PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley  EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object lesson in the risks involved in claiming damages that are not recoverable in law and claiming damages when there is no evidence in support.
“The imperative of strict adherence to the rules of procedure governing the conduct of litigation has changed substantially in recent years. It is now part of the scheme of things that regard must be had to the proper management of a case both intrinsically to the case and extrinsically in its effect of the progress of litigation generally. Inaction or flawed action can now be penalised even without proof of serious consequential effect on the litigation”
- The court gave summary judgment and/or struck out those parts of the claimant’s claim for damages which were clearly unsustainable.
- The court refused the claimant permission to amend to plead an alternative case/an alternative claim for damages. These were judged to be misconceived and made too late.
The claimant is bringing an action alleging professional negligence on the part of the defendant solicitors, alleging that the should have been advised to settle an action earlier and settle costs. The proceedings were issued in 2014 and are listed for a 10-day hearing in the second half of 2017.
The defendant applied for summary judgment/to strike out some of the claims for damages made by the claimant. It was said that these had no reasonable prospect of success. That application was made in April 2016. In August 2016 the claimant applied for permission to amend to plead new heads of damage.
THE CLAIMANT’S APPLICATION
As late as 31 August 2016 the Claimant served an application for permission to re-amend the Particulars of Claim. By this new application she seeks to introduce two new aspects to the claim namely:
i) A new allegation that the Deceased did not die intestate but a Will made in 1994 remained valid. The original is said to have been lost by the Defendants and the copy (exhibited) has “cancelled” across each page, and
ii) A new claim for £5.7m in respect of a lost chance to settle on better terms and thereby retain properties which were sold or transferred as a result of orders made in the 1975 Act claim, namely the cemetery property held by Brookwood Park Ltd, (“the Company”) and 58 and 60 Green Lanes, London. It is argued that she would have subsequently achieved greater sums for the properties and the Defendants are liable for the difference.
THE JUDGE’S APPROACH TO THE APPLICATION TO AMEND
The imperative of strict adherence to the rules of procedure governing the conduct of litigation has changed substantially in recent years. It is now part of the scheme of things that regard must be had to the proper management of a case both intrinsically to the case and extrinsically in its effect of the progress of litigation generally. Inaction or flawed action can now be penalised even without proof of serious consequential effect on the litigation: Mitchell v News Group Newspapers Ltd  EWCA Civ 1537, Denton v TH White  EWCA Civ 906. The obligation to comply with the rules of practice and procedure will be enforced with greater rigour than before. Delay will meet with less tolerance and intervention to ensure that only those matters which should be litigated are actually litigated will increase. The Civil Procedure Rules seek to reinforce this position and the line of recent authorities is familiar. The rules are not inflexible but will be enforced strictly, more strictly than before, Swain-Mason v Mills & Reeve LLP  EWCA Civ 14.
It is a balancing act between competing factors and is a matter of discretion. There is no timetable which weighs the significance of an amendment against a time scale of preparedness for trial. It is no longer acceptable to use the test advanced by the Claimant in this case that if the trial date can withstand the amendments, they should be allowed without more. If the date fixed for trial is to be lost, then the factors would need to be extremely compelling. The fundamental principle of seeking to achieve justice in the case stands and if the onus on the applicant to show that the justice of the case would be detrimentally affected then that could be dispositive. It may also be the case that the reason for a late amendment has an influential bearing on its reception. Hague Plant Ltd v Hague and ors  EWCA Civ 1609.
In this application there is no reason given for the lateness of the proposed amendments. Nothing is raised in the application that could not have been pleaded in the original or amended Particulars of Claim. No explanation is given for the omissions or the delay. The proposed claim that the 1994 Will was or might have been valid is of great significance. It goes much further than the appointment, identity or removal of particular administrators. The entire nature of the litigation would have been different. Miss Holliday could still have brought her claim but the financial positon of the Claimant and her family would have been entirely different. Only four of them would have had an income for life. The estate and its resolution would have involved a determination of the property issues in Cyprus. It would have been a different piece of litigation and any settlement that might have been advised or reached would have been equally different.
Evidence will have to be obtained to deal with the second proposed amendment and whilst I accept Mr Ullstein’s submission that that would not be a serial exercise and the Defendants’ predictions of sequential service are too pessimistic, I do not accept his assertion that all evidence, factual and expert can be obtained and exchanged within a timeframe that does not imperil the trial date. The ramifications that the first proposed amendment would have on this aspect of the case are also very difficult to determine. The proposed amendments cannot be viewed in isolation, if the issue of the validity of the 1994 Will is live, it is impossible to imagine that that would not have significant consequential effects of the issues relating to the other properties.
In considering the justice of the issue it is necessary to look at the merits. If the amendments were “knock out blows” that would obviously have a bearing on the exercise of discretion. A compelling factor, capable of determining the outcome is much more likely to be admitted that a “kite being flown” in forensic terms. There is nothing compelling in the amended claims that would be pursued if these amendments were allowed. They are factually inconsistent with many other aspects of the Claimant’s case and in part are inconsistent with logic.
