England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 June 2010

1. LORD JUSTICE MOSES: This appellant sought to bring an action for medical negligence. Tragically for him he suffered for a period from a mental illness diagnosed in 1994 which was attributed to the prescription of an anti-psychotic drug, sarafem. He received legal aid, and between 14th December 2003 and 20th January 2005 relied upon the services of solicitors Wilson Browne and in particular the respondent in these proceedings, Jennifer Laskey. He says and has said for many years that during that period Mrs Laskey was guilty of a failure to act in his best interests as a client, and what is more was guilty of dishonesty in the manner in which she conducted litigation on his behalf.
2. For a period between 2007 up to the present time he has sought to make good these complaints before the Legal Complaints Service, the Legal Services Commission, the Solicitors Regulation Authority, the Legal Services Ombudsman, and now directly to the Solicitors Disciplinary Tribunal. They dismissed his application on 18th June 2009 and an order was drawn up to that effect on 21st July 2009. These proceedings are his appeal pursuant to section 49 of the Solicitors Act 1974. Under that section he has the power to bring an appeal and this court has power to make such order as it thinks fit, including the power not to hear the appellant or to remit the matter to the Solicitors Disciplinary Tribunal instead of dismissing the appeal.
3. It is necessary to examine the history of the breakdown of the relationship with Mrs Laskey. During the course of assessing his case it becomes apparent that Mr Bush was dissatisfied with her conduct of his case. He wrote to Mr Arnold, a senior partner in the firm, complaining on 5th November 2004. Mr Arnold responded by agreeing that he would place the letter of complaint before Mrs Laskey. On 3rd September 2004 a dispute arose between Mrs Laskey and this applicant about a letter from a Dr Berry in relation to the propriety or otherwise of prescribing the drugs of which complaint was made and the effect on this applicant. Apparently at that stage Mrs Laskey, so it appears from a file note dated 3rd September 2004, was refusing to send the letter from Dr Berry on to another expert, a Dr Ward. On 13th September 2004 further disputes arose but it is recorded in a file note that Mrs Laskey strongly suspected that Mr Bush would try to disinstruct her soon "on the grounds that I have failed to comply with his instructions." it is apparent that relationships were breaking down even at that earlier stage.
4. The report of Dr Ward is dated 26th September 2004. It is apparent that by then he did have Dr Berry's report but was unable to give a favourable opinion. He could not say whether or not the prescription had damaged the applicant's ongoing mental health.
5. There was a conference with counsel on 17th September 2004. An e-mail dated 7th October 2004 records Mrs Laskey's notification to counsel that she was drafting protected proceedings and, as she put it, was…

"struggling to decide how much to issue for. In your opinion is £50,000 to £100,000 sufficient?"

