England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TELFORD COUNTY COURT
(His Honour Judge Oliver-Jones QC)

		Royal Courts of Justice Strand London WC2 Monday, 18th February 2002

Monday, 18th February 2002

1. LORD JUSTICE SEDLEY: Miss Smith makes this application for permission to appeal out of time. She has explained, and I accept, the reasons why she missed the deadline. I enlarge time accordingly.
2. Her claim in the county court was against the Transport and General Workers Union for damages for negligence and/or breach of contract, and initially also for defamation. The defamation claim, however, was pruned from it on an interlocutory application.
3. The case came on for trial before His Honour Judge Oliver-Jones QC at Telford County Court. In spite of the interlocutory skirmishing which had reduced the issues, the hearing, which was listed for two days, in fact took three days in September and a further two in November 2001. The judge's decision, reserved into writing, is a 20-page decision which is full in its reasoning.
4. The events of which Miss Smith complained unhappily are not unusual in the trade union world. She was dissatisfied with the representation which the Transport and General Worker's Union afforded to her in Industrial Tribunal proceedings against her former employers for sex discrimination, so she went ahead with her own representation, which I will have to describe more fully in a moment. She won her case before the Industrial Tribunal. She appealed against the inadequacy of its award, and the appeal was settled for a sum in excess of £32,000, more than four times what the Industrial Tribunal had awarded.
5. What is perhaps unusual is that in the Industrial Tribunal proceedings and in the appeal Miss Smith was represented by her partner, Mr Smith, with whom she had reached an agreement to pay 25% of what she recovered. It was that sum of £8,198, as it turned out arithmetically to be, which she sought to recover as damages for the Union's breach of contract and breach of duty.
6. The judge in his judgment tabulated the issues he had to decide. There are nine of them, but for reasons I am going to come to, the critical one was the fifth:

"(e)in the event of my finding that there was an agreement between the Claimant and Mr. Smith, was it made with the intention to create a legal relationship between them?"

7. The other issues went off, in brief, in this way. The judge found that the relevant union official, Mr Wright - because the Union had undertaken representation in-house and had not put it out to solicitors (in spite of Mr Wright's admitted inexperience in sex discrimination cases) - was never instructed to claim that the dismissal of Miss Smith had been, among other things, on grounds of union membership. This allegation, in any event, was rejected by the Industrial Tribunal, so that no loss would have flowed from it. It was common ground, however, that the Union owed a member such as Miss Smith a duty of care and of competence in any proceedings in which it agreed to act for her.
8. The evidence as to the competence with which Mr Wright conducted her representation was, to put it at its lowest, equivocal, and I am prepared to accept Miss Smith's submission in her written application that, on further scrutiny, this court, in disagreement with the judge, might find it to have fallen short, perhaps well short, of the standard properly to be expected of a Trade Union which, in return for its member's subscription, elects to undertake her representation itself in a specialist tribunal. I am going to assume, too, for the present that, contrary to the judge's view, Miss Smith's grievance against Mr Wright was well-founded and that it was why she went instead to her partner for representation. He is not either a professional lawyer or a professional lay representative. He is a self-employed financial adviser.
9. The judge accepted, and I can see why, that both she and he were "serious minded and intelligent people". Miss Smith has put her case to me today in a manner which amply justifies that description as far as she is concerned. What the judge found, however (and fact-finding, I have to stress, is within his sole province), was this:

"As to the alleged agreement between Mr. Smith and Miss Smith, I am not satisfied that there was any intention on the part of either of them that any arrangement between them would be legally binding. They did not intend that any arrangement as to payment for Mr Smith's assistance should be attended by any legal consequences as between themselves, but only in respect of the intended claim against the Defendant. I am not satisfied that the question of a `contingency fee' was considered in or during 1996. Both Miss Smith and Mr. Smith were particularly vague about the timing of the agreement and the circumstances in which agreement was reached. I have had difficulty in reaching a conclusion as to when the idea of a contingency fee was first mooted. I am not satisfied on the evidence that there was anything other than a vague agreement that Mr. Smith would be paid something out of the proceeds of the litigation, or that the idea of a contingency fee was agreed before the outcome of the tribunal proceedings was known. If I am wrong about this, then for reasons to which I will come, I am not satisfied that a contingency fee is recoverable..."

