Re Application for Wasted Costs [2003] EWHC 822 (TCC)

Case No HQ 0005270[2002] EWHC 822 (TCC)Date 13 March 2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Before
HIS HONOUR JUDGE BOWSHER Q.C.
In the Matter of an Application for Wasted Costs
In an action:
Between
MOHAMMED AFZALClaimantCHUBB GUARDING SERVICES LIMITEDDefendantFORMERLY CHUBB WARDENS LIMITEDDefendantILLIFES BOOTH BENNETTRespondent
for defendant/applicant: Lawrence West (Davies Arnold Cooper) solicitors)Nicholas Baldock (Kennedys, solicitors) for respondentDates of hearing: 14 February, 6 March, 2003.Date of judgment: 13 March, 2003
JUDGMENTThe judgment of His Honour Judge Bowsher Q.C. is as follows:
[1]The application before me is made by the defendants in this action against the solicitors who formerly acted for the Claimant.[2]This action was brought with the assistance of Legal Aid by the claimant suing by his litigation friend, his wife, Nagina Afzal.[3]He claimed damages for personal injuries allegedly suffered in the course of his employment by the defendants as a security guard. It is alleged that he was attacked while on duty.[4]The action was started on 25 August, 2000. On 4 April, 2001, the late Master Murray, against the wishes of both parties, ordered the trial of a preliminary issue as to whether or not the claimant is a patient within the meaning of the Mental Health Act, 1983. On appeal, Buckley J. ordered the trial of different preliminary issues, namely:(a) Did the claimant suffer any psychiatric and/or psychological injuries as a result of the alleged attack?(b) If so, does he still suffer and to what extent?(c) If so, what is the prognosis?(d) Was the claimant at the date of the issue of the proceedings a person under a disability within the meaning of Part 21 of the Civil Procedure Rules?(e) If so, is he currently a person under such disability?[5]On 11-13 March, 2002, I tried those preliminary issues. On 22 March, 2002 I gave judgment making findings that resulted in my revoking the appointment of Nagina Afzal as litigation friend. On the same day I was told that the defendants wished to apply for a wasted costs order against the claimant’s then solicitors, Iliffe Booth Bennett (IBB).[6]On 22 March, 2002, I also ordered that the claimant pay the defendants the cost of the preliminary issues, determination of the liability of the claimant to pay such costs to be adjourned pursuant to Regulation 128 of the Civil Legal Aid (General) Regulations, 1989. By agreement with the claimant that liability for costs has been agreed in the sum of £22,000. How someone who could be persuaded to produce such a sum of money should have been allowed to qualify for Legal Aid is a mystery. The claimant at the time of the alleged incident giving rise to this action was in partnership with his wife running a business of goldsmith and jewellers in Desborough Road, High Wycombe. They fell into financial difficulties because insurers were reluctant to recompense them for a burglary in which much of their stock was stolen. So the claimant took a job with the defendants as a security guard on shift work while intending to continue to work as a partner in the jewellery business. For that purpose, his wife filled in an application form and gave a reference in both of which she falsely described him as the manager of her business when he was in fact a partner.[7]The action brought by the claimant against the defendants was for damages for personal injury and consequential loss suffered in his employment by the defendants.[8]On 21 May, 2002, at a Case Management Conference, I made an order that IBB had ceased to act for the claimant and I also dismissed the action on account of the claimant’s failure to appear with an appropriate order for costs. I gave the claimant permission to apply within 14 days to vary or set aside the order but no such application has been made.[9]The alleged circumstances of the incident in which the claimant was allegedly injured are bizarre and they are not credible because they are not consistent with the physical injuries found. Mrs. Afzal went to the hospital that day and interpreted for her husband when he was asked to make a statement to the police. The written record of that statement has apparently been lost, but in evidence Mrs. Afzal gave an account of her understanding of what happened based on the account that her husband gave to the police through her. She said:
“My husband was alone in his office on a day shift which started at 7.00 a.m., when he saw four men inside the site, although the gates were still padlocked. There were two white and two black men of West Indian origin. Afzal saw them entering the building next to his office. He tried to dial 999 which was what his employers, Chubb Wardens Limited, told the Security Guards to do. Before he could do so, two men walked into his office, one white and one black. One man was carrying a butcher's knife, and the other a baseball bat. They started using abusive language to Afzal. They then said "The boss is calling you.”
