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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cohen v Kingsley Napley [2005] EWHC 899 (QB) (12 May 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/899.html Cite as: [2005] EWHC 899 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
JOSSELYNE COHEN |
Claimant |
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- and - |
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KINGSLEY NAPLEY |
Defendant |
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Ian Gatt QC (instructed by Mills & Reeve) for the Defendant
Hearing dates: Thursday 28th April
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Crown Copyright ©
Mr Justice Tugendhat:
THE PROCEEDINGS BY KNM AGAINST Mr COHEN
"We are instructed that the original assignment was lost when the St John's Wood property went into the hands of the Bank's receivers. For this reason Mr Cohen took the view that it was not a matter which he could pursue and it did [not] therefore figure in our List of Documents, from which it follows that it was not available for inspection".
"The original counterclaim should have been brought by Mr and Mrs Cohen as assignees of Ryhald; accordingly it was necessary for Mr and Mrs Cohen to apply under RSC Order 15 rule 7(2) to be substituted for Ryhald as the plaintiffs in the original counterclaim. Mr and Mrs Cohen were the proper plaintiffs in the basement counterclaim".
"The reason why progress has been slow and, in particular the matter has not been set down for trial, relates to the financial position of the Defendants. Mr Cohen … appears to have no funds at present. Accordingly there has been no good reason for KNM to pursue their claim and incur further costs while it remains uncertain as to whether Mr Cohen will be able to fund any Judgment sum awarded against him, or the costs of his own Counterclaim. We … look forward to confirmation that the matter will not be struck out".
"… instructed [KN] to 'consider the matters I have raised with particular regard for anything which may protect the Defence and Counterclaims'. In the context of their previous discussions Mr Osborn understood (or a reasonably competent solicitor would have understood) that Mr Cohen was referring in this letter to: (a) the effect of the 1991 assignment, (b) Mr Cohen's counterclaim and (c) the basement counterclaim. Moreover, a reasonably competent solicitor in Mr Osborn's position would have understood from the 22 January 1996 letter and/or the passage of time since KNM had been working on the St John's Wood project and the French project that the relevant limitation periods would shortly expire and that Mr and Mrs Cohen needed to be advised about such expiry and its effect in relation both to the leave application and to the risk of the original counterclaim being struck out for want of prosecution and/or as an abuse of the Court's process".
"… the defendants' failures to issue a summons for directions or, if one were to treat the summons issued in 1997 as tantamount to such a summons (since as a matter of practice all appropriate directions would have been given on it, whether or not specifically sought), the failure to do so promptly after 30 July constitute, both individually and collectively, a contumelious disregard of the rules such as to amount to an affront to the court and to its rules. In my judgment the conduct of defendants' case has from 1991 been carried on with the intention that the interests of Mr Cohen should take precedence over compliance with the rules of court and thus with a calculated disregard for them: see, for example, the early failure to comply with the court's order of 9 September and Mr Cohen's deliberate failure to disclose in the list of documents served in June 1993 the existence of the assignment executed in 1991 as admitted in his solicitor's letter of 11 April 1994, as well as the key failures. A person in the position of the third defendant in mounting and to maintaining a claim for the furtherance of his own commercial interests may do so only within the rules of court. Whatever misfortunes Mr Cohen may have suffered, e.g. with Legal Aid Board, they do not excuse the failures relied on by the plaintiff. There was no reason why a summons for directions should not have been issued in 1994. Mr Cohen's difficulties in funding the action would have been heard sympathetically and probably directions would then have been given permitting the suspension of the prosecution of the counterclaim for a little while. There was certainly no reason why a summons for directions (or even a summons for only specific orders) should not have been issued immediately after 30th July 1997, as contemplated by the notice of intention to proceed.
For these reasons, on the plaintiff's consent to the dismissal of its action, the counterclaim of all the defendants will be dismissed."
THE EXISTING CLAIM IN THE PRESENT PROCEEDINGS
i) That no loss can be shown, because by the time they were instructed in December 1995 the counterclaim against KNM had no value because both the claim that was in fact brought in the counterclaim against KNM and any protective writ that might have been issued were liable to be struck out (as in fact the counterclaim was in 1998) for abuse of process or want of prosecution or, in the alternative,
ii) If the counterclaim still had a value as at December 1995, then (on the assumption, which is denied, that they were negligent) damage resulting from negligence would have been suffered in the period between December 1995 up to the last date up to six years before the start of these proceedings. It is submitted that any causes of action would have accrued before 21 November 1996, and that any post 21 November 1996 negligence would not have caused any loss, because at least by that date the counterclaims against KNM had no value, being liable to be struck out.
