C claimed compensation
following a road accident. In a preliminary hearing the issue of whether his
claim was out of time was discussed. Neither barrister drew the judge's decision
to a decision of the Court of Appeal that would have settled the matter
conclusively. The case had appeared in the Weekly Law Reports four months
before the hearing.
Held:
The barristers did not discharge their duty properly to the court in that they
appeared to be unaware of the existence of that authority.
It is the duty of an
advocate to draw the judge's attention to authorities which are in point, even
if they are adverse to that advocate's case.
The English Court of Appeal referred to counsel’s duty not only to bring and keep themselves up to date with recent authority in their field, but also to have the necessary system in place
to enable counsel to keep up to date with the reported cases across the principal law reports.
Copeland v. Smith and Another
Practice Note
Court of Appeal (Civ Div)
Brooke and Buxton L.JJ.
The claimant in this case, Mr. Stephen Anthony Copeland, had
the misfortune to suffer a serious traffic accident as long ago as 24 September 1993 . What
appears to have occurred (and I do not think that this, at least in broad terms, is in issue) is that he was riding his motor cycle on
the M3 motorway when he came off in a situation of heavy traffic and suffered
serious injuries. He has indicated what he claims to have done on that
occasion, but it is clear that he personally appears to have little
recollection of what occurred. There were a number of other vehicles involved
at the time and there appears to have been a fairly extensive series of collisions
in and around Mr. Copeland's accident. His case as originally put was against
the first defendant only, Mr. Smith, alleging that the vehicle that Mr. Smith
was driving had collided with Mr. Copeland's body when it was lying in the
road. That leaves open, of course, the question of how Mr. Copeland's body came
to be in that position.
It would appear that at a fairly early stage Mr. Copeland
instructed experienced solicitors, Shoosmiths, to act on his behalf. They took
the step of requesting from the chief constable of the relevant police force a
copy of the accident report that he had caused to be drawn up. The document
that the solicitors received on 14 January 1999 was apparently incomplete, in
that at a much later date it came to their attention that it had had attached
to it further and important material that was not contained within the report
with which they were provided. I shall explain the importance of that detail
shortly.
Proceedings were only commenced against the first defendant,
Mr. Smith. A substantial period of time later when the full police report came
into the possession of the solicitors, it having been given
to them by the solicitors of the first defendant, they concluded from material
contained within it that the second defendant, Mr. Goodwin, was or may have
been the person responsible for knocking the claimant off his motor cycle. On 18 November 1998 (that is
to say, significantly outside the primary limitation period) the claimant
obtained an order from the district judge joining the second defendant to these
proceedings.
The second defendant appealed against that order to the
circuit judge, Judge Kenny, who delivered judgment on 31 March 1999 upholding the district
judge's order. It is against Judge Kenny's order that this appeal is brought.
The contention is, first, that Mr. Copeland is fixed with the action or
inaction of his solicitors, Shoosmiths, and, secondly, that Shoosmiths did not
act reasonably and properly in reaction to the original police report and that
if they had done so they would have appreciated, at least by some date such as
March 1994 (that is to say, after a reasonable period of reflection on the
report), that Mr. Goodwin was or might have been a person involved in the
accident and should at that time be joined; and therefore that the time limit
for joinder ran from the date of that assumed or constructive knowledge in
March 1994 and thus the joinder effected and upheld by the circuit judge in
1998 was out of time.
The first issue that was debated before Judge Kenny was
whether, when construing the provisions as to knowledge in
the Limitation Act 1980, a claimant is indeed fixed with the knowledge or the
action or inaction of his solicitors. When the judge heard this matter on 31 March 1999 he was
apparently told by the two professional advocates who made submissions before
him on that occasion that there was no authority covering the point. The judge
expressed understandable surprise that that was the case, but he was apparently
assured that that was so. Construing the statute without the benefit of any
authority, the judge concluded that the claimant was not fixed with
responsibility for what his solicitors had done or had not done. It is now
accepted that the judge was wrong in so concluding. He was wrong because the
contrary has been decided by this court in Henderson v. Temple Pier Co. Ltd. [1998] 1 W.L.R. 1540. That case had been reported
in the Weekly Law Reports on 23
October 1998 , some six months before the hearing before Judge
Kenny.
Although the matter does not arise for decision because it is
now conceded, I cannot draw back from expressing my very great concern that the
judge was permitted by those professional advocates to approach the matter as
if it were free from authority when there was a recently reported case in this
court directly on the *1373 point, which was reported not in some obscure quarter but in
the official law reports. It is, of course, not only extremely discourteous to
the judge not to inform him properly about the law, but it has also been
extremely wasteful of time and money in this case, because not only did the judge have to deal with the matter, but it has also
formed an issue in the appeal to this court. I have, I fear, to say that the
advocates who appeared below did not discharge their duty properly to the court
in that they apparently failed to be aware of the existence of that authority.