He asked "Why? What have I done, and why are you swearing at me?" They took him to another part of the building and had already made a hole in the wall for him to climb through, and the two men followed him. The two other men who had entered the site originally were waiting on the other side of the wall, and had started two fires in the building. One man threw petrol over my husband, and one tied his feet with a wire. The man who was carrying the butcher's knife started taunting Afzal, and made cuts all over his upper thighs. One man turned around to get a wooden torch to set him alight. Afzal's shoelaces were undone, but he managed to start running, and one man threw a knife at him. Afzal raised his hand to stop the knife hitting him, and his three middle fingers on his left hand were severely cut. He ran to another part of the building, and hid. Someone from another building informed the police at about 12.30 p.m.to 1.00 p.m. The policecame to let meknow at about 1.45 p.m. to 2.00 p.m. that Afzal had been injured and taken to Wycombe General Hospital.” It was also alleged that the claimant was thrown off a roof 28 to 30 feet high, but he had no injuries consistent with such a fall.[10]The trial of the preliminary issues involved many expert medical witnesses. The defendants estimate their costs of the preliminary issues from 2 January, 2002 at £34,000 and their costs of the whole action at a sum in excess of £70,000. They appropriate any money obtained from the claimant to the costs incurred before 2 January, 2002. They now seek to recover from IBB a sum in respect of costs incurred after 2 January, 2002.[11]The claim of the defendants against IBB relates mainly to their handling of the medical evidence. It is alleged that by failing to bring certain items of medical evidence to the attention of other experts, whether called by the claimants or the defendants, IBB were negligent. It is further alleged that but for the negligent conduct of IBB the trial of the preliminary issues would never have taken place either because the Legal Services Commission would have discharged the claimant’s Legal Aid Certificate of its own motion or because IBB would have so advised them or because IBB would have advised that there was no reasonable prospect of the claim succeeding or all three.

Jurisdiction

[12]Section 51(6) of the Supreme Court Act, 1981 provides that “the court may … order the legal or other representative concerned to meet, the whole or any part of any wasted costs or such part of them as may be determined in accordance with rules of court.” Sub-section 7 defines wasted costs as:
“Any costs incurred by a party – (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.”
[13]The defendants claim that all the costs incurred by the defendants after 2 January, 2002 in the conduct, preparations for, and trial of the preliminary issues were wasted costs because they were incurred as a result of negligent acts or omissions on the part of IBB.[14]The jurisdiction under that section is to be exercised pursuant to CPR 48(7) and CPR 48 PD53.1 to 53.10.[15]CPR 48 PD53.4 adds an additional requirement to the words of the statute. PD53.4 provides that:
“It is appropriate for the court to make a wasted costs order against a legal representative only if – (1) the legal representative has acted improperly, unreasonably or negligently; (2) his conduct has caused a party to incur unnecessary costs, and (3) it is just in all the circumstances to order him to compensate that party for the whole or part of those costs.” (1) the legal representative has acted improperly, unreasonably or negligently; (2) his conduct has caused a party to incur unnecessary costs, and (3) it is just in all the circumstances to order him to compensate that party for the whole or part of those costs.”
[16]Sub-paragraph (3) of that Practice Direction does not appear in the statute or the CPR but since the provision of that Sub-paragraph goes without saying, it could not be said to be ultra vires.[17]48PD53.5 provides:
“The court will give directions about the procedure that will be followed in each case in order to ensure that the issues are dealt with in a way which is fair and as simple and summary as the circumstances permit.”
[18]CPR 48 PD53.6 provides that:
“As a general rule the court will consider whether to make a wasted costs order in two stages – (1) in the first stage the court must be satisfied – (a) that it has before it evidence or other material which if unanswered would be likely to lead to a wasted costs order being made; and (b) the wasted costs proceedings are justified notwithstanding the likely costs involved. (2) at the second stage (even if the court is satisfied under paragraph (1) ) the court will consider, after giving the legal representative an opportunity to give reasons why the court should not make a wasted costs order, whether it is appropriate to make a wasted costs order in accordance with paragraph 53.4 above.”
That Practice Direction is a Practice Direction, not a rule of law. It begins with the words, “As a general rule”, and it is qualified by CPR 48 PD53.7:
“On an application for a wasted costs order under Part 23 the court may proceed to the second stage described in paragraph 53.6 without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to give reasons why the court should not make a wasted costs order. In other cases the court will adjourn the hearing before proceeding to the second stage.” (1) in the first stage the court must be satisfied – (a) that it has before it evidence or other material which if unanswered would be likely to lead to a wasted costs order being made; and (b) the wasted costs proceedings are justified notwithstanding the likely costs involved. (2) at the second stage (even if the court is satisfied under paragraph (1) ) the court will consider, after giving the legal representative an opportunity to give reasons why the court should not make a wasted costs order, whether it is appropriate to make a wasted costs order in accordance with paragraph 53.4 above.” “On an application for a wasted costs order under Part 23 the court may proceed to the second stage described in paragraph 53.6 without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to give reasons why the court should not make a wasted costs order. In other cases the court will adjourn the hearing before proceeding to the second stage.”
