A2/2001/0280

Neutral Citation Number: [2001] EWCA Civ 1423
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE GRENFELL)
								Royal Courts of Justice
								Strand
								London WC2

								Tuesday, 31 July 2001
B e f o r e:

LORD JUSTICE JUDGE

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ROBERT STEPHEN CROWTHER
Claimant/Applicant

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C B GALLON CUTHBERTSON SOLICITORS
Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 404 1400
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent did not appear and was not represented

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J U D G M E N T
1.	LORD JUSTICE JUDGE: This is, as Mr Crowther, who has acted in person, acknowledged at the outset, a rather unusual application. It is an application for permission to appeal against a decision in his favour made by Judge Grenfell at Leeds on 1 November 2000. Mr Crowther successfully sued his former solicitor, a Mr Gallon of Cuthbertsons Solicitors. The judge found on the basis of admitted breaches of professional duty that Mr Crowther had sustained damages which he assessed at £9,884. 
2.	Mr Crowther is seeking a retrial and it is important to see precisely what he is asking for. What he wants is a retrial of this action with a jury. He does not believe that justice was done and what he says is: 
“I am requesting a Retrial with a jury 12 members public as previously requested. Members legal profession to be accountable to the law. Not placed above it. Beyond prosecution. For all I proved these actions. Justice was not served. These acts were criminal. No action taken by judge (illegal).” 
3.	Then there is a request for a new trial. 
4.	The case has a long history. It is obvious both from the papers and from Mr Crowther's measured submissions to me that he feels a very powerful sense of grievance at what he considers was a deliberate cover‑up by his former solicitors of the fact that they had failed in their duties to him as their client. This sense of grievance has led him to write, among others, to her Majesty the Queen. He has successfully established his complaint, both before Judge Grenfell, but earlier through the appropriate Ombudsman. He has been awarded £1,000 under Section 23 of the Legal Services Act 1990. But he refuses to accept that money or has done, and I have read his letter to Her Majesty in which, summarising it, he believes that to accept the money would in effect amount to treachery or treason. He has in the course of his submissions before me today suggested that he can prove on tape recordings of his conversation with Mr Gallon 19 occasions of deliberate lies, of huge delays the solicitors in reporting themselves, of the cover‑up of numerous documents which were in the file when there was no possible justification for non‑disclosure. He has been to the police to report his concerns. He will forgive me for saying so, but in the end when Judge Grenfell described his concerns as amounting to a crusade for ensuring equality of treatment in the legal system for lawyers, as with everyone else, the judge's assessment was correct. What Mr Crowther really wants is to establish as a matter of principle that members of the legal profession are not above the law. For what it is worth, and I am not sure that he will think it is worth very much, but I shall say it anyway, members of the legal profession are not above the law. No‑one is above the law. 
5.	The question for me, however, is not whether there is a point of principle involved in this appeal which would lead to a conclusion that the legal profession is above the law or not. That principle is plainly and clearly established. Rather it is whether there is a reasonable prospect of a successful appeal by a successful litigant in order to be granted a fresh trial with a jury in litigation in which he has been successful. That is a different problem to the one expressed in so many different ways by Mr Crowther demonstrating his concern at a deceptive cover‑up.
6.	It all goes back to early 1994 when Mr Crowther instructed Cuthbertsons to act for him in relation to a judgment obtained against him by his sister's former husband. The debt was £2,736 and some pence and the judgment, issued on 15 December 1993, related to an alleged debt of £1,500 owed by Mr Crowther to his sister's ex-husband which originated from what the ex‑husband said was a loan in 1988. Mr Crowther, as I understand the papers, was not denying that he had received the money from Mr Gallagher. The point that he was making was that this was not a loan. He did not have anything to repay. It was a gift or represented a proper consideration. The difficulties were not improved by the fact that his sister's separation from her ex-husband appears to have been very acrimonious and it also looks as though Mr Crowther and his sister had been subjected to a number of threats from the ex-husband's friends and indeed that he, Mr Crowther, was attacked and severely injured by his sister's ex-husband's friends or men who were sent by him to attack him. Indeed, I am told that he agreed that he received a payment from the Criminal Injuries Compensation Board. That is the essential background. 
7.	Mr Crowther went to Cuthbertsons. What he wanted was for the judgment to be set aside and for the Sheriff to be prevented from levying possession, levying on his goods. His solicitor was Mr Gallon. 
8.	On 12 January the solicitors obtained a stay of execution. It was conditional on the application to set aside the judgment being served within 14 days and the solicitors failed to comply with what, on the face of it, was a perfectly straightforward condition. As a result of that failure, the bailiffs seized Mr Crowther's car and it was sold at auction to pay off part of the judgment debt. Subsequent attempts by Cuthbertsons to suspend the warrant for execution and set aside the order were unsuccessful due to their failure to serve appropriate proceedings in the time ordered. As the judge, Judge Grenfell, was later to observe, the solicitors had failed completely in their obligations to take reasonable care of Mr Crowther's affairs. Hardly surprisingly, their relationship broke down. 
