England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th October 2003

MR. JUSTICE DAVID CLARKE:

1. Joseph Horsley was born on 17^th January 1981 at St. Vincent's Hospital in New York. His parents, Michael and Lisa Horsley, who are British citizens, were living in New York at the time. The baby was not due until March but on 15^th January Mrs. Horsley's membranes ruptured prematurely and she was admitted to hospital. She was treated over the next two days in an attempt to prolong her pregnancy but on 17^th January it was found necessary to induce labour. On the morning of the 17^th Joseph was born. Thereafter he suffered extensive complications which were treated both medically and surgically. In the course of this he was transferred to another hospital, the Columbia-Presbyterian Medical Center. He underwent a major liver operation and undoubtedly his life was saved. However, many months later, when he was some 18 months old, he was diagnosed as suffering from cerebral palsy.
2. It is common ground that under the law of the State of New York it is now too late for any action for clinical negligence or medical malpractice to be brought by Joseph or on his behalf against either hospital or any doctor in New York. A 10-year limitation period exists there and there is no discretionary overriding of that absolute time bar. Joseph is now 22 years old. He brings this action by his mother and litigation friend against Steven Burton, a solicitor, in circumstances which I shall now summarise.
3. In 1984, when Joseph was three years of age, Mr. and Mrs. Horsley were living in London. They attended a conference on disability issues held in Lewisham. One of the speakers at the conference was the defendant, himself a sufferer from cerebral palsy. Mr. Burton, the defendant, was a practising solicitor and has remained so till recently. In his talk he described his life as a disabled person. The conference was designed for disabled people and their carers to learn about life with a disability. Mr. Burton's theme was the fullness of the life which he was able to lead despite it. He led, as he has continued to lead, a full life of a professional man. He is now a student in another field. He described in his talk the activities in which he was able to take part. He did so by describing a typical day which included attending courts and work in connection with mentally disordered clients as well as seeing a client who had a young baby born with cerebral palsy. Clearly the talk was interesting and indeed inspiring for Mr. and Mrs. Horsley. Mr. Horsley wrote to Mr. Burton after the lecture to congratulate him on it.
4. Some two years later, in 1986, Mrs. Horsley decided to write to Mr. Burton. It is clear that at this time neither she nor her husband held any belief that the brain damage which Joseph had suffered at birth or as a young child had been or might have been caused by any medical malpractice or fault on the part of the hospital where he was born or indeed the second hospital to which he had later been transferred. However, Mrs. Horsley (supported by her husband in the background) wished to know if any procedure existed by which she could investigate the possibility of such a claim on her son's behalf. On 17^th November 1986 she wrote to Mr. Burton. She directed the letter through the social worker who had arranged her attendance at the conference. She had no other point of contact with Mr. Burton.
5. It is appropriate to set out the terms of that letter in full. It was written from an address in Budapest (to which I shall return shortly):

"Dear Steve Burton,

I'm writing to you from Budapest via Elaine Richards as I do not have your address.

My husband, Michael, and I heard you speak at a conference in Lewisham a couple of years ago. Michael wrote to you subsequently – perhaps you remember his letter? We are living in Budapest so that Joseph, our son, can receive conductive education. You may have seen the BBC1 TV documentary last April 'Standing up for Joe' which explains pretty well why we are here. Elaine has a copy if you missed it.

I should like to find out if Joseph is entitled to any compensation for his brain injury. I have no idea how to begin and hope it is not too late. Joseph will be six in January 1987. The reason I've not done anything till now is the subject was far too painful and I felt unable to face anything through Joseph's first few months of life.

Joseph was born in New York and we are now living for most of the year in Budapest so things will be complicated to say the least. We lived in London with Joseph after returning from New York when he was one and a half until leaving for Budapest when he was four and a half so most of his life has been spent in England and both Michael and I are British citizens. Joseph is an American citizen although we have his name included in our passports. If you feel that there is any way that something could be initiated in terms of possible compensation from America we would be most grateful for your advice. I realise that an international lawyer would probably have to handle this case especially when it comes to obtaining the medical notes from the two hospitals involved in New York. If you feel this to be the case could you please pass this letter on to an appropriate lawyer?

Yet another complication is that we would have to apply for Legal Aid as we have had no income since we moved to Budapest because we are prohibited by the State from earning money in Hungary. If there are any forms that we should fill out in order to initiate this matter I would very much appreciate it if you could send them to me at Budapest as soon as possible. I am rather worried that there might be some sort of age limit and would feel very bad if I had 'missed the boat'. If this should be the case I would hope that there are extenuating circumstances.