[19]On 22 March, 2002, counsel for the defendants indicated that the defendants wished to apply for a wasted costs order against the solicitors for the claimants, Iliffes Booth Bennett (IBB). At that stage I did not know the grounds on which it would be sought to make such an application, nor, I think, did IBB. I ordered that the defendants’ solicitors should state by letter the grounds for making such order and that IBB should reply. Those letters were exchanged in good time, but the defendants did not issue the application for wasted costs until 5 December, 2002. The matter came before me on 14 February, 2003. A day or two before that hearing, the claimants waived their claim to legal professional privilege and as a result an opinion of counsel was disclosed and further evidence filed. I asked counsel for IBB whether he wanted further time to consider the matter and at his request I adjourned the hearing until 6 March, 2003.[20]At no time have I made any directions about the conduct of this hearing part from ordering the exchange of those letters. Without any directions from me, the parties have been exchanging written evidence. The reason for my not making any further directions was that until a day or two before 14 February, I was not aware that the matter was proceeding and neither party asked for directions. It would have been wrong to make further directions without knowing what the allegations were.[21]I confess to my own fault. What I should have done was to require that after the exchange of letters the parties appear before me on a fixed date for a decision whether the application should go forward and if so for directions for evidence. But since no one suggested that course to me at the time, they should not now criticise me for failing to take that course, though I should have thought of it for myself.[22]In Ridehalgh v. Horsefield [1994] Ch 205 at 238, Sir Thomas Bingham M.R. stated the procedure to be followed:
“The procedure to be followed in determining applications for wasted costs must be laid down by courts so as to meet the requirements of the individual case before them. The overriding requirements are that any procedure must be fair and that it must be as simple and summary as fairness permits. Fairness requires that any respondent lawyer should be very clearly told what he is said to have done wrong and what is claimed. But the requirement of simplicity and summariness means that elaborate pleadings should in general be avoided. No formal process of discovery will be appropriate. We cannot imagine circumstances in which the applicant should be permitted to interrogate the respondent lawyer, or vice versa. Hearings should be measured in hours, and not in days or weeks. Judges must not reject a weapon which Parliament has intended to be used for the protection of those injured by the unjustifiable conduct of the other side’s lawyers, but they must be astute to control what threatens to become a new and costly form of satellite litigation.”
That authority was not cited to me on 22 March, 2002, but I am satisfied that I fulfilled the requirement of fairness (that did not require the citation of authority) by ordering the exchange of letters. Counsel now appearing for IBB (who did not appear at the trial) complained that there was unfairness in that there was some interrogation of IBB ordered by me. There was no interrogation ordered or authorised by me, and indeed none took place. In compliance with my order, the defendants’ solicitors wrote on 25 March, 2002 first setting out what they regarded as the relevant background and then setting out four reasons why they said that IBB should personally bear the cost of the trial of the preliminary issues. That was a perfectly proper letter and there was no question of unfairness. IBB replied on 19 April, 2002. They first said that client privilege had not been waived and that therefore their response was to a degree hampered. They then set out their own version of the background within the limits of privilege. Then they answered the allegations made against them, again within the same limits. If they had thought that they were being required to answer a letter improperly drafted they could have made application to the court. They wisely did not do so. Having answered the letter, in the absence of any application by the defendants for directions, the claimants solicitors did not ask for any directions, perhaps thinking that it was better to let sleeping dogs lie.[23]I should emphasise that this is not one of those cases where complaint is made by a judge of the conduct of the trial known to the court as in the case of In the Matter of Freudiana Holdings Limited (CA Transcript 28 November, 1995). The trial was efficiently and properly conducted. The defendants complained of matters relating to the preparations for trial by the solicitors to the claimants that were unknown to the court and, because of client privilege, were also largely unknown to the defendants though they had their suspicions going beyond their knowledge. At no point in the trial or in my written judgment after the trial have I made any criticism of the solicitors to the claimant. I am now invited to criticise them on the basis of matters put before me after the trial.[24]Counsel IBB also complains about the delay in making the application. Counsel for the defendants responds that there is no evidence that the delay has prejudiced IBB, although one might imagine ways in which prejudice might have been caused. No explanation for the delay has been given. I suspect, though without any evidence, that the reason for the delay was that the defendants hoped that as a result of a settlement with the claimant and his wife of the costs order they would obtain a waiver of privilege, as they did.

