have capacity and ability to make a perfectly valued opinion.”
[69]In his additional responses provided to the parties in accordance with my direction, Dr Cockerell said there had been no change in the tests applied to assess cognitive function over the relevant period; and “Patients with dementia can be vulnerable to influence by other people. The dementia may impact on the understanding of particular matters. However, even patients with quite severe dementia could still have formed and reasonable opinion” (sic).[70]Having considered Dr Cockerell’s evidence in the light of the other evidence available (including the material to which he specifically referred) I have no hesitation in accepting it. As he said, dementia is not an all or nothing condition: Mrs Hill was able to have an apparently rational discussion with Ms Butler in which she expressed her views about what she wanted to do with her own Property. From this, in his opinion, the conclusion could properly be drawn that Mrs Hill had capacity; that she was able to form a valid opinion, that she had a sense of what she wanted and did not want; and that what she said to Ms Butler at the relevant time was the expression of her free will.

The claim

[71]The Claimant’s pleaded case was that Fellowes was negligent because the firm: i) failed to appreciate that Mrs Hill was a vulnerable person and to make inquiries as to her capacity to understand the sale which represented a disposal of her only asset; ii) failed to appreciate that Ms Alexander had considerable influence over Mrs Hill, and only met with Mrs Hill briefly in Ms Alexander’s presence; iii) did not properly investigate the sale of the Property on 31 October 2003, satisfy itself that the sale was at market value, and that Mrs Hill understood the implications of selling her Property at £145,000; iv) failed to respond to the allegedly “highly suspicious” nature of the remission of proceeds to Ms Alexander, including the provision of written instructions from Mrs Hill written by different persons and which referred to Ms Alexander’s account as “my account”; and v) did not appreciate that the remission of the sale proceeds to Ms Alexander was peculiar when Mrs Hill and Ms Alexander were to move into council housing.[72]In my view, none of the alleged breaches of duty have been made out.[73]It is clear (and is not in dispute) that throughout 2003 Mrs Hill was suffering from a progressive form of dementia, caused in Dr Cockerell’s opinion by vascular and degenerative changes. But that in itself, as Dr Cockerell’s evidence makes clear, does not mean Mrs Hill actually lacked capacity to instruct Fellowes on the sale of the Property, or the ability to exercise her free will or indeed that any lack of capacity would have been evident to a reasonably competent solicitor, or was evident to Ms Butler.[74]There is simply no evidence in my view that Ms Butler knew that Mrs Hill was suffering from dementia, or ought to have appreciated this was the position during the period of the retainer; nor indeed was it put to Ms Butler in cross-examination that she knew or ought to have known that Mrs Hill had dementia when she met her on 26 February 2003.[75]A solicitor is generally only required to make inquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner; see, Jackson & Powell at 11-221 and by analogy Hall v Estate of Bruce Bennett [2003] WTLR 827. This position is reflected in the guidance given to solicitors in The Guide to the Professional Conduct of Solicitors (8th edition, 1999) which was in force at the relevant time, where it is said that there is a presumption of capacity, and that only if this is called into question should a solicitor seek a doctor’s report (with the client’s consent) “However, you should also make your own assessment and not rely solely upon the doctor’s assessment” (at 24.04).[76]In opening, the Claimant’s case was put on the basis that Fellowes ought to have been “more careful” with regard to the sale of the Property because Mrs Hill was suffering from dementia and did not really know what she was doing. The relevant test where professional negligence is alleged however is not whether someone should have been more careful. The standard of care is not that of a particularly meticulous and conscientious practitioner. The test is what a reasonably competent practitioner would do having regard to the standards normally adopted in his profession: see Midland Bank Trust Co Ltd v Hett Stubbs and Kemp [1979] Ch 384 at 403 per Oliver J at 403.[77]I should add (since at least part of the Claimant’s case seemed to have suggested, at least implicitly, that this was the case) that there is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary.[78]Ms Butler struck me when she gave her evidence, as a careful and responsible solicitor, well aware of her duties and responsibilities towards her clients in general, and (on the evidence of her file) to Mrs Hill in particular. She acted perfectly properly when first instructed on the sale of the Property (as was conceded on behalf of the Claimant) by asking Mrs Hill to attend a face to face meeting at Fellowes’ offices so she could satisfy herself by hearing from Mrs Hill in person, that Mrs Hill genuinely wanted to sell the Property, that she was not being forced to sell it, and that she understood the implications of the transaction that was being proposed.