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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 >> Fieldings Porter (Solicitors) v Derby [2002] EWCA Civ 1365 (13 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1365.html Cite as: [2002] EWCA Civ 1365

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE ADAMS)

		Royal Courts of Justice Strand London WC2 Friday, 13th September 2002

Friday, 13th September 2002

1. LORD JUSTICE WARD: Mrs Derby does not attend today, having telephoned the Court of Appeal office to say that she was unwell. The office indicated that if she could produce a medical certificate the court might be disposed to adjourn the hearing of her application for permission to appeal and she indicated her willingness for me to deal with it in her absence.
2. It is an application for permission to appeal against the order of His Honour Judge Adams, sitting at the Leeds County Court, on 30th May 2002, when the learned judge entered judgment against Mrs Derby for the sum of £8,000 for solicitors' fees and disbursements and interest of £556.71. He also dismissed her counterclaim which was for damages for the professional negligence of the claimant's former solicitors.
3. This is a sad story. It is another example of the dangers of litigation where, I am afraid, things take unexpected turns for litigants, and the result is that a litigant is left with a burning sense of injustice. I guess that is the feeling Mrs Derby has towards the whole process in a way that is understandable. She was knocked down in a motor accident and was injured. She instructed the claimant's solicitors, Fielding Porter, to represent her in the action brought against the driver of that motor vehicle. The case was prepared for trial and it emerged that there was a serious dispute about the consequences of the accident for Mrs Derby. Not surprisingly the defendants' solicitors took the view that her injuries were not very serious. She believed they were much more serious than that and sadly her expert medical witness, Mr Pownall, seems by a letter of 14th April 1999 written some three months before the date fixed for trial took a view which was significantly adverse to her case. Counsel advised her forthrightly to accept money in court. She refused to do so. A further payment was made in on 14th June 1999, so that a total of £25,000 plus a small amount was available to her. She refused to accept that increase payment. Moreover, she refused to accept the advice that was being given to her and she refused to allow her solicitors to disclose the adverse letter from the medical expert. That put the solicitors in a position of some embarrassment and on 5th July they wrote to her saying they would have no option but to come off the record because they regarded it to be improper to withhold the contents of that letter. On 8th July they duly applied to come off the record and on 14th July, a week before the date fixed for trial, that was allowed by the court. That left Mrs Derby with a short time to marshall her forces. She either did not or was not able to instruct solicitors to act for her.
4. On the trial date, 21st July, again she was unwell, though no medical evidence appears to have been produced to the trial judge. Her husband sought an adjournment, which was refused, and accordingly the judge struck out her claim under Civil Procedure Rules 39. His Honour Judge Adams records Judge Macmillan's consternation, having struck the matter out, to discover there was money in court. He took what may be thought to be a very generous stance in refusing to order Mrs Derby to pay back interim payments of £7,000-odd which she had received, but she ended up having to pay the costs of that action. I can understand her being aggrieved by that decision.
5. The tragedy of this case may lie more in her failure to seek to set aside that decision of Judge Macmillan. His Honour Judge Adams had the advantage I had not had of being able to see Judge Macmillan's reasons for his decision, and Judge Adams, sharing my view that it was a pity she did not apply to set aside, said:

"It seems to me that an application to set aside that judgment would have had a fair chance of success."

6. It might, of course, have been at the cost of her paying the costs thrown away, but that would have been a small price to pay compared with the position she now finds herself in.
7. Her resort was to defend the claim brought by her former solicitors for their fees, and allege that they were negligent. Her main complaint both in the grounds of appeal and in the skeleton argument before me are that her difficulties are all the result of her former solicitors coming off the case at such a late stage, which is the way she puts it in the notice of appeal; or, as she puts it in the skeleton argument, they:

"... pulled off the case with one week to go before the trial date. This left the defendant no time to get another solicitor or get the case adjourned."

8. She had slightly longer than a week because she had been forewarned of this on 5th July. Moreover, as Judge Adams correctly held, the court approved the solicitors coming off the record and they had good cause to do so, and they had given notice which was in the tight timetable then reasonable notice. I do not doubt for a minute it presented great difficulties, but I am quite satisfied it was not either wrong for the solicitors to come off the record when and how they did, and it was certainly not negligent of them to do so.
9. Mrs Derby totally failed to persuade Judge Adams that there was any negligence of consequence in this case. He did find that the solicitors could be criticised in several respects. He was critical of their failure to provide the client with a client care statement; but secondly, that they failed to serve her witness statement, and at one time included untrue assertions in that witness statement which were deleted fortunately by the time it came to its final draft. They may not have delivered the bundle of documents to the court. Those failures, however, do not cause the damage which Mrs Derby seeks to recover. They had no consequence, no impact, no effect on the reasons why she was refused an adjournment on 21st July; and even if there was negligence it did not cause damage as the judge rightly held.
10. The third allegation and complaint relates to the failure to discuss insurance cover for this litigation. Again that was a well-founded complaint. But again sadly it has no helpful consequence for Mrs Derby in this litigation because a term of that insurance cover would have been that she accept the advice she was given and sadly that she adamantly refused to do. So again any breach causes no loss.
11. Mrs Derby may not be consoled but I am comforted by the fact that His Honour Judge Adams, realising that she had suffered misfortune, spent many hours as he says in his judgment, considering the four volumes of documents in the case. The care he took is obvious. The sympathy he had is equally plain, and despite all that he came to a conclusion:

"I am quite satisfied that the claimants conducted her case properly".

12. There is, in my judgment, no prospect whatever of successfully appealing against that conclusion. Mrs Derby must again derive what modest crumbs of comfort she can from a second generous act by the court in deciding, on grounds which probably amount to no more than sympathy, that the failures of the solicitors in the three respects identified by the judge entitled him to reduce their fees from over £11,000 to £8,000; that was a benefit obtained by Mrs Derby to which she was perhaps not fully entitled. That is not intended to be a criticism of Judge Adams, on the contrary I admire his attempt to ensure that justice be done as fully and fairly as he could possibly manage it.
13. I dismiss this application.
14. I add only this so that Mrs Derby may understand her position. This judgment is given in her absence. She has a right to apply to have it set aside and for the matter to be reinstated so that she may appear and argue the matter, but I hope that she will recognise I have carefully looked at the papers and that I see absolutely no eventual prospect of success for her. Sadly, she has to learn to live with this unhappy experience.
(Application dismissed; no order for costs).