England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(His Honour Judge Dean QC)

		Royal Courts of Justice Strand London WC2 Thursday, 21st February 2002

1. SIR ANTHONY EVANS: The appellants, who are the claimants in the action, are husband and wife. They traded in the motor spares business, latterly in the late 1980s, as Coverhill Limited. The business failed and Coverhill was placed in receivership in 1991. The claimants allege that this was caused by conspiracy or other illegal action by motor distributors and/or by Austin Rover, the car manufacturers, and their associated spares operation, Unipart.
2. The claimants consulted the defendant, Ian Snipe, as their solicitor in 1991. They withdrew their instructions from him in February 1994. By that time, proceedings had been issued against a total of eight defendants but, the claimants say, he was negligent in various ways. The claimants had legal aid. The proceedings were in the Manchester Mercantile Court and they came before His Honour Judge Kershaw QC. There was a huge procedural muddle. The judge criticised the defendant and, more strongly, the claimants' second solicitors ("Park") whom they instructed in February/March 1994, and also the defendants' solicitors.
3. The result of those proceedings in the Manchester Mercantile Court by 1997 was an order 14A judgment against the claimants and various orders for particulars which were not complied with, hence parts of the proceedings were struck out.
4. The Court of Appeal in 1998 effectively allowed the claimants' appeal. We have a 41 page judgment given by Waller LJ. The judgment contained much further criticism of all the solicitors and, it must be said, of the judge also. As a result of that judgment the action continued to trial and was set down for October 2000 in the Commercial Court, with an estimated length of 30 days. The Court of Appeal's basic criticism was that the defendant's solicitors had applied simultaneously for judgment, which was a matter to be decided on the pleadings, and for particulars which implied that defects or inadequacies in the pleadings could be cured. It was a waste of public money, Waller LJ said, chasing particulars if in fact the action ought to be dismissed.
5. In 1996 the claimants changed solicitors again, instructing Irwin Mitchell who continued to represent them in that action until September 2000 when legal aid was withdrawn. When that occurred the claimants withdrew their action but with no order as to costs. Legal aid was continued, however, for the present action in which the claimants seek damages for negligence against Mr. Snipe, their first solicitor. It was continued also for a parallel claim against the second solicitor, Messrs Park. The two actions are due to be heard in the Commercial Court. The statement of case in the present case was "deemed served" in July 1999. It appears that the action was revived in June 2000 and the statement of case was described as "revived" on 4th January 2001. The writ in this action had been issued in 1994 but was stayed by agreement pending the resolution of the main action. The proceedings against Messrs Park were begun in 2000. The statement of case is dated 27th December 2000. Irwin Mitchell have been acting for the claimants in both actions until recently when legal aid was withdrawn in these actions also.
6. The present application to strike out various parts of the claim or for judgment in favour of the defendant was made on 8th March 2001. I should read the terms in which the application was made:

"For an order pursuant to CPR Part 3.4 or Part 24.2 certain allegations in the Particulars of Claim (as specified in the draft order) be struck out or dismissed and/or that the claimants' claim be dismissed."

7. The application was supported by a witness statement from Mr. Howell, the solicitor acting for the defendant. Judgment on the application was given by His Honour Judge Michael Dean QC in the Commercial Court on 24th May 2001. His order was largely in the defendant's favour. The only part complained of by the claimants is paragraph 1 of the order which gave judgment for the defendant on the claims made in paragraph 19(10)(i)-(vii) of the statement of case. Paragraphs 22(4)-(6) inclusive of the statement of case are also relevant. The order, paragraph 1, reads as follows:

"Summary judgment under CPR 24 be given against the claimants upon the issues raised at paragraphs 19(10)(i)-(vii), including the opening words of paragraph 19(10), paragraphs 22(4), 22(5) and 22(6) of the particulars of claim."