[79]The attendance notes Ms Butler made both of her conversation with Ms Alexander on 18 February 2003, and of her meeting with Mrs Hill on 26 February 2003 demonstrate this was the purpose of the meeting. The latter attendance note also provides compelling evidence in my view, that this purpose was fulfilled – that is that Ms Butler clearly was appropriately satisfied of those matters and that Ms Alexander was to be the beneficiary of the sale price of the Property (“she wants to put towards the purchase of her daughter’s property as well (sic), as she will be living in it”).[80]Indeed the attendance note of the 26 February 2003 meeting provides cogent evidence that Mrs Hill gave clear and unambiguous instructions for the sale of the Property and the disposal of the sale proceeds (see for example, in this context, the use by Ms Butler of the adjective “adamant” to describe Mrs Hill’s attitude at the meeting). Mr Ollennu placed considerable weight on the fact that the meeting lasted only 12 minutes but in my view that was sufficient time for Ms Butler to satisfy herself as to relevant matters, as she plainly did. And it was not seriously contended at trial (save by Mr Thorpe, as to which see paragraph 112 below) that at this meeting Mrs Hill did not give unequivocal instructions that she wished to proceed with the sale and to gift the proceeds to Ms Alexander.[81]I accept therefore Ms Butler’s evidence that she was obviously satisfied that Mrs Hill was able to provide instructions, otherwise she would not have proceeded with the transaction; conversely, had she been in any doubt as to Mrs Hill’s capacity when she met her, she would not have proceeded with the sale. Her evidence is supported both by the terms of the attendance notes themselves, and by her evidence which I also accept, as to her usual practice when dealing with elderly clients which she believes she would have followed with Mrs Hill.[82]The evidence establishes, in my view, that the fact that Mrs Hill was suffering from dementia in 2003, would not have been apparent to a reasonably competent solicitor. It also follows that there was no “special” duty of care owed by Fellowes to Mrs Hill; there was no need for Fellowes to seek medical advice in relation to Mrs Hill’s mental health (indeed, to have done so would have been wholly inappropriate), and the Claimant has failed to satisfy me that Mrs Hill did not have capacity to instruct Fellowes on the sale of her property.[83]It is to be noted that though it is pleaded that Fellowes failed to appreciate that Mrs Hill was a vulnerable person and to make inquiries as to her capacity to understand the sale, the pleadings do not identify any matters which it is said ought to have put Fellowes on notice that Mrs Hill did not have capacity to instruct Fellowes on the sale of the Property and/or was otherwise vulnerable, nor were any particular matters put to Ms Butler in this respect.[84]Some further criticisms of Fellowes were advanced on behalf of the Claimant at trial, because Ms Alexander, rather than Mrs Hill made the initial contact with Fellowes, and because there was an error in Fellowes’ standard form letter of 14 January 2003 which, whilst seeking confirmation of instructions from Mrs Hill, referred to a discussion that had taken place between Ms Alexander and Ms Butler. However, Ms Butler was clearly aware at all material times that she was retained by Mrs Hill and therefore of the need to obtain her instructions. She addressed all correspondence relating to the sale to Mrs Hill throughout the material period, she ensured she met her and took her instructions directly from her before proceeding to sell the Property and she obtained confirmation of critical aspects of Mrs Hill’s instructions in writing, signed by Mrs Hill (in particular, in the letters dated 20 March 2003, 26 September 2003 and 10 October 2003).[85]Though Ms Butler obviously did communicate directly with Ms Alexander from time to time, in my view it is plain from the evidence that Ms Butler always understood Ms Alexander to have been acting as her mother’s agent in her communications with Fellowes. As Ms Butler said in evidence, it is not unusual to receive instructions from an elderly person’s relative when retained by that elderly person; and had she had any doubts as to Mrs Hill’s capacity when she met with her, as she did, then she would not have proceeded to act on the sale.[86]Even were it to be the case, contrary to my conclusions as set out above, that Fellowes accepted instructions from Ms Alexander when it should only have accepted these directly from Mrs Hill, Ms Holtham den Besten submits, in my view correctly, this was not causative of any loss having regard to the fact that Mrs Hill confirmed her intention to sell the Property at the meeting of 26 February 2003, and again in writing on 26 September 2003. Additionally, Ms Butler’s evidence is that she obtained instructions from Mrs Hill before remitting the sale proceeds to Ms Alexander, and that in any event these instructions would have been required by Stephen Fellowes, her supervisor and a partner in the defendant firm, before the sale proceeds were remitted to a third party (see further paragraph 98-105 below).