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 HIGH COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE GRENFELL
Sitting as Deputy Judge of the High Court)

		Royal Courts of Justice Strand London, WC2
		11 November 2005

1. LORD JUSTICE LAWS: This is an application for permission to appeal against the decision of His Honour Judge Grenfell, sitting as a Deputy Judge of the High Court, on 29 April 2005. He acceded to applications made by the defendant in the action, a firm of solicitors named Hodders, for orders striking out the claim form in the action as disclosing no reasonable grounds for bringing the claim and as an abuse of the process, and an order also that the applicant before me no longer act as the minor claimant's litigation friend.
2. There is alas a very fraught and unhappy background. The claimant was a boy, Harry, aged 16 at the time of the judgment. The applicant is his father. He has acted as his son's litigation friend in the action, which was a claim for damages for professional negligence. The applicant and the claimant's mother, to whom I may refer as Mrs Stork, were married, I think, in 1987. When the marriage failed, and I am giving the briefest of summaries, the applicant at length instructed Hodders to act for him, having earlier been represented by other solicitors. There was, it seems, more than one change of solicitors. Hodders acted for the applicant for a period of just over 12 months from April 1991. Proceedings between the applicant and Mrs Stork became increasingly contentious.
3. Hodders were instructed to apply for custody, to use the then terminology, of the claimant, the son Harry. He had been living with his mother for some time, as I understand it, under an interim care and control order. A court welfare officer's report of 17 December 1991 concluded that the current arrangements should continue. At a conference on 7 April 1992 experienced family law counsel advised that the chances of the applicant getting custody were extremely slim. It seems that ultimately the applicant instructed Hodders to agree a joint custody order with care and control to the mother.
4. An order for costs was made against the applicant by Mr Justice Thorpe, as he then was, in May 1992. That has been the genesis of much bitterness. On 6 May 1992 the applicant instructed Hodders to cease all work.
5. On 5 January 1995 he issued a writ on his own behalf claiming damages for professional negligence against Hodders. On 16 January 1996 that claim was struck out by His Honour Judge Wilcox as an abuse. Judge Wilcox held that there was no evidence of any want of care by Hodders. Judge Grenfell, in the judgment now sought to be appealed, said this at paragraph 19:

"That was an important finding because it is now submitted that that should not and cannot be relitigated effectively and a claim now brought by Harry, although effectively brought by Mr Nettlefold on his behalf."

6. The applicant sought permission to appeal Judge Wilcox's ruling. That was refused by Lord Justice Thorpe and Lord Justice Swinton Thomas on 30 November 1999. It is stated in the papers that two attempts were made by the applicant to re-open the matter pursuant to the special rule in Taylor v Lawrence. They were unsuccessful. I have a transcript of the judgment of 30 November 1999, but not the later one.
7. Turning to the claim against Hodders with which I am directly concerned, instituted by the applicant as his son's litigation friend, I should first cite two-and-a-half paragraphs from Judge Grenfell's judgment:

"5 There can be no doubt that for some considerable time Mr Nettlefold has held a deep and continuing concern as to the safety and welfare of his son, and that has been held since the breakdown of his marriage and separation from his former wife when indeed Harry was only a baby. The concern centred around his own allegations of physical violence towards him by his ex-wife and from his own belief that these outbursts of violence arose from some medical condition, which he has continued to say over the years he was convinced put Harry at risk. I do not think anybody who has had dealings with Mr Nettlefold over the years has ever thought his concerns were anything other than genuinely held concerns, although very many people who have had dealings with this case have had cause to question the substance behind those beliefs.

6 In essence the claimant's case as put forward by his father, the litigation friend, is that if a joint assessment had been made under section 24 of the Children Act 1991, as it was embarked upon some years later, namely in 1997, then as I understand the way in which the statement of case was pleaded, albeit at some length, it is alleged that Harry would have been protected from eight years of violent abuse from his mother and her partner. Mr Nettlefold blames Hodders, the defendant's solicitors, for failing to take the necessary steps in 1991 to protect Harry from at least the risk of violent abuse. In the event, it is said, once the assessment had been taken and once, for example, the highly experienced child psychiatrist, Dr Hamish Cameron, became involved, that a number of reassurances were put into place and a suitable plan agreed upon and there has been no concern about Harry's welfare thereafter. The question therefore in simple terms which Mr Nettlefold wishes to litigate on behalf of his son is whether Hodders failed Harry in 1991-1992 in the period of just over 12 months when they were retained as Mr Nettlefold's solicitors in connection with his divorce proceedings and ancillary proceedings relating to the matrimonial finance and the care and control of Harry.