8. The relevant part of the judgment appears at page 12 (page 33 of the bundle). In summary, the judge held that, even if the defendant was negligent as alleged in 1991 to 1994, the claimants could not recover damages because (1) they had not suffered any; even if additional costs were incurred subsequently by later solicitors, those were borne by the Legal Aid Fund and the claimants made a nil contribution: and (2) there was no proof or sufficient evidence that any such negligence caused either the withdrawal of legal aid in 2000 or the claimants' inability to recover damages from the defendants in the main action. He quoted extensively from the witness statement made by the defendant's solicitor which was served in support of the application. This statement was partly a request for further information and partly argument. The first claimant had answered it but without answering all the requests, commenting that matters of argument would be dealt with by counsel at the hearing. The judge's view was that the failure to respond was evidence that the claimants had nothing more to say. I read the following passages from his judgment, first at page 12:

"It is a fact that the cartel proceedings were on the eve of trial when the public funding was withdrawn. One would therefore assume that full preparations for trial and collection of evidence had been completed and the nature of the manner by which the claimants proposed to prove their case in the cartel proceedings would have been assessed. One would therefore have thought that if there were inadequacies in the evidential material, whether in the form of witness statements or documentary evidence, or experts, being deficiencies which were due to a failure to investigate the matters at an earlier stage prior to 1994 in respect of an action which was taking place in the Commercial Court in the latter part of 2000, that these would have been immediately and readily apparent to Mr Watson and his advisers and if that had formed a serious consideration in the decision to withdraw legal aid the claimants would be well aware of this. So the complete lack of particularity in those paragraphs raises questions as to whether the claimants are really in any position to establish those allegations."

9. Next at page 36:

"An allegation of failure to prepare the case timeously or efficiently undoubtedly can cause what I might describe as knock-on effects as to the future efficient conduct of the action, even by a competent successor solicitor. I have indicated the approach in relation to striking out for want of prosecution. But Mr Slade says in this case he is also making an application to strike out these particular allegations upon the basis of Part 24.2, that the court may give summary judgment against a claimant or defendant on the whole of the claim or on a particular issue if it considers the claimant has no real prospect of succeeding on the claim or the issue. Mr Slade points out that the opportunity was there available to meet and dispute those allegations either by giving particulars or at least setting out the nature of the case."

10. The judge continued, and I summarize the next paragraph:

"The only response made to Mr. Howell's statement was a statement of the claimant Mr. Watson himself, dated 19th April this year. . . I cannot find - I hope I will be corrected if I am wrong - any part of that statement that the claimants should be in a position to give due particularity on the nature of the failures to collect evidence (I use that expression comprehensively) and the ways in which the subsequent action has been prejudiced. It may be that Mr. Watson, being a lay person, would not be able to analyse the state of the evidence in sufficient detail but equally there is no responsive statement from Mr Watson's

solicitors."

11. I now quote from the judgment at page 38:

"It is incumbent upon a defendant faced with an application under Part 24.2 where a specific allegation is made to deal with it. There is singularly no response or attempt to deal with these criticisms at all. The only conclusion I can draw is that there is no answer to them and accordingly those particular allegations in the points of claim should be struck out not in the exercise of the jurisdiction under Part 3 but in the exercise of my jurisdiction under Part 24. For the reasons I have indicated, I consider that the claimant has no real prospect of succeeding on those elements of the allegation of negligence because he appears wholly unable, even at this stage notwithstanding the preparation for the trial, to identify the alleged deficiencies in the oral and documentary evidence. I do not act upon the assumption that that is an oversight on the part of Mr Watson or on his present solicitors, I act upon the assumption that there is no explanation for it and that there is no answer to it."

12. I should read at this stage the relevant parts of the statement of case which were struck out under the judge's order. Paragraph 19 consists of the basic allegation of negligence and/or breach of contract and continues:

"The defendant conducted the cartel proceedings in a dilatory and incompetent manner in that the defendant".