Before us, I may say, the authority is referred to and relied
on, but the position is apparently still not appreciated by those who appear
before us in this appeal (who, I emphasise, are not those who appeared in the
court below) because we were referred to the case only in a Court of Appeal
transcript--a transcript, I would add, that was said to be attached, but in
fact was not, to the appellant's papers. It is not satisfactory to refer to a
reported case by means of a Court of Appeal transcript. The purpose of cases
being reported is, amongst other things, to assist the court and the advocates
by means of listing the cases that have been referred to (as is the case even
in volume 1 of the Weekly Law Reports) and also by means of the very helpful
headnotes that are provided. I trust that lapses of this sort will not occur
again.
I now turn to the substance of the matter. The first question
that the judge had to consider was whether the solicitors had acted reasonably
in their reaction to the original police report, it being accepted by the
appellant before us that the question is whether they had acted up to the
standard to be expected of a reasonably competent solicitor.
The reason why all these difficulties had occurred was as
follows. The police report appeared to be a full document.
It had attached to it identification of a number of people who had been
involved in the accident, including Mr. Goodwin, and it gave an indication of
the vehicle that he was driving. At the back of the report were listed the
police officers who had been in attendance at the incident, including a Police
Constable Bridger, who was described as the vehicle examiner, and a Police
Constable Kinnear, who was described as the accident investigation officer.
However, it said nothing about what either of those officers had concluded or
might have said. Although the solicitors contacted by telephone a number of
people identified as lay witnesses, they made no progress in their inquiries,
including their inquiries of Mr. Goodwin himself. He was not prepared to speak
to them, and, of course, he was under no obligation to do so. The covering
letter from the chief constable indicated that the police officers were
available for interview should the solicitors wish to do that, but making it
clear that a fee of £45 would be charged for any such interview. The solicitors
did not pursue an interview with any of the lay witnesses and neither did they
pursue the police officers for further interviews because, as I have said,
there was nothing in the report to indicate that the officers had knowledge of
the crucial question in this case, that is to say, the identity of the person
who had knocked Mr. Copeland off his motor cycle.
Matters radically changed and took on a completely different
complexion when the solicitors received the complete
report, because it then became apparent that there had been attached to it,
although unseen by them in 1994, the report of P.C. Bridger, the vehicle inspection
officer. That indicated the striking fact that there had been found in the
offside headlight of Mr. Goodwin's vehicle an embedded stud bolt. True it is
that P.C. Bridger does not indicate where the bolt had come from, but this was
clearly a striking circumstance and it is that which led the solicitors to
conclude that it was Mr. Goodwin's vehicle that collided with Mr. Copeland and
that it was from Mr. Copeland's motorcycle that the bolt came. That is their
basic justification for joining Mr. Goodwin as a defendant. I, of course, say
nothing about the merits of that claim. I simply indicate why it is that P.C.
Bridger's report put such a different complexion on the material that the
police were able to provide.
The complaint that is made against the solicitors, however,
is that, although P.C. Bridger's report was not put in their hands in 1994,
there was sufficient in the material with which they had been provided to
require an ordinarily competent *1374 solicitor to follow matters up by interviewing at
least P.C. Bridger, probably also P.C. Kinnear, the accident investigation
officer, and possibly other police officers and other lay witnesses. Had they
interviewed those people, they would immediately have found out, certainly from
P.C. Bridger, that he had written this report. They would then have been in a
position to take within the limitation period the step that they took outside the limitation period.
This contention was carefully considered by the judge. Having
set out the circumstances as I have described them and having dealt (in the
event wrongly, though not wrongly through any fault of his) with the question
of the attribution of the solicitor's knowledge, he then went on, rightly and
helpfully, to consider the position if he were wrong on his first point, as it
is now conceded he was. Having been taken by the advocate appearing for the
second defendant on that occasion through the relevant material, he said:
"my conclusion is that the knowledge in question was not reasonably
ascertainable by the solicitors before it was in fact ascertained. In my
judgment, [the] argument suffers from the application of hindsight. Once the
information has been obtained, it is all too easy to say that the solicitors
ought to have interviewed each of the police officers referred to in the police
report"--with the outcome, no doubt, that I have indicated--quotLooking at
the material contained in the police report, it seems to me that there is
nothing to suggest that any of the witnesses, or certainly any of the police
officers, had (or were likely to have) any information which fixed the identity
of the person who collided with the rear of the plaintiff's motorcycle."
He said further: "... I cannot criticise the plaintiff's
solicitors, on the basis of their duty of reasonable inquiries, of failing to
try to ascertain what I cannot imagine that anyone would think of
discovering"
Those observations by the judge conclude this appeal. The
position is that, as was conceded before us, the question that the judge had to
determine, and to which he correctly directed himself, was what was the
standard of investigation to be expected of a reasonably competent solicitor.