Principles on which the jurisdiction should be exercised

[25]The authorities show the following principles to be applied in a case such as this.[26]An allegation of negligence on the part of a solicitor should be approached in an untechnical way and relates to conduct below that which could be expected of a reasonably competent practitioner: Ridehalgh v. Horsefield [1994] Ch 205 (CA) at 232, 233. But the court rejected a submission that there was no overlap between the words improper, unreasonable, and negligent.[27]In Ridehalgh v. Horsefield, the Court of Appeal remarked on the duty of counsel and solicitors in the pursuit of hopeless cases: “A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail. As Lord Pearce observed in Rondel v. Worsley [1969] 1 A.C. 191, 275: "It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter." The Court then cited the Bar Code of Conduct regarding the cab rank rule, and continued: “As is also well known, solicitors are not subject to an equivalent cab-rank rule, but many solicitors would and do respect the public policy underlying it by affording representation to the unpopular and the unmeritorious. Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it. It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they were not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on ex parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.” "It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter."[28]There is no evidence that the defendant’s lawyers regarded this litigation as bound to fail. I cite those passages from the judgments simply as a reminder of the right of a litigant not to have his case judged by his lawyers rather than by the court. That point was stressed by the House of Lords in Medcalf v. Mardell [2002] 3WLR 172 at 192. However, I should say that on 16 October, 2002, the solicitors for the defendants wrote to IBB saying:
“The premise of the claim [against you] is that it should have been clear to you by January 2002 that the claimant had no prospect of succeeding at the Preliminary Issue Trial which followed in March 2002.”
[29]However, when the client is in receipt of, or applying for Legal Aid, the lawyer is in a difficult position because he has a duty to advise the paymaster of the prospects of success. As to that difficult position, the Court of Appeal in Ridehalgh v. Horsefield at page 234 observed:
“Section 31 (1) of the Legal Aid Act 1988 provides that receipt of legal aid shall not, save as expressly provided, affect the relationship between or rights of a legal representative and client or any privilege arising out of the relationship nor the rights or liabilities of other parties to the proceedings or the principles on which any discretion isexercised. (The protection given to a legally-assisted party in relation to payment of costs is, of course, an obvious express exception.) This important principle has been recognised in the authorities. It is incumbent on courts to which applications for wasted costs orders are made to bear prominently in mind the peculiar vulnerability of legal representatives acting for assisted persons, to which Balcombe L.J. adverted in Symphony Group Plc. v. Hodgson [1994] Q.B. 179 and which recent experience abundantly confirms. It would subvert the benevolent purposes of this legislation if such representatives were subject to any unusual personal risk. They for their part must bear prominently in mind that their advice and their conduct should not be tempered by the knowledge that their client is not their paymaster and so not, in all probability, liable for the costs of the other side.”
[30]In this case, the solicitors for the claimant relied on counsel’s advice. In Ridehalgh v. Horsefield, at pages 228 and 237 the Court of Appeal observed that a solicitor is in general entitled to rely on counsel’s advice but should not do so blindly. The more specialist the area the more the solicitor is entitled to rely on counsel. This case could at first blush be categorised as a personal injury case and therefore not very specialised for a litigation lawyer, but it involved very difficult questions of the assessment of medical evidence and of lay evidence bearing on that evidence. For those reasons, I class it as a difficult specialised case in which solicitors were entitled to rely heavily (though not blindly) on specialised counsel.[31]I also stress the words from Ridehalgh that I have cited above:
“It is incumbent on courts to which applications for wasted costs orders are made to bear prominently in mind the peculiar vulnerability of legal representatives acting for assisted persons, to which Balcombe L.J. adverted in Symphony Group Plc. v. Hodgson [1994] Q.B. 179 and which recent experience abundantly confirms. It would subvert the benevolent purposes of this legislation if such representatives were subject to any unusual personal risk.”
Legal Aid work is badly paid and legally aided clients are more often than not difficult to deal with and reluctant to take good advice. To make the lawyer liable for the costs of failure in litigation when the client calculates normally that he will be liable for no costs even if he loses is something that should be done only on strict proof of fault on the part of the lawyer – otherwise the diminishing number of lawyers willing to undertake Legal Aid work will be reduced even further.[32]The evidence at the trial consisted of Mrs. Afzal, some other factual witnesses called for the claimant, some lengthy video evidence taken by enquiry agents, two neurologists, and other gentlemen described as neuro-psychologist and neuro-psychiarist and a lady psychologist. Some point has been taken in this application on the difference between a psychiatrist and a psychologist but for the purpose of this application I see less in the point than has been made of it. The distinction goes to the weight to be attached to the evidence of the psychologist who has said after the trial that she was overwhelmed by the eminence of the consultants ranged against her. The main point of the factual evidence was to try to explain away the video evidence which I found showed that the claimant could run a normal intelligent life. The main gist of the factual evidence was that the claimant could sometimes (but not always) behave well when he was not under stress. There was also some documentary evidence of observations of the claimant by doctors, particularly at the Maudsley Hospital.[33]The evidence of the neurologists had become unimportant by the trial because it was agreed by then that the claimants had no neurological defect.[34]The claimant’s solicitors, the respondents to this application, instructed a psychiatrist, Dr. Sumners, and a psychologist, Dr. Bhatti-Ali. Dr. Bhatti-Ali has a doctorate but she is not medically qualified. Dr. Sumners on 8 April, 1999, gave a report that was favourable to the claimant (though raising a number of questions), but after seeing the videos on 19 November, 2001 he gave a further report unfavourable to the claimant. The first report having been disclosed, after taking the advice of counsel, the claimant’s solicitors sent to Dr. Sumners the report of Dr. Bhatti-Ali and a report of Dr. Capildeo to see if he would reconsider his second report. That seems to have been a reasonable step. It was only after reminders had been sent to Dr. Sumners that an undated letter was received from him on 2 January, 2002 affirming his previous advice. IBB then chased counsel to get advice about that letter and the second report, but it was not until 14 February, 2002 that they managed to have a telephone conference with counsel and the following day in accordance with his advice they disclosed the second (unfavourable) report saying that they would not be calling Dr. Sumners.[35]The defendants were calling a neuropsychiatrist, Dr. Gaind and a neuropsychologist, Dr. Powell both of whom gave statements contrary to the case of the claimant.[36]On 21 February, 2003, counsel appearing for the claimant, Mr. Dennis Sharpe, made a statement at the request of the respondents. In that statement, he said that after the disclosure of Dr. Sumners’ second report:
“My view was that the key contest was between Dr. Bhatti-Ali, together with the evidence of Mrs. Afzal and the lay witnesses; against Dr. Gaind, Dr. Powell and the video evidence.”