[87]On a number of occasions during the trial, Mr Ollennu used the word “purportedly” to describe Mrs Hill’s signature on various documents. When giving evidence, Mr Thorpe also suggested Mrs Hill’s signature had been forged. However the Claimant was given permission to adduce expert evidence as to handwriting, and did not do so. There is therefore no expert evidence to suggest that Mrs Hill’s signature was forged on any of the documents on Fellowes’ file. Indeed there was no pleaded case of forgery, let alone that Fellowes were or ought to have been on notice of any alleged fraud. Mr Thorpe’s witness evidence was that the signature on these documents was self-evidently that of an “elderly person”.[88]Further, in my view, no material change of circumstance has been shown between the date of the meeting between Ms Butler and Mrs Hill and the eventual sale of the Property which would have made it inappropriate for Ms Butler to act on the sale of the Property, at least without conducting further inquiries into Mrs Hill’s mental state or arranging to meet her again. There is no evidence to indicate that Mrs Hill’s mental state deteriorated throughout 2003, or indeed of any other matters which would or should have put Fellowes on notice that further enquiries of Mrs Hill’s capacity ought to have been carried out. There was no reason in my view, why Fellowes should have taken “extra care” in September or October 2003, simply by reason of Mrs Hill’s old-age when as I find, they had no notice of Mrs Hill’s dementia, and having regard to the steps taken by Ms Butler, to which I have already referred.[89]It was suggested by Mr Ollennu that the transaction in which the Property was sold, was a separate transaction from that which Mrs Hill had instructed Fellowes on in January 2003 (because the mortgage documents had been returned to Kensington Mortgage Company in about August 2003); and that as a result, Fellowes had a duty to see Mrs Hill for a second time to ensure she wished to proceed with the sale in October 2003. It was further suggested that there was something suspicious about the fact that, whilst in February 2003 Mrs Hill was “adamant” that she wished to sell the Property, a substantial period of time passed after February 2003 during which the sale of the Property did not proceed and “everything went cold”, until about September 2003 when matters were resurrected.[90]As to that, Fellowes had obtained clear instructions from Mrs Hill that she wished to sell the Property on the same the terms upon which the sale completed in October 2003, both in person in February 2003 and subsequently in writing. There was no reason for Fellowes to assume that Mrs Hill’s instructions had changed over the summer. I do not consider there is anything in the argument that the sale which took place in October 2003 was different from that contemplated in January 2003 in circumstances where the transaction involved the same property being sold by the same seller to the same purchaser, for the same price.[91]I do not consider either there was anything inherently suspicious in the fact that the sale failed to complete in March 2003, but then completed in October 2003. It is also incorrect in my view, to characterise what happened during the intervening period as matters going cold. From the documents on Ms Butler’s file, the initial sale appears to have been delayed by Ms Alexander’s failure to obtain a mortgage offer. By September 2003 it was instead anticipated that she and her mother would move into a council property. I also do not think the fact that Mrs Hill and Ms Alexander were now to move into a council house was inherently suspicious either. As Ms Holtham den Besten has also submitted, it was always the case that Mrs Hill intended to sell the Property in order to move in with Ms Alexander, whether that was in her own property, or a council property because, as she told Ms Butler when she met her in February 2003 she did not want to maintain the Property which on the evidence, appears to have been in some disrepair.[92]In any event, when considering whether Fellowes was negligent, the various criticisms to which I have referred should be considered in the context of the way in which Ms Butler conducted matters post February 2003; and in the run-up to the sale in October 2003. When looked at from that perspective, it seems to me that Ms Butler did take reasonable steps to be satisfied that Mrs Hill wished to proceed with the sale, in particular by obtaining Mrs Hill’s consent to the sale in writing and by confirming the remission of proceeds to Ms Alexander in accordance with Fellowes’ standard procedure (see paragraphs 98 to 105 below). Whilst it is said by the Claimant that Fellowes ought to have taken note that the handwriting of the letters of 26 September 2003 and 10 October 2003 differed from that of Mrs Hill’s letter of 20 March 2003, Ms Butler says, reasonably in my view, that she was not suspicious that “it appeared that the letter(s) had been written by someone else and simply signed by Mrs Hill, as it was clear Mrs Hill’s handwriting was “shaky” and therefore she could well understand that someone else might write a letter for the Claimant to sign. Furthermore, she had no reason to suppose that Mrs Hill’s intention to sell the Property and her understanding of this transaction had changed since she met her in February 2003.