9.	Mr Crowther then went to new solicitors. I think they are called McKeag. They were to act for him. There was difficulty in obtaining the documentation from the former solicitors. They handed over what they said was a complete set, but later they provided other documents which had been in their possession after the court had made an order for further disclosure. As I understand it from the papers, the solicitors then acting for him advised against appealing the decision to dismiss the summons to set aside and suggested that Mr Cuthbertson had a case in negligence against his former solicitors. However, the appeal was pursued. Gage J dismissed it on 29 January 1996 and then leave to appeal against that order was refused by this court. A costs order of £1,734 was made against Mr Crowther in those proceedings and he then proceeded with his claim against Cuthbertsons. 
10.	The claim alleged, under “Brief details of claim”: 
“Dishonest solicitor - lied to me verified by full investigation. S.O. Tribunal (cast iron case) prevented me from appealing decision. High Court initially negligence then told 19 varying accounts of reasons for [I am afraid I cannot read the next word]. told (on not appeal decision High Court] (Lying) refused to release file (no Lien) after 2 purported copies of file released assuring no other documents exist. Under threat High Court Order from new solicitors an additional 100 documents appear. through his action High Court order placed on my name to the Grave, which cannot be removed even when account settled. Europe is dealing with my breach Human rights. Legal services ombudsman dealing with investigation Claim 500,000,” 
	and then there is a court fee. The defence admitted negligence. 
“It is admitted that: 
The Defendant acted negligently and/or in breach of contract in failing to ensure that a Summons for hearing on Notice of the Claimant's application to set aside Judgment was properly issued and served either within fourteen days of the Order of 18 January 1994, or within sufficient time to prevent the dismissal of the application on the grounds given by the Court on 16 May 1994; 
In the premises the Claimant lost the opportunity ... to set aside the said judgment.” 
11.	The defence did not admit that there had been any reasonable prospect of success in the application nor that if the judgment had been set aside Mr Crowther's defence would have succeeded in any event. 
12.	As far as present matters are concerned, there was a denial that the admitted negligence or breach of contract had caused loss and damage. The claimant was put to strict proof. 
13.	In his judgment the judge, at page 3, noted the admissions of negligence and breach of contract in the defence and said: 
“The case now proceeds on the issue of whether any, and if so how much loss was caused by the admitted breach of contract and negligence”. 
14.	It was in this context that he made the remark to which I referred earlier in this judgment, explaining the difficulty of following Mr Crowther's pleadings, but recognising that it would be unfair to criticise him as he was not a trained lawyer and he had lost trust in the legal profession. 
“He has [said the judge] to a certain extent lost some trust in the legal profession and has, I am sure he will forgive me for saying, conducted something of a crusade in this matter”. 
15.	The judge noted that Mr Crowther wanted a number of issues relating to dishonesty dealt with. 
16.	Mr Gallon, the partner in the defendant firm, had given evidence at the trial. The judge said so far as those allegations were concerned, they are “unsubstantiated by evidence”, but he went on: 
“... further, and more importantly, so far as these proceedings are concerned, they are without relevance to the issues of causation and recoverable loss.” 
17.	He said that the claimant, that is Mr Crowther, appeared: 
“to have understood this ... particularly when I explained that to him and I give him credit for doing that against the background of the enormous amount of concern that this case has given him over the years”. 
18.	Accordingly the judge decided that there was no justifiable reason for going any further into the allegations of improper conduct by the solicitors. He considered the merits of Mr Crowther's case in relation to setting aside the original judgment and defending the claim from his sister's ex-husband. He concluded that the case had strong merits and, although there was no evidence from the ex-husband, the judge was prepared to find that Mr Crowther had had a 75 per cent chance of success in those proceedings when his solicitors undertook the conduct of his case. In reaching that conclusion he took account of the tape recording made by Mr Crowther of Mr Gallon, telling him that the ex-husband's action was without substance and could easily be defended. Mr Gallon gave evidence to the judge that at the time of that conversation he had not seen all the relevant details of the case and was to some extent saying what the client wanted to hear about the case in the fallout of his firm's failure to carry out Mr Crowther's instructions. The judge dismissed the claim for damages for inconvenience and stress caused by the length of the proceedings. He relied on the decision of this court in Heywood v Wellers. I need not give the reference. It does not arise for consideration here, although I should just note that the judge would have assessed the damages if they were recoverable in what he described as just into four figures. Mr Crowther also claimed damages, and I touched on this briefly earlier in the judgment when I was quoting from the pleadings, “for loss of reputation due to having a judgment against him”. The judge found that there was no evidence to prove such loss of reputation and apparently, as I understand it, the judgment had not in fact been registered. So that would have had no effect on Mr Crowther's credit rating and indeed, according to the judgment, his business had rather thrived since these earlier troubles involving his sister's ex-husband.