I am sending a copy of this letter to Elaine in order to put her in the picture so she may contact you.

Best wishes, Lisa Horsley."

6. After many months Mr. Burton replied on May 1^st 1987 on his office stationery headed "Steven F. Burton Solicitor". He was at the time practising as a sole practitioner having been an assistant in another firm at the time of the Lewisham conference some three years before. He wrote as follows:

"Dear Mrs. Horsley,

Thank you for your letter of 17 November and I regret the delay in replying thereto but I have been scratching my head for an answer to your problem. It appears to me that no appropriate action can be taken in this country since the birth occurred in New York. I would say that New York State law is quite sophisticated in terms of medical malpractice and you may well do well to instruct an American lawyer. Should you wish me to do so, I may be able to make enquiries as to a contact in New York if you know none already.

May I wish you and your family well."

That is the end of that letter.

7. It is clear that Mrs. Horsley replied to that letter (though no copy of her reply has survived) because on 21^st July 1987 Mr. Burton again wrote to Mrs. Horsley this time addressed to her care of her sister in Norfolk, the earlier letter having been addressed to Budapest, as follows:

"Dear Mrs. Horsley,

I regret the delay in replying to you due to pressure of work. However, I may be in Norwich on the weekend of 31^st July and it might be that I could arrange to see you there. If not, perhaps you could come to London. Would you ring me on

the above number to arrange an appointment?"

8. Mrs. Horsley thereafter telephone Mr. Burton's office and made an appointment to see him there on 29July. The weekend of in Norwich was evidently inconvenient for some reason. What took place at the meeting on 29^th July is central to the issues which I have to decide. However, it is common ground that the meeting was the last contact – oral or written – which ever took place between Mr. and Mrs. Horsley and Mr. Burton. Many years later in 1993 Mr. and Mrs. Horsley, for the first time, received advice from a doctor to the effect that Joseph's disability might have been caused by excessive dosage of the drug used to induce labour in St. Vincent's Hospital. Consequent upon receiving this advice, they made contact with AVMA ("Action for the Victims of Medical Accident") who referred them to their present solicitors. They in turn communicated with the defendant, Mr. Burton, who was able to supply from his file copies of the two letters which he had written.
9. However, no letter before action was addressed to him until some six years later in 1999. That lengthy letter set out in full detail the nature of the claim which is now pursued against him and which was later pleaded in the particulars of claim with the claim form in 2002.
10. It is right also to refer to the fact that in 1985 Mr. and Mrs. Horsley moved to live in Budapest with a view to having Joseph admitted to the Peto Institute for Conductive Education. He was admitted to that Institute and in fact remained there for some eight years until 1993. It is clear that right from his birth, Mr. and Mrs. Horsley have devoted themselves to his care, upbringing and education as well as fighting extensive and lengthy battles on his behalf. They have campaigned for the introduction of techniques of conductive education into the health and education services of this country, essentially, as I understand it, without success. They have been vocal in their criticisms of the authorities here and indeed of the Spastic Society (as they were then known) whom they considered to be difficult or obstructive.
11. I have viewed and indeed been moved by the BBC television programme "Standing up for Joe" which was made in 1985 or 1986. Although Mr. and Mrs. Horsley are critical of the producers of that film for the way in which their words were edited and they say at times distorted, their devotion and commitment shines strongly from it as indeed from all the evidence in this case. They were, of course, living in Budapest at the time of their brief dealings with Mr. Burton in 1986 and 1987 which I have briefly summarised.
12. It is apparent from the lengthy details in the pleadings in this action that extensive investigations have now been carried out into the circumstances of Joseph's birth and treatment and that at least some expert evidence is in existence to cover these issues. Such evidence would be highly relevant in this action and the issue of the valuation of the chance of litigating in America; a chance which has been lost by the effluxion of time, that loss being the loss which Mr. and Mrs. Horsley seek to put at the defendant's door.
13. Joseph's claim in this action, as appears from the particulars of claim and skeleton argument, is essentially that Mr. Burton was retained as his solicitor and thereby came under a duty of care. It is said, alternatively, that he came under a duty of care in tort arising from the relationship of proximity which came into existence between him and Joseph. It is said that he was in breach of that duty and that the loss of Joseph's chance to claim damages in New York was due to that breach of duty.
14. At a case management conference before the District Judge on 2^nd May 2003 it was directed that there be a hearing of preliminary issues to be agreed between the parties and subsequently those issues were agreed in these terms:

"1. Was the defendant retained by or on behalf of the claimant to advise in relation to his potential claim against St. Vincent's Hospital for the damages deriving from the injuries he is alleged to have suffered at or about the time of his birth?

