Jackson v Thompsons Solicitors (A Firm) & Ors

In a damages claim alleging that wrongful conduct procured a biased tribunal and caused loss, causation must be proved as an actual fact. It is insufficient to show that a different judge might have made a different order; the claimant must establish, on the balance of probabilities, that the alternative judge would have done so. Only then may a loss-of-chance assessment arise in valuing the resulting loss. A Group Litigation Order must address genuinely common issues and provide a cost-effective means of resolving them. Differences in agreements, parties and liability may make issues merely similar, rather than common. Costs, funding and insurance uncertainties may also justify refusal. Apparent bias alone does not establish causation where the decision-maker was not actually biased.

Greene Wood and McLean LLP brought a proposed Group Litigation Order concerning deductions from miners’ compensation. The application was dismissed by Sir Michael Turner. The firm’s business later declined, and Mr Jackson, as assignee, brought a substantial damages claim against Thompsons and others alleging conspiracy, bias, interference with a fair hearing and causation of loss.

After a 25-day trial, Simon J dismissed the claim, rejecting the allegations of bias, conspiracy, causation and inducement of Templeton to withdraw ATE cover: [2015] EWHC 218 (QB). The Court of Appeal considered whether there was any real prospect of establishing that another judge would have made the GLO, and whether the withdrawal of insurance had caused the loss.

Permission to appeal was refused. The court did not need to determine finally whether Sir Michael Turner was actually or apparently biased, because the proposed appeal could not succeed on causation and other essential grounds.

1. Where damages depend on the proposition that a different judge would have made a different order, the claimant must prove that outcome on the balance of probabilities. It is insufficient to show merely that the alternative order might have been made. A loss-of-chance assessment arises only after that threshold is established, when assessing the effect of the order on the claimant’s subsequent fortunes.
2. In relation to apparent bias, the claim still requires a causal link between the alleged wrong and the loss. If the judge was not actually biased, an appearance of bias could not have affected the decision actually made. Even assuming that the judge would have recused himself, it did not follow that a replacement judge would have reached a different conclusion.
3. The dismissal of the proposed Group Litigation Order was rational and well within the judge’s discretion. Group litigation is intended to resolve genuinely common issues cost-effectively. Here, the relevant agreements differed, and the claims raised similar rather than truly common issues. There was also no sufficient reason to join the solicitors where the unions were the primary potential defendants, only one union had been joined, the proposed insurance was uncertain and the costs were grossly disproportionate to the sums likely to be recovered.
4. The withdrawal of Templeton’s ATE cover had little connection with the dismissal of the application. The judge’s principal concern related to the terms and efficacy of the cover and the absence of a policy document.
5. Reliance on Greene Wood and McLean v Templeton Insurance Ltd [2010] EWHC 2679 (Comm) was misplaced. That case concerned negligence, not whether the GLO decision was correct. Some of its comments concerning common issues and the inclusion of solicitors as defendants were open to question.

The court observed that, if conspiracy had been the only issue, permission might have been granted on the narrow allegation that Thompsons had helped procure the hearing before Sir Michael Turner. That did not affect the overall conclusion, and permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal was refused.
• High Court of Justice, Queen’s Bench Division: Simon J dismissed the claim after a 25-day trial: [2015] EWHC 218 (QB).