7 There seems also within the statement of case effectively to be identified a claim that as a result of Hodders' failures somehow in failing to take steps to reverse the ouster that had occurred before they were retained, that is to say in October 1990, or otherwise to obtain a satisfactory outcome in terms of ancillary relief, somehow they failed in their duty to Harry to the extent that he has lost the chance of inheriting the capital value of the matrimonial home on his father's death. The claim therefore is put in terms of loss of that chance, legal costs and a quantified sum of £500,000 said to represent the number of years' abuse to Harry, in other words as a personal injury claim. I take that to mean that that is a claim limited to £5,000 [sic - quote states £500,000]."

At length the judge proceeded to consider the question whether it was arguable that Hodders owed any duty of care to Harry in tort. He considered the recent decision of their Lordships' House in JB v East Berkshire Community Health NHS Trust and Others [2005] UKHL 23. He held there was no basis in the authorities for holding that any duty of care could be owed to the child arising out of a contract of retainer between the solicitor and the child's parent in matrimonial proceedings.

8. On the merits of the matter he said this at paragraph 23:

"In terms of breach of duty again I have already dealt with this effectively, but in summary there was nothing at the time of Hodders retainer to put them on notice of any risk. There was no expert evidence to support the suggestion that there was any risk at that time of abuse or, more importantly, that mother was unfit to look after the child. What may subsequently have happened of course is another matter. His Honour Judge Wilcox was at pains to point out that in the Family Division there is no such thing as a final order and that it was always open for orders to be revisited and that undoubtedly was correct. But in terms of a claim against Hodders at that time he was absolutely clear that there was no evidence of want of care in their handling of Mr Nettlefold's case in respect of his efforts to seek custody and care and control of Harry as at that time. In addition of course, as I have already indicated, the court welfare officer's report made no mention of any concern. There was reference to the health visitor having no concerns. There was no suggestion that social services were likely to have any concerns at that time. The fact that later in 1994 concerns were raised as a possibility of non-accidental injury, raised of course by Mr Nettlefold, that required further investigation was not known to Hodders as at that time. Yes, His Honour Judge Wilcox was right to say that if Mr Nettlefold had genuine concerns that those concerns ought to be followed up and indeed they were followed up as a result of what Judge Wilcox said at the time. But to place this at the door of Hodders' court seems to me, as it seemed to Judge Wilcox, to be without substance."

The judge made other findings also. He concluded at paragraph 29 that there were no reasonable grounds for bringing the action and that it amounted to an abuse of the process.

9. I should say that nothing in the welter of documentation which has been presented to the court by Mr Nettlefold, with which I have done my best to acquaint myself properly, begins to suggest to me that there is anything amounting to an error in that reasoning of Judge Grenfell at paragraph 23. Earlier in the judgment Judge Grenfell had made observations about the applicant's lack of objectivity in relation to the proceedings at paragraph 12:

"12 Of considerable interest, coming more up to date, are the solemn assurances that Mr Nettlefold gave to Singer J on 11 June 1999. Those are all set out in that particular memorandum of those assurances which start at (i) with these words: 'He accepts and believes that the respondent mother, Sophie Rose Stork, is a good and safe mother who looks after Harry well and with whom Harry is at no risk.' It goes on in that tenor. Of course Mr Nettlefold responds to that that this was after the various investigations took place and of the kind which he submits should have been taken earlier. One matter which Mr Nettlefold said in one of his many witness statements, in particular dated 15 March this year, was to this effect, and to my mind it was highly significant. He said just because the abuse was not proved it does not mean it did not happen. Of course that was in many ways a statement of the obvious, but it does highlight a serious deficiency in the case as a whole, that there is a glaring lack of evidence to support the allegations that have been made .....