I not only find that view reasonable, I agree with it. I add that there was a conflict of evidence and it was not for the claimant’s lawyers to decide that conflict of evidence before trial, though their duty with regard to Legal Aid was another matter.[37]In his statement, Mr. Sharpe also said:
“If at any time Dr. Bhatti-Ali had wavered in her views I would have felt obliged to advise the Legal Services Commission to cease funding the case. This was because I regarded Dr. Bhatti-Ali’s evidence as being of crucial importance.”
[38]The principal criticism of the respondents is that if they had done their work more efficiently by giving more timely instructions, Dr. Bhatti-Ali would have wavered in her views and hence Legal Aid would have been withdrawn and there would have been no trial of preliminary issues.[39]The first flaw in that argument is that it ignores the possibility that, in the event of Legal Aid being withdrawn, Mrs. Afzal might have conducted her case in person. She is a very intelligent and forceful person and quite capable of conducting a trial and organising the attendance of her witnesses, including Dr. Bhatti-Ali, whether wavering or not. However, since she is not a lawyer, the trial would have taken substantially longer and been more expensive for the defendants.[40]The second flaw in that argument is that it ignores the possibility that even if the respondents had done their work to perfection, Dr. Bhatti-Ali might still not have wavered. Dr. Bhatti-Ali was the last witness for the claimant. She had seen the video-tapes. She heard the witnesses of fact examined and cross-examined at the trial, and the evidence of opposing psychiatrists was properly put to her, but she did not waver.[41]The next criticism is that, having regard to the weight of the evidence available to IBB by January, 2002, a reasonably competent lawyer (and this must include Mr. Sharpe as well as IBB) with this material ought to have appreciated that the case that the evidence of the claimant and his wife was fraudulent was very strong and that with the second report of Dr. Sumners they could not expect to succeed. For the defendants it was submitted that, having tried to persuade Dr. Sumners to alter his views the Legal Aid Commission ought to have been advised that the claimant had no reasonable prospect of succeeding even with the support of Dr. Bhatti-Ali.[42]Counsel for the defendants went in detail through all the evidence available to IBB in January, 2002. I am not going to go through all that detail, but it is plain that there was a great weight of evidence against the claimant but the evidence in his favour was not insubstantial.[43]The details are not entirely clear, but it appears that the Legal Aid Certificate was limited to preparations for trial and was only to be extended to trial on a further application supported by an Opinion of Counsel – a perfectly usual limitation. IBB applied for an extension of the Certificate to trial but the application was turned down because it was not accompanied by an Opinion of counsel. As a result, at a late stage, IBB sought an Opinion of counsel to support an extension of the Legal Aid Certificate to trial. If that is what happened, it suggests some inefficiency and possibly a breach of duty to the claimant but no breach of duty either to the court or to the defendants.[44]Shortly before the trial, Mr. Sharpe was asked by the respondents for a written opinion to help the Legal Services Commission in deciding whether or not to extend Legal Aid to the trial.[45]On 4 March, 2003, Mr. Sharpe provided an Opinion in manuscript. After reviewing the conflicting evidence, Mr. Sharpe concluded:
“It would be extremely unfair to the claimant to withdraw his Legal Aid just before the trial of these issues.”
