Neutral Citation Number: [2016] EWHC 165 (QB)
Case No: TLQ/15/1381
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 01/02/2016
Before :
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
--------------------Between :
Dunhill
- and W Brook and Co. (1)
and
Crossley (2)
Claimant
Defendants
----------------------------------------Mr M. Willems QC and Ms K Ballinger (instructed by Potter Rees Dolan Ltd) for the
Claimant
Mr J. Smith QC and Mr G. Campbell (instructed by Mills and Reeve LLP) for the First
Defendant
Ms A. Day QC and Ms C. Guthrie (instructed by Weightmans LLP) for the Second
Defendant
Hearing dates: 2 – 8 December 2015
---------------------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
.............................
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
THE HONOURABLE MRS JUSTICE ELISABETH LAING
DBE
Approved Judgment
TLQ/15/1381 DUNHILL v W BROOK and CROSSLEY
Mrs Justice Elisabeth Laing DBE :
Introduction
1.
This is a claim for damages for professional negligence. It is brought by the Claimant
against the firm of solicitors (‘the solicitors’) and against the counsel, Mr Crossley,
who represented her in a claim for personal injuries against Mr Burgin. At the
hearing, the Claimant was represented by Mr Willems QC and Miss Ballinger, the
solicitors by Mr Smith QC and Mr Campbell, and Mr Crossley by Miss Day QC and
Miss Guthrie. I am grateful to all counsel for their helpful written submissions and to
leading counsel for their oral submissions. I am also grateful to all of the
representatives for the hard work which has evidently gone into the preparation of this
case for trial.
The issues
2.
Counsel helpfully agreed a list of issues. The main issue is whether the Defendants
breached their duties in providing legal services to the Claimant. A case management
decision made before the hearing precludes me from dealing with the question
whether any breach of duty caused any, and if so, what, loss to the Claimant.
3.
There are legal and factual sub-issues. The sub-issues which raise questions of law or
mixed questions of fact and law are
i)
what duties the Defendants owed the Claimant;
ii)
whether the Defendants breached those duties in
a)
(to the extent they did so), advising her to settle for £12,500;
b)
(to the extent they did so) advising the Claimant to settle the whole
action with or without any mechanism for provisional damages,
given that
iii)
4.
i)
the trial was listed for a hearing on liability only;
ii)
the medical evidence was incomplete;
iii)
the medical evidence indicated a risk of epilepsy; and/or
iv)
the claim had a much higher value than pleaded.
whether the fact that the solicitors relied on Mr Crossley (generally and in this
case) absolved them from any duty to advise independently of Mr Crossley.
There are two issues of fact. They are whether Mr Crossley was provided with
medical reports dated
i)
16 August 2000 by Dr DW Zawadski, a clinical psychologist; and
ii)
13 December 2002 by Mr Nick Morton, a consultant neuropsychologist.
THE HONOURABLE MRS JUSTICE ELISABETH LAING
DBE
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TLQ/15/1381 DUNHILL v W BROOK and CROSSLEY
5.
Mr Willems helpfully narrowed down the issues on the first day of the hearing. He
withdrew the pleaded claim in so far as it was based on an alleged failure to
appreciate that the Claimant lacked capacity. The ‘nub’ of the claim, as he put it, is as
described in paragraph 4.1 of his opening submissions. That is, that the Defendants
advised the Claimant, on 7 January 2003, to settle her whole claim, for £12,500, and
on a full and final basis, rather than on the basis of a percentage of the full value of
the claim, with damages to be assessed (and/or without provisional damages).
6.
That breach of duty is said to rest on six background factors:
7.
i)
overstating the risk of failure to establish liability;
ii)
overstating the likely levels of contributory negligence;
iii)
failing to realise the potential size of the claim or future heads of claim and to
advise the Claimant on those;
iv)
failing to realise that there was a potential claim for provisional damages and
that further expert evidence would be needed on this head of claim alone;
v)
advising that only two options were available; that is, applying for an
adjournment, or settling the whole claim.
I heard evidence from Mr Burton, a mental health advocate who had been helping the
Claimant for some time in 2002, and was present at a meeting at the solicitors’ offices
on 20 December 2002, and at court on 7 January 2003. I also heard evidence from Mr
Brook, the partner who had conduct of the case from December 2002 (when Mr
Squires, the solicitor who had had conduct unexpectedly left the firm), from Mr
Marsh, the trainee who worked on the claim under the supervision of Mr Brook, and
from Mr Crossley. Two witness statements from Mr Crossley’s clerk, Ms Hartley,
which dealt with the arrangements in Mr Crossley’s Chambers for receiving faxes,
were agreed.
The facts
8.
I have not made any detailed findings about the accident on 25 June 1999. It did not
seem to me that I needed to do so. Instead, I have made some general findings about
it, and recorded the evidence about it which was available to the Defendants. I have
summarised the main documents that are important to the Claimant’s personal injuries
claim, and made findings about the history of the claim. Those findings are mainly
based on contemporaneous documents. I have also had to decide some issues about
which those documents are silent or ambiguous. I have read the witness statements
which deal with those issues, and heard the witnesses cross-examined about them.
9.
In deciding the issues, I have borne in mind the passages to which Mr Smith referred
me (in particular, Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC
3560 (Comm) paragraphs 15-17, and 22 per Leggatt J). The witnesses’ written
statements and oral evidence dealt with events which happened nearly 13 years ago.
Mr Burton’s witness statement was made in 2008, but the other witnesses’ statements
are much more recent. In short, in assessing their evidence I have given due weight to
the contemporaneous documents and to the inherent probabilities.
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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TLQ/15/1381 DUNHILL v W BROOK and CROSSLEY
The accident
10.
On 25 June 1999, the Claimant was crossing the A635 close to a roundabout, with her
son, Mr Sam Tasker, and his girlfriend, Miss Carole Rogers. They are about five foot
four, five foot nine, and five foot five inches tall respectively. The road is not a dual
carriageway, but on the approach to the roundabout, level with a roughly triangular
traffic island, the road widens into two lanes in order to enable two lines of traffic to
approach the roundabout. The road bends to the left shortly before it approaches the
roundabout. It is likely that the group was crossing from the kerb to that traffic island
at a point where the kerbs are dropped to help pedestrians to cross. Mr Burgin, who
was riding his motorbike, collided with the Claimant. She was emerging from
between the first and second vehicles which were queuing in the nearside lane. Mr
Tasker was able to yank Ms Rogers out of the way. There must have been at least four
vehicles in the queue, as Mr Burgin’s two witnesses were in the third and fourth
vehicles.
11.
The Claimant suffered a serious closed head injury, and soft tissue injuries to her legs.
She has no memory of the accident. The police investigated the accident, but Mr
Burgin was not prosecuted.
The witness evidence about the accident
12.
There were five witness statements in Mr Crossley’s instructions for the trial which
were relevant to what had happened. Mr Tasker’s and Miss Rogers’ (for the Claimant)
were signed in July 2001. Those of Mrs Empringham and of Mr Rich (for the
Defendant) were signed in March 2000. From their statements, it seemed that they
were both very experienced drivers. Mr Burgin’s was signed in February 2000. There
was also a witness statement for the Claimant from Mr Hall. He did not see the
accident happen, but he arrived shortly afterwards. He had known the Claimant before
the accident and expressed opinions about whether Mr Tasker had been drinking, and
whether the Claimant drank at home. He also gave an opinion about the likely speed
of the motorbike from its position in the road and the Claimant’s position in the road;
she was still lying there when he arrived on the scene.
13.
Mrs Empringham’s evidence was that she was in the third vehicle in the queue. She
saw the motorbike in her rear mirror and that it was travelling along the offside. ‘The
cyclist appeared to be driving sensibly’. The pedestrians were not walking straight.
They were very merry and joyful and were not watching where they were going. As
the pedestrians moved out between the stationary cars, the motorbike passed her, but
was not going fast. The pedestrians moved out, still talking and not paying attention.
She braced herself as she knew a collision was inevitable. After the collision, the
other female pedestrian said to the motorcyclist, ‘Sorry love, it’s not your fault, we
just didn’t see you’. Mrs Empringham could clearly smell alcohol on her breath and
‘it was obvious she had been drinking’. A number of other drivers who had seen the
accident agreed that it was not Mr Burgin’s fault.
14.
Mr Rich’s evidence was that when he was stationary, he saw the motorbike pass about
one metre on his offside. He must have been in the fourth vehicle in the queue. The
motorbike was ‘not travelling at speed and being ridden correctly’. He saw three
pedestrians who ‘seemed full of the joys of spring, appeared to be oblivious as to what
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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was going on, and not taking account of the traffic on the roundabout or road. From
the way they were crossing the road it was inevitable that a collision was going to
occur…the pedestrians walked straight out into the path of the motorbike. The cyclist
was given no opportunity to avoid the collision’. A policeman told him that he could
smell alcohol on the breath of the pedestrian(s). There is no apostrophe in the relevant
part of Mr Rich’s statement. From the context it is likely that one pedestrian is
intended, but it is not clear which one.
15.
Mr Burgin’s evidence was that he had been riding a motorbike for 20 years. The
speed limit on the road was 60mph, but he was slowing down for the roundabout.
Five or six vehicles were queuing to turn left. He moved to their offside, as he
intended to go straight on. He was doing about 25 mph as he approached the
roundabout. He would have been able to stop safely if there was traffic on the
roundabout. His attention was on the roundabout to his right. So his witness statement
leaves room for doubt about whether he was looking out, as he should have been, for
the possibility that pedestrians might be trying to cross the road between the
stationary vehicles. Paragraph 71 of the version of the Highway Code which applied
at the time provided that ‘You should be aware of what is behind and to the sides
before manoeuvring. Look behind you; use mirrors if they are fitted. When overtaking
traffic queues look out for pedestrians crossing between vehicles and vehicles
emerging from junctions’.
16.
Mr Burgin’s evidence about the speed limit is supported by an attendance note which
Mr Liddy of the solicitors made on 18 October 1999 after visiting the scene with the
Claimant. His note records that the speed limit on the A635 to the roundabout was ‘D
restricted’ (I think he must have meant ‘de-restricted’) and that it was 30mph on the
other two exits from the roundabout.
17.
Mr Burgin’s evidence was that he caught sight of someone out of the corner of his eye
as he approached the roundabout. He tried to swerve to avoid what he realised were
pedestrians coming from between the first and second stationary cars on his nearside.
He braked, but the pedestrians ‘kept coming’. He could not get round them and his
left handlebar hit one of them. The woman pedestrian who had not been hit had said it
was not his fault and they had not been looking where they were going. The young
man was shouting, ‘How come you didn’t see us’ or words to that effect. The police
officer said he could smell alcohol on the breath of the three pedestrians. The police
took no further action against him.
18.
Mr Burgin was interviewed by the police at the scene on 25 June 1999. He was asked
why he had not seen the pedestrians. He said he thought that the second vehicle was a
van and that might be why he had not seen them. He did not repeat this speculation in
his witness statement.
19.
Mr Tasker’s evidence was that the motorbike was going ‘at speed’. Mr Tasker’s
witness statement said that he could see 150 yards up the road, had looked to the left
and right before crossing and had seen nothing. It seems from the Rook report, to
which I refer below, that Mr Tasker had made an earlier statement, which is not in the
documents I have seen, in which he said that he ‘could see 10 or 15 yards up the
road’, and from a letter which they sent the solicitors on 20 November 2002, that
Halliwell Landau, the solicitors for Mr Burgin’s insurers, knew about the discrepancy
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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TLQ/15/1381 DUNHILL v W BROOK and CROSSLEY
between Mr Tasker’s disclosed witness statement and what he had said earlier. Miss
Rogers’ witness statement said that she was suddenly yanked by Mr Tasker and she
noticed a motorbike approaching at speed from the right. She also said, ‘We had not
seen the motor bike who I think was driving at some speed considering he was
approaching a roundabout’. She also said, ‘the motorbike rider was nearby and he was
holding his head in his hands. I asked him if he was all right and he said something to
the effect that he was sorry’.
20.
In a witness statement she signed on 9 March 2001, the Claimant said that she could
not remember the accident because of her head injury. She described the effects of her
loss of sense of smell and taste, and said that she was partly deaf in her left ear. She
cried every day and had lost interest in sex. The scars on her shins meant that she
could not wear shorts, skirts or dresses. She was afraid of having an epileptic fit and
was taking Carbamazepine four times a day to prevent that. She had changed from
being a quiet person to a nasty one. She was taking medication three times a day to
calm her down. She had ‘very little’ concentration. She could not always think of
what she was saying or take in what was being said to her. She was anaemic. She had
had to stop learning to drive because she could not concentrate properly and was
anxious about large motorbikes. She had lost her independence, as she had to trust
people all the time; they had to tell her what things tasted and smelt like, and to
remind her about things. It was like being a child again, and she felt really bitter;
really suicidal at times.