The alleged sale at an undervalue

[93]I turn next to the claim that Fellowes ought to have satisfied itself that the Property was to be sold at a fair price by seeking advice from an estate agent. This aspect of the claim seems to me to be hopeless. First, there is no general duty upon a solicitor to advise a seller to obtain an independent valuation of a property, and nor, as Ms Butler said during her cross-examination, can a solicitor compel a client to accept such advice even if given: see generally Cordery on Solicitors at paras. 378-380.[94]Second, there is no evidence that the Property was sold at an undervalue. The fact that a few months later, the Property sold at auction for £186,000 does not come close on its own, to establishing that it was. There was no expert valuation evidence before me. There was no evidence either of the condition of the Property when it was resold. Mr Thorpe first sought to suggest in his witness statement that equivalent properties in the area sold for £250,000; and then to rely on some basic internet searches produced by the Defendant’s solicitors in correspondence when they objected to his giving what amounted to expert valuation evidence in his witness statement. The internet searches were plainly inadequate to support the claim in this respect, as Mr Ollennu was bound to accept, not least because they provided nothing other than the most basic information about the properties in question, (their address, whether they were flats, or terraced houses, freehold or leasehold, and new build or not); and could not support any evidence-based conclusion about value.[95]In any event, Fellowes did advise both Ms Alexander on behalf of her mother, and Mrs Hill, to satisfy themselves that the Property was being sold for an appropriate price. On 24 September 2003 Ms Butler advised Ms Alexanderthat she should obtain a valuation from an Estate Agent to make sure that £145,000 was the correct price for the Property and indicated that she would write to Mrs Hill about this as her attendance note of that conversation records. On 29 September 2003 then Ms Butler wrote to Mrs Hill seeking confirmation that she was happy to proceed with the sale of the Property at £145,000 and she advised Mrs Hill to contact an estate agent to check the value of the property, to ensure that she was selling at the correct price (see paragraph 19 above).[96]Though Mrs Hill did not respond in terms to the letter of 29 September 2003, she continued to provide written instructions to Fellowes consistent with her intention that the sale should proceed at the price of £145,000.

The remission of the sale proceeds to Ms Alexander

[97]Finally, I turn to the claim that Fellowes “ought to have been more careful” when remitting the sale proceeds to Ms Alexander as was submitted by Mr Ollennu “because the original idea was that the money should be used towards the buying of another property by Mrs Alexander. Now, the situation is changed because apparently Mrs Alexander was now in council property.” Two matters are relied on in particular by Mr Ollennu. First that the letter of the 10 October 2003 signed by Mrs Hill referred to “my account” but gave the account details of Ms Alexander which it is said should have caused a prudent solicitor to speak directly to Mrs Hill to ascertain what it was she really wanted to do; and second, the absence of an attendance note of the conversation Ms Butler thinks she subsequently had with Mrs Hill.[98]After hearing from the purchaser’s solicitor that the sale was now to take place, Ms Butler had been informed by Ms Alexander on 24 September 2003 that she and her mother were now going to move into a Council property. As I have said, Mrs Hill then gave written instructions that the sale of the Property was to proceed; she signed the contract of sale on 10 October 2003, and gave details in a handwritten letter dated 10 October 2003 signed by her, of a bank account at Abbey National, to which the proceeds of sale should be transferred, which she described as “my account”. This was in accordance with a conversation between Ms Alexander and Ms Butler recorded in an attendance note of the same date, in which Ms Butler, was, additionally asked by Ms Alexander to write to Waltham Forest Council, to confirm exchange and then completion to ensure the Council accommodation was available.[99]The Transfer Deed document was duly sent by Ms Butler to Mrs Hill on 15 October 2003 and signed by Mrs Hill whose signature was witnessed by Samantha Apple, a Contract Administrator. After the sale completed on 31 October 2003, the overall sale proceeds of £98,980.12 were then remitted to the account details which had been provided by Mrs Hill in the letter of 10 October 2003, and with Mrs Hill named as the beneficiary. Payment was returned however on 3 November 2003, because the account details given by Mrs Hill were those of Ms Alexander. Part proceeds of the sale (£5,000) were then remitted by Fellowes to the account naming Ms Alexander as the beneficiary, on 4 November 2003.