2. If the answer to question 1 is 'Yes', what was the scope of the defendant's obligation under that retainer?

3. If the answer to question 1 is 'Yes', did the defendant act in breach of his obligation under the retainer?

4. Did the defendant owe the claimant a duty to take care at common law in the course of his dealings with the claimant's mother?

5. If the answer to question 4 is 'Yes', what was the scope of the defendant's obligation to take care?

6. If the answer to question 4 is 'Yes', did the defendant act in breach of his common law obligation to take care?

7. If the defendant was in breach of his obligations (either pursuant to a retainer or at common law) did that breach (or those breaches) cause the claimant's mother not to pursue enquiries in relation to her son's potential claim. [In this connection it is expected that the court may need to consider questions relating to reliance and material contribution.]"

15. The first issue is therefore whether any retainer came into existence whereby the defendant was retained by Mrs. Horsley on behalf of Joseph to advise in relation to his potential claim. As defined in the list of preliminary issues, the potential claim was to be against St. Vincent's Hospital only but it is clear to me from the evidence that Mrs. Horsley had in mind the possibility of taking action against either or both hospitals. Until the notes had been obtained and analysed she did not know where the cause of Joseph's brain damage might lie and who might be the potential defendant or defendants to any further compensation claim. In this connection she was cross-examined at some length about her words in the television programme 'Standing up for Joe' suggesting that she then believed that the damage initially described as "developmental delay" before the diagnosis of cerebral palsy was caused by the liver operation at the Columbia Hospital rather than by birth events at St. Vincent's. I attach no weight to these words broadcast in a programme undoubtedly edited for maximum dramatic effect. The fact is at that time she had no knowledge of any particular cause.
16. In considering this first issue, it is common ground that where there is no express agreement for a retainer, the issue of implied retainer must depend upon inference from the conduct of both parties applying the principles stated in Midland Bank Trust Company v. Hett Stubbs and Kemp [1979] Ch. 384 per Oliver J at page 396 letter D:

"A retainer will be presumed if the conduct of the parties shows that the relationship of solicitor and client has in fact been established between them."

17. I accept that Mrs. Horsley wrote to the defendant on 17^th November 1986 seeking his professional assistance. She had in mind – indeed I think it had long been at the back of her mind after the trauma of Joseph's birth and its aftermath – that the whole history should be investigated in case any particular cause of the brain damage and cerebral palsy could be identified. These thoughts, by the time she wrote to the defendant, had crystallised into thinking that a claim for compensation might be possible. It was in this frame of mind that she wrote. Her primary question was whether Joseph was entitled to any compensation for his brain injury. She wished to know how such a process could be started. She wished specifically to know whether there was any time limit for the commencement of a claim. Early in the letter she said "I hope it is not too late. Joseph will be six in January 1987." Later in the letter she said, "I am rather worried that there might be some sort of age limit and would feel very bad if I had 'missed the boat'." She referred to her and her husband's lack of money and the need for legal aid to take any action.
18. Nobody had then, as I have indicated, suggested to Mr. and Mrs. Horsley that Joseph's condition might have been due to any neglect at either hospital. In evidence to me she summed up her thinking in terms which I wholly understand and accept though it was in the context of her state of mind at the time of the visit to Mr. Burton which was then no different. She said this at page 76 of the Live Note transcript, Day 1 page 76 line 9:

"At the time when I saw Mr. Burton I had all these traumas in my mind that Joe had gone through and I was thinking, 'Could it have been that one?' 'Could it have been that one?' 'Could it have been that one?' and I just knew it had to be looked into. It was more focused obviously when I was told that the petosium could be the culprit, but you know, it still could be something else as well. I do not know." --That last part of that answer, of course, relates to what she was told in 1993.