Mr Ramnani’s first report
21.
The solicitors instructed a consultant in accident and emergency medicine, Mr SR
Ramnani. He provided two reports. The first, dated 6 May 2000, was based on an
examination on 18 March 2000. He started by describing the symptoms reported by
the Claimant. She had lost her senses of smell and taste. The Claimant had no
recollection of the accident. She was slow in understanding. She had become forgetful
and needed to write things down in order to remember them. She could not
concentrate and got ‘nasty’. She had no problem with speech but had to repeat
everything she said. She had panic attacks in the street, and she could cry buckets for
no reason. She continued to get headaches. She used to be fit but had put on weight
because she could not taste food. She was not sleeping well and was scared of
motorbikes. She could not take the dog for a walk. She had been learning to drive
before the accident but had given that up. She lived by herself, and had no problems
with household work and the activities of daily living. She cooked when her boyfriend
visited. She said that she could hear alright in her left ear, but had difficulty hearing
with her right ear, although it was improving.
22.
Mr Ramnani noted that before the accident, the Claimant had had irritable bowel
syndrome and psychological/psychiatric problems. On examination, the Claimant was
a ‘pleasant lady’. Her speech was normal. She was able to communicate well. She
was about five foot four and weighed ten stone ten pounds. Her gait, balance and coordination were normal. Standing on toes and squatting were little impaired. Her
pupils were normal, her fundi were clear and her cranial nerves were intact. Her spine
was normal. She had a full range of neck movement, but movements were painful.
There was no sensory disturbance in her arm. Muscle power tone and reflexes were
normal, but her pinch grip in both hands was much reduced. Her chest was normal.
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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Mr Ramnani described scars on the Claimant’s legs. The joints in the right and left
legs were normal.
23.
Mr Ramnani summarised the Claimant’s medical notes. The A&E notes reported that
she had been very agitated on initial assessment. She would not keep still and
answered every question with ‘Yes’. She was breathing spontaneously. Her score on
the Glasgow coma scale was 12/15. She vomited ‘++’. An x-ray of the skull showed a
fractured occiput. The Claimant was paralysed, intubated and ventilated. A CT scan
showed an area of high density in the right frontal lobe, probably cerebral contusion,
but possibly a partial volume effect from the nearby bone. There was a loss of
white/grey matter differentiation. The ventricles looked small and there was a loss of
sulci consistent with cerebral oedema. There was no other focal haemorrhage or
evidence of subarachnoid or subdural blood. The Claimant was admitted to the ICU.
She was conscious and agitated, or severely agitated and confused for the next three
days. By 29 June her Glasgow Coma Scale score was 15. She complained of a
headache for the next few days. She was discharged on 3 July 1999. By then she was
mobilising satisfactorily.
24.
She was followed up in out-patients. Ten days after her discharge she was
complaining that she was deaf in both ears. She had post-traumatic amnesia. Her
balance was normal. A month or so later she said she was deaf in both ears. Her
vision was blurred, she could not smell or taste, and she had an intermittent headache.
She was forgetful and not sleeping well. She was fully conscious and well orientated.
Her speech was normal. Her pupils were normal and her fundi clear. She had always
suffered from bad nerves and would be nervous and suffered from panic attacks
before the accident. She was discharged into the care of her GP and for assessment by
a clinical psychologist.
25.
The GP records were hard to read and did not seem relevant to the accident. Mr
Ramnani quoted from a letter written in 1998, before the accident, which described
the Claimant’s psychological problems. She was suffering from 3-4 attacks of severe
anxiety a week. No perceptual abnormalities or cognitive impairment could be
detected. By June 1998 she was having fewer such attacks but had some depression
and anxiety. The attacks increased in proportion to her social problems.
26.
She saw a speech and language therapist in late June 1999. A letter after that
appointment reported that she understood complex commands and sentences and
followed a conversation appropriately. She and her partner thought that her use of
language was the same as before the accident. She appeared extremely anxious and
was finding it hard to come to terms with what she had been through.
27.
Mr Ramnani’s opinion was that the Claimant had suffered a ‘fairly severe closed head
injury resulting in cerebral contusion and oedema, a fractured skull and post-traumatic
amnesia lasting for a few days’. The Claimant appeared ‘to have made a good
recovery following the severe closed head injury’. She was ‘fine’ physically, self
caring, independent, and able to look after herself as well as before the accident. She
had suffered psychological problems before the accident and it seemed likely that
these had been made worse by the head injury; but a report from a clinical
psychologist was advised. While the loss of smell and taste might yet improve over
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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the next 12-18 months, they were likely to be permanent. The risk of post-traumatic
epilepsy, ‘though small, perhaps in the region of 3-4%’ could not be ruled out.
Miss Greenan’s first advice
28.
The solicitors instructed a barrister, Ms Greenan, to advise on the claim in July 2000.
She was sent Mr Ramnani’s first report, the police accident report, and statements
from Mrs Empringham, Mr Rich, and Mr Tasker. Her first advice is dated 17
September 2000. At that stage Mr Tasker’s statement said that because of a bend in
the road he could only see 10-15 yards up the road. Miss Greenan did not have much
information about the layout of the road. She said it was not clear how far away the
motorbike was when Mr Tasker first saw it. She reported Mr Tasker’s view that the
motorbike was going ‘at considerable speed’. The motorbike did not show any sign of
slowing down for the roundabout, according to Mr Tasker. She summarised the other
materials she had been sent.
29.
Her view on liability was ‘This is not an easy case’. The police report had no proper
sketch and no indication of skid marks or debris. ‘Although the statements from the
two witnesses…may seem damning, they are of course focussed on the question of
primary liability and do not deal with the apportionment of liability’. The fact that the
police did not prosecute was not decisive. The statements of the witnesses apart from
Mr Burgin did not suggest that there was a van or lorry in the queue of traffic. Those
statements suggested he was not going fast, so should have had time to see the
pedestrians, and that there was a risk that they might carry on into his path. If Mr
Tasker was correct, Mr Burgin might have been going too fast to see the pedestrians.
There was doubt about which lane Mr Burgin was in. Mr Rich’s statement suggested
that he was overtaking the stationary cars rather than travelling in the outside lane.
Motorcyclists are higher up than car drivers. If he was going at a safe speed, he should
have been able to see the pedestrians starting to cross the road, and to brake. Rule 71
of the Highway Code warns motorcyclists to look out for pedestrians crossing
between stationary vehicles when overtaking traffic queues. It was doubtful if he was
watching out for pedestrians.
30.
In her view, a report from an accident reconstruction expert was required. He could
provide a proper plan of the place where the accident happened, and a set of
photographs with sight lines. This was essential because of the sparse police report.
Her view was that ‘although there is likely to be a finding of contributory negligence
on the part of [the Claimant] it is at least possible that some liability may attach to Mr
Burgin’. Further investigation was needed to establish this. That was justified by ‘the
serious nature of [the Claimant’s] injuries. Her loss of taste and smell, if permanent,
would ‘justify an award into five figures’. She advised that the limit on the Claimant’s
legal aid certificate be lifted for further investigations on liability. A statement from
Miss Rogers would be useful, and ‘it would be helpful to know if [the Claimant] and
her friends had been drinking before the accident and, if so, to what extent’.
Mr Ramnani’s second report
31.
Mr Ramnani’s second report was dated 11 October 2001. He had seen the Claimant
on 14 June 2001, a little under two years after the accident. Mr Ramnani said that the
Claimant reported no change since he had last seen her, over a year previously. She
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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was still forgetful. She always had bad headaches. They were of three types, which
Mr Ramnani described. Her sense of smell and taste had not come back. She had no
memory of the accident and could not hear in her left ear. She lived on her own. She
visited her mother and her boyfriend stayed with her. She had no problems in the
activities of daily living. She could do the cooking and the cleaning, but could not
smell if food was burning. She did not walk as far as she used to. She saw black scary
shadows in the day but did not want to talk about them. She could not remember
names but was orientated in space and time. Her boyfriend said that ‘she was not the
same person’. She had become more forgetful, nasty and short-tempered. Sometimes
she made her face bleed in the night but slept alright. She had not suffered any fits or
blackouts. Her main problem was her loss of smell and taste. A consultant in
Rehabilitative Medicine was going to refer her for head injury rehabilitation.
32.
Mr Ramnani reported that, on examination, the Claimant was a ‘pleasant young
woman’ who communicated well. Her speech was normal. She gave a full account of
her problems. She seemed to have some loss of hearing although during his
examination her hearing did not seem too bad. She said she was ‘piling on weight’.
She used to weigh 9 stone 7 pounds and now weighed 12. Her gait and balance were
normal. Her pupils and fundi were normal, and her cranial nerves intact. Her neck
movements were full and normal. Sensation, power, tone, reflexes and co-ordination
in her limbs were normal. Though her legs below the knees were tender, all her joints
were normal.
33.
Mr Ramnani said that follow-up had mainly been concerned with
psychiatric/psychological issues. He set out extracts from correspondence attached to
the GP’s file. These disclosed a somewhat mixed picture. They reported that she was
at times too talkative and smiled inappropriately, had memory problems, that her
memory seemed ‘not bad’, her cognition was ‘intact’, and her insight good, and that
her mental state was stable, but also that she was having panic attacks and disturbed
sleep. She had been given various anti-depressants. Prozac seemed to help. She was
forgetful and labile, had headaches and hallucinations, was paranoid and worried
about losing control. Those symptoms had come to the surface after the accident. She
had a degree of frontal temporal dysfunction and had been given a mood stabiliser.
She benefited from individual psychotherapy from Dr Zawadski, a clinical
psychologist.
34.
Mr Ramnani set out an extract from a neuropsychological report of Dr Zawadski
dated 15 August 2000. The Claimant had been referred to psychiatric services by her
GP in 1998 for depression and anxiety. She continued to be seen by a psychiatrist.
Since the accident there had been some personality changes. She was low in mood
and tearful. She had lost her sense of smell and taste, and was very anxious. She was
binge eating, had hallucinations, occasional suicidal thoughts, and was forgetful. She
was very tearful, over-talkative and had limited insight. She showed a high level of
motivation in the cognitive assessment. Her current difficulties seemed to stem from a
combination of the head injury, psychological reaction to losses she had had and a
pre-existing psychological difficulty. I note that Dr Ramnani did not fully record Dr
Zawadski’s views about the extent of the impairment of the Claimant’s neurological
functioning which was apparent from the full terms of Dr Zawadski’s report.
THE HONOURABLE MRS JUSTICE ELISABETH LAING
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35.
Mr Ramnani referred to a document dated 17 August 2000 which reported that the
Claimant was said to have paranoid thoughts and had armed herself with a small knife
and screwdriver. She was calm and co-operative on examination, but behaved
childishly. She was talkative and denied being depressed. Her cognition was
‘reasonable’. ‘Her memory and registration are not so bad to the extent that we
sometimes believe’. Later letters also revealed a mixed picture. Self harm was
reported, and suicidal thoughts. Her memory ‘was intact’; or getting worse. She had
developed severe behavioural problems. She could give coherent answers but looked
puzzled. She was under the care of a rehabilitative consultant. A referral letter from a
rehabilitative consultant to Mary House, St Helens, said that she needed assessment
and an in-patient rehabilitation programme. The Claimant was also reported as saying
that the audiogram results did not reflect her actual hearing, but she did not want a
hearing aid. The loss of her sense of smell could not be helped surgically.
36.
Mr Ramnani’s opinion and prognosis were that there had been little significant change
since his previous report. The loss of taste and smell were likely now to be permanent.
Some hearing loss in her left ear would remain. Its cause was not clear. The risk of
post-traumatic epilepsy was ‘now small, perhaps less than 1%’. It seemed likely that
the Claimant’s pre-existing psychological problems, which had many symptoms, were
exacerbated by her head injury. She had had some personality changes since the
accident, with mood swings and hallucinations. These might respond to the head
injury rehabilitation she was waiting for. However she continued to be self caring and
independent, capable of looking after herself and household work, although with
some limitation imposed mainly by her loss of smell and taste.
The Rook report
37.
