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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Dunn v Glass Systems (UK) Ltd [2007] EWHC B2 (QB) (11 July 2007) URL: https://www.bailii.org/ew/cases/EWHC/QB/2007/B2.html Cite as: [2007] EWHC B2 (QB) |
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QUEENS BENCH DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
MERCANTILE COURT
Defendant |
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B e f o r e :
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STEWART DUNN |
Claimant |
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AND |
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GLASS SYSTEMS (UK) LIMITED |
Defendant |
____________________
____________________
Crown Copyright ©
1. Introduction
1. The Particulars of Claim are so prolix and unintelligible and oppressive as to constitute an abuse of the Court's process or are otherwise likely to obstruct the just disposal of the proceedings ("Basis 1").
2. The Particulars of Claim disclose no reasonable grounds for bringing the claim and/or Mr Dunn has no real prospect of succeeding on the claim ("Basis 2").
3. The Particulars of Claim fail to comply with the requirements of CPR r.16.4 and paragraph 7 to the Practice Direction to CPR Part 16 ("Basis 3").
4. The Particulars of Claim contain material which is by its very nature privileged ("Basis 4")
2. Representation
3. Evidence
4. The Facts
4.1. Background
Mr Dunn
I have a diverse construction industry background which began in 1980 with training as a construction cost/quantity surveyor with a multi-national contractor based in Glasgow, Scotland. In the first few years I attended Glasgow College of Building and Printing, taking a Certificate in Building on a part-time/day release basis. Thereafter I studied Quantity Surveying at Napier College (now Napier University), Edinburgh (also on a day release basis). I graduated with commendation in 1988. In September 1988 I moved to Newcastle Upon Tyne, England to study law (again on a part-time basis) at Newcastle upon Tyne Polytechnic (now University of Northumbria at Newcastle). Whilst studying law I also practised as a construction claims consultant. I was called to the Bar in 1992 and from 1994 to 1998 I practised from home, in Newcastle Upon Tyne, England, specialising in construction law. Legal research in connection with The Law of Damages began during practice at the Bar in 1994. From 1999 to 2003 I was engaged in research and writing only. In 2003 I returned to practice at the Bar. |
After the draft judgment was promulgated but before it was handed down Mr Dunn has amended his web page and it is now somewhat more concise.
Glass Systems
4.2. The dispute with Clestra
The adjudication proceedings
The enforcement proceedings
4.3. The contemplated proceedings
5. The claim
the failure to honour a fee agreement and cash flow agreement in respect of legal services. The Claimant is engaged to represent the Defendant in an intended action against a third party for the duration of an intended action against a third party. The Defendant has ceased to pay cash flow instalments and is frustrating the continued progress of the action.
6. Basis 1, 3 and 4
6.1. The Rules and Practice Directions
"Particulars of Claim must include … (a) a concise statement of the facts on which the claimant relies; … (d) such other matters as may be set out in a practice direction."
"The primary function of the particulars of claim is to state concisely the facts on which the claimant relies….The claimant should state all the facts necessary for the purpose of formulating a complete cause of action."
"Where a claim is based upon a written agreement…(a) a copy of the contract or documents constituting the agreement should be attached to or served with the particular of claim…".
"Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken."
"A party may:(1) refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based.
(2) give in his statement of case the name of any witnesses he proposes to call, and
(3) attach to or serve with his statement of case a copy of any document which he considers is necessary to his claim or defence, as the case may be…."
The overriding objective1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable—
(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate—(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases...
Power to strike out a statement of case
3.4 (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
6.2. The Authorities
"The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party's witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules….As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification."
