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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Balamoan v Holden & Co (A Firm) [2001] EWCA Civ 1378 (29 August 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1378.html Cite as: [2001] EWCA Civ 1378

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HASTINGS COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)

		Royal Courts of Justice The Strand London Wednesday 29 August 2001

Wednesday 29 August 2001

1. LORD JUSTICE SIMON BROWN: This is Mr Balamoan's application for permission to appeal against the order of His Honour Judge Kennedy QC in the Hastings County Court on 22 March 2001 whereby he dismissed the applicant's claim for damages for professional negligence against his erstwhile solicitors, a firm called Holden & Co.
2. The application has a very long and complicated history which for present purposes it is unnecessary to detail. The following very brief account is sufficient.
3. In about the autumn of 1987 development works were carried out on the site of a previous gas works some 100 yards from the applicant's house in Hastings. This work was of a substantially polluting character. It gave rise to noxious fumes, dust and the like, and it affected the applicant's health.
4. In about late 1988 the applicant retained Holden's to act on his behalf in a nuisance action against the developers, now well-known as Safeway Properties Ltd.
5. In March 1993, the applicant was advised by counsel that his claim was worth some £3,000 at most, but that advice he sturdily rejected. There is some question as to whether or not his legal aid certificate was then discharged and later reinstated. It matters not. The fact is that not long afterwards Holden's retainer was terminated and the applicant began to represent himself.
6. In August 1994 the applicant, by now acting in person, settled his claim against Safeway's for £25,000. Notwithstanding that apparently successful result, in about November 1995 the applicant commenced the present action. He claims in it, as indicated, damages against Holden's for professional negligence, that negligence consisting of their inadequate conduct of the action on his behalf against Safeway's. The claim seeks very extensive heads of loss, the total being put at something of the order of £3 million.
7. Initially, the defendant's solicitor succeeded in having the claim struck out by a district judge, but ultimately in July 1996 Judge Kennedy QC reinstated it on appeal and made a number of directions. One of those was that there should be an initial trial on liability. Having heard that issue for four days between 16 and 19 March 1998, he gave judgment on 23 March. That judgment was adverse to Mr Balamoan. Mr Balamoan appealed to this court. That appeal came before Evans and Brooke LJJ on 21 April 1999. Judgment was reserved and handed down on 28 May 1999. The court allowed Mr Balamoan's appeal against the adverse holding on liability, set aside Judge Kennedy's order of 23 March 1998, and ordered:

"3. this matter be remitted to a judge of the Hastings County Court for an assessment of whether the Claimant sustained any and if so what loss by reason of the Defendant's failure between January 1989 and May 1991 to take such steps as were reasonable either to obtain Counsel's opinion on evidence and/or to obtain such evidence, to the extent that such loss exceeds the sum of £25,000."

8. Brooke LJ gave the first and main judgment on the appeal. Evans LJ confined himself essentially to agreeing with the essence of Brooke LJ's conclusions. Brooke LJ's judgment extends to over 50 pages in the handed down version (nearer 70 page of the official transcript, although I have not been provided with that). It contains an ample recitation of the entire background against which the remitted assessment hearing was ordered to take place. I cite at this stage just this passage from the final determinative paragraph of Brooke LJ's judgment:

"I am bound to say that I am sceptical about his [Mr Balamoan's] prospect of success on such an assessment, because in his distress over the years he has said a lot of things which are plainly not correct, or are very seriously exaggerated, and this will inevitably have an effect on his credibility in the eyes of the judge who has to assess damages. He should, however, be given the opportunity of seeking to prove that because his claim was handled negligently in its early stages he lost an opportunity which would have been of value to him, and that the value of that lost opportunity exceeded the compensation, net of costs, he recovered from the contractors in the original litigation."

9. In the liability action Judge Kennedy had already expressed certain clear reservations about the applicant's credibility.
10. Having regard to that background, it is at first blush a matter of some surprise that it was Judge Kennedy who thereafter undertook the further assessment ordered by the Court of Appeal. The explanation for this, however, is to be found in Judge Kennedy's judgment which is now the subject of the present application:

"8. .... assuming that Mr Balamoan would not wish me to deal further with the case, I took steps to find another judge to complete the assessment of the further damages (if any) to be awarded. Mr Balamoan objected. Strongly and volubly, I was told. He insisted that I should continue to deal with the case."