Mr Bristow of H. Rook (Hull) Limited reported on 20 December 2000. He had visited
the scene, taken measurements and photographs, and done a practical test. He
concluded that the pedestrians had crossed the road where the kerb was lowered. They
would have had a sight line of more than 200m to the left. Mr Tasker was wrong to
say he could see ‘10 or 15’ yards up the road. The road did not divide into two lanes
until after the point where the kerb is lowered. The road is wide enough between the
lowered kerbstones to fit two lines of vehicles. He was not able to estimate the speed
of the motorbike.
38.
The credibility of the witnesses and the assessment of their evidence was a matter for
the court. But Mr Bristow made two linked points about Mr Burgin’s comments in
interview, nonetheless. First, Mr Burgin described a line of six or seven cars in the
nearside lane, and second, Mr Bristow asked why, if there was no traffic on the
roundabout, there was a queue in the approach road. Mr Rich also referred to cars
rather than to vans or lorries. The tests showed that a five foot four inch pedestrian
behind a car which was four foot nine inches high was visible from a seated position
on a motorbike of the same kind as Mr Burgin’s, and that Mr Bristow and his
colleague (who were five feet four and five feet eleven inches tall respectively) were
five feet three and five feet seven inches tall when sitting on a motorbike. Paragraph
8.7 of the report gave the heights of various different models of motor car. The range
was four and half feet to four feet nine inches. He did not know how tall Mr Tasker
and Miss Rogers were, but three people would be more conspicuous than one.
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Mr Bristow concluded that the Claimant and her companions would have been able to
see for at least 200 yards if they had looked properly. The Claimant would have been
visible to Mr Burgin as she moved across the stationary vehicle. That should have
alerted Mr Burgin to a ‘possible conflict’. But the motorbike was there to be seen if
the Claimant had looked. Depending on the height of Miss Rogers and Mr Tasker,
they would have been more obvious than she was. He was unable to reconcile Mr
Burgin’s statements that there was a queue of cars and that there was no traffic on the
roundabout. I observe that they are not necessarily inconsistent, as the queue could
have built up while there was traffic on the roundabout, and not yet have moved onto
the roundabout once that traffic had passed.
Miss Greenan’s second advice
40.
Miss Greenan had a conference with the Claimant on 6 June 2001. I was not shown
the instructions for that conference, but the covering letter, dated 15 May 2001, said,
‘Although we have only hinted in the Instructions we have some concerns over the
creditability of our client as a potential witness and do feel that a conference would be
appropriate so that this can be tested by Counsel if Counsel feels that this is
necessary.’
41.
The instructions for Miss Greenan’s second advice were undated, but they are
stamped ‘received’ on 12 November 2001. She was sent Mr Ramnani’s two reports,
the Rook report, the police report and statements from Mrs Empringham, Mr Rich, Mr
Tasker, Mr Hall, Miss Rogers, and the Claimant. The instructions referred to the
conference on 6 June 2001. Both Miss Rogers and Mr Tasker, according to the
instructions, denied that the Claimant, to their knowledge, had drunk any alcohol that
day. The Claimant denied that she had drunk that day, and said that the group were in
high spirits because Mr Tasker had returned from work in London that day. Counsel
was asked to advise whether the Claimant had reasonable prospects of bringing a
successful claim, and to settle particulars of claim if appropriate.
42.
Miss Greenan’s second advice is dated 24 January 2002. The documents in the bundle
show that the solicitors chased it twice. She referred to the conference, and to the
Claimant’s emphatic denial that she had been drinking. She also said that Mr Tasker
and Miss Rogers had denied drinking. Miss Greenan summarised the Rook report.
She said that her instructing solicitor should check how tall Mr Tasker and Miss
Rogers were, and find out Mr Burgin’s height, and whether anyone was wearing
bright clothes. She said that the Rook report supported the view that although some
blame should attach to the Claimant for walking out, Mr Burgin could have seen her
and her group before they walked out and so slowed down to avoid them. A
motorcyclist should be keeping an eye out for pedestrians crossing between parked
cars. Mr Burgin’s statement that there was no traffic on the roundabout must be
wrong given the queue in the road. He had no need to approach the roundabout at
speed as his route was likely to be blocked once he got there. He might have been
hoping to nip out onto the roundabout.
43.
Miss Greenan said that the authorities suggested that a pedestrian was not wholly to
blame ‘in situations such as these’. She referred to Baker v Willoughby [1970] AC
467 and to Williams v Needham [1972] RTR 387. Baker does not seem to me to be
authority for any relevant proposition of law: the House of Lords reversed the Court
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of Appeal and restored the Judge’s apportionment of liability. Williams v Needham
appears to be a first instance decision. Miss Greenan’s conclusion was that it should
be possible to establish 33% liability on the part of Mr Burgin. Even if the court held
that the Claimant had been drinking it would not extinguish liability on the part of Mr
Burgin. Even if the court found she was drinking, liability of 25% should be
established.
44.
She had said in conference that the hospital admission notes should be obtained to see
if they referred to alcohol. She summarised Mr Ramnani’s second report. She said
that ‘we must make sure we see a copy of’ Dr Zawadski’s report. She referred to the
relevant JSB guidelines (as they then were). The appropriate bracket, in her view, for
‘Minor Brain Damage’ was £12,000 to £41,000. She quoted the description of such an
injury ‘In these cases the injured person will have made a good recovery and will be
able to take part in normal social life and return to work. There may not have been a
restoration of all normal functions so there may still be persisting problems of poor
concentration and memory or disinhibition of mood, which may interfere with
lifestyle, leisure activities and future work prospects. At the top end of this bracket
there may be a small risk of epilepsy’. I note that in the current edition of what are
now the Judicial College Guidelines, this description is given the label ‘Less Severe
Brain Damage’, and that the bracket has gone down, to £11,650-£32,700 (not
including a Simmons v Castle uplift).
45.
Miss Greenan also referred to Re Ives [1997] CLY 1836, in which £60,000 was
awarded. It could not be said that the Claimant ‘presents well on initial contact’. She
thought that the likely award on a full liability basis was ‘in the region of £40,000.
This however is a provision [sic] view and assuming that some liability is proved in
this matter, it will be necessary to obtain more specialised reports and in particular a
report from the rehabilitation consultant to whom [the Claimant] has been repaired
[sic]’. She agreed with her instructing solicitor’s view that there should be split trials.
Miss Greenan advised that the more detailed medical evidence she had suggested
should await the outcome of the trial on liability. Mr Willems made it clear in his
opening that that decision is not criticised, as it takes time for a brain injury to settle.
Miss Greenan also settled particulars of claim, which I summarise below.
The solicitors receive the Claimant’s case notes from hospital
46.
In the meantime, under cover of a letter dated 23 July 2001, Barnsley District Hospital
NHS Trust (‘the Trust’) sent the solicitors copies of the Claimant’s case notes in
response to a request from them. As this letter and the enclosures were in the
solicitor’s file, and the letter was stamped ‘received’, I find that the letter was sent on
that date, and received shortly afterwards (the ‘received’ stamp is illegible). It is clear
from the solicitors’ file notes that the medical records were read and analysed.
Dr Zawadski’s report
47.
The records which were sent to the solicitors included an undated report from Dr
Zawadski. It is reasonably clear that this is the report which was partly summarised in
Mr Ramnani’s second report. The Claimant left school at 16 with no qualifications.
She attributed this to becoming pregnant at 16. Her only employment was as a parttime sales assistant, between the ages of 23 and 32. The report summarised the
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Claimant’s account of her difficulties. Dr Zawadski described the Claimant as labile
and her mood as ‘incongruent with the difficulties she described’. She was overtalkative and flitted from topic to topic. She seemed to have little insight into her
difficulties. She showed a high level of motivation in the cognitive assessment and
was able to concentrate during, but not between, tasks.
48.
Her general cognitive functioning was in the borderline range, compared with an
estimate of her functioning before the accident (that it had been average). This
suggested that her general cognitive functioning was impaired by the accident. Her
immediate memory was in the low average range, but she could remember material
she had learnt before. This suggested that her ability to learn new information had
been impaired by the accident. The evidence suggested that the Claimant’s ability to
engage in effective problem solving had been impaired, and her ability to initiate and
to inhibit actions. The results might also indicate visual scanning difficulties. She had
deficits in visual perception. Dr Zawadski’s conclusion was that the Claimant’s
general cognitive functioning was impaired, and her ability to learn new information,
especially non-verbal information, was affected, although her ability to remember
what she already knew seemed to be intact. She had poor ‘visuo-perceptive’
functioning and deficits in executive functioning. These were consistent with her head
injury.
49.
Dr Zawadski considered that the Claimant’s current difficulties seemed to come from
a combination of neurological damage from the accident, her psychological reaction
to the losses she had suffered, and previous psychological difficulties. Dr Zawadski
thought that the Claimant’s problems might be helped by the head injury
rehabilitation services. An annex to the report set out the Claimant’s test scores.
My other findings about the conduct of the personal injuries claim
50.
I accept the evidence of Mr Brook that the Claimant and her family were established
clients of the solicitors before 1999. He had not acted for her, but because it was a
small firm he knew about her instructions. The solicitors had acted for her in her
divorce. He had met her more than once, for example, when he was representing her
son, Mr Tasker, and because of his limited involvement in her divorce. He knew from
members of the firm, especially Mr Marsh, that she had a difficult personality and
could make people feel uncomfortable. This was due to her pre-existing problems. He
said in cross-examination, and I accept that this was his perception, that she ‘was not
the brightest client before the accident’.
51.
The solicitors brought a personal injuries claim against Mr Burgin on the Claimant’s
behalf. The claim, with number BY020529, was issued on 13 May 2002, shortly
before the limitation period expired. The damages were limited to £50,000. The
Claimant was said to be suffering from a total loss of her senses of smell and taste.
She had some hearing loss, was forgetful, had headaches, her personality had
changed, and she had low moods and was tearful. She suffered from anxiety, mood
swings, from occasional suicidal thoughts, and she had harmed herself. The
particulars of special damage settled by counsel referred to ‘the schedule served
herewith’ and said that the Claimant had ‘a continuing handicap on the labour
market’. A schedule of special damages settled by the solicitors and signed by the
Claimant was served with the particulars of claim. This was dated ‘2002’. The claim
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was for travel expenses for four visits to hospital, weekly visits to a psychiatrist for 2
years, costs of care at ten hours a day for six months, and an amount of £460 over two
years for help with cooking. None of these claims was said to be a continuing claim.
52.
Mr Burgin’s defence denied that he had been negligent. His case was that he had been
riding properly and carefully. The Claimant had stepped out into his path and he had
had no chance of avoiding her. He pleaded that the accident was caused or contributed
to by the Claimant’s negligence. One of the particulars of negligence was an
allegation that the Claimant had drunk alcohol to an extent which impaired her
judgment and made her unable to take care of her own safety.
The case management conference on 3 September 2002
53.
On 3 September 2002 DJ Mort held a case management conference at Barnsley
County Court. Mr Marsh attended for the solicitors. He took manuscript notes and
prepared a typed attendance note. That note recorded that DJ Mort ordered a split trial
‘and therefore the liability element should be considered first. If this was successful
then it would go to a trial on quantum’. The report of Mr Ramnani would not be an
issue in the trial. The trial was to be listed for two days in a window in January 2003.
The Defendant wanted disclosure of the A & E notes between 25 June and 3 July
1999 in order to see if the Claimant had been under the influence of alcohol. The note
also said that DJ Mort did not give permission for the Claimant to rely on the Rook
report ‘as it was DJ Mort’s opinion that this was the function of the Judge to confirm
liability and not the opinion of an expert’. At the foot of this document is a manuscript
note which says ‘Nick Morton Neuropsychologist. – 2nd-10-02. – day. – ’. Mr Brook
was asked about this in cross-examination. He could not shed any light on who wrote
this, or when.
54.
At the relevant time, Mr Marsh was about six months into his training contract, which
he started, he thinks, in summer 2002. He was at the firm for six months before he got
the contract. He was 22. He covered many areas; personal injuries, crime, wills and
probate. His main area was family. He did work where it was needed. In his first six
months it was personal injuries. He did not feel able to deal with cases by himself
without supervision. He relied very heavily on Mr Brook. He was not the decision
maker. He had not dealt with a brain injury case before. He knew some of what Mr
Willems referred to as ‘red flags’.
55.
