Al-Ruby v Quist Solicitors (A Firm)

A lost opportunity to pursue litigation has no recoverable value where the underlying claims had no realistic prospect of success. A defamation claim may be struck out where the claimant has no realistic prospect of disapplying the primary limitation period and the publication was on an occasion of common-interest qualified privilege, absent evidence of express malice. Findings by a competent tribunal may create an issue estoppel in later proceedings where the same factual condition is an ingredient of the later claim. Fresh material displaces that effect only if it entirely changes the aspect of the case. An unopposed and limited regulatory decision concerning professional performance did not meet that test.

The claimant instructed the defendant solicitors after two underlying claims concerning letters about his medical training were lost through failure to serve the claim forms within their validity periods. He alleged that the solicitors’ negligence caused him loss, including the value of the lost claims and consequential costs.

The Luton County Court struck out the claim under the Civil Procedure Rules 1998. The claimant appealed. The central issues were whether the underlying claims had any value, whether findings in earlier Employment Tribunal proceedings created an issue estoppel, and whether a later GMC Assessment Referral Committee decision constituted fresh evidence or special circumstances.

1. Appeal and approach. Permission to appeal was granted, but the appeal was dismissed. The appeal was properly approached as a review of Judge Farnworth’s decision on the material before him.
2. Libel claim. The claim based on the Hibble letter had no realistic prospect of overcoming the primary limitation period. There was no material demonstrating a realistic prospect of an order under section 32A of the Limitation Act 1980. The publication was also protected by common-interest qualified privilege. The wider public interest in communicating reservations about a trainee doctor to persons responsible for future training or employment supported the privilege. No evidence of express malice had been advanced. The judge’s alternative conclusion on justification was less suitable for summary determination, but that did not affect the result.
3. Misfeasance. The accepted ingredients of misfeasance in public office were accurately stated by reference to Three Rivers District Council v The Bank of England (No 3). The claimant had no evidential basis for showing that either officer acted for an improper purpose with a specific intention to injure, or knowingly exceeded power while aware that injury would probably result. The claims were therefore wholly unsustainable.
4. Issue estoppel and negligence. The Employment Tribunal’s findings that the training was competent, the assessment fair and the alert letter professionally required were capable of determining factual conditions common to later causes of action. The GMC decision was limited, one-sided and directed to whether an assessment should be required. It did not entirely change the aspect of the case and did not undermine the Employment Tribunal’s decision. The negligence claim against Dr Troop therefore could not establish breach or causation. The claimant’s causation argument was arguable in isolation, but breach of duty remained insuperable.
5. Costs and amendment. The proposed alternative negligence allegation concerning advice about the claims was not realistically maintainable and amendment was refused. The claim was properly struck out in accordance with the overriding objective.

• High Court (Queen’s Bench Division): Permission to appeal was granted, but the appeal against the Luton County Court order of 12 September 2006 was dismissed.