Moorjani v Kilcoyne (Rev 1) (2020) EWHC 3463 (QB)

The name of Moorjani may be familiar. We first encountered Mr Moorjani in a judgment transforming the case law on loss of amenity damages in disrepair claims in the Court of Appeal. However, despite the transformation of the law, and the successful appeal, it turns out that for Mr Moorjani that litigation, and indeed his subsequent claim, were actually quite disastrous. We now know this because Mr Moorjani brought a claim against his direct access barrister who acted for him at the county court trial of the original claim. This is the judgment on the defendant’s strike out application in that claim.

Mr M brought the claim in person, alleging professional negligence.

The first instance trial of the first disrepair claim had gone ahead, despite the direct access barrister (wholly correctly) advising that Mr M should accept a Part 36 offer of £10,000. Mr M refused and at first instance trial was awarded £1500 damages and ordered to pay 50% of the defendant’s costs up to the date of the offer. On the appeal to the Court of Appeal, the appeal was successful but damages only increased to £8,880, so Mr M still did not beat the Part 36 offer. An order of no order for costs was substituted for the costs order below.

In this claim, Mr M alleged that his barrister had failed to present various elements of the claim properly and and made concessions that should not have been made, and that the outcome would have been different had this not been done.

There was also a frankly confusing claim that Mr M’s failure to obtain costs in a nuisance claim against the leaseholders of the flat above his in respect of a leak was somehow related to the first instance disrepair judgment against the landlord..

The defendant applied to strike out the claim as either being a collateral attack on the first instance judgment, and so an abuse of process, or that the complaints made:

concern matters of judgment for the Defendant when presenting the Claimant’s case at trial. The Claimant’s complaint is that the Defendant should have argued the Claimant’s case before HHJ May QC in a different way, with more emphasis upon certain points. There is no real prospect that the Court will find at trial that such matters constitute a breach of duty. Furthermore, the Claimant does not have any realistic prospect of establishing that the outcome would have been any more favourable to the Claimant. In truth, the Claimant’s loss arises from his own decision not to accept a Part 36 offer, contrary to the Defendant’s advice.

The High Court was not impressed with Mr M’s arguments.

On the relevant standard of advocacy, as per Arthur JS Hall v Simons [1994] Ch 205:

While the advocate owes a duty to his client, he is also under a duty to assist the administration of justice. The measure of his duty to his client is that which applies in every case where a departure from ordinary professional practice is alleged. His duty in the conduct of his professional duties is to do that which an advocate of ordinary skill would have done if he had been acting with ordinary care. On the other hand his duty to the court and to the public requires that he must be free, in the conduct of his client’s case at all times, to exercise his independent judgment as to what is required to serve the interests of justice. He is not bound by the wishes of his client in that respect, and the mere fact that he has declined to do what his client wishes will not expose him to any kind of liability. In the exercise of that judgment it is no longer enough for him to say that he has acted in good faith. … He must also exercise that judgment with the care which an advocate of ordinary skill would take in the circumstances. It cannot be stressed too strongly that a mere error of judgment on his part will not expose him to liability for negligence.

All of the elements of the claim that could be discerned from Mr M’s narrative Particulars either amounted to “full frontal attacks on the findings of the Judge’, and were thus an abuse of process, or

the sort of decision that that a court can and should determine summarily as amounting to no more than an error of judgment rather than negligence, to use the words of Lord Steyn in Arthur JS Hall v Simons. At worst the concession made by the Defendant could be said to amount an error of judgment, at best it was rightly made.

Or, in the allegation that the defendant barrister “should have asked HHJ May QC to review her decision post judgment”, no procedural basis was put forward by Mr M for such a review, and the ground had no prospects of success.

The claim in relation to the costs order in the claim against the upstairs neighbour was vague and unparticularised, but in any event had no reasonable prospect of success. Mr M had apparently settled that claim on terms that made no provision as to costs and applied to the court for costs himself.

The claim was struck out. Presumably with costs against Mr M.

Comment

Mr M, who said he was a law lecturer prior to his retirement, might have done a considerable service to many of us in pursuing the Court of Appeal case on the initial disrepair judgment, but this is well past the point that any practitioner would have strongly advised him to let it go. There is a difference between theoretical legal points and the practical advice of an experienced lawyer.

While a very focussed LiP might feel their case could have been argued differently, or that more stress could have been put on their particular hobby horse points, micro management of the trial in hindsight is not going to establish negligence on the part of their representation.

Oh, and if strongly advised to accept a Part 36 offer, on clear advice, then probably best to accept it…