6. Following the complaint of 5th November and the response of Mr Arnold, to which I have referred, a file note dated 15th November 2004 records consideration by Mrs Laskey as to the need to get the Legal Services Commission's authority for amendment to the certificate and the fact that she had engaged in a telephone call with a Dr White at which, in relation to the question of the misprescription of Prozac, he had given his opinion that "he thought it unlikely a report from him would be supportive of this position", but he added that he would be happy to see the applicant. One day later, on 16th November, Mrs Laskey recorded that the merits of the action for the purposes of funding were good, category B; in other words, between 60 to 80 per cent, and the likely ratio of damages to costs was £50,000 plus to costs of £23,000. The certificate confirming the accuracy of the information signed by Mrs Laskey is dated 16th November 2005. On that day Mrs Laskey wrote to the applicant enclosing the report of Dr Ward, to which I have already referred, and reported what I have identified from that report, that Dr Ward did not think he would be able to comment upon the psychological consequences of the prescription of Prozac.
7. On 17th November 2004 Mrs Laskey wrote to Mr Bush saying that she had spoken to counsel and to Dr White and suggesting a consultation with Dr White on 24th November 2004. This was, suggests, the applicant, an astonishing suggestion, having regard to the fact that by then she knew that Dr White was unlikely to be of assistance as a result of the telephone call. He says that by that time she had taken against him and was deliberately trying to do down his case, to the extent of sending him on a fruitless visit to a doctor who had indicated that he would provide an adverse report.
8. On 14th January 2005, by which time other solicitors had been instructed and by which time the relationship between Mrs Laskey and this applicant had clearly broken down, Mrs Laskey is recorded in a file note as saying that she was going to use Dr White but he said he would not do it or would do an adverse report so she did not use him.
9. The essence of the applicant's complaint, which he advances in deeply felt and vigorous submissions today, is that these actions of Mrs Laskey were designed to ensure that his case failed. Moreover, she had exhibited a dishonest approach in, on the one hand, grossly exaggerating her views as to success and the value of the claim when seeking public funding, while now, when the applicant brings an action for negligence, she says that the case was worth but a thousand or so pounds. These complaints led, as I have indicated, to a whole series of applications to various bodies in which Mr Bush sought to have these complaints aired and resolved in his favour. He complained to the Legal Complaints Service who bespoke a case worker to deal with the number of his complaints. He complained about the failure to return telephone calls, a failure to respond, a failure to follow instructions, rudeness, lack of client care and dishonesty. The Legal Complaints Service through the case worker, in a letter dated 17th May 2005, rejected all those complaints save one. That was the failure to respond to specific requests from this applicant of 5th November 2004 asking for the name and address of the psychiatric expert preparing the report, asking for his experience and qualifications and asking whether that expert would examine the applicant or his wife. The conclusion was that the firm's service in respect of that aspect of the complaint was inadequate but the response of the case worker was, as I have indicated, to reject dishonesty based upon the dealings between Mrs Laskey and Dr White. The case worker pointed out that, although Mrs Laskey had booked an appointment, the appointment had not gone ahead and therefore the most that had occurred was delay in the conduct of the case. In relation to those complaints an award of £250 was made.
10. The applicant pursued that complaint. It was further considered with a response on 4th July 2007. The case worker reviewed the matter and thought that there was additional fault in the fact that Mrs Laskey had made an appointment, despite the fact that she must have known that there would be a potentially unsupportive report and had, in pursuit of that, sought funding from the Legal Services Commission on 16th November 2004. She therefore increased the award from £250 to £300.
11. The applicant then referred the matter to the Legal Services Commission who reported on 11th December 2007. The investigations team leader set out the application to the Legal Services Commission that I have already recorded and took the view that the relationship between this applicant and the firm had broken down by 13th January 2005, and thus there should have been no claim in respect of work done thereafter. He disallowed and ordered to be returned costs totalling £1,375.23. The Legal Complaints Service referred the matter to the Solicitors Regulatory Authority. On 24th April 2008 they reported on their consideration of the conduct of the solicitors in the light of the findings of the Legal Complaints Service to which I have referred. The letter of 24th April 2008 sought to clarify the difference between the functions of the Legal Complaints Service and the Solicitors Regulatory Authority. The Legal Complaints Service considers whether services are of an adequate quality. The Solicitors Regulatory Authority is concerned with regulation of the profession and in particular misconduct. The Solicitors Regulatory Authority reached the conclusion that, whilst the service had been inadequate in the way described by the Legal Complaints Service, there was no evidence of dishonesty, nor of professional misconduct.
12. Not satisfied with that conclusion the applicant complained to the Legal Services Ombudsman which took the view that the handling by the Solicitors Regulatory Authority was not such as to justify the complaint. The Legal Services Ombudsman recognised the applicant's strong feelings but effectively did not uphold any complaint. The Solicitors Regulatory Authority concluded there was insufficient evidence to substantiate what were very serious complaints. It is in that context that the applicant then complained to the Solicitors Disciplinary Tribunal, as he is entitled to. He set out his complaint of serious breaches of professional conduct and behaviour:

"Mrs Laskey had instructed an expert who had indicated in advance of seeing me that he would supply a negative report in my personal injury claim. Because of my lack of faith in an expert who was prepared to produce a medical expert statement without seeing the patient I had refused to see him. This expert, Dr White, a consultant psychiatrist, had already produced an expert witness statement in the absence of a proper consultation and without taking note of the doctor who treated me for over seven years. It goes without saying that I could not possibly have confidence in any witness prepared to do such a thing and categorically refused to see the man. In spite of this Mrs Laskey, in defiance of my instructions, went ahead and booked an appointment with him even though he had indicated that he intended to produce another negative report.