He realised from his contact with the Claimant that she was troubled. Because of his
inexperience, he did not realise at the time how potentially serious the Claimant’s
brain injury was, and Mr Brook did not tell him. It was not his job to think about the
overall shape of the case. He thought at the time that the consumption of alcohol was
potentially relevant to the case. He did not research the point. He relied on others.
The run up to the trial
November 2002
56.
The solicitors wrote to Miss Greenan’s Chambers on 24 September 2002 to say that
the case had been listed for a trial on liability only in a window between 6 and 24
January 2003 with an estimate of two days. The solicitors asked her clerk to confirm
her availability during that window. On 25 September her clerk confirmed her
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availability by fax. On 15 October 2015 the solicitors ‘reserved’ her for the period of
the window. On 11 November 2002 the solicitors wrote to Miss Greenan’s clerk to
say that the Claimant was due to have rehabilitation for six months based near
Liverpool at some point in the New Year. In the light of her amnesia, her solicitors
wondered whether the trial could go ahead without the Claimant. They asked counsel
to ring them to discuss this.
57.
The solicitors filed a listing questionnaire at court dated 1 November 2002. This
stated that the Claimant was on a waiting list for rehabilitation at a residential hospital
in Liverpool. A date for treatment was expected in January and treatment might take
six months.
58.
On 26 November, Mr Squires saw the Claimant. He recorded in his attendance note
that he told her that the defendant had problems with the alcohol point, as the A and E
records were to the effect that no alcohol had been consumed and he expected the
paramedic notes to say the same. Then, however, the Claimant had ‘dropped a
bombshell’ on him. She told him that Mr Tasker was in Armley Prison, she did not
know for how long. He was also taking drugs. He had assaulted Miss Rogers and
there was now a question about whether she would help. The Claimant did not know
where she was living. His advice was that this could cause real problems as they were
‘vital witnesses’. He hoped that he would not have to disclose this to the defendants,
but that was more a hope than an expectation. He would have to wait and see. In a
further file note dated 27 November he referred to the trial date in January. The most
effective way to deal with his concern was to try and settle the case, and advise the
Claimant to offer a split on liability. The note explains his thinking: he had been told
by the Claimant that her two witnesses might not turn up: one was in prison and both
were taking drugs. She, as he also noted, could not remember the accident. At that
stage he was thinking about a one third/two thirds split.
59.
On 29 November the solicitors wrote to counsel’s clerk to say that the trial had been
listed for two days on 7 January 2003. A brief would follow in the next 21 days. They
asked the clerk to confirm that counsel could deal with the case. Also on 29
November, Mr Squires saw the Claimant. He told her he was concerned he did not
have any credible witness evidence. The Claimant reluctantly agreed to approach Mr
Burgin with a one third/two thirds split. They should wait until Monday morning. If it
turned out that Mr Tasker was available, they should still offer a 50/50 split.
December 2002
60.
On 2 December Mr Squires spoke to the Claimant on the phone. Mr Tasker had been
released. She did not know Miss Rogers’ address. Mr Squires was still concerned that
‘neither of these characters may turn up for the trial and if they do they may not be
good witnesses’. He asked the Claimant to think about the 50/50 offer. She did so,
spoke to her sister, rang him back, and agreed. That same day, the solicitors made a
Part 36 offer on a 50/50 basis. That offer was in due course rejected, and Mr Burgin
made no counter-offer.
61.
On 6 and 18 December the solicitors wrote to the Claimant asking for information
about Mr Tasker’s sentence and about a meeting she was due to have on 10 December
about rehabilitation.
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Mr Morton’s report
62.
On 13 December 2002, Mr Nick Morton, a consultant clinical psychologist, compiled
a report on the Claimant. This was not a medico-legal report and was not
commissioned by the solicitors. The Claimant had been referred to Mr Morton in
August 2001, but he had not seen her until 2002 because she had been difficult to
contact. He had seen her twice at home, on one occasion with her mother and sister,
given her a neuro-psychological assessment over two days, and attended the planning
meeting on 10 December 2002 at which the Claimant and Mr Burton had been
present. The purpose of the report was to assess the consequences for the Claimant of
her accident, and to make specific recommendations for her rehabilitation needs.
63.
Mr Morton considered that the evidence suggested that the Claimant had had posttraumatic amnesia for 8 weeks, which ‘indicates a very severe brain injury’.
‘Significant’ changes in her behaviour were reported by her sister, including in
relation to control of her temper, impulsivity and cognitive ability in everyday
situations. She had become impulsive and disinhibited. She was highly labile. She
was low in mood and very anxious. She had visual hallucinations. She had memory
problems.
64.
She was difficult to test because of her changeable emotions and poor concentration.
Her motivation varied and she abandoned tests which she found difficult. Her overall
level of intellectual ability was in the range bordering on impairment. The pattern of
scores was similar to that obtained in 2000. Her estimated intelligence before the
accident was average, so there was a significant discrepancy between the two. She
had significant impairments in visual and auditory attention. She showed significant
impairment on most tests of memory. The tests which Mr Morton was able to give in
relation to frontal lobe function suggested that this, too, was impaired. The Claimant’s
responses were impulsive and showed no evidence of planning.
65.
Mr Morton concluded that the Claimant had suffered ‘a severe brain injury’. The
effects of the injury ‘severely handicap[ped]’ her in her everyday life. While her preexisting emotional problems might have pre-disposed her to developing such
problems after a brain injury, the nature and extent of her current problems had
‘primarily arisen’ as a consequence of the injury. The injury had left her with ‘a
marked cognitive impairment’. There was a ‘significant decline in her general
intellectual ability’ from estimated previous levels. There had been no notable
improvement from the problems seen by Dr Zawadski two years previously.
Functionally, the Claimant led ‘a very limited life’. The lack of improvement
suggested that she was unlikely to improve without specialist brain injury
rehabilitation. She had had very important support from her local Community Mental
Health Team. The Claimant would be helped by rehabilitation with intensive
residential input. He considered that given the scale of her problems, the Claimant
would need 12 months in a residential service.
The booking of Mr Crossley
66.
On 18 December, the solicitors wrote again to counsel’s clerk to apologise for the fact
that they had not sent a brief. The solicitor with conduct had been away ill. The brief
should be with counsel in the next 14 days. The solicitors were rung by counsel’s
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clerk that day to say that Miss Greenan was not free for the trial. The secretary who
took the call asked Chambers to pencil in Mr Crossley. His clerk confirmed the
booking that day. On 18 December, Mr Marsh spent 5 units drafting instructions to
counsel.
Contact between the solicitors and the Claimant in late December 2002
67.
On 19 December Mr Burton rang Mr Marsh to change the appointment for the
Claimant. He told Mr Marsh that he worked with those who used mental health
services and would like to be present to explain any difficult points to her. Also on 19
December, the Claimant rang to say that her two witnesses would attend court.
68.
There was a meeting on 20 December 2002 between the Claimant and Mr Marsh. Mr
Marsh made a record in a file note. Mr Burton was there with the Claimant. He had
previously told Mr Marsh that he worked with the Claimant ‘due to her mental health
issues’. She said that both witnesses would be available and that she was due to go to
Wigan in the next three months for rehabilitation. She expressed deep reservations
about going to court. Mr Burton agreed. ‘The fact is our client suffers from some form
of psychological problems, which I believe include mood swings and therefore she is
prone to violent behaviour’. Mr Marsh advised that if she did not attend, her prospects
of success would ‘be reduced drastically’. He would ask for counsel’s advice about
this. Mr Marsh explained the format of the trial. At that stage he appears to have
forgotten that the trial was on liability only, as he said that Mr Ramnani would be
called. He estimated how long the trial would last and said that if the client was not
called, that might be relevant. Mr Burton mentioned that ‘her neuropsychologist’ Mr
Morton had produced a report ‘which explains her psychological problems’. He could
try and get this, which might ‘benefit us if we are to try to avoid the hearing or allow
the client not to be called as a witness’. He told the Claimant that a trial was only held
in a small percentage of cases. ‘The usual case is that the matter is dealt with outside
court’. Mr Burgin had not responded to the Part 36 offer and this would be chased up.
I find that this note is an accurate record of what was said at this meeting.
69.
In cross-examination, Mr Marsh said that it was the first meeting which he had had
with a client on his own. He was aware of the need to consider whether a client had
capacity to give instructions. On her presentation, neither he nor Mr Burton had any
concerns about that. His file note, but not his witness statement, referred to the
Claimant’s forthcoming rehabilitation in Wigan. He did not know who would fund it
and whether it was for her brain injury or a mental health issue. He knew that a need
for rehabilitation could potentially be claimed as a future loss. I accept this evidence,
with one caveat. It seems to me that if the rehabilitation was to be provided (as it
appears on the evidence that it was) by the National Health Service (‘the NHS’) in an
NHS hospital, the relevant NHS body must have decided that it resulted from a
continuing need for healthcare, rather than for social care. It would follow that, as
NHS treatment, it would be provided free of charge. There is no suggestion in the
evidence that the rehabilitation was to be provided by a local authority as part of a
package of social care. If it had been, different considerations might apply.
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Mr Crossley’s instructions
70.
The solicitors sent instructions to Mr Crossley under cover of a letter dated 20
December 2002, which was addressed to his clerk. At the foot of that letter was the
email address of Mr Squires. Mr Brook’s evidence was that Mr Crossley’s
instructions were drafted by Mr Marsh. He probably would have seen and approved
them before they were sent but cannot remember. In his cross-examination he was
asked about the instructions. Without referring to them, he answered (correctly) that
the instructions probably did not say that Mr Crossley was to consider liability only.
He accepted that the instructions said that the Claimant had told the solicitors on 20
December that she did not want the trial to proceed and that she was ‘anxious that the
matter be settled without the need for her to give evidence in court’.
71.
The instructions reached Mr Crossley on 23 December 2002. The covering letter
made clear that the trial was on liability only, which was not stated in the instructions.
The order made after the CMC in September 2002 was not included in the
instructions. As I noted above, that order refused permission for the Rook report to be
adduced and provided for a split trial. Mr Ramnani’s two reports, the police accident
report, photographs, the statements to which I have referred, the two previous advices
of Miss Greenan, and the pleadings were included. The instructions did not say who
the instructing solicitor was, or give any contact details.
72.
Mr Crossley was asked to produce an advice in order to enable the Claimant’s legal
aid certificate to be extended to cover the trial. The instructions said that the Claimant
was not sure where Mr Tasker and Miss Rogers were, and that Mr Tasker might be
serving a prison sentence. The instructions also referred to the Part 36 offer. One of
the reasons for it was that without the attendance of Mr Tasker and Miss Rogers ‘our
client’s claim is placed at a disadvantage’. Another reason was the suggestion that the
Claimant and her two witnesses had drunk alcohol (which was strongly denied). The
solicitors had tried to get the ambulance crew’s notes, but so far without success.
73.
The Claimant, the instructions continued, had told the solicitors on 20 December that
she did not want the trial to go ahead. ‘She is anxious that the matter be settled
without the need for her to give evidence in court. This may be connected with her
condition, but we cannot tell.’ The instructions also mentioned that the Claimant was
currently being ‘advised and assisted generally in relation to her affairs by…Barnsley
Independent Advocacy Service for Mental Health.’ The worker allocated to her case
was Nick Burton. He had told the solicitors that the Claimant was being treated by a
neuropsychologist and that a report was available. The solicitors were trying to get a
copy.
74.
These instructions were criticised by Miss Day in her cross-examination of Mr Brook
because they did not make clear either that DJ Mort had ruled that the Rook report
could not be relied on, or that the trial was on liability only. Those criticisms mean
that Mr Crossley was not fully informed when he wrote his Advice, but these
deficiencies did not put Mr Crossley at a disadvantage on 7 January because by then
he had found out about both matters. He accepted in cross-examination that he was
adequately instructed for the trial. Mr Brook agreed in cross-examination that he did
not at any stage speak to Mr Crossley and that Mr Crossley had no way of knowing
that Mr Brook was supervising Mr Marsh. I accept that evidence.
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Was Dr Zawadski’s report sent to Mr Crossley?
75.
The instructions to Mr Crossley do not list or refer to Dr Zawadski’s report. It is
referred to in two documents which were enclosed in his instructions, that is, Mr
Ramnani’s second report, and Miss Greenan’s second Advice (which at paragraph 11
summarises that report). Her second advice post-dates, by some time, the solicitors’
receipt of Dr Zawadski’s report (in July 2001). I find that she was not sent Dr
Zawadski’s report with the instructions which led to her second advice. It is not
referred to in those instructions and it is improbable that she would have said ‘we
must see this’ if she had already seen it.