He also said, “There is a 70% chance of Dr. Bhatti-Ali’s view being accepted.” Like Mr. Sharpe, I read the papers before the trial though I did not see the videos before the trial, so I can to some extent put myself in his position when advising before trial. I think that 70% was putting it rather high, but certainly there was an arguable case to be tried. However, unlike Mr. Sharpe, I did not have the benefit of speaking with Dr. Bhatti-Ali before the trial. Mr. Sharpe spoke with her on 3 occasions, the first of which was not helpful because according to her she was inadequately instructed. I see nothing negligent in Mr. Sharpe’s conclusion formed partly on the basis of his conversations with Dr. Bhatti-Ali. Mr. Sharpe and IBB could certainly not be criticised if they had put the chances of success at 50-60%.[46]There are two criticisms made of Mr. Sharpe’s written Opinion.[47]First, it is said that he described Dr. Bhatti-Ali as a Clinical Psychiatrist when she was in fact a Clinical Psychologist. He blames that on a typist’s error in transcribing his manuscript Opinion. I think that is a little unfair on the typist. My reading of a photocopy of his manuscript is that he wrote “Clinical Psychlist”. IBB had described her to Mr. Sharpe in their letter to him of 5 February, 2001, so they ought to have known what he really meant, (or telephoned him for clarification) but as I have already said, I do not think that the error in the typescript made a substantial difference.[48]The second and more important criticism is that Mr. Sharpe gave a misleading summary of the second report of Dr. Sumners. Having stated that the defendants had served video evidence that contradicted the claimant’s case, Mr. Sharpe wrote that the medical evidence reveals an issue whether “The claimant is suffering either from a form of Conversion Disorder/Psychogenic Amnesia or is faking an illness with the support of his wife”. Mr. Sharp continued, “The claimant’s psychiatrist, Dr. Sumners, says that he is simply unable to distinguish between the two possibilities. As a result we do not propose relying on his report”. For the defendants it is said that that was wrong. Dr. Sumners said that the claimant was deliberately producing symptoms but he could not distinguish between malingering (lying for financial gain) and a factitious disorder (lying for other types of gain). It is submitted on behalf of the defendants that, “It is clear that the real reason why Dr. Sumners was not relied upon by the claimant was because his opinions were directly contrary to the claimant’s case, not simply that he could not support it positively”. I think that criticism made on behalf of the defendants is well founded. Counsel made an honest error and the respondents did not correct it. But I find it difficult to believe that the decision of the Legal Services Commission would have been any different had he summarised Dr. Sumners’ opinion more precisely. The weight of the evidence opposed to Dr. Bhatti-Ali would have been presented as weighing more heavily than it was presented, but there was still professional evidence in favour of the claimant that warranted presentation to the court.

The criticisms of the Respondents

[49]The defendants make the following criticisms of the respondents.[50]The respondents failed to disclose to the Legal Services Commission Dr. Sumners’ report of 19 November, 2001. In that report, Dr. Sumners, having seen the video evidence, reversed his original report and commented adversely on Dr. Bhatti-Ali’s report. In answer to this criticism, the respondents say, rightly, that they had no duty to disclose that report to the Legal Services Commission, and when requested, they provided to the Legal Services Commission the advice of counsel that was made in the full knowledge of that later report, though he did summarise its effect inaccurately. In oral submissions, it was said that as the videos were disclosed at the end of 2000 they ought to have been shown to Dr. Sumners in January, 2001 and not as late as autumn 2001. That may be right, though the respondents have put forward some explanation. But as a matter of causation, I do not find that it has been shown that any fault in this regard has led to loss on the part of the defendants. After the videos had been sent to Dr. Sumners, it (understandably) took him a little while to view them and write a second report but I do not see that those delays had any effect on the Opinion of Mr. Sharpe that resulted in Legal Aid being extended to cover the trial.[51]“The respondents failed to ask their neurological surgeon, Dr. Capildeo, to review the video evidence until the weekend immediately before the trial.” Since Dr. Capildeo had already decided that there was no neurological injury, any view that he might have taken on the videos would have been outside his sphere of medical competence and I do not see that there was any duty to put the videos before him. No one suggests that seeing the videos might have caused him to revise his view that there was no neurological injury. The question at that point was whether there was any psychological injury as to which Dr. Capildeo was not qualified to express a view. In his report of 22 September, 1999, he agreed with the conclusion of the Maudsley Hospital that a large component of the claimant’s current difficulties was as a result of psychological reaction to the assault. However, that view was the only explanation for the claimant’s odd behaviour that he could see in the absence of neurological injury. In his second report dated 1 November, 2001, Dr. Capildeo stated that the main question put to him was for a consultant psychiatrist. The chargeable time taken to view those videos would have been considerable, and it is strongly arguable that the videos should not have been given to Dr. Capildeo at all. They seem to have been put before him at the request of the solicitors to the defendants.