19. At this stage her husband, Michael Horsley, remained somewhat in the background. He had shared and was still sharing the immense burden of caring for Joseph and fighting battles for funding and for proper care and education. But his general approach was one of wanting to move forward and get on with their lives rather than delving into the past. But he fully understood his wife's wish – indeed what was probably her need as a mother – to embark on this process. He was wholly supportive of it.
20. I believe that Mrs. Horsley chose Mr. Burton for two reasons: first of all, he was a sufferer from cerebral palsy who she believed from the 1984 conference to be warm and sympathetic as well as being a fighter for the rights of sufferers to be able to lead a normal life as far as they can. Secondly, he was a solicitor who would have, or so she expected, the knowledge to answer her basic questions and to point her in the right direction. The references in her letter to legal aid forms and the like show that his profession as a solicitor was an important factor in her mind.
21. The defendant's argument that she was trying to get his advice without retaining him as a solicitor suggests a more subtle and sophisticated approach that I do not believe that she was adopting. Thus, I consider that her letter constituted an offer of a retainer.
22. The more difficult question is whether the defendant ever accepted a retainer so that I would be justified in holding that the conduct of both parties shows that a retainer came into existence. It is necessary to consider this question in three stages. The claimant's primary case is that a retainer came into existence with the defendant's letter of 1^st May 1987, alternatively, with his offer to meet Mrs. Horsley or, thirdly, at the meeting itself.
23. Mr. Burton's letter of 1^st May 1987 was subjected to close textural analysis before me. The claimant's argument essentially is this. The first sentence referring to "scratching my head" shows that the defendant had applied his mind as a solicitor to the questions in the letter. The second sentence gave legal advice as to forum. The third gave legal advice as to the general nature of medical malpractice litigation in New York and thus, the argument runs, he showed that he was accepting the role of Joseph's solicitor albeit for the limited purpose of giving such legal advice as was reasonably to be expected of an English solicitor.
24. But I find it necessary to stand back and look at the letter as a whole. What Mrs. Horsley had hoped was that English legal aid might be available for pursuing the investigation through an English solicitor or, as she understandably thought, an international lawyer. The defendant disabused her of that. His "scratching my head" expression when read with the rest of the letter seems to me to have been his friendly and informal way of saying that whilst sympathetic he could not help except perhaps by making enquiries for a New York lawyer if she still wished him to do so. The fact that he did give basic factual information to the effect that the claim could only be brought in New York does not, to my mind, suffice to show that a solicitor/client relationship was established. His comment that "New York State law is quite sophisticated in terms of medical malpractice" did not indicate actual knowledge of that State law. On the contrary, when read with the remainder of the sentence it indicated a wish to distance himself from involvement in the case.
25. In that particular sentence of the letter the claimant sought to attach importance to the word "may" in the phrase "you may do well to instruct an American lawyer". The suggestion was that this meant that there were other options on which he might be able to give further advice in his capacity as an English solicitor. In my view, the word is capable of no such interpretation. In its full context this was the defendant's gentle way of uttering a harsher truth that to instruct an American lawyer was the only possible course.
26. The letter closes with the words "May I wish you and your family well." I attach importance to these words because they support the view that the defendant did not consider that any solicitor/client relationship had then been created. He did not expect to hear from Mrs. Horsley again unless she wished to follow up his offer to make enquiries for a contact in New York. It is right that the defendant said in evidence that he did expect to hear from her again but I believe that he only so expected for that limited purpose.
27. Mrs. Horsley did make contact with him again asking to meet him. This was wholly consistent with her determination to do all that she could for her son, as well as wanting to put her mind at rest as to what, if anything, had gone wrong to cause his cerebral palsy. Mr. Burton was willing to meet her. In fact the meeting took place at his office in London although he had offered to see her in Norwich the following weekend. I attach no significance in the context of considering whether a solicitor/client relationship existed to the fact that the meeting was at his office. Mr. Burton needs personal help in daily living and professional activities and his office was no doubt the most convenient place for him, even though travelling there from Norfolk was (because of the childcare problems) logistically difficult for Mrs. Horsley.
28. I do not consider that his willingness to meet her carried any implication that a solicitor/client relationship came into existence when the meeting was arranged or that it would do so when the meeting took place. He wished to help her if he could. From his own experience he had knowledge and understanding of Joseph's condition and indeed of the immense burden that it must impose on the parents. But he had no knowledge of New York law, in particular of any limitation provisions or funding arrangements there. He did not wish or intend to become professionally involved in a matter with which he was not competent to deal. I believe he is a careful man as well as a caring man.