76.
I have already referred to the solicitors’ file notes about the Claimant’s medical notes.
I find that Dr Zawadski’s report was read by the solicitors, as, on 27 July 2001, Mr
Squires wrote to Mr Burgin’s insurers to suggest that she be instructed to prepare a
psychological report on the Claimant. I find that the solicitors fully reviewed the
documents they were sent by the Trust in July 2001, but they did not follow up Miss
Greenan’s advice in January 2002 that ‘we must see’ Dr Zawadski’s report by sending
it to her. I find that it was not sent to Mr Crossley, either; not because the solicitors
failed to realise its potential importance, but, rather, because he was instructed for the
trial on liability only.
Contact between Mr Marsh and Mr Crossley on 23 December 2002
77.
Mr Crossley and Mr Marsh spoke on the telephone on 23 December 2002. Mr Marsh
warned Mr Crossley in advance that the Claimant was ‘reluctant to attend’. Mr Marsh
asked Mr Crossley if he should chase up the ‘psychologist’s report’. I am satisfied on
the evidence I have heard that this is a reference to the neuropsychologist’s report
referred to in the instructions, and that Mr Marsh and Mr Crossley both understood, or
hoped, that it might explain why, the Claimant did not want to, or was not able to,
attend the trial. Mr Crossley’s answer to Mr Marsh’s question was ‘Yes’. Mr Marsh
wrote an arrow on the file note to stress ‘Chase up’.
Mr Marsh’s efforts to get Mr Morton’s report
78.
Mr Marsh followed this up over the next two weeks or so. Mr Smith summarised
those efforts in paragraph 61 of his closing submissions. I mention only a few points
here. Mr Marsh rang Mr Burton to ask for the report on 23 December. When the
Claimant chased it on 31 December, he made a series of phone calls. He asked the
Claimant to come into the office and give a signed authority for its release and of ‘any
other documents which may assist my solicitors in showing that I am unfit to attend
court’. She signed that on 31 December 2002. On 2 January 2003, Mr Jim Holliday
from the Barnsley Advocacy Centre rang Mr Marsh to talk about whether the
Claimant should go to court. Mr Holliday explained that she had rung him earlier that
day, very upset, and not wanting to attend court, as Mr Marsh’s attendance note
records. That Mr Marsh’s efforts did not succeed sooner than they did seems to be
because Mr Burton and his colleagues seem not to have known who had a copy of the
report, or which body should be approached to get it; and then it looks as though the
Claimant’s signed authority which had been faxed to him was mislaid by Dr Wasti, or
by his secretary.
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I find that, from Mr Marsh’s point of view, the main anticipated use of this unseen
report was to support an argument that the Claimant was not fit to attend court or to
give evidence. In my judgment it is significant that this was not a report which had
been commissioned by the solicitors, and that they did not and could not know what it
said until they got a copy and were able to read it.
Mr Burgin rejects the Part 36 offer
80.
On 24 December 2002, Mr Burgin rejected the Part 36 offer by the Claimant.
Mr Crossley’s advice
81.
Mr Crossley wrote an advice, headed ‘Further advice’, on 30 December 2002. This
document said that his advice should be read in conjunction with Miss Greenan’s two
earlier advices. He agreed with Miss Greenan, on the basis of the analysis in the Rook
report, that ‘primary liability should rest with the Defendant’, and that, accordingly,
the Claimant had ‘reasonable prospects of success’. The Claimant had suffered a
serious injury, including complete loss of her sense of smell and taste. If she
established liability, she was likely to receive ‘a substantial award of damages’. He
recommended that the legal aid certificate be extended to cover representation at trial.
He asked for the neuropsychologist’s report to be sent to him as soon as it was
obtained. Not only was it likely to consider the extent of the Claimant’s psychological
problems, but it might also be relevant to her apparent fear of attending trial.
82.
In cross-examination he explained that with the Rook report and the evidence he had,
he considered that there would be reasonable prospects at trial. That view did not
change when he discovered that the Rook report would not be admitted at trial, as he
considered with all the witnesses, he had evidence about sight lines and the approach
of the motorbike. He considered that he would have had a stronger case with it,
however.
Further contact between the solicitors and Mr Crossley in January 2003
83.
Mr Marsh and Mr Crossley spoke again on 2 January 2003. Mr Marsh asked if the
ambulance report and legal aid certificates should be disclosed. Mr Crossley said that
the one page incident report should be disclosed. They also talked about the
photographs, the ‘dismissal’ of the Rook report and a possible adjournment over the
ambulance records.
84.
The trial bundle was sent to Mr Crossley on 2 January, and he was faxed the
ambulance records by Mr Marsh. The bundle arrived in Chambers on 3 January. On 6
January 2013, Mr Crossley rang the solicitors to ask if the trial was on liability only.
The solicitors’ secretary rang him back and told him that an order for a split trial had
been made on 3 September 2002.
Mr Morton’s report reaches the solicitors
85.
Mr Morton’s report was faxed to the solicitors at 3.30 in the afternoon of 6 January
2003. The fax cover sheet was addressed to ‘W Brook & Co’ from ‘CCRU’. It was
not addressed to any individual, nor did it refer to the Claimant by name. The
solicitors’ office is in two buildings across the road from one another. Mr Marsh’s
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office was on one side of the road. Mr Brook’s office was on the other side of the
road, and the fax machine was next to Mr Brook’s office.
86.
Mr Brook’s evidence was that he remembered reading it, and realising that it was
important. He had to move quickly in order to ensure that it was in the right place. He
told Mr Marsh to ensure that Mr Crossley saw it. The gist of his evidence was that he
could not remember exactly what he told Mr Marsh or how he told him to ensure that
Mr Crossley got it. With an element of hindsight, he now thinks that he told Mr Marsh
to take it to court the next day.
87.
I reject this evidence. In order to appreciate that the report was important, Mr Brook
would have had to spend some time reading it, and possibly reading other documents
for context. If Mr Brook realised at the time that this report was as important as he
now says it is, it is highly improbable that he would not have made a file note,
summarising its effect and saying what he done with it, and that he would not have
recorded the time units which he spent reading it. But there is nothing in the file
which supports his recollection. He accepted in cross-examination by Miss Day that
he has had thousands of cases in the 12 years since this claim. His diary for 6 and 7
January 2003 sheds no light on this; it does not even record that the Claimant’s case
was listed for trial on 7 January 2003.
88.
Mr Marsh’s evidence is that he does not remember seeing Dr Morton’s report on 6
January, or Mr Brook telling him that the case had fundamentally changed. There is
no file note which shows that Mr Marsh read it and no record of time charged for
reading it. He had been chasing the report for two weeks and knew it was important.
He does not now know if he was in the office on 6 January and he does not know
where counsel was on 6 January. I find that Mr Marsh was not given Mr Morton’s
report, either by the solicitors’ secretary, or by Mr Brook.
89.
Counsel rang the solicitors at 3.55 pm to check whether the trial was on liability only.
The solicitors’ secretary, Ms Pam Hinchcliffe, said she would call him back. She did
so, but the file note does not say she told Mr Crossley about Mr Morton’s report,
which had arrived 25 minutes earlier. I find that the report was received by the
solicitors, and filed, and that it was not read by Mr Brook or Mr Marsh on 6 January
2003. It follows that there is no basis for finding that it was faxed to Mr Crossley’s
Chambers on 6 January. The agreed evidence from Ms Hartley suggests, and I find,
that there would have been some record in Mr Crossley’s Chambers if that had
happened. It follows that I also find that Mr Marsh did not hand Mr Morton’s report
to Mr Crossley on 7 January 2003, and that Mr Brook did not discuss it with, or tell
him on 6 January that the case had fundamentally changed.
90.
For completeness, I record that I therefore accept Mr Crossley’s evidence that he was
not given Mr Morton’s report on 7 January (he distinctly remembers reading it for the
first time with his solicitor after these proceedings began). He did not ask for it on 7
January. He thought that the report dealt with whether or not the Claimant could
attend court and once he saw that she was there, he gave it no further thought. I accept
this evidence, despite the fact that, in his Advice, Mr Crossley had said that this report
was not only likely to consider the extent of the Claimant’s psychological problems
but might also be relevant to her attendance at court.
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Mr Crossley’s preparation for the trial
91.
There are pages from Mr Crossley’s notebook which show that he prepared notes for
a pre-court conference, and notes for cross-examination. He took two relevant
authorities to court. He had clearly read the trial bundle carefully. I find that he took
proper steps to prepare for the trial on liability which he had been instructed to
conduct. In the course of his cross-examination, Mr Willems identified more than one
positive point for the Claimant’s case which Mr Crossley did not overlook, as he had
noted it as a point on which to cross-examine Mr Burgin. He had the Highway Code
in his bag. He also had the JSB Guidelines in his bag, but had not prepared quantum,
because it was a liability-only trial. He had no cases about quantum with him. The
documents he had were Miss Greenan’s Advices and the medical reports. He felt that
he was able to deal with his instructions. The trial bundle contained a full set of the
A&E records, and he had been through them. He had written ‘No ref to alcohol’ next
to one entry and ‘urine tested?’ next to another. He had written ‘no ev taken’ in his
notebook. He was not concerned about alcohol on the question of primary liability.
7 January 2003
92.
The case was listed before HHJ Swanson for a two-day trial on 7 January 2003. Mr
Crossley described him as ‘a very pleasant and well-respected judge’. The full
ambulance records had not arrived by 7 January 2003, although a one-page incident
report had. There are two relevant contemporaneous documents about the day of the
trial. They are Mr Marsh’s one-page attendance note, and the consent order. Mr
Marsh prepared the attendance note at the earliest opportunity, either later that day, or
the next day.
93.
I have no doubt that the attendance note is an accurate summary of what Mr Marsh
understood had happened on 7 January 2003. But it has four limitations: Mr Marsh’s
relative lack of experience in January 2003; the fact that he was not present during the
negotiations between counsel; the incomplete insight into Mr Crossley’s reasoning
which it can provide; and its brevity, in comparison with the time which elapsed
between Mr Marsh’s arrival at court and the signing of the consent order (about two
and a half hours). Those factors mean that the attendance note is not a full account of
what happened on 7 January 2003 and why. Mr Marsh accepts this in paragraph 31 of
his witness statement. For example, there is no narrative explaining what happened
between the paragraph in the note in which Mr Burgin’s offer of £10,000 is described,
and the next paragraph which refers to the decision to accept £12,500. Something, in
this regard, has clearly been left out. These limitations mean that I cannot accept that
the attendance note is a full record of everything Mr Crossley said and did; moreover,
it was not written by him, or submitted to him for his agreement.
94.
The note records that Mr Marsh travelled to court with Miss Rogers. He arrived at
about 10 am and counsel had already spoken to the Claimant. There was then a
conference. The Claimant, Mr Burton (‘a friend of the client from Barnsley
Advocacy’), Miss Rogers, Mr Marsh and Mr Crossley all attended. It quickly became
clear that Mr Tasker was not there and was unlikely to come, despite the Claimant’s
arranging the day before that he should come with her in a taxi, and despite his telling
Miss Rogers the day before that he would come.
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95.
The note also records that counsel’s advice was that due to the non-attendance of the
main witness the Claimant could apply for an adjournment, but the judge might be
unwilling to allow one in the circumstances. ‘The alternative’ was to ask the
defendants whether they were willing to pay a sum of money for full and final
settlement of the claim without admission of liability. Counsel is recorded as
explaining that if this was the case ‘the offer would be drastically reduced from what
she may expect if she [were] to receive full damages and she authorised him to speak
to the defendants about this’.
96.
When he returned, the note continues, counsel said that Mr Burgin had offered
£10,000 without admission of liability. At first, the Claimant thought that this was
‘chicken feed’. But counsel explained that Mr Burgin had two ‘strong independent
witnesses’ and neither Mr Tasker nor Mr Hall had attended, the client was hesitant to
give evidence and even if she went ahead, the court was only likely to award damages
of 25-33% of what she could expect due to her contributory negligence. Counsel
explained this in some detail. At first the Claimant struggled with this, but Mr Marsh,
Mr Burton and Miss Rogers helped to explain, and eventually she understood.
97.
The Claimant’s decision ‘although she was not 100% sure about accepting the offer of
£12,500 was given without duress and with an opportunity of full and frank
explanation’. It was agreed that a consent order would be drafted explaining that the
Claimant was accepting £12,500 in full and final settlement of her claim, that Mr
Burgin would pay her costs and that would be an end of the matter. The note records
that ‘The client seemed to understand the majority of the information without any
problems, but whenever a difficult point arose, it was explained to her in some detail’.