13. Coming to subparagraph (10):

"Failed to take effective steps to obtain evidence to support the action and in particular the defendant:

(i) made no, or no adequate, attempts to start obtaining and assembling the documents relevant to the action;

(ii) took no, or no effective, action until 1994 to obtain documents from the receivers of Coverhill Limited;

(iii) took no, or no adequate, steps to obtain evidence (in particular documentary evidence and witness statements) establishing the existence and content of the unlawful agreements/arrangements between the defendants in the cartel proceedings. This failure was all the more striking as the defendant was aware before the cartel proceedings even commenced that the defendants in the cartel proceedings had not admitted to being parties to an unregistered restrictive practice agreement concerning motor vehicle components that ought to have been registered under the Restrictive Trade Practices Act;

(iv) took no, or no adequate, steps to obtain evidence including expert evidence to demonstrate the healthy financial condition and trading prospects of Coverhill in 1991 but for the unlawful agreement/arrangement between the defendants in the cartel proceedings;

(v) took no, or no adequate, steps to obtain evidence to establish the causal connection between the failure of the company and the unlawful agreement/arrangement of the defendants in the cartel proceedings had caused the financial difficulties experienced by the company and ultimately its closure;

(vi) took no, or no adequate, steps to appoint an expert to consider the financial and causal issues in the cartel proceedings;

(vii) despite counsel advising on 29th July 1993 that the full economic case should be presented as voluntary further and better particulars the defendant did nothing to prepare or obtain the evidence necessary for such particulars."

14. The related allegations of loss and damages are in paragraph 22, which begins with a conventional assertion that the negligence of the defendant had caused the claimants to suffer loss and damage. It continued:

"The best particulars that the claimants can provide are as follows:

The cartel proceedings have run at least 3 years behind the timetable they ought to have been proceeding;

(i) the delays and failure to obtain evidence have affected detrimentally the quality and completeness of the evidence which can now be assembled to establish the allegations made in the cartel proceedings;

(ii) the delays and failures contributed to the further delays in the proceedings between July 1994 and July 1998 as a result of the interlocutory applications to which the defendant's incompetent handling of the cartel proceedings had exposed the claimants.

(5) Additional costs have been incurred unnecessarily in the cartel proceedings;

(6) The claimants have found it necessary to prepare their own detailed analysis of the effect of the cartel agreement/arrangement upon the company, thereby incurring additional work, aggravation and annoyance."

15. I think it is fair to say that paragraph (6) is no longer alive. Formally, all three subparagraphs are struck out but there is no appeal against that part of the order.
16. In what I have called the main action but which has also been called the cartel proceedings, the Court of Appeal gave its judgment on 22nd July 1998. Apart from the enormously complicated procedural aspects to which I have referred, the court addressed certain of the substantive issues. At page 24 of the judgment (222 of the bundle) Waller LJ expressed the following conclusions:

"The plaintiffs have no cause of action for breach of statutory duty to which aspect I am about to turn. If the plaintiffs have a cause of action it must be a conspiracy aimed at them personally or unlawful interference in their personal trade."

17. Waller LJ proceeded to consider the law on those two issues. The court held, first, that the conspiracy claim could proceed, but on the basis that it was necessary for the claimants to prove that the defendants had intended to injure the claimants personally as distinct from their company, Coverhill Limited. The Court of Appeal also held that the claim under the Restrictive Trade Practices Act should be struck out because it was only available to the company as being the party that was directly affected. It was not available to the appellants personally. Putting the matter very broadly, by that stage it was too late to bring a claim under those statutory provisions in the name of the company, although there was an assignment of the company's rights to the appellant. In the result, therefore, what was set down for trial in October 2000 was a claim for damages for conspiracy and that claim only. It was in those proceedings that legal aid was withdrawn. Thanks to the diligence of Mr. Slade, we have a copy of the letter which gave the decision of the Legal Services Commission. Giving the results of an unsuccessful appeal, the Commission gave the following reasons as regards the main cartel action:

"The Committee noted and accepted counsel for the appellants assessment of the prospects of proving the necessary elements of the conspiracy were marginally over 50%. However, the evidential and legal difficulties in proving the appellants to be targets of the conspiracy and considering the effects of Johnson v Gore Wood (as presently reported) reduced the overall prospects of success so as not to pass the Legal Merits Test in section 15(2) of the Legal Aid Act 1988."