That is a question which is essentially one for the trial judge. This court
will not intervene, and it is important that it should be thoroughly understood
that this court will not intervene, unless the judge makes an error of
principle, which it is absolutely clear that this judge did not; indeed, it has
not been attempted to suggest to us that he did. In addition, I will go so far
as to say that in this particular case the judge is a judge of enormous
experience in personal injury matters and, more particularly, of enormous
experience in traffic matters. He was wholly well placed to determine what was
the reasonable way to conduct a traffic accident case. He determined that in
terms that I would say are not only not open to interference in this court, but
in my judgment in so far as it matters (and, for the reasons I have indicated,
it does not) were wholly right and correct. For that reason alone this appeal
must fail.
We were, however, taken on to the further question that the
judge addressed, if he should be wrong on that matter, as to the exercise of
his discretion. It is again well known that this court will not intervene in an
exercise of discretion by a trial judge unless again he has erred on a matter
of principle. Although, as I say, the matter is academic, again the judge did
not err in any way in the additional matter that he
addressed so far as discretion was concerned, and again it was not sensibly put
before us why he had so erred. So, even if this court could interfere with the
first part of his judgment, he clearly was correct in the second limb that he
explored.
For those reasons, therefore, this appeal must fail and be
dismissed.
BROOKE L.J.
I agree. I wish only to refer to the problem identified by
Buxton L.J., which arose when the judge decided one part of this case in
ignorance of the recently reported decision of this court in Henderson v. Temple Pier Co. Ltd. [1998] 1 W.L.R. 1540. That authority was of direct
relevance to the issues likely to arise under sections 14 and 33 of the Limitation Act 1980, on which substantial evidence
had been filed in the form of affidavits sworn by legal representatives of *1375 the claimant and the second
defendant. The claimant attended court by the solicitor advocate who had sworn
the affidavit on behalf of her client. The second defendant attended by junior
counsel. A solicitor attended on behalf of the first defendant, Mr. Smith, but
his client was not directly concerned with this issue and he need not necessarily
have been prepared to deal with it.
When this question of law arose in argument junior counsel
who was then instructed for the second defendant made
submissions to the judge, not backed by any authority at all, to the effect
that section 14(3) should be interpreted in the way in which
the Court of Appeal had indeed interpreted it last year. Judge Kenny said:
"Well, it may be that that is the law, I do not know.
That is what it appears to be on the face of the Act, but one needs to consider
the matter further in the light of some authority on the point. It is funny,
considering that this is a very old Act now, that this has not been judicially
considered, if it has not been."
Junior counsel said:
"Your Honour, this is not a point that has arisen in
correspondence between the parties. If your Honour would consider it, I would
be more than happy to rise for five minutes. I would be more than happy to
contact my chambers and ask somebody to deal with that point and see if
anything can be found during the course of these submissions."
That course was accordingly followed. When the case resumed junior
counsel said:
"I am grateful to your Honour for affording me that
opportunity. Somebody is actually researching that, and my instructing
solicitors have indicated that they are happy to go out in 20 minutes or so to
see if there are any fruits of those inquiries." Towards
the end of the resumed hearing junior counsel asked the judge if he might
return to the issue raised under section 14(3), and he said he wished to have a
quick look at the authorities he now had. The judge adjourned for a short time.
When the court resumed junior counsel said that he was grateful for the time
afforded and continued: "Having read the authorities that were faxed
through, they do not really advance matters at all. So I would not seek to
trouble your Honour any further." That was the end of his submissions. The
judge then turned to the solicitor appearing for the claimant and said that he
need not trouble her, and she said: "Thank you, your Honour"
It is not evident from that transcript whether Henderson
In these circumstances it is quite essential for advocates
who hold themselves out as competent to practise in a particular field to bring
and keep themselves up to date with recent authority in their field. By
"recent authority" I am not necessarily referring to authority which
is only to be found in specialist reports, but authority which has been
reported in the general law reports. If a solicitor's firm or barrister's
chambers only take one set of the general reports, for instance the Weekly Law
Reports as opposed to the All England Law Reports, or the All England Law
Reports as opposed to the Weekly Law Reports, they should at any *1376 rate have systems in place which enable
them to keep themselves up to date with cases which have been considered worthy
of reporting in the other series. If this is not done, judges may be getting
the answer wrong through the default of the advocates appearing before them.
The English system
of justice has always been dependent on the quality of the assistance that
advocates give to the bench. This is one of the reasons why, in contrast to
systems of justice in other countries, English judges are almost invariably in
a position to give judgment at the end of a straightforward hearing without
having to do their own research and without the state having to incur the cost
of legal assistance for judges because they cannot rely on the advocates
to show them the law they need to apply.
I sincerely hope
that under the new Civil Procedure Rules regime no judge will have the
experience that Judge Kenny had on 31 March 1999, just before the new regime
started, when he raised a question as to whether there was any judicial
authority on the point he had to decide and received no assistance from those
who were appearing before him who were concerned with the issue, even though
there had been recent Court of Appeal authority directly in point. Henderson
Subject to those
additional observations, I agree with the judgment delivered by Buxton L.J. I,
too, would dismiss this appeal.
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