11. So it was that the assessment hearing came before Judge Kennedy. It took place on 5 and 6 October 2000. Judgment was reserved and was eventually given on 15 February 2001. The applicant represented himself before Judge Kennedy, as he had on the earlier occasion, and he gave evidence on his own behalf. However, he called no other witnesses. Instead, he sought to rely on a large number (some 30) of medical reports from various UK and foreign doctors. That figure comes from Judge Kennedy's judgment, but Mr Balamoan has just interpolated the figure 40, as I am giving the judgment. None of those reports had been agreed, but the defendants were content, it appears, to treat at least the UK doctors' reports as properly before the court. Holden's counsel neither cross-examined Mr Balamoan nor themselves called evidence.
12. In his very full and apparently thorough judgment, which extended to 63 paragraphs, Judge Kennedy noted that Mr Balamoan had again made a number of grave allegations, in particular against the various lawyers, all of whom he appears to regard as corrupt and reminiscent of Dickens' "Bleak House" -- allegations of dishonesty, impropriety and the like. In paragraph 27 Judge Kennedy stated:

"I regret to say clearly that I do not believe any of his assertions upon any issues I have to decide, save where they are agreed by the Defendants or supported by credible independent evidence."

13. It is a truism in this court that assessments of credibility are very difficult to challenge, the trial judge having had an advantage which this court can never have, namely of itself seeing and hearing the evidence as it emerges.
14. Judge Kennedy then explored the central issues which had been left for his determination in the proceedings. These were, first, whether on the medical evidence before the court the dust and fumes emanating from the supermarket development had actually caused the applicant to suffer adversely from some lasting medical condition or whether, though serious, they had only temporarily exacerbated a pre-existing respiratory condition from which he had earlier suffered. The second principal issue was whether, but for the effect upon his health, Mr Balamoan would in any event have returned to Africa and there enjoyed a profitable and prestigious life as a successful academic. Both of these issues, it is plain from his judgment, Judge Kennedy resolved against the applicant. It is sufficient for present purposes to quote just a few paragraphs from the extensive judgment:

"46. The first issue on the particular facts of this case which I take as central is that Mr Balamoan, since he must prove his 'loss of a chance', really had to show that the 'causal connection' between the pollution and his medical condition, as seen later by Drs Costello and Dyson, was more than a temporary exacerbation of a pre-existing condition. That is a forceful point. At no stage, either before or after settling the case himself, has Mr Balamoan addressed that issue properly. He has complained about the description, but has produced no evidence to gainsay it, or any expert evidence to suggest that, on an analysis of the medical evidence available, any other conclusion might have been reached nearer the time. Indeed, if one reads the whole of the Medical Reports referred to, probably most usefully commencing with the General Practitioner notes, I have to say that the whole picture that emerges is of a pre-existing condition, a temporary exacerbation of it and, thereafter, a series of separate episodes which could be shown to have no causal connection with the initial exacerbation or the alleged pollution; indeed, at various stages the doctors raised serious concerns as to the reliability of Mr Balamoan as a credible relater of fact.

....

54. I have to say I found counsel's analysis, medical evidence apart, as for Mr Balamoan's employability in Africa to have merit as well. If there was really an academic job -- he declined more prosaic offers -- I failed to see why he did not go. His books could have followed. I find much of Mr Balamoan's arguments so far on this to be circular and unconvincing.

....

59. As to Dr Hughes and 'temporary exacerbation', I am afraid Mr Balamoan misses the point. I have accurately reported the medical evidence and Mr Balamoan has no qualifications to disagree with it. [That was a reference back to paragraphs 46 - 51 of the judgment.]

60. Mr Balamoan's comments on the scientific analysis really are wide of the point. It is the effect upon him -- ie contemporaneous medical evidence -- that mattered (for which we have Dr Hughes) or scientific evidence afterwards of the probable effect on Mr Balamoan -- of which he has chosen to produce none.

61. All Mr Balamoan's protestations about job prospects in Africa are really -- apart from containing new material that is far too late -- met by his failure to show any reasonable prospect of proving that it was this pollution and its effects upon him that in fact prevented him going. As opposed to lack of funds, or the need for a job that he could hope to fill.

62. Mr Balamoan ends by claiming his £3,000,000. I have read all he has written. On the evidence that I have now heard from him and read, even if the Defendants had taken all steps the Court of Appeal suggested and inferred that they should have taken, I am wholly unconvinced that they would have unearthed any evidence that would have allowed Mr Balamoan to recover anything like the £25,000 for which he settled the case. More to the point, however, taking the strict figure of £21,671.93, I assessed the prospects of Mr Balamoan ever succeeding in a claim for a greater amount, even in the absence of the Defendants' negligence, as nil. Put another way, even allowing for the Defendants doing all they should have, I cannot see that there would have been any sustainable claim for losses of any substance; for the temporary exacerbation of the pre-existing medical condition and for the modest Special Damages attributable, the total would have been a lesser figure, not a greater."