[100]Although completion took place on 31 October 2003, it appears from the documents, that vacant possession was not given immediately. On 10 November 2003, Ms Butler wrote to Mrs Hill, further to a telephone conversation she had had with Ms Alexander on 4 November 2003. Ms Butler said “I confirm that I have now received confirmation from the buyer’s solicitors that we can release the remainder of the funds to you” (presumably because vacation possession had now been provided). She continued:
“I have therefore sent, by telegraphic transfer to your daughter’s account, the sum of £93,859.62, as requested.”
Thus, the balance of the proceeds of sale of the Property were then remitted to Ms Alexander’s account.[101]It is submitted on behalf of Fellowes that where in Ms Butler’s letter to Mrs Hill of 10 November 2003 she says that “I have sent the monies to your daughter’s account as requested”, the request referred to is one made by Mrs Hill, not “as requested by your daughter”. It is not entirely clear in my view, from the terms of the letter by whom the “request” referred to was made. On one view, it could be argued that it is more likely that the request was made by Ms Alexander, in the conversation between Ms Butler and Ms Alexander on the 4 November 2003 to which the letter refers (and which took place on the same day as the telegraphic transfer of the part proceeds of sale of £5,000 to Ms Alexander).[102]Ms Butler however says in her witness statement:
“There is no note on this file to confirm what then transpired, [after payment was returned to Fellowes on 3 November 2003] but in accordance with my usual practice, I am fairly sure that I would have spoken to Mrs Hill orally to confirm the beneficiary on the account and she would have told me it was her daughter’s account. I would not have been surprised by this as originally I had been instructed by her that the sale proceeds were going to be sent to Ms Alexander’s solicitor, and in any event as far as I was aware, the whole reason for the sale was for Mrs Hill to move in with Ms Alexander.”
[103]Ms Butler’s position was maintained in her oral evidence. She was asked in cross examination why she did not speak to Mrs Hill before remitting the proceeds of sale to Ms Alexander. Ms Butler reiterated what she had said in her witness statement, namely that she was fairly sure she would have done so. The electronic transfers of funds from Fellowes’ client account obviously had to be authorised and signed by a signatory on the relevant account. In this case, the material transfers were signed by Mr Stephen Fellowes. Ms Butler said Mr Fellowes would not have allowed the transfer to be made to a third party, or authorised it unless he was satisfied the firm had authority for it to be sent to the third party. Generally, Ms Butler said, if funds are going to a third party, then Mr Fellowes would want to see some evidence of such authority, or know why the funds were being sent to a third party, which was why she was fairly sure she would have spoken to Mrs Hill (to confirm she authorised the transfer of the funds to her daughter’s account) even though she had not done an attendance note of her conversation with Mrs Hill.[104]It is to be noted that in contrast perhaps with other parts of her file, for what ever reason, there are fewer attendance notes by Ms Butler relating to the various matters in relation to the sale which were taking place during this time. Notwithstanding the absence of an attendance note, I accept Ms Butler’s evidence on this issue, and I have concluded therefore that it is likely that she did speak to Mrs Hill to obtain instructions to remit the proceeds of sale to Ms Alexander, as she has said she is fairly sure she would have done. Ms Butler was an obviously honest witness, and, as I have already said a careful and responsible solicitor, who in my view, was fully aware of her obligations to Mrs Hill. Her evidence that the usual procedure would have been followed in this case is corroborated by Mr Fellowes’ signature of the relevant monetary transfers; and indeed by the signatures of Mr Michael Woolf, another partner of the firm, of the earlier ineffective transfers. As Ms Holtham den Besten has also pointed out, when it was discovered that an overpayment had been made when redeeming the mortgage on the Property, the surplus (of £788.12) was sent by cheque to Mrs Hill because Fellowes did not have contrary instructions to remit this money to Ms Alexander. The Claimant has failed to satisfy me therefore that Ms Butler was negligent in remitting the proceeds of sale to Ms Alexander.