"These amended proposed particulars of claim may be shorter, but they are nonetheless extraordinary in their discursive formulation and they reveal an idiosyncratic and wholly unhelpful structure. In essence they are so prolix, detailed and confusing in the way they are developed that the burden imposed on the respondents and the court in dealing with them would be wholly unreasonable. The length[y] process of unravelling, understanding, answering and adjudicating on them would defeat the overriding objective and would constitute an abuse of the process of the court. This proposed pleading would not allow the case to be dealt with expeditiously and fairly.Hart J. indicated to the applicant that any proposed amendment should contain a concise statement of the facts on which he seeks to rely. These proposed amended particulars of claim do not begin to comply with such a clear and readily achievable indication. Further, this document does not in any sense lend itself to division between permissible and impermissible paragraphs. It would have been impossible for the learned Judge to dissect these proposed pleadings, allowing certain amendments while disallowing others."
"By the same token, prolixity would not be a reason of itself to justify striking out the claim."
6.3. The Particulars of Claim
General points
1. This is a fee dispute between a barrister and his client under a Public Access Agreement. The dispute arises in the context of an instruction given at the end of July 2005 to prepare Particulars of Claim. Those Particulars were eventually prepared, or purportedly prepared, in April 2006.
2. It follows that on the face of it the dispute (absent the novel fact that the claimant is not a solicitor but a barrister) is of a fairly run of the mill nature. It is analogous to a claim by solicitors for their fees.
3. At the very heart of the Public Access Rules, which of course constitute a new and fundamental departure in respect of the way barristers are retained, is the requirement for transparency and clarity as regards the nature of the work the barrister is required to do and the fee basis for that work. This requirement is embodied in those Rules at Rule 6:
"A barrister who accepts public access instructions must forthwith notify his lay client in writing, and in clear and readily understandable terms of [the various aspects set out therein]". Given the necessity for clarity, any dispute about fees arising of a direct access agreement should be capable of being stated with conciseness and brevity.
6.4. Criticisms in the skeleton argument
49.Simply reading through the Particulars of Claim reveals that it is prolix and largely unintelligible. The disproportionate length at which the document is pleaded renders it impossible to identify the actual points which it seeks to make. It is not merely that the Particulars of Claim do not constitute a concise statement of the facts on which Mr Dunn relies, but that no identifiable statement of those facts is offered at all. It would be disproportionate to attempt to set out fully even the major faults with Mr Dunn's statement of case (the topic will, insofar as necessary, be addressed in oral argument), by way of example:
(1) Paragraph 5 purports to deal with "Particulars of the Contract". It is 32 pages long [2/3/22-52]. It is not clear what aspect of the alleged contract Mr Dunn seeks to particularise over those pages: the pleading seems to be simply a collection of evidence, observations and allegation, none of which appear aimed at narrowing or identifying the issues in dispute between the parties. For instance "Particular mm" is simply "13.12.05 Claimant's e-mail containing further detailed explanation of 3rd draft fee agreement". Why has Mr Dunn included this? What contractual significance does it have? How is Glass supposed to plead to it? The authors of this Skeleton do not know the answers to these questions.
(2) What is important is that this section is not a statement of the terms of the Contract: that is to be purportedly found at Paragraphs 7 – 24, themselves 21 pages long [2/3/52-73]: yet the written fee agreement Mr Dunn attaches as Appendix 4.1 is only 6 pages long. It is submitted that a plea of 21 pages of "terms" of a contract between barrister and client under a direct access basis is scandalous and oppressive.
(3) Despite the space devoted to the topic, however, it is not possible to identify which terms Mr Dunn wishes to rely on, what the source of those terms is, and what relevance they have to the causes of action which Mr Dunn seeks to assert. There is no obvious link between the matters pleaded by Mr Dunn in his statement of case, and the causes of action asserted against Glass in his Claim Form. Mr Dunn includes allegations which clearly are irrelevant to his claim in breach of contract. See, for example, the allegation that Glass' director Mrs Wallis acted with an "intention to deceive": paragraph 33.h.iii [2/3/117][2].
(4) Mr Glass sets out the purported breaches of contract by Glass over 38 pages, under the heading "Breach+chronology" [2/3/93-131]. Again, it is impossible to ascertain from the statement of case "the facts on which the claimant relies" (CPR 16.4(1).
