England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
(MR JUSTICE GRAY)

		Royal Courts of Justice Strand London WC2 Friday, 10th August 2001

Friday, 10th August 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Errol Rodrigues in person. The decision which he wishes to appeal is that of Gray J, who gave judgment in Mr Rodrigues' action against a firm of solicitors, Irwin Mitchell, on 16th May 2001. He dismissed the action, gave judgment for Irwin Mitchell and he refused permission to appeal.
2. Mr Rodrigues cannot appeal without permission, which is only granted by the Court of Appeal in cases where the appeal has a real prospect of success. I have to decide whether, on the basis of the two lever arch files of documents and Mr Rodrigues' written and oral submissions, he has a real prospect of winning this appeal.
3. This dispute goes back a number of years. Mr Rodrigues was in practice in premises in Chesterfield, Derbyshire, on the ground floor of 88 Saltergate. His practice was that of a physiotherapist. The landlords of the premises were a Mr Norman Thorpe and a Mr John Green. Mr Rodrigues had to vacate the premises in June 1990. He alleges that that was the result of negligence on the part of his then solicitors in their failure to carry out with proper skill the instructions which had been given to them. That firm was Stanton & Walker. Mr Rodrigues instructed another firm called Kershaw Tudor to act as his solicitors in a claim against Stanton & Walker for professional negligence. It was a large claim put at £150,000 plus, embracing claims for loss of income and the costs of setting up a new practice in other premises.
4. Kershaw Tudor merged with Irwin Mitchell at an early stage in the litigation. Stanton & Walker admitted liability and paid £8,000 into court. Thus, the issue remaining between Mr Rodrigues and Stanton & Walker concern the amount of damages which he should be entitled to recover for their admitted negligence. Irwin Mitchell needed information from Mr Rodrigues in order to substantiate the claim for a much larger sum than that which was paid in. They wrote to him informing him of the need for instructions. Requests were made for him to attend their offices to discuss the issues. They asked, in particular, about such matters as what equipment he had retained, which could be used in new premises, and how much it cost, and he was asked about a witness statement. These requests were made between September 1994, through 1995 and 1996.
5. On 17th September 1996 Irwin Mitchell warned Mr Rodrigues of a likelihood of an application to dismiss his claim against Stanton & Walker for want of prosecution. That is what in fact happened. Stanton & Walker's application to dismiss the claim against them for want of prosecution came before District Judge Peters on 29th July 1997, but the applicant was unsuccessful. The judge held that there had been delay and that it was inexcusable, but there had been no prejudice to Stanton & Walker; so the application to strike out the claim was dismissed. I will return to that judgment in a moment, because one of Mr Rodrigues's points on this application is that that order was concealed from him. That concealment, he submits, is relevant to the decision he seeks to appeal.
6. After the hearing to strike out Irwin Mitchell wrote to Mr Rodrigues advising him to settle at a figure they suggested. Mr Rodrigues did not take this advice; he wanted to pursue the matter to court. In November 1997 Irwin Mitchell informed Mr Rodrigues of further directions, which had set a new timetable for the action, and requested that he countersign a letter dated 15th July 1997. Irwin Mitchell did not, however, specify what that timetable was. Irwin Mitchell sent a further letter in December 1997 informing Mr Rodrigues of the steps which should now be taken. These included a without prejudice meeting between the parties, providing additional evidence required by Stanton & Walker and setting down the matter for trial. Irwin Mitchell also advised that while Mr Rodrigues remained unrealistic in the amount he was claiming as damages they were not prepared to incur further costs in the case unless an outstanding account was paid. Mr Rodrigues had not countersigned the letter of 15th July 1997.
7. On 12th January 1998 Irwin Mitchell applied successfully to come off the record. On 14th March 2000 they applied to the district judge for their fees from Mr Rodrigues.