29. Did a solicitor/client relationship come into existence in the course of the meeting? If it did, it was the briefest of relationships for it cannot have lasted beyond the end of the meeting. They parted without any expectation on either side that they would meet or communicate again and they did not. The meeting was clearly a difficult one for both participants in it. Mrs. Horsley came armed with a copy of her letter and she hoped for answers to the questions that she had posed in it. She wished to and did give the defendant substantial details of the history of Joseph's birth and subsequent treatment. She had her chequebook with her expecting to be charged a fee for Mr. Burton's time. In this context Mr. Burton was not prepared to dispute her evidence that she did offer payment at the end of the meeting though he did not remember it. He accepted that she is an honourable person. I find that she did offer payment and that he declined payment.
30. Mrs. Horsley described the meeting as very uncomfortable for her and that she came away depressed and dispirited. She said she found the defendant cold, unsympathetic, discouraging, quite different from his manner and demeanour at the Lewisham conference three years earlier. He told her that her proposed course of action would be very complicated, difficult and expensive. Mr. Burton's description is rather different but to my mind it dovetails with hers. He repeatedly made it clear to Mrs. Horsley that he could not answer her questions, he knew nothing about New York law and he could not act for Joseph in the action. He told me he thought the meeting was a very funny one in the sense of peculiar and I quote from his evidence: "Funny, peculiar because it was like we were talking about different things. It was like we were aliens trying to communicate with each other and I was lost and bewildered." He would no doubt dispute that he was cold and unsympathetic but I think he would accept that she might have had that impression.
31. I am satisfied that he made it clear to her that he knew nothing about New York law and he could not answer her questions however persistent she was in wishing to ask them. She is undoubtedly a determined and articulate person. Mr. Burton has physical difficulty in articulating his words. Though he makes light of that difficulty it may have added to the overall lack of rapport during the half hour that they were together. He chooses his words, however, carefully as any good solicitor must and I believe that whatever else was said between them, he did all he reasonably could do to leave her in no doubt that he could take the matter no further absent any specific request to identify a suitable New York lawyer.
32. The meeting lasted no more than some 30 minutes. I am satisfied that in the course of it the defendant gave Mrs. Horsley some brief explanation of how medical negligence litigation was conducted in England though Mrs. Horsley told me that this was brief and curt. She said, "I cannot see the point of him going into that if it was not relevant to me. It was all very, very short in the meeting what he said." accept, however, that in the course of the meeting the defendant did tell Mrs. Horsley – as is the case by virtue of section 28 of the Limitation Act 1980 – that in England time would not run against a person with a mental disability such as Joseph's. This was not, however, advice of any relevance to this particular case and I do not consider that any part of this discussion had the effect of creating a solicitor/client relationship between the defendant and Joseph. I shall return later to this aspect of the meeting when considering issues of breach of duty and causation.
33. I was at one stage attracted by the simple proposition that because Mrs. Horsley asked legal questions of the defendant, a solicitor, and because he answered some of them in his letter and at the meeting, that was enough to create a retainer albeit one of extremely limited scope. In the end, however, I have concluded that this would be an artificial approach which ignores the essential realities of this case which are: that the defendant had no knowledge of New York law; that he did all that was reasonable to make Mrs. Horsley aware of that fact whilst not actually closing the door in her face and refusing to talk to her. In the language of White v. Jones [1995] 2 AC page 207 – which is convenient language although I recognise that case to be concerned with the common law duty – he, Mr. Burton did not "involve himself in the claimant's affairs" nor did he "enter upon the matter". On the contrary, he did his best not to do so.
34. There are, of course, other steps which he could have taken and which, with hindsight, he recognises he should have taken to make his position even clearer to Mrs. Horsley. But viewed objectively, I consider the reality is that no solicitor/client relationship came into existence.
35. I therefore answer the first preliminary issue in the defendant's favour and the second and third do not directly arise. However, I shall return later and more briefly to the issues of breach and causation in case I am wrong on the first question.
36. Turning to the fourth issue: "The claimant contends that irrespective of any retainer the defendant owed him a duty of care at common law arising from his dealings with Mrs. Horsley." The existence of the duty is put in two alternative ways. The first is that these dealings created a special relationship between the parties with the principle of Hedley Byrne v. Heller [1964] AC page 465. I was referred particularly to Lord Browne-Wilkinson's opinion in White v. Jones (already cited) at page 274G to H where he referred to the duty of care arising if there is a special relationship between the parties and went on:

"Although the categories of cases in which such special relationship can be held to exist are not closed, as yet only two categories have been identified viz. (1) where there is a fiduciary relationship and (2) where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice. In both these categories the special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak. If he does so assume to act or speak he is said to have assumed responsibility for carrying through the matter he has entered upon."

37. The second line of argument is that a duty of care arose by application of the three-stage test in Caparo v. Dickman [1990] 2 AC 605 that there was foreseeability of damage if due care was not taken, but there was sufficient proximity between the parties and that it is fair, just and reasonable to impose a duty of care.
38. On my findings of fact, particularly that the defendant acted reasonably in making Mrs. Horsley aware that he was ignorant of New York State law, I cannot find on either approach that a duty of care came into existence extending to a duty to warn of a risk in relation to which he had no actual knowledge. All the cases cited are exceptions to the general rule that in the absence of contractual relationship no common law duty of care arises. It is necessary to find either a special relationship with voluntary assumption of responsibility or such proximity between the parties as to make it fair and reasonable to impose a duty of care. In my view, neither was present here. In the course of the very short-lived and limited dealings which Mrs. Horsley had with the defendant, I do not consider that in any real sense he involved himself in the claimant's affairs or entered upon the matter.
39. I do not overlook the defendant's concession that in what he did say to Mrs. Horsley he owed her a duty of reasonable care. There is no suggestion that anything he did say was wrong, nor did he say anything which he should have realised was misleading or might be misunderstood. It is argued for the claimant, however, that once this concession is made, the conceded duty of care cannot be limited to what he did say and do but must encompass the things he should have done, namely, warned Mrs. Horsley of the limitation risk and advised her of the chance of initial free New York advice. Mr. Brown argued forcefully that the defendant could not avoid a finding of breach of duty when he had only gone halfway; he had an obligation to give accurate, careful and complete advice about the manner in which he had engaged including the possible limitation pitfall and the possibility of making progress without a major financial commitment.
40. On reflection, however, I felt that this became an argument in a circle. It depended upon a finding that there was engagement, involvement by the defendant (on the claimant's case) entering into the matter which I am unable to make.
41. In the light of the defendant's limited concession therefore I answer the fourth and fifth question by saying that a very limited duty of care arose not extending to any duty to advise in relation to New York law or to give warnings as to the existence of risks of which he had no actual knowledge.
42. That is sufficient to decide this case but in fairness to the claimant I should add a few words on the issues of breach of duty and causation in case I am wrong in holding that there was no retainer and no wider duty at common law which encompassed the duties to warn and to inform which are argued for.
43. Effectively two breaches of duty are alleged. The first is the defendant's failure to warn of the risk of there being in New York law an inflexible, fixed limitation period affecting actions of this kind. The second is that he failed to tell Mrs. Horsley that there was a possibility that initial legal advice could be obtained free from which it would have been discovered not only that there was such a limitation period but also that Joseph's case could well be taken on by an American lawyer on a contingency fee basis.
44. As to the first it was alleged in paragraph 34 of the particulars of the claim that the defendant advised Mrs. Horsley expressly or impliedly that limitation was not an issue. In paragraph 43 of her first proof of evidence it was said that he told her that "given Joe's brain injury there was no age limit to bring a claim". But a full reading of that paragraph shows that she was not suggesting that he said this in specific terms in relation to New York law. Her evidence before me was that she came away from the meeting reassured that there would be no time limit affecting any future legal action in New York on Joseph's behalf. She said,

"Towards the end of the meeting I asked Mr. Burton if there was a time limit and he explained to me that for someone with a severe mental disability that there was not a time limit. I took this to be just a general human right and I thought that seems to be a very good thing. That was at least one bit of good news that he gave me."

Asked whether the defendant said anything specifically about limitation periods in New York or the USA she said:

"No. As Irecall it was expressed and I took it as it applied to somebody with a severe mental disability and he did not go any further than that."

45. Later this topic was covered extensively in cross-examination. Again she did not suggest that she was told in terms that there would be no time bar in New York. It was put to her that she understood at the time that the defendant was only talking about the United Kingdom. She said:

"It was not that he said 'in New York', he just made it as a general rule. He did not mention countries. He made it as a general rule to people who had severe brain damage or at least that is how I took it."

She said later:

"I took it to be a general right within civilised legal systems. He did not limit it to the UK. It was something I thought was like a human right in civilised legal systems, obviously not in Africa or somewhere."