Once the issue of costs had been resolved, the Claimant would receive her damages
cheque.
98.
Mr Marsh’s evidence in cross-examination was that he thinks that the sentence about
duress was inserted at the suggestion of Mr Crossley. He did not think it sounded like
his words. I accept that evidence, even though it is not in Mr Marsh’s witness
statement. The attendance note does not refer to the Morton report. As Mr Marsh
accepted in his evidence, it would be unusual for him not to note something which
was important. He has no independent recollection about it. He cannot remember if he
had it with him at court. Mr Marsh does not remember whether it was discussed on 7
January. That is supported to some extent by Mr Crossley’s evidence which was that
he did not ask for the Morton report on 7 January 2002. I find that Mr Morton’s report
was not mentioned on 7 January.
99.
In his evidence, Mr Marsh said that his role was to attend and assist. He was familiar
with the Claimant. He does not think that the Claimant was put under pressure by him
or by Mr Crossley. His was a secondary role. He was very junior. He was there not to
advise but to support the Claimant and to explain things to her in a simple way. He
did this in an active way, but did not himself give advice. The Claimant would often
over-react to things and then calm down. He and Mr Crossley tried to explain things
to the Claimant rather than to put pressure on her.
100.
Mr Burton’s recollection was that Mr Marsh was advising the Claimant. That may be
the impression which Mr Burton, as a lay person, remembering events many years
ago, now has. He accepted that he had no records of what happened in 2003. He
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signed his witness statement in 2008, but accepted that parts of his recollection now
were hazy, although he recalled some elements quite strongly. In my judgment, it is
highly unlikely that as, a trainee solicitor, Mr Marsh would have felt competent to
advise the Claimant, or that he would have done so. I accept Mr Marsh’s evidence
about this. It is supported by Mr Crossley’s evidence, which was that he cannot
remember if he knew that Mr Marsh was a trainee, and while he was helpful and spent
time explaining things to the Claimant, he was very young. He explained and
reiterated the difficulties which Mr Crossley could see. Mr Marsh agreed with his
advice; he was briefed to conduct the trial. Doing his best for the Claimant was his
professional responsibility. I find that Mr Crossley realised that Mr Marsh was either
a trainee, or very junior, and that he realised that the onus of deciding what advice to
give the Claimant was on him.
101.
In his evidence, Mr Marsh said that his recollection was that the other side started the
settlement discussions. I reject this evidence. It is not supported by any express words
in the attendance note, and is inconsistent with the probabilities of the situation
described in that note.
102.
In cross-examination Mr Marsh was asked whether he was alarmed that the case was
not being settled on the basis of an apportionment of liability. He said that he thought
a full and final settlement was unusual since it was a liability-only trial but he had
never been in that situation before. He could not really say that he thought then about
the potential costs of rehabilitation, or about the lack of a final prognosis. If he had
disagreed with counsel about something ‘overtly obvious’, he would have asked for
the Claimant’s view. If she had not been happy, he would have raised it with Mr
Crossley or with Mr Brook. He would have called Mr Brook if he had had any
concerns. If he had had a conversation with Mr Brook in which Mr Brook had told
him that the quantum in the case had gone up, he would have told Mr Crossley.
Nothing happened to cause him to call Mr Brook for advice, or to suggest that counsel
should call him.
103.
Mr Burton agreed that the Claimant could express her dissatisfaction quite bluntly at
times. He remembers that the Claimant was anxious about attending the trial. I accept
that evidence. He had the impression that Mr Marsh was overworked when he made
his witness statement in 2008 but struggled to remember why he thought that now. I
find that Mr Marsh was busy at the time, but having seen him give evidence, I also
find that it is unlikely that as a as a much younger man, and a trainee, he would have
been brusque or agitated with the Claimant. I also reject Mr Burton’s suggestion that
Mr Marsh used ‘legal speak’ to the Claimant without explaining it properly.
104.
Mr Burton accepted that it looked as though he did not have a copy of Mr Morton’s
report. He was not sure he had ever had it. He did not remember Mr Morton’s report
‘being in the room’. He said that the Claimant understood that there was a risk that
she could get nothing, and she was scared that she might get nothing. He said that he
felt sorry for the Claimant. She was ‘incredibly anxious and distraught’. There was a
strong sense of pressure in taking the settlement. She felt she had lost because of her
injuries and because the amount of money was not what she felt was due; but she was
frightened she would get nothing. It took her a long time to accept what she should
do. I accept that evidence. However, I should make it clear that I also accept Mr
Marsh’s evidence that neither he nor Mr Crossley put pressure on the Claimant. I find
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that the ‘pressure’ which Mr Burton described was the pressure of a situation in which
the Claimant understood that there was a risk that she would get nothing for her injury
and its impact on her.
105.
Mr Crossley agreed at the start of his cross-examination that there were problems with
his memory. He had been helped by the documents, and had thought constantly about
the case since he got the letter before claim. He has, understandably, often re-visited
the events in his own mind in the period between that letter and this trial; but probably
did not think about them very much at all between 7 January 2003 and the letter
before claim. I bear that in mind in assessing his evidence.
106.
There is an obvious risk that Mr Crossley has sought to reconstruct what he thinks
happened, or ought to have happened, rather than having a direct memory of what
happened. Indeed, in the course of his evidence, he was quite frank in admitting when
he could not independently remember some of what had happened. However, my
impression from his evidence was that Mr Crossley is a thoughtful and careful
practitioner. He was relatively experienced in January 2003. I therefore have to
consider, where he has no direct memory of what he did or thought, what it is
probable that he would have done and thought, and whether there is any other factor
in the evidence which makes it improbable that he in fact did so.
107.
Mr Crossley explained that the fact that Mr Tasker did not come to court was a
significant setback for the prospects of success. He was an important witness because
he was the only witness who gave evidence of the approach of the motorbike, its
speed and the sight lines. The evidence of Miss Rogers was not as helpful as
paragraph 7 with ‘I think’ undermining paragraph 4. It exposed her to crossexamination that she had not in fact seen the motorbike until Mr Tasker yanked her
out of its path. He accepted that analysis at this level of detail was not in his
statement; he ‘would have thought’ that that is how he would have analysed it at the
time. The speed of the motorbike was a significant issue. It was not a ‘win-win’ if Mr
Burgin were found to be travelling slowly, because the Claimant needed to prove that
Mr Burgin had been negligent. He would have spoken to the Claimant about the
evidence, but he cannot remember in what level of detail. Since Mr Marsh describes
Mr Tasker twice in the attendance note as the ‘main witness’, I consider it probable
that Mr Crossley made this clear to the Claimant, and, in summary, why he
considered that that was so.
108.
Mr Tasker’s evidence significantly helped the claim. Mr Crossley did not accept that
the fact that Mr Tasker could see the motorbike suggested that Mr Burgin could see
the pedestrians, and he had no evidence that the motorbike could be seen over a
distance apart from Mr Tasker’s. It was suggested to him that the independent
witnesses’ opinions about whether Mr Burgin was to blame were not ‘a legal
analysis’. He agreed that those opinions were not a legal analysis but said that,
nonetheless, those views of two seemingly independent witnesses were significant. He
did not accept that because the pedestrians were visible to Mrs Empringham (who was
in a stationary car) they must have been visible to Mr Burgin.
109.
There were many points he could make in submissions, but he wanted to have the
strongest evidence he could. Relying on the defendant’s witnesses to prove his case
was a high-risk strategy. He wanted to prove the case from his own evidence. If the
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defence witnesses had said ‘No’ to any of his questions, the Judge would have asked
him where his evidence was; that was the difficulty he faced without Mr Tasker. His
view was that the evidence posed significant risks without Mr Tasker. He would not
have had evidence to support the assertions he was making and any county court
judge would ask him where his evidence was to prove them. In answer to one
question from Mr Willems, he said that the central contention was that the case could
succeed on the basis of concessions from the defence, but he had no evidence to put
before the judge.
110.
He firmly disagreed with the suggestion that the Claimant had a formidable case on
primary liability. The prospects were less than 50%, which meant that the Claimant
was likely to lose. If he had thought that there were prospects of success, he would
have fought the trial. As it was, it was his professional duty to point out what he saw
as the difficulties in her case. Mr Burgin thought there was a risk he would lose, and
he thought that there was a risk that the Claimant would lose. He could not speculate
on what difficulties the defence might have had. If he had thought that the evidence
was strong on liability he would have fought the case, as that was what he had gone to
court to do.
111.
He decided to explain the risk to the Claimant that she might get nothing. That he did
so is supported by Mr Burton’s evidence. That is a third alternative which is not
spelled out in Mr Marsh’s attendance note. This is a further gap in the note, I find. A
further inaccuracy in the note, I find, is that it records that Mr Crossley advised that
there were two alternatives (applying for an adjournment or asking if Mr Burgin
would pay a sum in full and final settlement). On the balance of probabilities, given
Mr Crossley’s level of experience, it is more likely, that, as Mr Crossley suggested in
his evidence he would have, he suggested that he should go and explore settlement
with the other side. As he pointed out, he had no authority to give an initial figure to
Mr Burgin’s lawyers. I also find that it is probable that, as he suggested he would
have, he asked at first for an apportionment, knowing that Mr Burgin’s lawyers had
already rejected a 50:50 split; but that when Mr Burgin’s advisers smelled settlement,
they wanted to close their books, and would only agree a full and final settlement. I
find that it is improbable that they would have agreed to an apportionment in this
case.
112.
Mr Crossley’s evidence was that he did not have the luxury of getting further medical
evidence as he felt that he had to settle. He accepted that he did not ask the Claimant
any questions about quantum. He was not comfortable about quantum, but there was a
real risk that the Claimant would lose and he had to do his best with what he had. He
was uncomfortable because he could only make a provisional assessment of quantum,
but Mr Burgin’s lawyers had put a figure to him. The figure he agreed was
appropriate given the evidence he had. He was left with Miss Greenan’s valuation and
liability had not been proved. £12,500 was reasonable in the light of the evidence he
had about quantum and the litigation risk. He agreed that there were ‘red flags’ about
the head injury, but while Mr Ramnani had described the head injury as severe [I
interpolate, ‘fairly severe’] he had said that the Claimant had made a ‘good recovery’.
She was ‘totally self-caring and independent’ (in Mr Crossley’s words). He was able
to rely on Mr Ramnani’s conclusions. He could not go behind them.
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113.
He accepted that the value of the claim might change in the light of further medical
evidence. The approach of having split trials, which he did not criticise, meant,
necessarily, that it was not possible fully to investigate quantum until liability had
been established. He considered, nonetheless, that any available reports should have
been given to him. Mr Ramnani had given a précis of Dr Zawadski’s report, and he
proceeded on the basis of Mr Ramnani’s professional view. He did not therefore ask
to see Dr Zawadski’s report. I say more about this below.
114.
He could not remember if he considered provisional damages on the day, and
accepted that he did not address his mind to it at the time. A case in which there is a
risk of epilepsy is a classic case for provisional damages, he agreed. But there was no
suggestion of any seizures and on Mr Ramnani’s reports, a decreasing risk of
epilepsy. No claim for provisional damages had been pleaded. He did not agree that
his duty was not to settle the claim because he did not know whether or not there was
a valid claim for provisional damages. He settled it because of the appreciable risks he
faced at trial. The case was not hopeless, but its prospects were poor.
115.
There was a whole host of potential claims had the case succeeded on liability. He
knew that the Claimant was to have rehabilitation, but not its extent, for that she was
to be an in-patient. He definitely did not see Mr Morton’s report. He did not ask or it.
He believed that its purpose was to address possible non-attendance at trial, even
though he had attributed two purposes to it in his Advice. Once the Claimant was
present at court, he gave it no further mind. He acted on the basis of the evidence
which was brought to his attention. He was entitled to settle the case on a full and
final basis even though he had not seen that report. He does not recall speaking to the
Claimant about her condition and I find that he did not do so. He acted on the basis of
the medical reports he had. I find that, in the circumstances, that was a reasonable
approach.
116.
He did not accept that it was wrong to suggest that the Claimant should give evidence.