8. Irwin Mitchell made a limited admission of liability. They admitted that in early January 1998 they did not inform Mr Rodrigues of the deadline for setting down the action against Stanton & Walker. The action against Stanton & Walker was in fact dismissed for want of prosecution on 6th July 1998. That has led Mr Rodrigues to begin a second set of proceedings for professional negligence, this time against Irwin Mitchell. It is those proceedings which came before Gray J in Leeds on 16th May 2001.
9. In a detailed judgment Gray J came to these conclusions on the facts and on the law. He recorded the fact that Irwin Mitchell had made a limited admission of liability, that is their failure in early January 1998 to inform Mr Rodrigues of the deadline for setting down the action against Stanton & Walker. Irwin Mitchell were not in a position to set down the action on the due date, which was 30th November 1997, because they could not certify that the action was ready for trial. The judge held that Irwin Mitchell were entitled to take the view that, as long as they continued to correspond with Stanton & Walker, it was unlikely that any application to strike out the action would be made. The judge concluded that there was no breach of duty by Irwin Mitchell in failing to set down the action. The admitted negligence in failing in January 1998 to advise Mr Rodrigues of the deadline for setting down the action was not, in the judge's view, an effective cause of the damage which Mr Rodrigues claims he has suffered. The judge made an important finding of fact, which involved rejecting the evidence of Mr Rodrigues. He held that Mr Rodrigues would not have acted any differently if he had been given the advice which Irwin Mitchell admitted they had not given. The judge said Mr Rodrigues would not have set down the action in sufficient time in order to avoid a successful application to dismiss for want of prosecution. The reason the judge came to that conclusion was that he made inferences from the way in which Mr Rodrigues had dealt with (or failed to deal with) his claim in the past and the way in which he had responded or failed to respond to warnings, requests for information and requests for assistance made to him by Irwin Mitchell from 1995 through 1996 and 1997. The judge also found that, even if there was negligence on the part of Irwin Mitchell which was an effective cause of the damage suffered by Mr Rodrigues, Mr Rodrigues was guilty of contributory negligence, and he, the judge, would have reduced the damages by one hundred per cent, taking the view that Mr Rodrigues was wholly to blame for the ultimate dismissal of his action and that Irwin Mitchell's admitted breach of duty had made no difference.
10. Understandably, Mr Rodrigues is disappointed with the result. He has had his claim against one firm of solicitors struck out for want of prosecution, and he has had his claim against the second firm of solicitors (who admit the breach of duty) dismissed on the basis that their breach of duty was not an effective cause of the damage which he claims to have suffered. Thus, Mr Rodrigues seeks permission to appeal. He has submitted a detailed written skeleton argument setting out his points. He has expanded on these points in the course of the hearing today. He has three main points. First, he says he would like it noted that the solicitors admitted a breach of duty; that is perfectly correct. He says that, on that admitted breach of duty, they are responsible in law, and the court made an error in coming to a decision holding that they were not liable for what they had admitted.
11. On that point I do not think that Mr Rodrigues has a real prospect of success. In order to succeed in a claim for professional negligence it not only has to be shown that there is a breach of duty, or that there is an admission of a breach of duty; it also has to be shown that there is a causal link between the breach of duty and the damage. A solicitor, like any other professional person, may make a mistake through his negligence and commit a breach of duty, but that does not necessarily mean that he is liable for the damage suffered by the client. The client has to show that the damage he has suffered is the result of the breach of duty. The essence of the judge's finding of fact is that the breach of duty did not cause the loss. What caused the loss was Mr Rodrigues's own conduct in relation to the prosecution of his claim, and, as I have mentioned, the judge rejected Mr Rodrigues' evidence on this and found as a fact that, even if Mr Rodrigues had been told in early January 1998 of the deadline for setting down the action, it was unlikely that he would have done so, because he had failed to do so much in the past which he had been requested to do.
12. The second point made by Mr Rodrigues is that the solicitors acted wrongly in concealing from him the order made by District Judge Peters on 29th July 1997. He says that Irwin Mitchell admit that this order was not disclosed to him and he argues that that in turn led to the action being struck out. He pointed out the seriousness of a solicitor concealing from his client an order which has been made in the client's proceedings. On this aspect of the case Mr Rodrigues submits that the court erred in not accepting Irwin Mitchell's confession concerning the concealment, and in not upholding his right to have orders of the court supplied to him.