(5) Paragraphs 36 to 37 [2/3/131-141] contain no less than 10 pages of "Particulars of wilful default and bad faith" and "collateral intent". Indeed these phrases are littered throughout the Particulars of Claim. The purpose of these paragraphs, other than to be prejudicial is not apparent. But in any event it is quite inappropriate for a barrister to be making such allegations in such a form.
(6) Paragraphs 38 to 40 [2/3141-146] relate to "Inaccuracy of assumptions and misrepresentations" and "Inappropriateness of assumptions and representations" and "Defendant acting with collateral intent – laying foundation to impose terms". The authors of this Skeleton are bewildered by these paragraphs, not just because they have nothing to do with any cause of action asserted, but because they are unintelligible. Take Paragraph 40: "In the premises the Defendant's inappropriate assumptions…were made with admitted collateral intent".
(7) Paragraphs 41-55 of the statement of case, running to over 80 pages [2/3/146-226] do not even purport to contain any statement material to Mr Dunn's causes of action. Instead, they consist of lengthy extracts from correspondence, supplemented by comment and invective. This is not the proper content of a statement of case.
"The claim was being brought not to vindicate a right, but to cause expense, harassment or commercial prejudice beyond that normally encountered in the course of properly conducted litigation."
1.The use of referential pleadings. Even where Mr Dunn has chosen to head a section "Particulars" it is not the case that all relevant particulars are contained therein. Instead, allegations are made by reference to other parts of the document. Mr Grant gives as example the references in paragraph 28, 34, 5 and 40.
2.Unfocussed peppering of allegations. Mr Dunn saturates almost every paragraph of his Particulars of Claim with unfocussed allegation against Glass and its directors, allegations whose relevance to Mr Dunn's claim in breach of contract is not made clear, yet to which Glass is expected to plead. On occasion those allegations are preceded by the words "it is alleged and averred that"; often they are not. Extracting the allegations from this morass, let alone collating and then pleading to them, would be an enormous, not to say impossible, task. Mr Grant gives as examples the particulars given in paragraph 5, and the allegations of bad faith, deceit in paragraph 33.
3.Irrelevance. Mr Grant submits that part of the Particulars of Claim is wholly irrelevant: He cites the allegation in paragraph 34 that Mrs Wallis hindered and prevented compliance with the Code of Conduct. In paragraph 35 Mr Dunn has set out the procedure for making a complaint to the Bar Standards Board.
58.Inappropriate Content/Persistent pleading of evidence. In breach of CPR r.16.4(1), Mr Dunn's pleading makes no attempt to include "a concise statement of the facts on which the claimant relies". Mr Dunn does not just include evidence instead of fact, he actually reproduces verbatim the contents of (privileged) correspondence between the parties. These extracts are more often than not followed by Mr Dunn's comments on their contents, e.g.:
(1) Paragraph 45 [2/3/158-181] comprises 24 pages of lengthy, verbatim extracts from correspondence between the parties, with each extract followed by comment, purportedly in the form of allegation and averment, on the matters contained therein.
(2) Paragraph 48 [2/3/190-203] consists entirely of block, verbatim quotations from privileged emails between the parties followed by comment and further evidence. These comments appear to be a muddle of observation and allegation, which in turn make identifying allegations almost impossible.
(3) As a practising barrister Mr Dunn must be well aware that the inclusion of lengthy extracts from documents is not permitted by 16PD paragraph 8.1, and comment on documents is a matter for witness statements.
(4) The view that Mr Dunn has failed to distinguish between the role of pleadings and witness statements in drafting the Particulars of Claim is supported by other elements of the Particulars of Claim. Although paragraph 28, for example, is headed "Particulars", it in fact amounts to a 16-page chronology/witness statement, littered with allegations, averments and lengthy quotations of evidential documents.