There was the alcohol issue, and he did not accept that, in the mind of the trial judge,
that would have been irrelevant. It was potentially relevant on the issue of
contribution. He had been through the medical notes and they did not suggest that the
Claimant had had any alcohol in her blood. He had concerns about the issue. Both the
solicitors and Miss Greenan thought it was relevant. On the morning, alcohol was not
a concern in relation to settling the case; his concern was the Claimant’s son was not
there to give evidence. His view was that it was likely that the claim would fail, and
he tried to secure a figure so that the Claimant would not leave court with nothing.
The Claimant did not want to give evidence, her main witness was not at court and the
defendant had two independent witnesses who said that Mr Burgin was without
blame.
117.
He had to take a view about the value of the claim; and it was better for the Claimant
to get something than to get nothing at all. The value of the claim in his view was
about £40,000. There were potential red flags but the only medical expert had
expressed his conclusions and he saw no reason to go behind those. Any rehabilitation
was not likely to make the Claimant’s condition worse. He did not know how long the
Claimant’s rehabilitation would take, or who would pay for it, but these were all
potential heads of loss, and were irrelevant if the claim was lost. He did not ignore
rehabilitation; it was considered in Mr Ramnani’s report.
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It is difficult to disentangle Mr Crossley’s current analysis of the issues in the case
from his analysis at the time. I find that it is probable that his analysis in January 2003
was not significantly different from the way in which he analysed the case in crossexamination.
The meeting on 13 January 2003
119.
On 13 January 2003 the Claimant went to the solicitor’s offices with Mr Burton. Mr
Marsh was present, and wrote an attendance note. According to his evidence, Mr
Brook was there too. The Claimant was unhappy about the settlement. She raised the
schedule of special damages which she had signed. Mr Marsh advised her that the
cheque for £12,500 was a global figure. The Claimant was not convinced that it
reflected the injuries she had suffered. Mr Marsh explained why she had agreed to
settle the claim. ‘The client seemed to be suggesting that we had acted in an untoward
way, which from having considered the file I could not locate in any way’. The
Claimant left the office ‘in a state of frustration, but once again seemed happy with
the explanation given’. Mr Marsh explained about costs. He recorded that Mr Burton
helped him throughout the meeting to calm the Claimant down and to explain things
to her. Mr Morton’s report was not mentioned in the meeting, according to the file
note, and I find that the file note is accurate. I also find that the file note, while
compiled by Mr Marsh, reflected Mr Brook’s views, as it does not say at any point
that he disagreed with what Mr Marsh said.
The cost of the Rook report
120.
There was a problem later about the cost of the Rook report. Mr Crossley agreed to
bear the cost from his fees so that it would not be deducted from the Claimant’s
damages.
The re-opening of the claim against Mr Burgin
121.
It is now common ground that on 7 January 2003 the Claimant lacked capacity to
agree to the settlement of what, it is now known, was a complex and valuable claim,
although their case is that neither the solicitors nor Mr Crossley knew this. She
instructed new solicitors and sought, by an application made on 11 February 2009 by
her litigation friend, to re-open the claim against Mr Burgin. The question whether
she should be permitted to do so was not straightforward.
122.
Silber J held, in February 2011, that the Claimant had had capacity when the claim
was settled. But eventually, in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18 the
Supreme Court decided that the Claimant had not had the capacity to conduct the
claim, and that she should have had a litigation friend when the claim was
commenced. The Court held that Silber J had applied the wrong test in deciding
whether or not the Claimant had capacity. The Court had not been invited to validate
the settlement retrospectively, nor would it have been just for the Court to do so. Bean
J had been right to set aside the consent order. Baroness Hale said, at paragraph 18 of
her judgment, that the settlement figure was a ‘gross undervaluation’. She referred to
the fact that at some point before the hearing in the Supreme Court in March 2014 Mr
Burgin’s advisors had valued it at £800,000 or so.
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123.
TLQ/15/1381 DUNHILL v W BROOK and CROSSLEY
On 5 March 2015, Swift J approved an apportionment of liability under which the
Claimant would receive 55% of the value of her claim against Mr Burgin.
This claim
124.
In this claim for damages for breach of contract and for professional negligence, the
Claimant’s case was, in short, that the solicitors and Mr Crossley negligently managed
the claim and settled it for too little. This claim was issued on 7 December 2009, just
short of the expiry of the relevant limitation period. The particulars of claim are dated
17 December 2009.
125.
On 19 April 2010 Hickinbottom J stayed this claim until further Order. On 19 March
2015, Swift J lifted that stay. This case was to be managed alongside the claim in
BY0529. The Claimant was given permission to amend her claim, and the
Defendants, their defences. The claim was to be listed for hearing on breach of duty
only, in the Autumn of 2015.
The pleadings
126.
On the original pleadings, the Claimant’s primary case was that she lacked capacity
on 7 January 2003, and she should be allowed to re-open the claim against Mr Burgin.
It is clear from the particulars of claim (paragraphs 7 and 8) that this claim was, to an
extent, a fall back, brought to protect the Claimant’s position in the event that the
Court either considered that the Claimant had capacity on 7 January 2003, or
considered that the settlement should be approved, despite her lack of capacity.
127.
The gist of the case originally pleaded in the particulars of negligence alleged against
the solicitors and Mr Crossley is that the solicitors and Mr Crossley were negligent in
i)
advising that £12,500 was a reasonable sum to settle for, the first barrister
having advised that the claim was worth about £40,000;
ii)
overestimating the negative impact on the claim of the absence on the date
fixed for trial of Sam Tasker and of the failure to obtain permission to rely on
a report of expert in accident reconstruction;
iii)
failing to appreciate from the medical evidence and from the Claimant’s
apparent difficulty in accepting advice that there might be an issue about the
Claimant’s capacity, and that she did indeed lack capacity, so that the
settlement would need to be approved by the court;
iv)
ignoring the evidence of a consultant neuropsychologist, Nick Morton, that the
Claimant had suffered a severe brain injury in 1999 and that she still had
extensive cognitive, behavioural and emotional difficulties as a result;
v)
failing to appreciate that the Claimant had a cognitive deficit (which was
apparent because she came to court with her mental health advocate) and that
that might have been caused by the accident;
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vi)
failing to appreciate that there was a risk of epilepsy, that provisional damages
should have been claimed in respect of that risk and that the settlement sum
should have reflected it;
vii)
taking instructions from a client who lacked the capacity to give them;
viii)
advising that the whole claim be settled at a liability-only trial for too little
when the medical evidence ‘strongly’ suggested that the Claimant would need
further treatment.
128.
It is also pleaded that the solicitors were negligent in failing to apply in time for
permission to rely on accident reconstruction evidence ‘in the event that the solicitors
were of the view that such evidence was necessary’, and in the amended pleading, that
they were negligent in failing to arrange for the appointment of a litigation friend.
129.
The claim was substantially amended in June 2014. Paragraph 3A pleads a description
of the duties owed by the solicitors to the Claimant. The solicitors should have
assessed and advised on the nature and severity of the Claimant’s injuries by
instructing appropriate medical experts to identify her needs and losses, and assessed
her ability to give instructions so as to satisfy themselves that she had the necessary
capacity. At paragraph 4A, the particulars of claim more fully describe the duties said
to be owed by Mr Crossley to the Claimant. He, too, should have assessed her ability
to give instructions, and should have advised fully on the value of the claim. He
should have withdrawn if he felt he was not competent to deal with the case.
130.
The breaches of duty alleged against the Defendants are also more fully pleaded. In
short, the solicitors should have realised from the available evidence that the
Claimant’s brain injury had had serious consequences. Mr Crossley was negligent in
failing to consider the relevance of the fact that the Claimant was being helped by a
mental health advocate, and in advising that the claim should be settled for £12,500
when he had earlier advised that the Claimant was likely to get a ‘substantial’ award
of damages. He should have withdrawn from the case if he did not feel competent,
and should have applied for an adjournment, because he could not take instructions
from a Claimant who lacked capacity, and ‘because he did not have suitable or
sufficient evidence upon which to advise settlement and when the opportunity and
obligation to obtain an adjournment was provided by the wealth of evidence of the
extent of the Claimant’s head injury’.
131.
In paragraph 11.2 of the amended particulars of claim, the Claimant avers that in an
effort to mitigate her loss, she has settled the claim against Mr Burgin so that she will
receive 55% of the damages she suffered in June 1999. That settlement was approved
by the High Court on 5 March 2015. An assessment of damages will take place in due
course. She pursues this claim ‘for any shortfall in the Claimant’s recovery of
damages against Burgin that the Court considers [is] caused by the Defendants’
negligence, any damages arising out of the cost of mitigation of her loss and any
irrecoverable damages forever lost as a result of the Defendants’ negligence’.
The law
132.
There is little dispute about the relevant legal principles. The solicitors and Mr
Crossley owed the Claimant a duty to exercise such skill and care as a reasonably
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competent practitioner in the relevant sector of the profession would have done. I
reject any suggestion, if made, that where a client instructs a firm to act for her, and
the firm chooses to use a trainee to act on its behalf, a lower standard of care applies
than would apply if the firm had used a qualified solicitor. The solicitors had a small
legal aid practice, but they did hold themselves out as being expert in personal injuries
litigation. Mr Crossley was an experienced personal injuries litigator of ten years’
call.
133.
That standard of care does not ‘impose on those who practise [the common law] any
liability for damage resulting from what in the result may turn out to be errors of
judgment, unless the error was such as no reasonably well-informed and competent
member of that profession could have made’ (Saif Ali v Sidney Mitchell &Co [1980]
AC 198 at 220D per Lord Diplock). There is a difference between an error ‘that was
so blatant as to amount to negligence and an exercise of judgment which, though in
the event it turned out to have been mistaken, was not outside the reasonable courses
of action that in the circumstances reasonably competent members of the profession
might have chosen to take’ (ibid). The fact that advice to settle is given at the door of
the court is an important part of the context for an assessment whether the duty of care
has been breached, and it is a situation ‘in which it may be very difficult to categorise
the advocate’s decision as negligent even if later events proved it to have been wrong’
(VG v Denise Kingsmill [2001] EWCA Civ 934 at paragraph 63 per Sir Murray Stuart
Smith).
134.
There is no dispute that a solicitor is not liable in negligence if he acts reasonably on
the advice of appropriate counsel who has been properly instructed. But a solicitor
must exercise his own independent judgment, and if he considers that counsel’s
advice is ‘obviously or glaringly wrong, it is his duty to reject it’. The relevant
authorities are summarised in Locke v Camberwell Health Authority [1991] 2 Med LR
249, CA (an appeal against an order that a solicitor personally pay costs).
135.
It is trite and obvious that the decision in each road traffic accident turns on its facts.
In my judgment no reliable propositions of law about what result might have been
likely in this case, had it fought, can be deduced from the cases, other than in very
general terms. Nonetheless, the relevant cases in the eleventh edition of Bingham and
Berryman on Motor Claims Cases (which was current in January 2003) were
summarised by Miss Day in her closing submissions. These show that at that stage of
the development of the law, it was far from certain that a pedestrian who was knocked
down by a motorbike would succeed on liability. I think that Mr Willems accepted
this in his oral closing. The cases about contributory negligence from the same edition
of that textbook show that it was not impossible that had the case been tried, and had
the Claimant succeeded on liability, she could have been found between 75% and two
thirds to blame.
136.
For what it is worth, I do not accept that whether the Claimant and/or her companions
had been drinking was, as a matter of law, an irrelevant consideration in this case. Mr
Willems relied on two decisions of the Court of Appeal: Liddell v Middleton [1996]
PIQR 36 and Lunt v Khelifa [2002] EWCA Civ 801. Neither case establishes that
whether a claimant is drunk is irrelevant in a personal injuries case. What they show is
that the fact that a claimant is drunk does not make his conduct more worthy of blame
than if he had been sober; what matters is what the claimant did. Both cases make it
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clear that whether a person is drunk may explain his conduct. It follows, in my
judgment, that whether or not a person is drunk may well affect a court’s assessment
of what happened and why, and is therefore a potentially relevant factor in any
assessment of the likely cogency of evidence from and about a claimant, or a witness,
who may have had something to drink. I say more about this below.
137.
Counsel referred to several cases about lawyers’ negligence in their written and oral
submissions. This was a very useful exercise. But the circumstances of each of those
cases, and of this are different, and I do not consider that it is necessary to lengthen
this judgment further by analysing their facts and by trying to follow, or by seeking to
distinguish, any of them.
Discussion
The relationship between the liability of Mr Crossley and of the solicitors
138.