15. The fact of the matter is that in all litigation cases have to be proved. By the time this particular case came for the final assessment hearing, it was for damages for loss of a chance -- a chance that had Holden's properly investigated the merits of Mr Balamoan's case against Safeway's and done all they should have done (with or without counsel's help) to provide evidence to support it, as by their cumulative failures identified by the Court of Appeal in the period 1989 to 1991 they failed to do, he would have had a better than merely remote or speculative chance of recovering more than by the settlement with Safeway's he actually did recover. That, so the judge below held, he failed to prove. In the end, therefore, he lost the case.
16. In paragraph 23 of his judgment Judge Kennedy cited passages from Brooke LJ's judgment in which he said:

"If he [Judge Kennedy] found that they [Holden & Co] were negligent in certain respects, he would be bound to order an enquiry into damages unless it was clear that the answer would inevitably be that Mr Balamoan (who received £25,000 after dispensing with the Defendants' services) in the event suffered no damage."

17. The long and the short of Judge Kennedy's subsequent judgment was that he was satisfied that it was clear that Mr Balamoan had suffered in the event no damage through the negligence because he had by his own skills negotiated a more than just settlement.
18. On what grounds does Mr Balamoan now seek to appeal from that apparently very clear and decisive judgment? It was based upon the conclusions of a judge who had the most extensive background knowledge of the case, and who had rightly been described by Brooke LJ in the Court of Appeal of a judge of "vast experience". As Brooke LJ also observed, the Court of Appeal will necessarily place great weight upon the judgment of such a judge. True the applicant had nevertheless succeeded in his original appeal, but Judge Kennedy, whom, it will be remembered, the applicant himself had insisted should be the trial judge at the next stage of the proceeding, must inevitably have been at great pains not to fall again into the trap which the Court of Appeal identified first time round, the trap of not having seen the wood for the trees and of having been unable to stand back from the emotion of the trial.
19. Although the applicant seeks to attack Judge Kennedy's assessment judgment at every turn, claiming to have identified in it no fewer than 85 mistakes, I for my part find it, on the contrary, a convincing judgment. It would inevitably take for ever to deal with all the applicant's myriad criticisms. That is not an appropriate exercise to undertake on a permission application of the present character. My task today is simply to determine whether an appeal here would or would not have a realistic prospect of success. It is my clear conclusion that it would not.
20. The only specific points which Mr Balamoan has raised in his various written and oral submissions which I should touch upon individually are two in number. The first concerns Mr Balamoan's contention that out of the £25,000 settlement that he personally had achieved with Safeway's, he only finally recovered the net sum of something over £13,000, rather than the figure of £21,671.93, referred to in paragraph 62 of the judgment below, which Holden's counsel had suggested, and the judge had accepted, was in fact the net sum received by Mr Balamoan after the Law Society had taken its legal aid statutory charge. However, even assuming that Mr Balamoan's present figure is indeed the correct one, I have no doubt whatever that the judge's conclusions make it abundantly plain that he must still inevitably have held that Mr Balamoan's claim against Safeway's would never have exceeded that lesser sum either. It is perfectly obvious that he regarded the settlement figure as way beyond anything which the applicant could have hoped to have achieved in a fought-out action.
21. The second point arises by way of a comment which Mr Balamoan made in the course of his brief oral submissions today, namely that it had never occurred to him that the Court of Appeal's judgment (described by him as judgment 3161/99), namely paragraph 3 of the Court of Appeal's order of May 1999, would be "overturned by Judge Kennedy". He later added that he simply cannot understand why Judge Kennedy has "gone right against the Court of Appeal's earlier judgment."
22. To my mind those observations betray a fundamental misunderstanding of what it was that the Court of Appeal were deciding and ordering on the occasion of the first appeal. I have already quoted paragraph 3 of the order and need not repeat it. I should, however, repeat, although I have already cited, the passage at the end of Brooke LJ's judgment in which he said:

"I am bound to say that I am sceptical about his prospects of success on such an assessment ...."

23. In other words, it was envisaged by the Court of Appeal at the original hearing that this claim could still yet fail because it remained necessary for Mr Balamoan to establish that, in reality, the solicitors' inadequacies cost him a better result than in the event he achieved for himself. The judge who heard the evidence on the assessment concluded that he had failed to prove that. That, I fear, is that.
24. It would have been the easiest thing in the world for me simply to grant the present application and let the case go to a substantive appeal hearing. But not only would that have been quite wrong as a matter of law, given my clear conclusion that the proposed appeal would be doomed to fail, it would also (although I recognise that Mr Balamoan will have some difficulty in understanding and accepting this) have done a great disservice to him. The only ultimate consequence of such a course would have been to expose him to a yet further substantial liability in costs when the substantive appeal failed, as I am quite sure it would.
25. I end with this. I pay tribute to Mr Balamoan for the courtesy and articulacy of the submissions that he has made to the court today. He addressed me without the benefit of a single document to hand. His bundles, as I understand it, came to be lost on the train. I am satisfied, however, that even with the papers, of which clearly Mr Balamoan has a great mastery, he would have fared no better. The end of the road -- the long 14-year road, as he himself more than once emphasised -- has, I fear, come. This application is refused.