Compounding the very serious allegations of professional misconduct is the fact that Mrs Laskey repeatedly lied to me, the expert witness and to the Legal Services Commission to obtain funding for a case that she had herself made untenable. You can see in the chronology of the documents supplied with this letter that Mrs Laskey made untrue statements to the Legal Services Commission while attesting that they were true and accurate. This resulted eventually in the LSC demanding the return of monies obtained. It should be noted that Wilson Browne made no attempt to defend the actions of Jennifer Laskey or to appeal the LSC's decision that they refund the public money obtained.

I repeat yet again that I am not seeking that the SDT carry out any kind of investigation. There is no need to. There is a wealth of evidence already in existence."

13. The member of the tribunal who first considered the matter concluded that there was no prima facie case, pursuant to Rule 6.1 of the Solicitors Disciplinary Proceedings Rules 2007. The application was considered, as it is required to be considered, by a panel of three members of the tribunal under rule 6.2 and 6.3. They confirmed that view.
14. This appeal is centred upon the contention that there was what this applicant regards as an arguable case and a prima facie case in both the respects I have identified. In my judgment, whilst I do not in any way underestimate the depth of his feelings, there was no prime facie case. The system of regulation and discipline depends upon the conscientious views of a specialist tribunal, the Solicitors Disciplinary Tribunal, which considered the views of the Legal Complaints Service as well as the Legal Services Commission in reaching its view. No one had hitherto identified any professional misconduct, let alone dishonesty. Mr Bush himself is not seeking to rely upon new evidence but upon a sequence of events which suggested that the instruction of Dr White was a deliberate attempt to "do down" his case. There was no basis for so concluding. It is arguable that Mrs Laskey, bearing in mind that she was spending public money, was entitled not to go fishing around trying to find a favourable expert, but was entitled to ask for Dr White's provisional views to be set out in writing. It did not follow that the report she gave to the Legal Services Commission was dishonest or over optimistic. She had seen counsel. There was no basis for saying that there was no other material. Indeed, Mr Bush was relying upon it to show that he had a good case of the value she described. There was no material either before the Legal Complaints Service or the Legal Services Commission or the Solicitors Regulatory Authority or the Solicitors Disciplinary Tribunal to substantiate the case that the opinion that she recorded in order to obtain funding was dishonest. Of course, now that he is suing the firm for negligence that firm responds by asserting that the claim was of much lesser value. It does not follow that the earlier assertions as to what the case was worth and its prospects of success were dishonest. I repeat that assessment of these matters is left to those who have skill and experience in knowing what is or what is not expected of a solicitor.
15. In those circumstances it is impossible for this court to reach a different or contradictory conclusion as to the behaviour of Mrs Laskey. I am conscious that nothing I say will alleviate the deeply felt sense of grievance which Mr Bush has exhibited. But all this court can do, in the exercise of its function under section 49, is to look at the evidence placed before those different bodies and to remind Mr Bush that so many different people have now taken a contrary view to the view that which he and his wife hold that the time perhaps is now to call a halt. For those reasons this appeal is dismissed.
16. MR. JUSTICE WYN WILLIAMS: I agree.
17. MR. RIDD: Allegations of dishonesty having been made against Mrs Laskey, I ask for costs. I can give you a figure. I make an application for costs of the appeal. There has been lodged and served on Mr Bush a schedule of costs. You have that to hand. Firstly, I ask for costs. Secondly, I ask that it be summarily assessed.
18. LORD JUSTICE MOSES: Two things. First of all, what do you say about costs?
19. MR. BUSH: I am going home. I have no money. It is disgraceful. The system stinks to high heaven.
20. LORD JUSTICE MOSES: We make that order for costs in the sum claimed of £5,741.