THE DEFENDANT’S APPLICATION TO STRIKE OUT CERTAIN HEADS OF DAMAGES CLAIMED
The judge was much more sympathetic towards the defendant’s application.
The defendant’s application
The Defendants’ applications seek to obtain summary judgment and/or to strike out parts of the claim under five separate heads of loss identified as follows:
i) Losses claimed in the sum of £504,540 arising out of a claim brought by the Company against the Claimant alleging breach of fiduciary duty,
ii) A claim for £469,000 said to arise from the disposal of the property at 58, Green Lanes which formed part of the estate of the Deceased,
iii) A claim for £465,000 said to arise from the disposal of the property at 60, Green Lanes which formed part of the estate of the Deceased,
iv) Claims for lost profits allegedly suffered by the Claimant who is a solicitor and
v) General damages for inconvenience and stress.
JUDGMENT ON THIS ISSUE
- The Defendants’ applications for summary judgment and/or strike out are made in good time. CPR 24.2 governs the grant of summary judgment and requires some investigation of the evidence. To grant summary judgment the court must consider that there is no real prospect of success on the issue and there is no other compelling reason why the issue should be disposed of at trial.
i) On the first issue of the breach of the fiduciary duty, there is no basis upon which to assert that the defendant solicitor owed a duty to the claimant to investigate that the funds she claimed were hers to use were in fact the property of the Company. Even if that was not right, he did ask her about the source of the money and she said it was all “above board”. For this part of the claim to succeed not only would there have to be a duty to investigate the funding but there would have to be a duty to challenge a client and go behind an assertion that all was well. Any duties under money laundering legislation are not owed to the client and cannot be said to transfer across. There is no real prospect of success on this issue and no reason why this should have to wait to be disposed of at trial.ii) The claim in relation to 58 Green Lanes has an inherent lack of logic. The claim is that this property should not have fallen into the Deceased’s estate and should have stayed in the mother’s estate. In fact, HHJ Kushner QC found that it did fall into the mother’s estate. The claim is based on the loss of an opportunity to share in an increase in value but that cannot flow from a breach of professional duty by the solicitor and in any event it ignores the fact that the property was actually bought by the Claimant herself. There is no real prospect of success and this does not need to wait until trial for disposal.
iii) The same is true of 60, Green Lanes. The claim at the core of the case is for the costs paid as a result of the settlement being later than it should. It is too remote to claim that property sold to settle the claim would not have been sold and the possible increase in value has been lost. In fact, on the basis of a late settlement the Claimant actually held on to the property for longer and if any increase in value is always linear she made more than she would if it had been sold to match the settlement earlier. It has no real prospect of success and there is no reason why it should wait for trial for disposal.
- CPR 3.4.2 governs the strike out which should not be granted unless the court is sure that the claim is bound to fail.
The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) That there has been a failure to comply with a rule, practice direction or order.
- The Claimant is a solicitor, she volunteered to assist in the gathering of evidence for the case. She seeks loss of profits in her own practice. At no point were the Defendants put on notice that this was having a detrimental effect on her own practice and it was never in the contemplation of the parties that they had assumed such a risk. Even if they had been made aware of such a risk it is too remote from the duties they assumed to include this. In any event this has never been particularised and still remains an assertion without evidence. There is no reasonable ground for bringing this claim, it should be struck out.
- The Claimant seeks damages for stress and inconvenience. Such general damages are irrecoverable. This was a not a contract for the provision of a holiday, a pleasurable activity relaxation or peace of mind. Johnson v Gore Wood  2 AC 1. This was a contract to act in relation to a family dispute over inheritance matters. It is too remote to say that solicitors conducting litigation assume liability for the stresses that that imposes on the litigants involved. It is difficult to imagine what would happen to litigation if there was such a general duty. The Claimant denies that this is a personal injury claim and relies on Malyon v Lawrance, Messer & Co  QBD 2 539 but that was a case in which the litigant claimed damages for the aggravation of his injuries by the solicitors’ negligent delay when those injuries were the cause of action in the case. This claim discloses no reasonable ground and has never been particularised.
- The amendments which the Claimant seeks to make are misconceived and much too late in the protracted history of this litigation. They appear to have been made as a reaction to the Defendants’ application for summary judgment and strike out. Those applications for summary judgment are a proper application of the Civil Procedure Rules to ensure that only essential pieces of proposed litigation are actually litigated. The central issue of whether there was negligence on the part of the Defendants is not a platform for remote and unforeseen claims and they should not be allowed to pad out the simple issue to be determined.
- Accordingly the Claimant’s applications to amend are refused. The Defendants’ application for summary judgment is granted under the first three heads and for strike out under the fourth and fifth. It is regrettable that a good deal of time and money has had to be spent in resolving these issues. There is no reason why costs should not follow the event.
THE “PROVING THINGS”: SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember
- Late amendment allowed: trial date moved: a clinical negligence case.
- Late amendment to pleadings should not have been allowed: claimant comes to grief on appeal.
- Late amendment of pleadings: a relative concept
- Amending pleadings: A review of the principles: what is meant by “late”?