18. The appellants then decided not to pursue those cartel proceedings further. The claim was withdrawn but by agreement there was no order as to costs. The appellants' reasons are given further in the statement of case in the Park action. In paragraph 23(3) the pleading reads:

"The legal and factual complexity of the claims was such that the claimants could not realistically expect to be able to present them effectively without legal representation, and accordingly they had no alternative following the withdrawal of legal aid but to compromise the proceedings and the assigned rights action which they did with all the defendants on terms that the claims were dismissed with no order as to costs as provided by consent ordered 4 October 2000."

19. The appellants' reasons were more fully explained to us by Mr. Watson today, and they were perhaps rather more sophisticated. His complaint against his former solicitors, and specifically against the present defendant, is that they failed to bring proceedings under the Restrictive Trades Practices Act and/or Articles 85 and 86 of the Rome Treaty, as they should have done in the name of the company in 1991/1994. That required an assignment of the cause of action from the company which was not done until it was too late. A further question arose as to the failure to make Austin Rover and/or Unipart defendants in the original proceedings.
20. Mr. Watson describes that cause of action or those causes of action as the strong case or what he calls the right track which should have been followed from the outset, during the period 1991 to 1994. As it was, given the long drawn out history to which I have referred, he was only able to proceed in respect of the claim in conspiracy. He says that that was always a weaker case, what he describes as the wrong track. He also tells us that counsel advised the defendant in 1992 or 1993 that the right track should be pursued but that the defendant failed to act accordingly.
21. Against that background the claims made in the present action are of two kinds. I should note at this stage that there were other parts of the statement of case raising quite distinct issues which were struck out by the judge by other parts of the order which he made on 24th May 2001. Mr. Slade, counsel for the respondent defendant today, refers to that as having largely justified the application for striking out and/or summary determination which was made then. It should also be noted in the appellants' favour that they appeal against only one paragraph of the order and therefore only against the striking out of one subparagraph of the pleading.
22. The two strands to the claim, including the paragraph which currently has been struck out but which is sought to be reinstated, but ignoring other parts of the statement of case which are relevant to other issues, are these: first, the alleged negligence of the defendant during the years 1991 to 1994 resulted in the failure to bring proceedings which had a better chance of success than the ones which did in fact come to trial in 2000. That allegation and that part of the pleadings is unaffected by the order which is appealed against today. The second aspect is the allegation that alleged negligence of the defendant in the years 1991 to 1994 caused or contributed to the appellants' lack of success in the conspiracy action which was withdrawn in October 2000. These allegations specifically are those set out in paragraph 19(10)(i) to (vii) inclusive of the statement of case. I would observe that the nature of the damages claimed in the action is the loss of the chance of recovering substantive damages from those who were defendants in the cartel proceedings and/or from the Rover/Unipart company. The allegations contained in the relevant subparagraphs are, first, the failure to collect documents; secondly, a failure to collect evidence, and, thirdly, a failure to obtain expert evidence.
23. I should mention at this stage the broad nature of the respondent defendants' response to the present appeal. They say that the order was justified because they are entitled to ask and to know and to have expressed in clear and unambiguous pleadings, first of all, what is the missing evidence and missing documents to which the appellants are referring? Secondly, how can the appellants prove that those were not available in 2000 but would have been available in 1991 to 1994? In other words, what were the missing documents or unavailable evidence? Thirdly, how were that evidence and those documents relevant to the appellants' case in the conspiracy proceedings? As Mr. Slade puts it, the question which the defendants are entitled to ask and which the claimants have failed to answer is: "What was wrong with your case which caused you to lose legal aid and then withdraw the proceedings?"