19.	The judge then assessed damages. First, the costs of the unsuccessful appeal and the proceedings by Mr Crowther, including the costs of the other side and half the costs of the second solicitors, McKeag; second, the original judgment debt of £3,260; third, the extra value which should have been obtained for the car seized by the bailiffs, but which was not realised because the car was sold at auction. That was assessed at £1,850. He subjected that figure to a modification downwards to reflect his view of the likely prospects of success in the proceedings if they had been properly pursued. There was of course interest, and so on, and the return of all the fees that Mr Crowther had paid to his solicitors on the basis that there had been a total failure of consideration. 
20.	It is fair to the judge to say that reading his judgment there is no holding back in his criticisms of the failures of the solicitors in their discharge of the duty they owe to Mr Crowther as their client. The end result was a total judgment for £9,884. That was less than an offer made in April 2000 under the current Civil Procedure Rules. So £6,884 of the judgment was retained by Cuthbertsons by way of a set‑off towards their costs. 
21.	That is a fairly lengthy narrative. I have undertaken it because of Mr Crowther's concern about the case and I have reflected at some length about his concerns and the grounds of appeal. 
22.	He does not believe that he had a fair trial but more important he thinks that Mr Gallon should have been subjected to criminal charges. He has been to the police. The police before the judgment, at any rate, were unwilling to act. He says that the consequence is that Mr Gallon has been held to be above the law, a member of the legal profession, as he says, criminally covering up and, in effect, getting away with it. He is concerned about the danger to the rule of law and the democratic process if this sort of behaviour is not acknowledged and dealt with. He is also concerned, quite understandably, that he was penalised for not accepting the offer made by Cuthbertsons. In effect he says that he refused the offer to settle under the Civil Procedure Rules because that would have amounted to accepting something of a bribe and thus leaving the solicitors able to get away with a cover‑up and indeed evade prosecution. If I may say so, that attitude is entirely in accord with his rejection of the £1,000 following the decision of the Ombudsman, to which I referred at the outset of the judgment, when he wrote to Her Majesty indicating that to accept such a sum would, in his view, amount to treachery or treason. 
23.	The essential point in the application however remains, as I have explained to Mr Crowther, I think more than once, whether there is any reasonable prospect that in the circumstances of this case the order made in his favour by Judge Grenfell would now be set aside and an order for a new trial made in his favour and that trial to take place before a jury, investigating, as Mr Crowther would wish, the criminal activities in the course of these civil proceedings. 
24.	The case was assigned by the district judge to Multi-track. Mr Crowther tells me that he asked for trial by jury alone, but the order made by the judge was judge alone and he removed the case from the area where Mr Gallon of Cuthbertsons practised, Newcastle down to Leeds, where there would be a judge who could sit and try the case who would have had no contact with either the firm or the solicitors. That order was not appealed. 
25.	The issue was raised at trial by Mr Crowther. He tells me that he wished the case to proceed to trial by jury, but at that stage the trial was ready and it would have involved a further waste of time and costs, almost certainly to be paid by Mr Crowther himself if the judge had adjourned the case which was before him for trial, for trial by jury and, in any event, would have involved an out of time appeal against the order made by Judge Wilson. In my view, at that late stage the judge was entitled to refuse the application for a trial by jury. 
26.	So, in the end, apart from the question of the payment into court, to which I shall come, I have to say to Mr Crowther, I regret, because I understand how this decision will be upsetting, even distasteful to him, nevertheless I do not think there is a reasonable prospect of a successful appeal to have the judgment in his favour set aside and a new trial of these issues raised before a jury. 
27.	I also add in relation to the acceptance or non-acceptance of the money paid into court, that I understand and respect his view -- and it is deeply held -- that he was not prepared to accept payment in effect to enable the solicitors to cover their tracks. But, though I understand and respect his view, the system for making payments into court, to avoid or, at any rate, reduce litigation and costs is simply not open to attack. It is an essential part of the civil justice process and although Mr Crowther himself personally does not believe in it or accept it at any rate in the context of this present litigation, the fact of the matter is that the judge is required to apply the principles which normally obtain when a payment into court has been made by one party to the proceedings and the judge's assessment of damages is less than the sum paid into court. 
28.	So in the result, Mr Crowther, though I recognise your concerns, and, as I said, I respect your point of view, I do not think that there are sufficient grounds to justify me ordering that you should have permission to appeal. 
Order: Application for permission to appeal and an extension of time refused.