"Subsequently [to the service of the counterclaim] Ryhald and/or Mr Cohen and/or Mrs Cohen wanted to amend the original counterclaim by adding two substantial new claims against KNM (a) for breach of the personal duty of care ("Mr Cohen's counterclaim"), and (b) for the serious consequences of the inadequate design of the waterproofing and tanking of the basement, which led to the flooding of the basement in June 1992 ("the basement counterclaim")".
"Although Mr Cohen has always contended that the contract of retainer between KNM and Ryhald, the nature of his personal relationship with KNM was such as to give rise to a personal duty of care which KNM owed to him in tort".
"Further or alternatively, [KNM] owed a duty of care to the First and/or the Second and/or [Mr Cohen]".
THE PROPOSED AMENDMENT TO THE PARTICULARS OF CLAIM
i) At paras 30(b) and (c) and 35(b), to the effect that the retainer in December 1995 was initially to be limited to KN taking such steps a were necessary to obtain legal aid for Mr and Mrs Cohen, with the result that KN's retainer did not extent to considering, prior to the grant of legal aid, the merits of the defences to KNM's claims or any counterclaims;
ii) At paras 31 and 36(c), to the effect that Mr Osborn was not confident legal aid would be granted and did not regard Mr and Mrs Cohen as enjoying a good prospect of recovering a large award of damages against KNM, notwithstanding that in the applications for legal aid Mr Osborn had described the prospects of success as very good (which KN plead was written on the basis of the opinions written by Mr Tager QC in 1994, and not on any independent view formed by Mr Osborn);
iii) At para 32(b) to the effect that Mr Cohen's letter of 22 January 1996 unilaterally purported to, but did not, broaden the limited ambit of KN's retainer.
"32 Postponement of limitation period in case of fraud, concealment or mistake
(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) …. ; or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
(c) … ;
the period of limitation shall not begin to run until the plaintiff has discovered the …, concealment … or could with reasonable diligence have discovered it…
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. ...
(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act)."
"14A Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual
(1) This section applies to any action for damages for negligence, …, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.
(2) Section 2 of this Act shall not apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.
(4) That period is either—
(a) six years from the date on which the cause of action accrued; or
(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.
(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means knowledge both—
(a) of the material facts about the damage in respect of which damages are claimed; and
(b) of the other facts relevant to the current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection (6)(b) above are—
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
(b) the identity of the defendant; and
(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.
(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
"Permission is requested to amend the Particulars of Claim so that the Claimant … can properly plead in the Particulars of Claim rather than in the Reply … the allegations of deliberate and/or misleading concealment relied upon in the context of s32 …"
"The effect of Brocklesby v Armitage & Guest is to deprive a professional man, charged with having given negligent advice and who denies that his advice was wrong let alone negligent, of any effective limitation defence. However stale the claim, he must defend the action on the merits, for he will not have the benefit of a limitation defence unless he can show that his advice was not negligent. This subverts the whole purpose of the Limitation Acts. The harshness of the rule is evident. In the absence of any intentional wrongdoing on his part, it is neither just nor consistent with the policy of the Limitation Acts to expose a professional man to a claim for negligence long after he has retired from practice and has ceased to be covered by indemnity insurance."
"52. It is worth noting, however, that [Morritt LJ] then went on to give an alternative, uncontroversial and, if I may respectfully say so, plainly sound reason for coming to the same conclusion. He said, at p 606: 'in addition . . .I am concerned that the judge imposed too high a standard of particularity for the reply to be served at the stage which the action had reached. Discovery of documents has not yet taken place. Most of the relevant facts were inevitably in the knowledge of the solicitors rather than Mr Brocklesby. There was no imminent trial such that an insufficiently particularised pleading might be embarrassing . . . .It may be that in the light of what is disclosed on discovery he will be able to supplement the particulars already given but without such supplementation I do not consider that his case as pleaded is so thin that the court is justified in, in effect, striking it out'".