Naqvi v Harris Cartier Ltd & Ors

A professional-negligence claim alleging that lawyers mishandled earlier litigation may proceed where it does not require the court to reverse findings on issues actually determined in that litigation. A collateral challenge is abusive where success in the new claim depends on showing that the earlier court wrongly decided the very matters relied upon, subject to the exceptional possibility of entirely new evidence. Summary judgment is appropriate where the claim has no realistic prospect of success, assessed without conducting a mini-trial but by testing unsupported assertions against contemporaneous documents and reasonably available evidence.

The claimant sued solicitors and counsel who had acted in his unsuccessful race-discrimination claim against Lloyds Banking Group. He alleged that they negligently failed to formulate and present a direct race-discrimination claim concerning an HR manager, and failed to quantify his alleged career-long losses.

The defendants applied for strike-out and summary judgment. The court considered whether the pleaded allegations had a realistic prospect of success and, alternatively, whether they were abusive collateral challenges to the Employment Tribunal’s decision.

1. Strike-out for no reasonable grounds. The pleaded case was intelligible and sufficiently coherent. The application under CPR 3.4(2)(a) was refused.
2. Summary judgment test. Applying the approach summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), the court asked whether the claimant had a realistic, rather than fanciful, prospect of success. It did not conduct a mini-trial, but was not required to accept assertions contradicted by the contemporaneous documents. No material evidence likely to emerge at trial had been identified.
3. Liability allegations. The documents supplied by the claimant to his lawyers focused on alleged differential treatment between him, as Pakistani, and an Indian comparator. They did not clearly allege that the HR manager had treated him less favourably because he was non-white, or require the lawyers to devise that alternative case. The later comments on witnesses did not create a realistic prospect of proving negligence in failing to reformulate the case shortly before trial. The existing comparator claim had been pleaded, presented and rejected by the Employment Tribunal, and no specific negligent omission was shown to have materially affected its outcome.
4. Quantum allegations. The Employment Tribunal proceedings had been prepared first for liability, with a remedy hearing to follow if necessary. The claimant’s evidence and closing submissions had not yet needed to address detailed remedy issues. The alleged failure to present career-long losses therefore had no realistic prospect of success.
5. Abuse of process. Following Arthur JS Hall & Co v Simons [2002] 1 AC 615 and Laing v Taylor Walton [2007] EWCA Civ 1146, the court distinguished between a negligence claim alleging that different arguments or evidence would have produced a different result, and a claim requiring relitigation of the very findings previously made. The proposed claim concerning the unpleaded HR-manager discrimination case did not challenge matters determined by the Tribunal and would not have been abusive. The complaint about presentation of the existing comparator claim would have required such a challenge and would have been abusive, absent entirely new evidence. That distinction did not affect the outcome because summary judgment had already been granted.
6. Disposition and costs. Summary judgment was granted to the second, third and fourth defendants on the whole claim. The claimant was ordered to pay their costs, subject to detailed assessment, with payment on account of 50 per cent of the stated costs.

First-instance decision. No prior appellate decision is stated in the judgment.