Bristol Civil and Family Justice Centre: Judge finds against claimant on preliminary limitation issue
The High Court has criticised a “seriously mistaken” senior solicitor for leading on a £1.3m professional negligence claim against another law firm when he was in a romantic relationship with the claimant and was also a witness.
It said Richard Morgan testimony highlighted why it was “generally not appropriate for a solicitor to act professionally in a case in which he will be called as a witness”.
His involvement contributed to the decision of His Honour Judge Russen KC, sitting as a High Court judge in Bristol, that Ellen Kay’s claim against Martineau Johnson (now Shakespeare Martineau) was time-barred.
She was suing the firm for allegedly negligent advice it gave on her divorce in 2008, including that she should agree a clean break. The firm was defending the claim.
Though outside the primary limitation period, Ms Kay argued at a preliminary issue hearing that she only became aware that she had a claim against the firm after receiving advice from specialist family counsel in May 2020.
This meant, she submitted, that issuing the claim in March 2023 was within the three-year limitation period for what the judge described as “trigger knowledge”.
She was represented by national firm Harrison Clark Rickerbys (HCR), where Mr Morgan was head of commercial litigation at the time of his retirement on 31 March 2023. He had also sat at a deputy district judge since 2001, but not in family.
He has been in a relationship with Ms Kay – for whom he had acted in another matter since 2014 – since the turn of 2018 and they began living together at his home in April 2022.
He had helped her look into the possibility of reopening the settlement – after she saw “particularly conspicuous indications” of her former husband’s wealth – acting on what was described as a pro bono basis in his spare time. He then paid for the counsel’s opinion.
HHJ Russen noted: “He explained the reasons why he did not involve HCR and colleagues within the firm with a better understanding of family law.
“They included Ms Kay’s concern that her financial situation should not become known more widely and his own recognition that those colleagues could not also be expected to act pro bono.”
Ms Kay formally instructed HCR in October 2021 and Mr Morgan was the partner with conduct of the case.
The judge said the Solicitors Regulation Authority’s rules rewrite in 2019 removed specific reference to a solicitor not acting in litigation if it was clear he (or anyone within his firm) would be called as a witness, unless satisfied it would not prejudice his independence as a litigator or the interests of the client or the interests of justice.
“Nevertheless, despite that change, Mr Morgan’s testimony in this case has highlighted the reason why it is generally not appropriate for a solicitor to act professionally in a case in which he will be called as a witness to give evidence as a witness on factual matters going to the merits of the claim or defence.”
In particular, Mr Morgan accepted that he made “untrue statements” in two letters from HCR which he drafted. The judge said these sought to create a “smokescreen” to explain the delay between Ms Kay receiving a copy of the original file in May 2018 and instructing counsel in March 2020.
Further, Mr Morgan admitted he had prepared the first draft of Ms Kay’s witness statement addressing the preliminary issue.
This “necessarily” involved her speaking about matters concerning his involvement, the judge said, and parts of their statements were expressed in materially identical terms.
“The potential hazard in a solicitor acting both in a professional capacity and as witness of fact in the case lies in the risk that the due administration of justice, which a degree of professional detachment and attendant duties as an officer of the court are aimed at supporting, is prejudiced…
“I think it is inconceivable that the evident cross-contamination of the two witness statements would have occurred if they had been separately prepared with the involvement of independent solicitors (such as an insurer’s panel solicitor) in accordance with the statement of best practice embodied in practice direction 57AC.” (Ms Kay’s insurer had agreed to allow HCR to act, even though the firm was not on its panel.)
HHJ Russen said it was “their personal relationship and Mr Morgan’s resulting involvement in the period prior to the instruction of counsel which underpins his seriously mistaken approach to his own role in the claim”.
He held that Ms Kay had “actual trigger knowledge by no later than the end of 2009”, saying her evidence “was to the effect that she had never been satisfied with the settlement: she had ‘always tried to set it aside’”, concerned that her ex-husband had hidden information about his wealth.
If she did not have actual knowledge by that stage, then she should be attributed with “constructive trigger knowledge”. Even if that was not the case, then she had constructive trigger knowledge by no later than the end of 2018.
Counsel for Martineau Johnson submitted that Mr Morgan’s involvement in 2018 and 2019 had “impacted adversely” for Ms Kay on the limitation issue.
HHJ Russen said: “Given that Mr Morgan was then providing what he and Ms Kay believed to be the value of his pro bono assistance, I regret to say that I agree.
“It is clear that, from the early part of 2018, Mr Morgan began to provide that assistance. Although he said he did not study the file until late 2018, the file obtained from the firm in May 2018 was then available for further consideration…
“In my judgment, counsel’s expert advice should have been obtained a lot sooner than May 2020. I have already noted that the false statements in HCR’s letters dated 12 May and 22 June 2022 (though not explained by him) provide a reasonably clear indication that Mr Morgan would agree…
“There was no reason why the advice sought in March 2020 could not have been sought and obtained (that exercise in 2020 took a couple of months) by the end of 2018. There is no excuse for the delay on Ms Kay’s part during the second half of 2018 and the whole of 2019.”
I wonder if their more intimate services to each other also counted as pro bono…