Nettlefold v Hodders

A child’s claim cannot be used by a litigation friend to re-litigate the litigation friend’s own previously determined professional-negligence complaints against the same solicitors. Such conduct may constitute an abuse of process. A litigation friend must advance the child’s interests rather than personal grievances. In assessing alleged negligence during a retainer, the court must focus on the information and circumstances known or reasonably apparent at the relevant time. Later concerns do not, without evidence of contemporaneous risk or unfitness, establish want of care. Allegations that an earlier decision was procured by misleading conduct do not justify issuing a fresh action in another person’s name. The application for permission to appeal was refused.

Harry, a minor, brought a professional-negligence claim against Hodders through his father, Henry Michael Frederick Nettlefold, as litigation friend. Hodders had acted for the father in matrimonial and child-care proceedings during 1991 and 1992. The father had earlier sued Hodders in his own name; that claim was struck out as an abuse on 16 January 1996, and permission to appeal was refused on 30 November 1999.

On 29 April 2005, His Honour Judge Grenfell, sitting as a Deputy High Court Judge, struck out Harry’s claim and ordered that the father no longer act as litigation friend. The claim alleged that Hodders should have obtained a joint assessment under section 24 of the Children Act 1991, thereby preventing later abuse, and also claimed loss of a chance to inherit the matrimonial home. The issue was whether the claim disclosed an arguable duty or breach, or instead repeated the father’s earlier complaints.

1. Application refused. Laws LJ found no material capable of displacing Judge Grenfell’s order. The claim had been rightly struck out as disclosing no reasonable grounds and as an abuse of process.
2. Duty and breach. Judge Grenfell had considered [2005] UKHL 23 on whether solicitors retained by a parent in matrimonial proceedings owed a tortious duty of care to the child. The Court of Appeal found no error in the lower court’s conclusion that the claim was not arguable on the authorities.
3. The alleged breach had to be assessed by reference to the circumstances during Hodders’ retainer. At that time there was no expert evidence or other material indicating a risk of abuse or that the mother was unfit to care for Harry. Later concerns, including matters arising in 1994, did not establish want of care in 1991 or 1992.
4. The father’s revised grounds and skeleton argument showed that he was seeking to ventilate and re-litigate his own complaints against Hodders through a claim brought in his son’s name. Even if an earlier judge or party had been misled, a fresh action in the son’s name was not the appropriate remedy.
5. A litigation friend must act in the claimant child’s interests. The absence of evidence that the action served Harry’s interests, together with the father’s lack of objectivity and pursuit of his own grievances, justified the order that he cease acting as litigation friend. There was consequently nothing for the Official Solicitor to take over.
6. The complaint concerning an extended civil restraint order was not properly before the court. In any event, there was no material supporting permission to appeal against it.

• Court of Appeal (Civil Division) — On 11 November 2005, Laws LJ refused the application for permission to appeal.
• High Court, Queen’s Bench Division — On 29 April 2005, His Honour Judge Grenfell, sitting as a Deputy High Court Judge, struck out the claim and ordered that the father no longer act as litigation friend.
• Earlier proceedings — The father’s separate claim against Hodders was struck out as an abuse on 16 January 1996. Permission to appeal was refused on 30 November 1999.