[105]This brings me to what I regard as an underlying difficulty with the case overall. There is no evidence which establishes that any loss has occurred in this case: that is, there is no evidence that the remission of proceeds of sale to Ms Alexander’s account was not in accordance with Mrs Hill’s wishes, that she has suffered any wrong, that her rights have been abused or that, but for her dementia, she would have brought these proceedings. She owned the Property and it and the proceeds of sale were hers to do with as she wished.[106]Ms Holtham den Besten submits that although the Court has not had the benefit of hearing from Ms Alexander, the evidence overwhelmingly suggests that the proceeds of sale were properly remitted to Ms Alexander on behalf of her mother, upon Mrs Hill’s instructions and because at this time Ms Alexander dealt with her mother’s financial affairs. There is evidence that Ms Alexander dealt with her mother’s financial affairs in some of the contemporaneous reports compiled by health care professionals who were involved with Mrs Hill at the time: for example one from Chan Walker (a Community Psychiatric Nurse) dated 18 July 2003; and from occupational therapists, Joyann Perkins dated 4 November 2003 and Andrew Wu dated 5 January 2004.[107]Moreover, Ms Holtham den Besten submits, the remission of the sale proceeds to Ms Alexander’s account is also consistent with Ms Alexander’s subsequent care of her mother (at home until or about July 2005, and thereafter whilst in residential care) and with Ms Alexander’s acquisition of a Power of Attorney to act on behalf of her mother. She points to a letter from Mr Philip Telford, the Residential Visiting Officer from the Financial Assessment Unit, of the Waltham Forest Adult and Community Services of the 14 August 2008 in the Court of Protection File. Mr Telford’s letter was written to the Office of the Public Guardian to bring to the Court of Protection’s attention concerns Mr Telford had about Mr Thorpe’s application to be made a Receiver; and what Mr Telford plainly regarded as his unhelpful and obstructive conduct. In the letter Mr Telford says that when Mrs Hill was placed in residential care in Francis House on 25 July 2005, because she did not have the mental capacity to deal with her own financial affairs, a financial assessment was processed through Ms Alexander who had acquired Power of Attorney to act on Mrs Hill’s behalf.[108]Ms Holtham den Besten submits thatsuch authority having been given to Ms Alexander, and such power having been acquired by her, it is arguably immaterial that the monies were paid directly into Ms Alexander’s own bank account, since she would ultimately have had access to these funds in any event.[109]Mr Telford went on to say in his letter that since Mrs Hill had become a resident of Francis House, no client contributions towards the cost of Mrs Hill’s care had been paid, so that, as at June 2008, the current outstanding debt had reached £23,608.70. Mr Ollennu contends the outstanding debt “strongly corroborates” Mr Thorpe’s contention that Ms Alexander has “run off with Mrs Hill’s money”. In that context, he poses the question why Fellowes has not sought to call Ms Alexander as a witness. This however, is put no higher than “a contention” as Miss Holtham den Besten says in response. Moreover as she also points out, Fellowes did write to Ms Alexander to ask her to give evidence, though she did not respond, and Mr Thorpe’s appointment as Mrs Hill’s Litigation Friend gave him permission to bring proceedings against Ms Alexander which he did not do. She also refers to correspondence from Ms Alexander to the Court of Protection in which she complained that Mr Thorpe had threatened her if she tried to stop his application to be made a Receiver as providing a possible explanation for Ms Alexander’s failure to respond to letters from RCB asking for her assistance in these proceedings.[110]It seems to me, particularly in the absence of Ms Alexander, that I could not possibly conclude that Ms Alexander has “run off” with the proceeds of sale or has perpetrated some form of fraud on her mother. But in any event, even if there was evidence capable of establishing those matters to the relevant standard of proof, it has not been shown that Fellowes knew or ought to have known that a fraud was being committed by Ms Alexander when it was retained to sell the Property so as to found a claim against Fellowes rather than Ms Alexander. As Ms Holtham den Besten submits, it may be that Ms Alexander continues to hold the sale proceeds for her mother. If she does not, then the real dispute as to what became of these proceeds must be between Ms Alexander and Mr Thorpe.