10. As to the latter proposition, I am again content to accept that a contingency fee, if it was contractually payable, was recoverable without any inhibition of public policy. But if the main part of the passage I have read out was right, then none of the other issues which I have been prepared to assume in Miss Smith's favour could avail her. There would be no recoverable loss consequent on the Union's pursuit of neglect.
11. Miss Smith submits to me, and she has supported this with detailed references in her skeleton argument, that the judge was wrong to conclude that there was nothing amounting to a contract between her and her partner. She points out, for example, that in August 1996, at a very early stage of the falling out with the Union, she had written to the General Secretary:

"The other issue which needs to be resolved is the one of financial recompense for the following: the Interim Relief which I should have been receiving since my dismissal; payment for the many hours of research and work on my case expended by my partner, and appropriate compensation for the continuing distress caused by the unnecessary prolongation of the legal proceedings re my I.T. case stemming from Howard Wright's incompetence."

12. I will not set out in detail the other grounds upon which Miss Smith says that the judge got this wrong, except to make this comment. The indication given by the judge in the course of argument that he was not unduly troubled by the evidential vagueness as to when the agreement was entered into, although it seems to conflict with what he said in the passage of the judgment that I have just read out, is an example of something that happens in litigation. The judge may well indicate how his mind is working, but of course he must keep his mind open until the end and be open to persuasion by both parties. That is what happened here.
13. The facts upon which the judge based his conclusions can be found set out in his judgment at page 35 onwards. Paragraph 4.9 of his judgment - I will not read it out - indicates why the judge's conclusion, which I have quoted, took the form it did.
14. In essence, his conclusion was that Miss Smith had not, so to speak, hired her partner on a contingency fee basis to represent her in place of the Union. She had very sensibly got him to act for her and then, at a relatively late stage, agreed to share her eventual award with him. Even when it was paid, as the judge pointed out in his fact-findings, it was paid into their joint account. His conclusion was, I think, that the arrangement had much more the feel of a mutually supportive relationship in which both the life and the assets of the two partners are shared.
15. Miss Smith, who has done some useful legal research, points out to me that a contractual relationship is perfectly possible within the family context. In Simpkins v Pays [1955] 3 All ER 10 the court found an enforceable contract among members of a family to share the winnings in a newspaper competition which the family regularly entered. What Sellers J, as he then was, said in his judgment is material to this case:

"It may well be there are many family associations where some sort of rough and ready statement is made which would not, in a proper estimate of the circumstances, establish a contract which was contemplated to have legal consequence, but I do not so find here. I think that in the present case there was a mutuality of the arrangement between the parties."

16. The passage illustrates precisely the difficult judgment that a judge has to make in a case of this kind; and it may be that Miss Smith has to live with this judge having made a judgment in the opposite sense. She does, however, point out that in Thai Trading v Taylor [1998] 3 All ER 65 this court held that a woman who used her husband, who was a sole practitioner solicitor, to act for her in a dispute with a delivery company was entitled to her costs of retaining him, notwithstanding that if she had lost he would not have charged her. That again illustrates the kind of difference which may be critical. Where Mrs Taylor's husband was a solicitor, was acting as such and would in the ordinary way have a right to be paid, Mr Smith was not in that initial situation. The situation had to be brought about by some formal or at least firm and ascertainable contractual arrangement at a point of time which was not merely retrospective. It was this that the judge found was not established.
17. I have to consider whether Miss Smith has a realistic, that is a more than fanciful, prospect of establishing that the judge was wrong in the conclusion to which he came. I have to say that, although there are pieces of evidence which she can point to which point the other way, it was for the judge and is not for this court to decide how potent such pieces of evidence were. It was also for the judge to decide what they amounted to; although this court may certainly in a proper case say that the judge added up two and two and made five, if that is what has happened. The question for me is how realistic the prospect is of Miss Smith persuading this court that the judge has added up two and two and made five. It seems to me, for reasons that I have given, that the prospects are so slender that I would be doing her a positive disservice in giving her permission to appeal. It has already been an expensive experience losing and having a costs order made against her in the county court. The effect of the same thing happening, if it were to happen, in this court would be a little short of catastrophic and, while that is not a reason for refusing Miss Smith permission if she has a good case, it may afford some consolation for the fact that it seems to me that the risks, were I to give her leave, would be so heavily against her succeeding that it would not be an appropriate case for the grant of permission to appeal.
18. For that reason, and with an expression both of great sympathy for her in the situation in which she finds herself and of gratitude for the help she has given me in deciding her case today, permission to appeal will be refused.
Order: Application dismissed.