[52]“The respondents failed to disclose to Dr. Bhatti-Ali: (a) the report of Dr. Graham Powell until 5 March, 2002: (b) the report of Dr. Sumners dated 19 November, 2001 until ‘very late on’.” There are some inconsistencies in the account of the respondents, but the respondents say that they sent a copy of that second report of Dr. Sumners to Dr. Bhatti-Ali under cover of a letter of 15 February, 2002, and she did not qualify her evidence as a result of seeing that report. The letter clearly states that the latest report of Dr. Powell dated 28 January, 2002 and Dr. Sumners’ second report dated 21 November, 2001 were enclosed. The statement of Mrs. Jeffries of IBB affirms that those documents were enclosed. The respondents accept that Dr. Bhatti-Ali should have been sent Dr. Sumners’ report earlier. In a statement dated 3 March, 2003, Mr. Mark Bush, a solicitor acting for the defendants, said that he spoke to Dr. Bhatti-Ali on 28 February, 2003 and she said that she received that letter of 15 February, 2003 but there were no enclosures with it. Why she did not telephone to ask for the enclosures is not explained, but she did say that she had received neither the first nor the second reports of Dr. Powell when he rang her to discuss the joint statement on 5 March, 2003. However, she did receive those reports the next day from IBB and was able to rearrange the discussion with Dr. Powell thereafter, just before the trial began. That statement attributed to Dr. Bhatti-Ali does not hang well together with Mr. Sharpe’s statement that on the second time he spoke with her she had been provided with a copy of Dr. Powell’s report, bearing in mind that Mr. Sharpe faxed his manuscript Opinion to IBB on Monday 4 March, 2002. Of course, one cannot readily decide disputed issues of fact on paper evidence, but on the balance of probabilities I find that on the paper evidence the likelihood is that the reports that were said to be enclosed with the letter of 15 February, 2002 (the reports of Dr. Powell and Dr. Sumners) were in fact enclosed. It should be remembered that that letter was written on the day after counsel advised that Dr. Sumners’ second report should be disclosed. It was therefore vital, even on the basis of the narrowest self-interest, that Dr. Bhatti-Ali should be forewarned of a report that was certain to be used in her cross-examination. Having regard to the summary nature of these proceedings, if there were any doubt in my mind (and there is not), I would think it right to give the benefit of the doubt to IBB. If the defendants cannot prove their case to a high level of probability on paper, they fail. I do not think it right to pursue any further examination of that issue of fact by oral evidence or by examination of further documents. Dr. Bhatti-Ali was certainly sent a bundle containing all the medical reports on 7 March, 2002, the Thursday before the trial but I find that she had previously been sent the important reports under cover of the letter of 15 February, 2002.[53]Mr. Sharpe, in his statement of 21 February, 2003, wrote:
“During the run up to the trial of the preliminary issue which was to commence on 11 March, 2002, I asked my instructing solicitors to arrange a conference with Dr. Bhatti-Ali. It was not possible to arrange a face to face meeting and so I was given a telephone number on which I could call her. It is my best recollection that I spoke with her on 3 occasions. On the first occasion I spoke with her I ascertained that she had not seen Dr. Powell’s report. I asked my instructing solicitors to supply her with a copy. The second time I spoke with her she had been provided with a copy of Dr. Powell’s report. On the third occasion I spoke with her she was firm in her opinion that Mr. Afzal had suffered a psychological injury as a result of the attack on him. Her view was not altered by anything contained in the report of Dr. Powell. She had seen the video evidence which had been provided by the defendant at a late stage. Dr. Bhatti-Ali spoke calmly and moderately on the telephone to me. I was impressed by the fact that her conclusions were moderate and therefore more compelling. She did not rule out deliberate malingering but she came to the conclusion that this was not the case and gave credible reasons for this view. I thought that her conclusions were similar to the conclusions reached by the Lishman Unit at the Maudsley Hospital where Mr. Afzal had spent a lengthy period as an inpatient.” [The Maudsley Hospital reports, not supported by any oral evidence at the trial suggested that the claimant had suffered a “hysterical reaction with dissociative components as part of a post-traumatic stress disorder”
. There was also a suggestion that he behaved better with other patients when perhaps he thought he was not under observation than when he was being specifically examined.][54]Mr. Sharpe did not give a date for those telephone conversations, but it seems likely that they took place in the period of 2 weeks before trial rather than being confined to the last week before the trial.[55]The chronology attached to IBB’s letter of 19 April, 2002 shows that they were quite active but impeded by delay on the part of medical experts due to the engagements of those experts. The delay did not make any difference at all. There was also some question raised whether Dr. Bhatti-Ali was sent the first report of Dr. Sumners. However, both her reports recite the fact that she read the first report of Dr. Sumners dated 8 April, 1999. The first report agreed with Dr. Bhatti-Ali and the second report made it plain that he was reversing that agreement.