13 But although his lack of objectivity can be explained in human terms it does not get away from the fact that there are many illustrations of the fact that there is an overwhelming lack of objectivity in attempting to issue this litigation. There is, importantly, a failure to understand the issues that are essential in a professional negligence action against solicitors and the failure to identify what evidence would be necessary in order to substantiate such a claim and as to which part of that evidence would be relevant to those issues. It is also clear, and I accept Mr Price's submission in this regard, that there has been a demonstrable failure to accept various adjudications which have not supported his view of events."

Lastly on this, at paragraph 14 it is stated:

"14 ..... Suffice it to say that I am satisfied that essentially Mr Nettlefold has brought this action to satisfy his own desire to ventilate further his complaints against Hodders, and there is no evidence that this claim is in any way in the interests of the claimant, his son Harry, let alone his best interests. To my mind the lack of objectivity, which I am afraid permeates the litigation, would be a serious flaw in any event."

10. As I have foreshadowed, the applicant has submitted a welter of documents to the court in connection with his application. He has made very serious allegations of corruption against the solicitors acting in the case for Hodders. He has asserted the existence of very grave mental deficiencies suffered by Mrs Stork. He has put in revised grounds of appeal running to some 93 paragraphs indicating that the mother should have been prosecuted for attempted murder, and that the defendants have been deceitful in a number of respects. This, I think, he would particularly emphasise before me. He says that Hodders misled the court and that Mr Justice Thorpe was also misled. There is a great deal more. He says that Judge Wilcox was, in particular, misled and expressed concern when he, the judge, was informed of the fact after, as I understand it, the hearing was over. He says it is of great importance that a report of Dr Eames was misinterpreted.
11. Overall, he submits that the decision of Judge Wilcox was effectively procured by mis-doing and that he should be permitted to litigate the complaints he has against Hodders through the medium of this present litigation. I should read one passage from his revised application to which I would attach some importance (paragraph 14):

"Whilst Judge Grenfell may find that Hodders did not owe Harry a duty of care, the damage resulting from their failure in their duty of care to the claimant's friend [that is himself] resulted in damage to Harry and that is what is being claimed in this application."

That indicates, effectively in terms, that he is seeking to re-litigate his own case against Hodders though he is saying that Hodders' misconduct resulted in damage to his son.

12. There is much else besides. This revised application is, I have to say, an obsessive tirade. There is also a new skeleton argument which is an important document. I would draw attention to these passages (paragraph 5):

"5 Quite clearly Hodders owed a duty of care to someone in this matter. That person who they owed a duty of care to was their client, Julian Nettlefold, the claimant's friend and father .....

6 Thus while Miss Price [counsel for Hodders] may have argued admirably that Hodders did not owe Harry a duty of care, thus the application failed in the view of Judge Grenfell, what the court has not taken into account is the damage to Harry resulting from the failure of duty of care to the claimant's friend Harry's father and Hodders' client."

In my judgment this shows, in effect, an attempt to re-litigate what had gone before.

13. The applicant has made applications to adjourn this application which I have refused over recent days on the papers. There has also been a suggestion which I should record that the Official Solicitor might take over the conduct of the claim. I have to say there is, in my judgment, nothing to take over.
14. I cannot fault Judge Grenfell's judgment. The applicant wants to put in new evidence, but there is nothing to displace Judge Grenfell's order. If, which I by no means accept, there were any case to be made to the effect that Judge Wilcox had been misled or Mr Justice Thorpe had been misled the remedy would certainly not be to issue a fresh action, this time in the son's name. In my judgment the action here was rightly struck out. This application is misconceived, and will be refused.
15. I should say that the applicant also complains of an extended civil restraint order made against him on 2 June 2005, though I think it is right (as Mr Nettlefold said) that Judge Grenfell adumbrated its being made. Strictly, that is not before me, but there is in any event no material on which I would think it right to give leave to appeal against it.
16. This is a very unhappy case. It is a matter of great regret from everybody's point of view that it has come to this pass but, for the reasons I have given, I refuse the application.

Order: Application refused.