Dias: Trial would be futile
The High Court has struck out a negligence claim against a London law firm because the claimant failed to attend court or serve any witness evidence.
Edwards Duthie Shamash (EDS) was awarded indemnity costs and an interim payment on account of costs of around £66,000 against its costs claim of £100,000.
Alexander Kuznetsov briefly instructed the law firm in pursuing an employment tribunal claim against the Royal Bank of Scotland. Solicitor Olubunmi McGhee provided some initial advice and prepared a draft of the ET1 claim form.
Mr Kuznetsov brought the claim himself and it ultimately settled with the bank making a “substantial payment” to him.
There was no claim for automatic unfair dismissal based on whistleblowing and his subsequent attempts to pursue one were variously dismissed by the courts, ultimately the Court of Appeal.
Mr Kuznetsov alleged that EDS should have advised him to include the whistleblowing claim in his ET1 claim form. Had he done so and been successful, the cap on compensation otherwise applicable to unfair dismissal claims would not have applied.
EDS argued that he did not give Ms McGhee instructions about the protected disclosures or instruct them to make such a claim.
Dexter Dias KC, sitting as a High Court judge, refused an adjournment request emailed by a relative of Mr Kuznetsov, finding the medical evidence inadequate.
He also put it in the wider context of his failure to comply with multiple court orders or engage with EDS, as well as his non-appearance at the first day of trial or at the adjourned trial two days later.
The judge said he could not try the case on the materials before him in the claimant’s absence. While Mr Kuznetsov had notified EDS’s solicitors of an intention to adduce witness evidence, he did not do so and had not applied for relief from sanctions.
“Therefore, there is no witness evidence at trial for him to rely on. This being the case, should the trial proceed in the claimant’s absence, it would be in an evidential vacuum from his side of the court.
“Ms McGhee has filed a statement with an appropriate statement of truth and in conformity with the court’s order. Her evidence materially and fundamentally contradicts Mr Kuznetsov’s central claim set out in the particulars of claim that he instructed her about the ‘whistleblowing’ claim.”
Her evidence was “capable of belief on its face, being supported by contemporary attendance notes that she made that contain no mention whatsoever of the whistleblowing claim” and there would be nothing to contradict it should she be sworn in.
“The burden of proof is on the claimant, in any event. In the absence of evidence, it is impossible for him to have proved his case to the civil standard.
“It is for these reasons that the court accepts the defendants’ submission that to have conducted the trial in these circumstances would have been a futile exercise.”
For essentially the same reasons – with the claimant unable to establish breach of duty – Judge Dias went on to accede to EDS’s strike-out application.
He ordered Mr Kuznetsov to pay EDS’s costs and a detailed assessment, as they amounted to around £100,000.
The judge also ordered indemnity costs: “The claimant failed to attend his trial on two occasions, having failed to comply with court orders to file witness evidence and failed to file a schedule of loss and trial bundles. I judge that this is conduct out of the norm.”
Finally, he ordered Mr Kuznetsov to pay two-thirds of the costs on account, less a minor set off, as it was likely that EDS would “comfortably recover this sum, particularly since costs are awarded on an indemnity basis”.
He added that, since Mr Kuznetsov was unrepresented, he could apply to set aside the judgment and ancillary orders but had to meet the tests of promptness, good reason and a reasonable prospect of success.
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