6.5. Privilege
62.In the course of preparing the Proposed Proceedings, Mr Dunn necessarily received instructions and gave Glass advice as to its potential claims in those proceedings. Such advice is by its very nature privileged. As Mr Dunn's client, this privilege belongs to Glass, and only Glass can opt to waive it.
63.Glass has not opted to waive this privilege, and Mr Dunn is accordingly not entitled to plead this information in his Statement of Case. Nonetheless, Mr Dunn has included a large quantity of privileged information in his Particulars of Claim (as a result, principally, of the fact that his Particulars of Claim are largely composed of evidence); see paragraphs 41-55 passim [2/3/155-226]. It is submitted that the proper response to Mr Dunn's breach of his client's privilege is to strike out the Particulars of Claim under Basis 4
Letters and other communications passing between a party, or his predecessors in title, and his, or their solicitors are privileged from production, provided they are, and are sworn to be, confidential, and written to, or by, the solicitor in his professional capacity, and for the purpose of getting legal advice or assistance for the client (O'Shea v. Wood [1891] P 286, CA; Gardner v. Irvin (1878) 4 Ex.D. 49 at 53, CA; Kennedy v. Lyell (1883) 23 ChD 387 at 404, CA; Wheeler v. Le Marchant (1881) 17 ChD 675 at 682, CA; cf. More v. Weaver [1928] 2 KB 520; Minter v. Priest (1930) 46 T.L.R. 301, HL; Re Duncan, (decd.), Garfield v. Fay [1968] P. 306; [1968] 2 W.L.R. 1479—foreign legal advisers); but not otherwise (ibid., Original Hartlepool Collieries v. Moon (1874) 30 L.T. 193 at 585; Moseley v. Victoria Co. (1886) 55 L.T. 482).
6.6. Oral submissions
Mr Dunn's submissions
Conduct during performance of the workConduct during performance of the work "Conduct during performance of the work"26. All of the defences to the claim for unpaid cash flow instalments and VAT are based upon a clear, admitted, collateral cost controlling objective and upon its own inappropriate assumptions and misrepresentations in regard to the amount of work and/or time which would be required to complete the work.
27. In the premises the defences to payment are dishonest and have no merit.
28. The Defendant acted dishonestly, oppressively and in bad faith (Particulars of Claim paragraphs 36-52) in seeking to impose said objective. The Defendant has no answer and has a no time sought to address (despite raising an inordinate number of defences) any of the unanswerable issues considered in Part 3 thereof.
Conduct in the pre-action protocol periodConduct in the pre-action protocol period "Conduct in the pre-action protocol period"29. In the post-completion of draft Particulars/protocol period, the Defendant flagrantly and wilfully continued to pursue its collateral cost controlling objective. Particulars of the Defendant's flagrant conduct are contained in the Particulars of Claim paragraphs 52-55. Conduct includes inter alia:
a. Failing to honour express assurances in regard to payment, notwithstanding approval of the work.b. Wilfully frustrating any possibility of narrowing the issues (instead of co-operating, wilfully adding further issues including numerous unwarranted conditions precedent to continued performance (considered in the next paragraph hereof), thereby frustrating the overriding objective (inter alia refusing to pay cash flow instalments asserting that important work in completing the draft Particulars of Claim was attributable to the fault of the Claimant).
c. Wilfully re-opening resolved issues in knowledge that significant time had been expended in attempting to resolve the matters
d. Failing to acknowledge and/or to respond to subsequent further detailed protocol submissions including proposals that Dickinson Dees should be consulted with a view to resolving the issues.
e. Causing unnecessary particularity in the Particulars of Claim (wholly failing to narrow the issues and adding to the issues):
i. Three Rivers v The Bank of England is a case in point on the matter of relevance of said particulars and on the matter of which party should bear the costs thereof (42.a, 20);ii. The general aim of the protocol is to ensure that inter alia 2(vii): "proceedings will be conducted efficiently if litigation does become necessary." (Paragraph 2(viii) refers).