13. On this point it is obviously a serious matter if a solicitor has not disclosed to his client an order which has been made in proceedings. The difficulties which Mr Rodrigues has with this point are these. First, the order in question was one which had a successful outcome for him; it was that Stanton & Walker failed in their application to strike out his action.
14. Secondly, and more importantly, I do not think that the concealment (if it be the case alleged by Mr Rodrigues) has any impact on the liability of Irwin Mitchell in respect of their admitted failure to give him advice in early January 1998 to inform him of the deadline for setting down the action. The reason why Stanton & Walker's second application for dismissing the action against them for want of prosecution succeeded was because the action had not been set down. It is not a reason connected with the failure of their first application to strike out before District Judge Peters on 29th July 1997. Mr Rodrigues has argued that there is a connection between the two because, as I understand his submission, he says that the alleged noncooperation between him and Irwin Mitchell, from which the judge made the inference against him, was conduct predating the order of District Judge Peters. It did not relate to conduct on his part after July 1997. In my judgment, though I think that I understand the point that is being made, it does not overcome the difficulty which Mr Rodrigues faces, namely the judge's conclusion. That the admitted negligence of Irwin Mitchell was not causative of the loss which Mr Rodrigues claims to have suffered.
15. The third main point made by Mr Rodrigues includes a number of sub-points. They all relate to an allegation that he did not have a fair trial before Gray J. He claims that there were breaches of the Civil Procedure Rules during the course of that hearing. He says that material was served on him late, in breach of the Civil Procedure Rules. He refers to Rule 2.8(3) Practice Direction 2 requiring three clear days to be given in which material for a hearing can be sent. He says that he was not given three clear days. He was sent material on a Saturday for a hearing on a Monday, and he informed the judge that Saturday did not count as a clear day; it was not acceptable as adequate time to allow him to prepare for the hearing starting on Monday. He requested the judge to refuse to accept the material, but that request was denied. He says it was unfair that such late material was used in the course of the trial. The judge, he said, erred in allowing that material to be used contrary to his request that it was too late to be introduced under the rules. He also says that he was required during the hearing to have handwritten personal notes, which he had made for the purposes of conducting the case, to be circulated, and that was a serious procedural irregularity that made the decision unjust and which put him at a disadvantage.
16. Mr Rodrigues makes a number of other detailed points on breaches of the Civil Procedure Rules. He repeats the point about his personal notes, which he says emphatically were not made for the use of others in the proceedings. He repeats that he was not given adequate time for preparation. He sums up by saying that the case is seriously flawed as a result of nonobservance of the Civil Procedure Rules.
17. He returns at the end of his arguments to the point that the upshot of this case is that he has had his claim rejected against a firm of solicitors, who admit that they were in breach of their professional duties to him.
18. I have considered all those points. It is obviously a matter of concern that Mr Rodrigues feels that he has not had a fair hearing. My conclusion on his points on the Civil Procedure Rules is that, like all rules, they should in general be observed, but at a trial a judge does have a discretion to allow material to be admitted, even though the rules have not been strictly complied with, and he has a general discretion as to the way in which the proceedings are to be conducted. I have studied carefully the detailed judgment of Gray J, which runs to 29 pages explaining the basis of his decision to reject Mr Rodrigues' case. I have considered in connection with that all these criticisms that Mr Rodrigues has made. The conclusion which I have come to is that, even though some mistakes may have been made by the solicitors, Irwin Mitchell, in their professional duties to Mr Rodrigues, and even though mistakes may have been made by them in the course of this trial in relation to the late service of documents, the result was not a decision that was wrong and the result was not a trial that was unfair - whatever may be Mr Rodrigues's view of it.
19. Overall, though I know Mr Rodrigues will be disappointed to hear this, his appeal does not have a real prospect of success. I would therefore refuse permission.
(Application refused; no order for costs).