24. I now come to what is the most remarkable feature of the case, to which so far I have referred only in passing. This is that the case as it stands today, and as it did stand in May 2001, is matched by the parallel claim by the appellants against the succeeding solicitors, Park. In those proceedings the appellants are claiming essentially the same damages; that is to say, damages representing their loss of a chance of recovering substantial damages from the defendants in the cartel proceedings or from Rover or Unipart on the grounds of Park's negligence between 1994 and 1996. That case is to be heard at the same time as the present one, presently fixed for April 2002. We were told that a case management conference has been fixed for 22nd March. One bears in mind that, notwithstanding the disputed striking out of paragraph 19(10) under the order which is appealed from, the present case will go to trial on the other issues which I have indicated.
25. So far as damage and causation are concerned, substantially the same issues arise in both cases; that is to say, what was the value of the loss of the chance, if the claimants had any, and what were the causes of the chance being lost as it was, in the year 2000? Was it caused or contributed to by either the negligence of the present defendant or the negligence of Park or by both during the earlier years? The defendants in Park have not applied for summary determination of this issue in their favour. We were told by Mr. Slade that Park's legal representatives have described themselves as more timorous than the defendant's representatives have been here. That does not mean that the present application is not over-bold. The fact is that the Commercial Court will hear evidence and make findings with reference to the value of the appellants' lost chance of recovering damages from the previous defendants and what the causes of that loss of chance were. Was it negligence by Park in 1994 to 1996 and/or negligence by the defendant Snipe in 1991 to 1994, bearing in mind that Park as part of their defence will be likely to allege that there was causative negligence by the present defendant during the years preceding their involvement. The possibility that that allegation will be made is a reason for the possible conflict of interest which makes the huge cost of separate representation of the two firms of solicitors necessary.
26. The effect of the judge's order which is under appeal today is that, even if the trial judge finds that the damage was caused by negligence, that is to say, by an act or failure to act for which the defendant was responsible in 1991 to 1994, he will not be permitted to call it such because that issue will have been summarily determined in the defendant's favour on what are essentially procedural grounds. He will not be able to award the appellant damages against the defendant or permit Park to claim a contribution from him. To add to what I ventured to call in the course of argument the Alice in Wonderland quality of the situation that has arisen, we were told that Park's representatives are content to go to trial on the basis of what the present defendant regards as inadequate pleadings, and also that they have asked for and have recently been given further information corresponding to what the defendant says is missing here. That further information, which I acknowledge may not coincide exactly with what is requested by the defendant, is currently available not only to Park's representative but to the present defendant's representative also.
27. On these grounds alone it seems to me that the judge's order is inconsistent with sound case management of this pair of proceedings which are kept separate only for historical and technical reasons. I would allow the present appeal for that reason.
28. I should note also another factor which was not referred to by the judge. Before giving judgment on this one issue -- I bear in mind Mr Slade's submission that the defendants will incur significant time and expense in dealing with it -- the judge ought, in my view, to have considered whether that was the right course to adopt, when other substantial issues, which are not unconnected with the present one, are going to trial between the appellants and this defendant in any event. I have difficulty in seeing how the judge can decide whether the defendant ought to have advised assignment of the company's claim and/or the commencement of Restrictive Trades Practices Act proceedings without taking into account what instructions and what information he was given and what further information he ought to have sought from the appellants at that time. Even the collection of documents and evidence is not far removed from the question whether further proceedings should have been begun.
29. Mr. Slade's principal submission today was that the judge was entitled to conclude as he did from the appellants' silence, which Mr. Slade ventured to call evasiveness, that they, the appellants, could have no answer to the criticisms made in Mr. Howell's statement (a passage from the judgment which I have read at page 38B). I would make the following comment. It seems to me that the judge's criticisms of the appellant were harsh ones. Mr. Watson in his statement had left the matter to counsel. I read paragraph 30 of his statement:

"Causation/Loss

30. I understand that the points so far as may be necessary will be dealt with by counsel in oral submissions."

30. In his skeleton argument for the purposes of the hearing before the judge, counsel did produce further argument and provided certain evidence. Paragraph 19, page 121, refers, first, to his general submission that the court could properly infer prejudice to the claimant and therefore material damage to him from the passage of time, which would have made it more difficult for the claimant to prove his case in 2000 when the relevant events had occurred in the 1980s and could have been investigated in the early 1990s'. It continued:

"There is in this case also evidence of specific evidential deterioration..."

31. He went on to give two examples with a reference to certain other documents.
32. By the time the matter came before the judge, the appellants had provided a bundle of additional documents which were first set before the court on 27th April and therefore by definition were again before the court at the subsequent hearing on 24th May. Mr. Slade gives various reasons for contending that those are not sufficiently or directly relevant to the allegations in question. But the fact remains that they were provided in answer to the requests, and hence my comment that the judge was perhaps harsh to say that the request was completely unanswered.
33. Insofar as Mr. Slade has identified today that there remains outstanding an underlying question which he describes as "what the claimants should say was wrong with their case" in the cartel proceedings, he accepts, I think, that what he is really asking is for the appellants to formulate, first, what evidence was lacking which could have been preserved in 1991 to 1994 and what was its relevance to the conspiracy claim. That is certainly a question of law. It was certainly not for Mr. Watson to answer. As I understand the position, Mr. Wormington, counsel for the appellants before the judge, was not asked to expand on that issue, and I would comment therefore that it is harsh to criticize counsel or the appellant in those circumstances for failing to respond to a question that was never asked, particularly when it was a question of law.
34. Finally, I make the following comment with reference to the Parts 24 and 3.2 of the Civil Procedure Rules which have been referred to in these proceedings. There is a respondent's notice seeking an order that the judge's order be upheld under Part 3.2, if not, under Part 24. The present case, were it not for what I have called the striking feature that there is a parallel action in being, might have been said to give rise to questions regarding the relationship between these two rules.
35. A similar problem arose under the rules of the Supreme Court, hence the observations made by Waller LJ in the 1998 judgment. Mr. Slade told us that he took those observations by Waller LJ, which I need not read but which are to be found at pages 200, 203, 204 and 206 of the bundle, to heart and, in the result, decided that it would be wrong in the present case to make applications for what is now called further information, if this was truly a case where an application for summary judgment should be made. My comment would be, with great respect, that counsel for the defendant has not avoided falling into exactly the same trap as was described by Waller LJ in the earlier case. A complaint that further information can and should be given is one thing, and further information can be requested in accordance with the CPR. An application for summary determination of an issue is another. Failure to provide further information may lead to a striking out of the case. That is essentially a disciplinary measure. In principle, a request for further information implies that further information may exist. It should, therefore, be made before there is an application for summary determination unless that application for summary determination is already justified. Combining the two applications, as was done here, no doubt has attractions for a defendant, but it is likely to be productive of what the respondent's own counsel rightly describes as wasteful satellite litigation, as has occurred here, not for the first but for a second time. The request for further information, upon which the judge placed much reliance, was contained in the solicitor's witness statement which was served with the application for summary judgment. If the defendants had made a clear request before making any application, they would have been able to decide whether or not to make the application in the light of whatever answers they were given. But because there was a combined application in March 2001, the present proceedings have come alarmingly close to producing what I have called the procedural muddle which the Court of Appeal had to deal with in the related proceedings in 1998.
36. For those reasons I would allow the appeal. I add one further matter, notwithstanding that it has not been raised by the appeal. The judge referred to the possibility that a claimant such as the appellant might suffer damages which would be recoverable from his solicitor upon proof of negligence if he was required to pay increased costs to a later solicitor, representing the costs of sorting the muddle out. However, in the present case, because the appellants were legally aided with a nil contribution, the judge accepted that no such claim would exist, presumably on the ground that no damages could be proved by the appellants personally. Speaking for myself, I find that somewhat alarming. First, there is always the possibility that the legal aid fund might seek recourse from the appellants, notwithstanding the nil contribution, if at some later date they were to become possessed of substantial assets. The appellants might recover substantial damages from the present defendant and/or from the firm of Park. I wonder, therefore, whether it is right to assume that the appellants have not and cannot have suffered any damages of that sort. Moreover, the position is that the legal aid fund will have incurred those costs on behalf of the appellants, and it may be (I express no view on this) that the appellants would be under some duty to the legal aid fund to claim those additional costs as damages and to account to the legal aid fund accordingly. I mention this because it is a matter which could return and cause difficulties for the appellants, and I would merely urge that the parties give some consideration or possibly the trial judge gives consideration to the question whether the order or the judgment of His Honour Judge Michael Dean was correct in that respect. I would allow the appeal.