[56]It is important that the videos were sent to Dr. Bhatti-Ali on 8 February, 2001. She had ample time to consider them and form her own opinion of them so she was less likely to be influenced by the opinions of other professionals about them disclosed at a late stage. An explanation for her not being sent the videos earlier was that IBB had only one set. While videos can be copied, at a cost, money for Legal Aid work is tight and IBB waited for one professional to finish with them before sending them to another professional. Viewing videos of this sort is not attractive work and it is not surprising that the medical professionals were not speedy in getting around to doing it.[57]All the reports in the case were sent to Dr. Bhatti-Ali by no later than 7 March, 2002.[58]Despite the alleged delay in transmitting the report of Dr. Powell to Dr. Bhatti-Ali, she did have a discussion with him, and she did discuss all the evidence including the second report of Dr. Sumners with Mr. Sharpe and she did not waver. Nor did she ask for further time to consider any of the documents that she had received. I am sure that if she had been in any doubt about the implications of the documents sent to her, Mr. Sharpe as a careful and skilled member of the Bar would have asked her whether she needed further time for consideration of Dr. Sumners’ report and the other evidence. Had she asked for further time, and had that further time required a postponement of the trial, and had that postponement of the trial caused additional costs to the defendants, then the defendants might have been in a stronger position to ask for the payment of those additional costs by IBB. But that did not happen.[59]“The respondents ought to have sought Dr. Capildeo’s views on the videos long before the weekend of 9 March, 2002. The respondents ought to have disclosed to Dr. Bhatti-Ali the response from Dr. Capildeo, Dr. Sumners’ report of 19 November, 2001, Dr. Powell’s report of 6 December, 2001 and the reports of Dr. Gaind and Dr. Stern well before trial.” I am in no doubt that the respondents ought to have done all of those things apart from the involvement of Dr. Capildeo (I have already explained my views about the involvement of Dr. Capildeo). However, the most important evidence was that of Dr. Gaind and I accept the evidence of Mrs. Jeffries that his evidence was sent to Dr. Bhatti-Ali when she was first instructed. She now, apparently says that she was overwhelmed by the distinction of the experts called to give contrary evidence to hers, but she did not say that at the outset, and if she had said that at the outset, no doubt IBB would have reviewed the prospects of success. However, I am reluctant to stigmatise any failings as negligence because: (1) In these summary proceedings it is difficult to form a view as to when things were actually done and it would be wrong to find a solicitor guilty of professional misconduct on the basis of uncertain evidence, particularly when some of it comes from hearsay evidence of what is alleged to have been said by a psychologist whose evidence I rejected at the trial. What she now says may well be coloured by a desire to excuse herself for the rejection of her evidence at the trial. (2) I have no evidence that the ordinary competent solicitor would have done better. In any event, if the respondents had done better, it is unlikely to have made any difference. It is possible that if she had been given more time to think about it, Dr. Bhatti-Ali might have changed her mind, but (apart from the self justifying statements recorded by Mr. Bush in his statement of 13 March, 2003) there is no evidence that that is so because, after receiving the material she did not change her mind. Given more time, Dr. Bhatti-Ali might have arranged to see the claimant again. But Dr. Bhatti-Ali was not deprived of the opportunity of seeing the claimant again. He was present in court in the early stages of the trial and she could have arranged to see him after court sittings in the evening. For all I know, she did so. She certainly sat side by side with Mrs. Afzal during much of the trial. If as a result of the late disclosure of those reports Dr. Bhatti-Ali had changed her mind the trial would have in all probability have been aborted but that did not happen.[60]In oral submissions, counsel for the defendants submitted that any reasonably competent lawyer with the material available by the beginning of March 2002 ought to have appreciated that the case that the evidence of the claimant and his wife was fraudulent was very strong and that, with Dr. Sumners’ evidence, they could not hope to succeed. Having failed to persuade Dr. Sumners to change his views, they ought to have advised the Legal Services Commission that the claimant had no reasonable prospect of succeeding even with the support of Dr. Bhatti-Ali. When it comes down to it, that is the case against IBB in a nutshell. Having tried to put myself in the position of IBB and Mr. Sharpe in the run up to trial I am unable to agree that any reasonably competent lawyer would have formed the view that is put forward by counsel for the defendants. A great deal hangs on the impression formed by Mr. Sharpe in his telephone conversations with Dr. Bhatti-Ali. I trust that Mr. Sharpe, as a reliable member of the Bar and experienced in this class of work made a sensible and reliable assessment having explored all the possibilities. Because IBB could not be present at the discussions with Dr. Bhatti-Ali, they also could only rely on Mr. Sharpe, as I do.

Conclusion

[61]I find that the respondents Iliffes Booth Bennett (IBB) were not negligent. I further find that any failings on their part (which I do not categorise as negligent) did not cause any loss to the defendants. I therefore reject this application by the defendants. I therefore need not consider the matter any further. I should add that, despite procedural objections taken at a late stage (but not taken at any earlier stage) IBB have had full opportunity to answer the allegations made against them and have done so effectively.

Cited in 3 later judgments