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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Stephen Fidler & Co v. Kapadia [2002] UKEAT 765_01_0210 (2 October 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/765_01_0210.html Cite as: [2002] UKEAT 765_1_210, [2002] UKEAT 765_01_0210 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE WALL
MR P DAWSON OBE
MRS D M PALMER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR MATTHEW GROVES (of Counsel) Instructed By: Stephen Fidler & Co Thavies Inn House 3-4 Holborn Circus London EC1 2HB |
For the Respondent | MR BAYLISS (of Counsel) Instructed By: Reeves & Co Solicitors 27b The Mansions 252 Old Brompton Road London SW5 9HW |
MR JUSTICE WALL:
"The respondent's counterclaim is formulated on the premise that Mr Kapadia was in breach of a term of the contract and that loss has been occasioned as a result of that breach. We do not need to find a breach of contract by Mr Kapadia because the employer's counterclaim fails on the facts. Whilst the respondent did not profit from the Rahman case, it has not been demonstrated that any loss arose. The argument for loss of profit is unsustainable. It amounts to an assertion that profit costs in the case would amount to some £40,000 and that this is the appropriate measure of loss. The claim wholly ignores the fact that that sum required to be earned by the expenditure of considerable time and effort and that that time and effort was not so expended. No indication is made as to those individuals who would have worked on the case, the cost of their time to the respondent or the use to which that time was in fact put that would otherwise have been engaged in the Rahman case. Alternatively, it is suggested that the Rahman case was one of such complexity that it was reasonably to be expected that it would secure a significant uplift. It might have been arguable that the respondent had to settle for a lesser profit than one that might otherwise have been earned but no adequate evidence has been adduced to support such a basis. The respondent's is a busy practice and the overwhelming probability if that those who would have been engaged on the Rahman case were busily engaged handling other cases and that no loss of profit arose."
That is the paragraph in the Decision which is attacked by the Appellant.
"1 I deny that I am in breach of contract, whether as set out in the firm's letter, or at all. I put the firm to strict proof of each and every element relied on in its claim.
2 Further or alternatively I deny that the firm has suffered any loss, whether as set out in the firm's letter or at all, flowing from any breach of contract which may be proved against me in these proceedings."
"The Respondent was not able to continue to deal with the case of Rahman, due to the professional difficulties caused by the Applicant's actions and subsequent conflict of interest with the client. Accordingly, the Respondent lost a case which was worth an estimated £40,000 to the Respondent."
£40,000 (estimate)
Against that entry is written, in what is accepted to be Mr Kapadia's handwriting: "The Applicant takes issue on this and the quantum figure estimate".
"43 Through the Applicant's actions, we had to withdraw from the Rahman case for a number of reasons mentioned above. From our experience of similar matters, we estimate that a trial in this case would have lasted between two to three weeks and would have attracted the services of a senior solicitor, whose charge out rate would be in the region of £115.15 an hour. Preparation for the case would have been in the region of 300 hours and it is likely that we would have instructed Stephen Fidler, as solicitor advocate, to act on the client's behalf. This would have attracted a further fee of £10,000 and £12,000. (see Scott Schedule Point 6)."
We interpolate, that is what we have just referred to. Paragraph 44 reads:
"44 It is accepted that the loss of prospect of the Rahman case can only be an estimate based upon our experience. However, this was clearly a substantial matter, where the client was facing very serious charges and it is our estimation, based upon our substantial experience, that the lost fees in this case would be in the region of £40,000 (see Scott Schedule Point 6)."
"Flat rate payable for non serious matters, an enhancement of 100% available for serious matters and for serious and complex fraud up to 200%. Rahman case would have come within that banding. Costs subject to taxation. £115.50 is an average."
"We had the Rahman case and therefore lost the opportunity to profit form the fees payable."
On the next page, still under cross-examination, he said:
"Had it not been for the breach we would not have incurred any loss."
That, however, was the extent to which Mr Rudwick, in evidence, dealt with the point.
"That such an appeal ought only to succeed when an overwhelming case is made out but the Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached, even in cases where the appeal tribunal has "grave doubts" about the decision of the Employment Tribunal it must proceed with great care [that being a reference to British Telecommunications v Sheridan]."