Mr Smith submitted that the first question was whether Mr Crossley was negligent. If
he was not, then there was no scope for the solicitors to be found negligent. Mr
Willems submitted that even if Mr Crossley had not been negligent, the solicitors
could still be found negligent, because a solicitor (rather than a trainee) should have
been at court to say that the case should not be settled without the benefit of the
reports from Dr Morton and Dr Zawadski. I reject that submission. If Mr Crossley’s
assessments that it was necessary to settle the claim and that £12,500 (which was all
that Mr Burgin would pay) was an appropriate sum were not negligent, there is no
scope for a finding of negligence against the solicitors on the basis postulated by Mr
Willems.
139.
Mr Smith also submitted that if Mr Crossley was negligent the questions were
i)
whether the solicitors discharged their duties by sending a trainee to court on 7
January 2003; and
ii)
whether Mr Marsh did, and was reasonably entitled to, rely on Mr Crossley’s
advice.
I accept Mr Smith’s analysis of the relationship between the liability of Mr Crossley
and of the solicitors.
Was Mr Crossley negligent in settling the claim for £12,500?
140.
Mr Willems submitted that Mr Crossley’s advice to settle the claim for £12,500 was a
negligent error of judgment. He made three main points in support of that submission.
i)
Mr Crossley failed to exercise reasonable care and skill in analysing the
evidence he had, so that he overestimated the risks on
a)
primary liability and
b)
contributory negligence.
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ii)
TLQ/15/1381 DUNHILL v W BROOK and CROSSLEY
Mr Crossley should not have advised on a full and final settlement at all,
because he could not give properly informed advice about quantum, or should
not have done so without getting the reports of Dr Zawadski and Mr Morton.
141.
In his cross examination of Mr Crossley, Mr Willems sought to show that the
Claimant’s case was much stronger than Mr Crossley considered that it was. His
argument was that, even without Mr Tasker’s evidence, the Claimant had such a
strong case on the day of trial that Mr Crossley should not have considered making a
full and final settlement on her behalf. Mr Crossley’s position was that Mr Tasker’s
evidence was the evidence which best supported a finding of liability. On its own, the
evidence of Miss Rogers was ambiguous at best. Without Mr Tasker’s evidence, he
would have had largely to rely on cross-examination of the Defendant’s witnesses to
discharge the burden of proof. He could have been in a situation where the judge
would have asked him what evidence he had to support his case. He considered that,
without Mr Tasker’s evidence, there was a real risk that the Claimant would get
nothing.
142.
I was not persuaded that the points made by Mr Willems showed that Mr Crossley
had assessed the evidence incorrectly, still less, negligently. How the case would have
been decided by the judge if it had fought is not a question which has a scientifically
right, or wrong answer. The first imponderable is how the witnesses’ evidence would
have come across. The second is that different judges could, without erring in law,
have reached different views on liability and quantum on that evidence. Similarly,
different barristers might come to a different view about how the evidence might be
received, and analysed by a judge, without being negligent.
143.
I have set out Mr Crossley’s evidence in cross-examination at some length above. I
see the force of Mr Crossley’s assessment that Mr Tasker’s evidence was very
important to the Claimant’s case on liability, of his worry that, without it, he could
have been left in a position where the judge would hold that he had failed to discharge
the burden of proof, and of his view that relying on the defendant’s witness statements
to prove his case was a high-risk strategy. I consider that Mr Willems understated the
potential damage to the Claimant’s case which could be caused by the evidence of Mr
Burgin’s independent witnesses, if they came up to proof. I do not consider that the
view which Mr Crossley reached on the material he had was negligent. Miss Rogers’
evidence only shows that Mr Tasker saw the motorbike the instant before it was upon
the group. Mr Willems’ submissions on this aspect of the case conflate the approach
of the motorbike with its arrival.
144.
So Mr Crossley’s view that, without Mr Tasker’s evidence, there was a risk that the
Claimant would lose altogether was not negligent. That finding is the context for the
criticisms about the overall amount of the settlement which Mr Willems made. He
said more than once in his oral submissions that if Miss Greenan’s advice on quantum
was correct, then £12,500 was ‘exactly right’. He did not, as I understand it, ever
suggest that Miss Greenan’s advice was wrong, or negligent. If Mr Crossley
considered, without negligence, that there was a risk that the Claimant would lose,
then he did well, in those circumstances, to get a settlement which was ‘exactly right’
(in terms of the advice of Miss Greenan).
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145.
I have considered a fall-back argument advanced by Mr Willems that, if Mr Tasker’s
evidence was as important as Mr Crossley thought it was, he should have asked for an
adjournment because Mr Tasker was not at court. I do not consider that Mr Crossley
was negligent in not applying for an adjournment on that basis. It is clear from the
attendance note that he considered applying for an adjournment, but advised that such
an application was unlikely to succeed. That assessment was not wrong, let alone
negligent. The judge would have asked why Mr Tasker was not at court. Mr Crossley
had no explanation to give, and therefore could provide no assurance that Mr Tasker
would attend any adjourned hearing.
146.
I also reject Mr Willems’ submission about contributory negligence. I have no doubt
that a finding of contributory negligence would have been made, had the case fought.
The decided cases which were available in 2003 show no more than that, as I have
said above, the trial judge could have arrived at a figure from a range of percentages,
depending on his assessment of the evidence, and what findings of fact he made.
Given the risk that the Claimant could lose, Mr Crossley was not negligent in taking
into account, when agreeing a sum to settle the claim, that a significant finding of
contributory negligence was likely.
147.
I reject Mr Willems’ submission that anything can be made of the fact that Mr
Crossley’s evidence was unclear about the precise apportionment on which he advised
the Claimant to settle. I do not consider that this shows a lack of reasonable skill or
care by Mr Crossley. Advice on settlement in the situation which Mr Crossley thought
the Claimant faced is not a precise mathematical exercise. There are risks at two
levels (liability and contributory negligence) which are often in a range, rather than
being a precise figure, and the adviser has to feed those in to the likely damages
figure, in order to judge what amount, or range of amounts, represents a reasonable
settlement, taking account of those risks. That assessment is then confronted by the
final figure which a defendant is prepared to offer after negotiation, and the adviser
has to decide, depending on what that figure is, whether it is reasonable to advise his
client to settle at that figure.
148.
As I have already indicated, I do not accept that the question whether the Claimant
and her witnesses Mr Tasker and Miss Rogers had had anything to drink was legally
irrelevant. The proposition that a motorist owes the same duty to a drunk pedestrian as
to a sober one does not mean that the Claimant’s case was bound to succeed even if
she had been drunk (I make no finding that she was). If she and/or her companions
were tipsy or drunk, that might well make it probable that they had failed to look for,
or to see, the motorbike (whether until the last minute, or at all). That could colour a
court’s practical assessment both of primary liability and of contributory negligence.
Mr Crossley’s evidence, which I accept, was that, by the date of the trial, he was not
concerned about the question whether the Claimant herself had been drinking, as he
had been through the A&E notes, which did not mention drink.
149.
An important factor in any assessment of whether Mr Crossley was negligent in
advising a full and final settlement on the information he had is that the decision to
have a split trial has not been criticised. It was inevitable, with a legally aided claim
like this, that, by the time of the hearing on liability, the evidence which the solicitors
had gathered about quantum and passed on to counsel would be ‘provisional’.
Everyone expected that, if the claim succeeded on liability, further evidence on
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quantum would be obtained. I do not consider, in the circumstances, that the solicitors
were negligent in not obtaining further evidence about quantum before 7 January
2003, or in failing to realise that Dr Morton’s report (which they did not commission
and only received the afternoon before the trial) might be relevant to quantum.
150.
There is a lack of realism in this part of the Claimant’s case. Mr Crossley did not have
the luxury of saying he could not settle the case because he did not have enough
information about quantum. On his non-negligent assessment of the situation, he
faced fighting and losing, or agreeing a settlement. It is unrealistic to suggest that he
should, or could, have obtained an adjournment to get more evidence on quantum in
that situation. The two key points made by Dr Morton and Dr Zawadski, which Mr
Crossley did not know about, were that the Claimant had had a much longer period of
post-traumatic amnesia than Mr Ramnani had stated, and the significant gap between
her estimated cognitive abilities before the accident and her measured cognitive
abilities after it. The material Mr Crossley had did not make those two points, and Mr
Ramnani described a ‘good recovery’ from a ‘fairly severe’ injury. His reports
disclosed a mixed picture about the Claimant. In my judgment Mr Crossley was not
negligent in relying on Mr Ramnani’s broad conclusions.
151.
Nor do I consider that with the material he had, Mr Crossley was negligent in doing
his best to assess quantum, and in doing so, in arriving at a figure which was similar
to Miss Greenan’s. I do not consider that he was negligent in not asking for Dr
Zawadski’s report. That was summarised in Mr Ramnani’s report, and Mr Crossley
was entitled to assume that Mr Ramnani, a medical expert, had summarised it
accurately. Nor do I consider that he was negligent in not asking for Dr Morton’s
report. He and Mr Marsh had been primarily interested in that report for the help it
might provide on the (by then) academic questions of whether the Claimant should
attend court or give evidence. Moreover, he was also entitled to assume, since his
instructions had specifically said so, that his solicitors were doing their best to get the
report, and that, ‘if obtained this will be furnished to Counsel as soon as possible’.
152.
Nor do I consider that Mr Crossley was negligent in failing to reflect other losses,
apart from pain and suffering and loss of amenity in his analysis. The schedule of
special damage in his instructions did not suggest any continuing loss, such as loss of
employment prospects, or continuing care costs, and the figures were relatively
modest. In the situation as he analysed it, and in the light of the factors I have already
mentioned, he did not, in agreeing to settle the claim for £12,500, negligently fail to
give appropriate weight to this factor. I have seen no evidence that the costs of the
residential rehabilitation which was due to take place would not be covered by the
NHS.
153.
By the time of his second report, Mr Ramnani’s estimate of the risk of epilepsy was
‘now small, perhaps less than 1%’. I do not consider that Mr Crossley was negligent
in not achieving a settlement which included provisional damages for this risk. I find,
on the balance of probabilities, that Mr Burgin’s lawyers would not have agreed to
settle the claim on any other than a full and final basis. Although this is, strictly,
relevant to causation, it is also relevant to breach of duty, because if no such
settlement could have been achieved, then, Mr Crossley, knowing that, could not have
been negligent in not pressing for it. I find, on balance of probabilities that he did not
separately negotiate for such a settlement. That would not be unusual, or evidence of
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negligence, in circumstances where cases with potential claims for provisional
damages are sometimes settled, without negligence, on a full and final basis. Indeed,
it seems to me likely that the description of the head injury in the JSB Guidelines
which is quoted in Miss Greenan’s advice includes an allowance for such a risk (see
paragraph 44, above).
154.
I therefore conclude that Mr Crossley was not negligent in advising the Claimant to
settle her claim for £12,500.
Were the solicitors negligent?
155.
My analysis of the relationship between the liabilities of Mr Crossley and the
solicitors means that if Mr Crossley was not negligent, neither were they. In case
either, my finding about Mr Crossley, or that analysis, is wrong, I should briefly
consider whether the solicitors were negligent.
156.
Mr Brook was cross-examined about this. He was asked whether Mr Crossley was
entitled to expect the solicitor to exercise an independent judgment and raise points.
His response was that he wasn’t there. He was asked whether he should have been
there and said, ‘Not necessarily’, as the LSC would not pay for two solicitors. He
accepted that Mr Marsh was there as a trainee solicitor to help Mr Crossley as much
as he could. He accepted that there was nothing on the file to show that Mr Crossley
knew that Mr Marsh was a trainee. The person who was there to exercise judgment
was Mr Crossley.
157.
Mr Marsh was a junior trainee. He was only six months into his training contract. It
was clear from his cross-examination that he now realises that he was out of his depth
at court, through no fault of his own. The documents show that the solicitors charged
for the time of a qualified solicitor at court that day, and that is who they should have
sent. If, contrary to my view, Mr Crossley was guilty of an error ‘that was so blatant
as to amount to negligence and an exercise of judgment which, ….turned out to have
been mistaken, [and] was …outside the reasonable courses of action that in the
circumstances reasonably competent members of the profession might have chosen to
take’, then Mr Marsh was, through no fault of his own, not knowledgeable or
experienced enough to detect it. If, therefore, contrary to my view, Mr Crossley was
negligent, then I consider that the solicitors were also negligent in sending Mr Marsh
to court on 7 January 2003.
Conclusion
158.
For those reasons I dismiss the claims against each Defendant.