(i) http://www.dca.gov.uk/civil/procrules_fin/contents/protocols/prot_ced.htmf. In the premises, the whole of the costs (the issue of costs is further considered below) of the present action are attributable to dishonesty, bad faith and collateral intent on the part of the Defendant/Mrs Wallis (Particulars of Claim paragraphs 55.f.ii. refers).
1. He refers to the note in the White Book at paragraph 1.4.10. He suggests that before the court can strike out a claim the court must do a cost/benefit analysis to see whether the likely benefits justify the costs of any particular step.
2. He submits that the benefit of striking out cannot conceivably be greater than the costs associated with the application. He suggested in oral submissions that it would have been far more economical for Mr Grant to draft a defence and for the matter to proceed from there. He reminded me that this application had taken 4 days and generated an enormous amount of costs
3. He submits that the inevitable further delay associated with the application would be contrary to the overriding objective and Article 6 of the ECHR. He reminds me that it is now 22 weeks from the time when the Defence ought to have been filed.
4. He submits that a strike out is the wrong remedy.
5. He submits that Mr Grant could have pleaded relatively easily to the allegations of "wilful default" even though they take up 96 pages of the pleading.
6. He submits that the pleading is justified because the matters contained in it are in dispute. Alternatively his pleading could be regarded as a witness statement. He develops this argument in paragraphs 132 – 135 of his response document.
7. He submits that Mr Grant has withdrawn from the application matters that he considers are of the highest relevance.
8. 1. In paragraphs 140 and 141 of his written response Mr Dunn does not appear to challenge that much of the material he has pleaded is privileged. He contends that as Glass Systems has acted dishonestly equitable relief is inappropriate.
Conclusions
7. Basis 2 – No reasonable prospect of success.
8. The retainer
8.1. The Fee Agreements
- None of the Agreements contain any reference to the obligation to pay an interim fee of £5,000 per month until the resolution of the Clestra dispute. There is, however a reference to interim invoicing said to be on the basis of a rate of £95 per hour.
- The scope of the work to be carried out by Mr Dunn changed. In the first 2 documents it was to draft a Particulars of Claim and to prepare a preliminary advice in relation to the effect of the signed final account. In the document that was signed it was more extensive.
a) Draft the Particulars of Claim and supporting quantum particulars and do all things necessary to prepare the case for commencement of proceedings. This includes advising as to the merits … and as to the evidence as appropriateb) Represent you throughout your intended legal action against Clestra until the said matter is resolved.
- Each of the agreements had a contingency element to the fees that were chargeable. In the first document the base rate was £180 per hour with a conditional fee proviso reducing the figure to £95 per hour to the extent that Glass Systems were unsuccessful. In the second agreement the base rate figure had been increased to £265 per hour but the contingency proviso remained at £95 per hour. In the agreement that was signed the base rate figure and the contingency fee rate remained the same although the agreement was amended to refer to the £95 per hour liability as being a "lower liability rate" but there was provision for a success fee of 65%[4].
8.2. The e-mails
"If possible can we have your fee based on 30 days payment. Also can we spread the cost over month periods so that in any given month we have a maximum of £5,000 against the account. I can plan for this contingency and cash-flow it over the period of the action you will also receive regular income and continual payments until the end of the action….I think suggestion of £5,000 max month should keep food on table for you and flow your money through months and spread financial risk/outgoings within our capabilities. What do you think?"
" - It would in principle be acceptable if I had a regular cash flow and, from my point of view, a payment at the end of each month including this month/August 2005 would be acceptable.- The proposal of £5,000 plus VAT as a monthly amount until the case is resolved also seems to be reasonable in principle at the moment.- It is possible that I would have to request an increase to meet any special outgoing such as tax and VAT and I could give you notice of this
- I would also suggest that:
We leave this arrangement flexible and informal so that it can be reviewed as we proceed.We also leave this arrangement as a matter independent of the written agreement which I sent to for signature (attached herewith). I have not altered the 7 day payment period if that's OK. It is not something I would ever enforce strictly (it is merely a standard term) and I am happy to proceed with our separate informal arrangement for interim payment."