37. LORD JUSTICE POTTER: I agree. The overall allegation against the defendant solicitor in this case is that, because of a variety of omissions throughout his retainer and/or various inadequate or dilatory steps taken on behalf of the claimants, the progress of the claimants' various claims, and in particular the conspiracy claim, was so delayed as to prejudice the claimants' chances of successful recovery in their proceedings against Rover Group and others. Thus any damages awarded against the defendant will fall to be awarded on the basis of loss of a valuable chance of a successful or better outcome in those proceedings than that which, in the event, resulted, namely a nil recovery with no order as to costs following the termination of the claimants' legal aid.
38. The situation was much complicated, and the highly problematic chances of success yet further reduced, by the fact that the claimants changed their solicitors in the course of the proceedings and went to Keith Park, who were, it is said, successively negligent in a manner which contributed to the ultimately unsuccessful result. Nonetheless, given that neither case could be struck out in principle, at least in its entirety, it seems to me that the judge should, in relation to paragraph 19(10), have started from the position that this was a case where a trial had already been fixed for a date on which both actions were to be heard together; that a careful examination of the overall history and progress of the proceedings in the hands of both sets of solicitors would be unavoidable; and that in those circumstances an application to isolate and remove from the present action allegations which formed part of the unfolding story, on the grounds that it would not be possible to demonstrate at trial that they were causally significant, was prima facie inappropriate.
39. The allegations concerned, which have been set out by Sir Anthony Evans, plainly identify the areas of activity and the types of documents in relation to which it was said that the defendants had failed to act either effectively or at all. Causation was properly pleaded, in the sense of being linked to the lost opportunity either to bring certain proceedings at all or (of more relevance here) successfully to prosecute the cartel proceedings. Thus, those parts of the proceedings were in no sense amenable to being struck out as revealing no cause of action. The defendant's position was that the assertion of causation would not be made out on the evidence available and that further information was required from the claimants which made clear with precision the respects in which the cartel proceedings, which had been settled or abandoned by the time the application was heard, had been prejudiced. That was plainly a matter amenable to a request for further information in order to make clear the nature of the case in a manner which could be grappled with at trial.
40. However, because the defendant suspected that if such information was supplied its substance would be threadbare, and because it had in any event been decided to apply to strike out other parts of the claim, the defendant decided not to make a request for further information but to achieve the same result by an application under CPR 24.2 which would, it was assumed, flush out the details of the case. As Sir Anthony Evans has made clear, the claimants did not respond with evidence through Mr. Watson but with argument from Mr. Wormington, to the effect that the court would be entitled to infer, in respect of the delay in gathering evidence, locating witnesses, taking statements and obtaining expert evidence, that the prospects of success were reduced. He submitted that such inference could properly be based on the inevitable difficulties of access to and recollection by witnesses, and because it is clear that a number of relevant documents had been lost or destroyed over the period concerned.
41. In my view, in the circumstances of this case it was wrong for the judge to decide that such arguments could simply be dismissed out of hand. The appropriate order in relation to that part of the pleadings seems to me to have been a focused requirement for further information as to the nature of the case rather than an order, the effect of which was effectively to deprive the claimant of his main argument which went both to causation and/or the assessment of damages on the basis of loss of a chance.
42. With trial not far away and fixed for a date which may already have become unrealistic, the sooner the matter returns before the commercial judge for a case management conference the better. I understand that one is fixed for 22nd March. It will be a matter for the parties as to whether they seek to bring on that matter earlier if a slot can be found but if, as seems likely, the defendants wish now to go down the route of a detailed request for further information, carefully framed to elicit the information in a form sufficient to elucidate the matters with which they are principally concerned, they should serve such request promptly so that the judge can consider it at the case management conference and give any directions thought appropriate.
Order: Appeal allowed with costs; counsel to submit minute of order.