[111]This brings me to the position of Mr Thorpe, in particular as Mrs Hill’s Litigation Friend. It was readily conceded by Mr Ollennu that Mr Thorpe was not privy to any of the relevant events, and so his evidence was not material to the matters in issue. But I regret to say in my view he was an not a satisfactory or credible witness, and that he had a tendency to say what he thought would support the Claimant’s case, regardless of whether it was true.[112]The following examples are rightly highlighted on behalf of Fellowes: i) Notwithstanding that it was not disputed that his mother had met Ms Butler in February 2003 and that, at that meeting, she had given clear instructions of her intention to sell the Property, Mr Thorpe said in evidence that there was no proof that Ms Butler had met Mrs Hill, and no proof of the identity of the lady Ms Butler had met; ii) Mr Thorpe repeatedly claimed that his mother had gone into care “a few months” after the Property was sold, at the instigation of his sister (a suggestion, which, if true might have led support to his claims that his sister was, in effect, a manipulative fraudster). However his claims were plainly contrary to the contemporaneous evidence which shows that Ms Alexander cared for her mother until she was no longer able to do so, in about July 2005, when Mrs Hill was placed into full time residential care. When Mr Thorpe’s attention was directed to that evidence, Mr Thorpe claimed that “a few months” is simply a figure of speech, and attributed his lack of specific recollection to the “pressure” which he had been under lately; iii) Mr Thorpe claimed to have visited his mother every weekend since 2002, when he had stopped working on cruise liners, and yet had very little knowledge of her dementia or its diagnosis, and no clear recollection of when Mrs Hill went into care. He also denied that his mother had written or signed any of the relevant letters even though no allegation of forgery or fraud was made in the proceedings; iv) Mr Thorpe said in evidence that the Property had not been sold between January and November 2003 because “other people [i.e. Ms Alexander] had found out about the sale.” There was no evidence of this save for Mr Thorpe’s assertions, which were contrary to the evidence. This showed the sale did not complete in or about March 2003 because Ms Alexander was then unable to obtain a mortgage offer but it then proceeded once alternative accommodation had been found. In any event, it was Mr Thorpe’s case that he did not find out about the proposed sale until or about September 2003, and he did not specify which “other persons” had apparently obstructed it at an earlier date; v) Mr Thorpe claimed that Waltham Forest were lying when they claimed that care contributions for his mother had been assessed, and said she was entitled to free residential care, despite clear evidence to the contrary. He also claimed not to have provided his address to Waltham Forest Council, again despite clear evidence to the contrary (and some suggestion on the face of the letter from Mr Telford to which I have referred, that he had attempted to prevent the Council establishing his whereabouts).[113]What I found particularly troubling was that Mr Thorpe obviously had no awareness or understanding of the roles and responsibilities of a Receiver, even though he had applied to be appointed as Receiver on behalf of his mother (an application which was opposed by Ms Alexander), and had signed a statement of truth testifying to his knowledge and understanding of the matters which this would involve.[114]While none of Mr Thorpe’s evidence shed any real light on the issues I had to decide (save insofar as he was able to say that his mother was suffering from dementia at the material time, a matter which was not in dispute) his evidence did in my view give some insight into the motivation for bringing these proceedings which I regret to say, seem to me to have been brought not because of a concern to redress any wrong suffered by Mrs Hill but because of Mr Thorpe’s obvious anger that the Property which he regarded as the family home had been sold and the sale proceeds had been sent to his sister alone, regardless of whether his mother had in fact instructed the sale or whether the remission of the proceeds to Ms Alexander, might have been in accordance with her wishes.

Conclusion

[115]In the result, the claim against Fellowes is dismissed. In view of the conclusions I have reached, I also direct that a copy of this judgment be sent to the Office of the Public Guardian.