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 QUEENS BENCH DIVISION
SOUTHAMPTON DISTRICT REGISTRY
(His Honour Judge Rudd)

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

Monday, 18th February 2002

1. LORD JUSTICE SEDLEY: This application is made in person by Mr Moffat, and he has made it, if I may say so, with clarity and with courtesy. He seeks permission to appeal against the judgment given on 19th September 2001 by His Honour Judge Rudd in the Southampton District Registry dismissing Mr Moffat's claim for professional negligence against his former solicitors.
2. The action had been conducted by Mr Moffat in person. It arose from his employment during the 1980s with Vickers Systems Ltd which, as I understand it, was an engineering company. There had been three separate occasions in late 1988 and early 1989 when Mr Moffat either had been sprayed with chemicals or oil or had inhaled fumes. He became ill and ceased to be able to go to work. As a result he was dismissed in March 1989; and I know that he is still unemployed.
3. He went to the defendant solicitors in order to sue his former employers. They issued proceedings against Vickers in the Southampton County Court in 1991. They also obtained medical reports on Mr Moffat's condition. The symptoms from which Mr Moffat was suffering included weight gain, fatigue and asthmatic symptoms. None of the doctors were able to attribute these conditions to any known toxic effects which the chemicals and other materials might have carried. The sole exception was the asthmatic condition, which the doctors considered was capable of having been caused by the inhalation of fumes. That was a condition which, however, had not endured, though it had afflicted Mr Moffat for the better part of two years.
4. Vickers paid £2,500 into court. Mr Moffat was firmly advised to accept this sum because as much further injury as he would be able with the help of the doctors to prove was going at best to result in an award of damages of which all but £2,500 would be clawed back by the state under the recovery procedures provided by law.
5. Mr Moffat was disinclined to accept this advice, and the action limped on for a number of years. In the course of those years, in the mid 1990s, the defendant solicitors took the view that the action had been struck out when plainly it had not: it had been adjourned generally. To this extent Mr Moffat was at stage one at least of his claim. He was able to show that there had been negligence on the solicitors' part, but, in order to have a sustainable case, what he also had to show was that he had suffered a quantifiable loss because of that neglect. In this case that meant showing that had the solicitors got on with the personal injury action as they should have done, and not treated it as struck out, Mr Moffat would more probably than not have recovered substantial damages, in the sense not merely of a substantial sum, but a sum which, after the clawback of the claims unit had been taken into account, would leave him with more than the £2,500 which was all the time on offer.
6. Mr Moffat seeks to contest Judge Rudd's decision that there was no viable negligence claim because there was no appreciable loss, on two essential grounds. The first is that the judge got it wrong: he had suffered real loss. In particular, Mr Moffat says he had his general practitioner's support and the support of a report of Dr Lewith which was capable of making his claim good.
7. I have Dr Lewith's report before me. Dr Lewith was a qualified physician working at the Centre for the Study of Complementary Medicine in Southampton. He is a homeopath, and while as Judge Rudd said homeopathy is no longer regarded as it once was as beyond the pale of medicine proper, a doctor's report has to fulfil certain criteria: it has to make a proper diagnosis, it has to arrive at proper aetiology of the condition that is diagnosed and it has to be able to demonstrate that the aetiology is such that the exposure which is complained of caused the symptoms which are diagnosed. Without reading it out, Dr Lewith's report does none of these things. It is a sympathetic letter, but apart from saying,

"I personally have little doubt that you are permanently disabled because of the industrial accident that you suffered"

it is more concerned with criticising those who are not accepting his assertion than it is with justifying it. I am afraid that Judge Rudd is absolutely right in saying that this report is capable of taking Mr Moffat's case nowhere and I am sorry, in a way, that Mr Moffat was given the impression by Dr Lewith that the report was a sufficient basis for a claim.

8. I do not propose for the rest to go through Judge Rudd's judgment. It would be fruitless for me to read out the several pages in which he analyses Mr Moffat's claim in detail and explains why it was simply not going to stand up in court even if the solicitors had, as they should have done, realised that the claim had not been struck out. His conclusion was that the advice did not cause any loss, and it was a conclusion which I respectfully endorse. I cannot see any other conclusion, I am afraid, available on the facts.
9. Mr Moffat's other ground on which he seeks permission to appeal relates to the fact that he was unrepresented at trial. He had to conduct his own case against an experienced barrister, and I have no doubt that he felt, as any litigant in person will do, that he was getting the worst of the contest. Mr Moffat suggests that this is a violation of Article 6 of the European Convention on Human Rights. He cites the decision of Dehaes v Belgium [1998] volume 25 of the Human Rights Reports, which requires the court to ensure that there is no inequality of substance between the parties before it.
10. It is perfectly true that there may be cases which are so complicated and difficult that an unrepresented party cannot be expected to do himself justice. I am afraid this case was not such a case. The difficulty which Mr Moffat faced, and if I may say so still faces, is (understandably) his own comprehension of what matters and what does not matter in terms of a personal injury action, as it was, and a negligence action, as this now is. The things that matter are the things that I have sought to summarise. They are the things that Judge Rudd considered, and they were very straightforward. I am not persuaded that it is arguable in these circumstances that there was any inequality of arms such as made it impossible for Judge Rudd fairly to adjudicate. On the contrary, it seems to me that he has seen exactly what it was that Mr Moffat relied on but has had to explain why it was not enough to succeed in this action.
11. For those reasons, I am obliged to refuse permission to appeal. Since an appeal carries with it enormous risks as to costs if the appeal is lost, it may very well be that Mr Moffat has been saved much worry and expense. But, whether that is so or not, it is not my reason for refusing permission to appeal. The case is not one which has a realistic prospect of success.
Order: Application dismissed.