8.3. Payments
8.4. Conclusions
1. The claim is not only not mentioned in the fee agreement signed on 13/2/06 it is inconsistent with it. The fee agreement states that interim payment will be based on the rate of £95 per hour. The £95 per hour is in respect of work properly carried out by Mr Dunn. It is not payable irrespective of whether he does any work.
2. The e-mails cannot in my view bear the construction that Mr Dunn seeks to place on them. Mrs Wallis's e-mail dated 31st July 2005 was written at a time when the parties had not decided whether to proceed to litigation. Furthermore she expressly refers to spreading the cost over month periods and to the payment being in any given month"a maximum of £5,000 against the account". That to my mind is inconsistent with there being a retainer as suggested by Mr Dunn.
3. The arrangement was described by both sides as flexible and informal.
4. The terms of the retainer as suggested by Mr Dunn are most unusual. I am prepared to assume for the purpose of this application that it is possible in law for a barrister to be engaged on the basis suggested by Mr Dunn; however such a contract would be an unusual and would need to be expressed in clear terms. There is nothing in the fee agreement that amounts to such clear terms. Whilst Mr Dunn has agreed to represent Glass Systems in its claim there is in my view nothing in that document compelling Glass Systems to proceed with the litigation or from preventing Glass Systems from disinstructing Mr Dunn and instructing any other barrister. There is, furthermore nothing that requires Glass Systems to pay a monthly figure irrespective of whether any work has been carried out.
5. At one stage I was troubled as to whether it was open to Mr Dunn to mount some sort of argument based on the events of April 2006. This appears on a close reading of paragraphs 16 – 19 of the Particulars of Claim. However in the light of the e-mails of 6th April 2006 it seems plain that the discussions related solely to the one withheld payment for April 2006. That payment was eventually made in June 2006.
9. The claim for costs as damages
10. Post Script
1. In my view the length of the Particulars of Claim is of itself oppressive in a case of this simplicity.
2. In my view the conduct of the litigation by Mr Dunn is oppressive. This includes the refusal of reasonable requests for the adjournment, the allegations that Glass Systems should not be allowed to defend, the unnecessary allegations of dishonesty.
3. The demands for large fees outside the fee agreement. These include the fee note sent 17th May 2006 including as it did a claim for £15,966 in respect of drafting a Particulars of Claim.
4. The astronomical sums that Mr Dunn is seeking in relation to the costs of this dispute. He must know that there is no reasonable possibility of being allowed them on assessment and it is oppressive in my view to claim them. If anything is disproportionate in this case it is the sums claimed by Mr Dunn for costs
5. The claim for punitive costs over and above indemnity costs is a further example of oppressive conduct by Mr Dunn.
JOHN BEHRENS
11 July 2007
Note 1 Between the beginning of May 2006 Mr Dunn prepared a number of lengthy documents justifying his work. These include a 52 page document prepared in May (which the court was not shown), a 14 page letter dated 22nd May 2006, and a 40 page document sent on 2nd August 2006. [Back] Note 2 As discussed below, an allegation of deceit is not, of course, to be made lightly, and certainly not when irrelevant to the cause of action. As a practising barrister, Mr Dunn must be aware of the restrictions on this provided by the Bar’s Code of Conduct. [Back] Note 3 There is in fact a slight difficulty in the page numbering in this document. It was, apparently, written in WordPerfect format and the page numbering has not translated wholly accurately into Word. Fortunately the electronic copy with which I was provided contained hyperlinks so there was no real difficulty. [Back] Note 4 On one view of the agreement the success fee is 35% but nothing turns on this. [Back]