46. It is not suggested that this interpretation of the defendant's words was something which Mrs. Horsley made known to him. She did not say to him, for example, "At least I need not worry about time limits if we ever want to pursue a claim in the future". I believe the truth is that she must have realised in the overall context of the meeting that the defendant was speaking only of English law and was unable to advise or even to reassure in relation to the legal system anywhere else. I regret that, as I sought to indicate at the end of her evidence, I cannot see any rational grounds on which she could have felt so reassured on this particular point whilst feeling so discouraged and dispirited by every other aspect of the meeting. If she did, then that feeling of reassurance was based on a misunderstanding of the breadth of what the defendant actually said.
47. The high watermark of the claimant's argument in this part of the case was the defendant's acceptance in evidence that he was aware from his general knowledge as a lawyer that different limitation periods exist in different jurisdictions and that some of these are finite and cannot be extended. From this it was argued that even though ignorant of the actual position, he was in breach of his duty in not warning of the risk that there might be such an inflexible time limit in New York law.
48. I consider that this places an unrealistic and unduly high burden on the defendant in his position as an English solicitor.
49. The other alleged breach was the defendant's failure to tell Mrs. Horsley about the possibility of free access to justice or at least to free initial advice on the essentials of New York law which, it is said, would have disclosed the true position as to limitation and might well have disclosed that Joseph's claim could been taken on a contingency fee basis. The defendant knew from the initial letter that Mr. and Mrs. Horsley were impecunious. The proposed investigation and possible subsequent legal proceedings in the USA could not be covered by English Legal Aid. He frankly admits that even as early as 1987 he was aware in the most general terms from a conversation with an American lawyer that some straightforward personal injury actions in America could be pursued on a contingency fee basis. He had no knowledge of the scope of such a scheme or whether it might apply to complicated clinical negligence cases like this one. He was very much aware of the funding problems of major litigation of this sort in England which had been a principal theme of a television programme "Insult to Injury" which he had been involved in producing and presenting before these events. He did, however, believe that an American lawyer would have given preliminary advice without cost, but he did not mention that possibility to Mrs. Horsley in his letter or in the meeting.
50. In my judgment, if there was a retainer and/or he owed the claimant a wider duty of care encompassing a duty to advise so far as he reasonably could in relation to New York law and procedure, he could properly have been held in breach of that duty in this respect: in the light of the actual knowledge or belief which he had. There is in my view a proper distinction between the two allegations of negligence. Here he had actual belief or knowledge which he did not pass on. In relation to limitation he did not and he did what was reasonable to make this clear to Mrs. Horsley.
51. Turning to causation, however, the claimant's problems do not go away. A finding of breach of duty on the second point alone would, it seems to me, not be enough. Preliminary issue number 7 was defined as: "Whether the breach or breaches caused Mrs. Horsley not to pursue enquiries in relation to her son's potential claim". Her evidence was that if she had known about the possibility that she could have preliminary advice from a New York lawyer without cost she would probably not at that time have done it. She said at page 32 on Day 1 line 14, in answer to the question,

"Had he then in that light told you that a preliminary discussion would be possible with a New York lawyer at no cost, what do you think you would have done?"

She answered,

"In that light at that time I probably would not have done it because I would not have seen the point in talking to a New York lawyer for half an hour whether it was free or not free. I would not have minded paying for it because I was of the understanding that I would have to pay for the whole case and that if the thing is going to be hugely expensive, way beyond anything we could afford, it would be almost like tantalising to talk to a New York lawyer who might say 'Yes, it's going to cost X, Y, Z'. Well, that would not have helped."

52. I accept on the other hand that if she had been told in terms that some jurisdictions operate an inflexible time limit – an issue on which I do not find a breach of duty – then she would not have let the matter rest. Thus, the position is somewhat complex.
53. In this respect I cannot accept the submission of the defendant that she would still not have done anything because that argument was based upon the passage which I have just read; whereas immediately before and immediately after that passage she gave evidence that had she had that knowledge she would have proceeded with immediate investigation. The alarm bells would have rung in her head.
54. What would have happened then, of course, is filled with uncertainty. That uncertainty would have fallen to be resolved in the subsequent trial of the remaining issue, the principal issue, namely, the valuation of Joseph's lost chance of pursuing a claim in New York. But all those comments are added to my primary judgment in case I am wrong in the first part of it.
55. In all the circumstances, with considerable regret but, in the end, without hesitation, I conclude that the defendant succeeds on the preliminary issues.
(Discussion followed)