Ion Manda v Bird & Lovibond (a Firm) & Anor

On an application for summary judgment in a professional-negligence claim, the court must determine whether the pleaded case has a realistic, rather than fanciful, prospect of success without conducting a mini-trial.

Where the alleged negligence concerns flexible employment tribunal procedure, it may be inappropriate to assume that a tribunal would inevitably have refused an amendment, postponement, withdrawal or reservation of rights. The possible loss of a procedural opportunity may require evaluation at trial.

Summary judgment is also inappropriate where material evidence is unavailable, the allegations involve interlocking acts of negligence, or the outcome depends on evaluating what other parties or judges might have done. The same considerations may defeat an alternative strike-out application.

The claimant brought a claim exceeding £2 million against his former solicitors and barrister for professional negligence in the conduct of employment tribunal and county court proceedings. He alleged that negligence caused the employment tribunal disability-discrimination claims to be struck out, prevented preservation of a subsequent personal-injury claim, caused parts of that claim to become time-barred, and exposed him to adverse costs.

The first defendant applied for summary judgment under CPR 24.2 and, alternatively, strike out under CPR 3.4. It argued that the relevant causes of action accrued more than six years before the professional-negligence proceedings were issued, or that the claims were otherwise bound to fail.

The central issues were when actionable damage or contractual breach occurred, whether later procedural steps could have preserved the claims, and whether those matters could fairly be determined summarily.

1. Application dismissed. The first defendant failed to establish that the claimant had no realistic prospect of success or that there was no compelling reason for a trial. The alternative strike-out application was not considered necessary after the summary-judgment application failed.
2. The court could not safely conclude that the claimant’s disability-discrimination claim became irretrievably lost before 21 November 2013. The employment tribunal had discretion in relation to amendment and case management. The judgment of Judge Clark indicated that an application to amend, including an application made at the hearing or coupled with a request for postponement, remained procedurally possible. The later judgment of Judge Lewzey also identified postponement as an available course.
3. The flexible nature of tribunal procedure meant that authorities concerning court litigation required care before being applied to the tribunal context. It was realistically arguable that a properly formulated amendment could have been entertained, and that the loss of that chance caused actionable damage only on or after the relevant limitation date. The allegations concerning amendment, strike out, withdrawal and the catch-all allegation therefore required trial.
4. The allegation concerning failure to issue the personal-injury claim within the primary limitation period could not be determined summarily. The evidence did not establish clearly when, or in what form, a limitation defence had been raised in the county court. There was also an unresolved question whether loss arose on the initial omission or only when the limitation point was formally taken and determined.
5. The Rule 52 allegation concerning preservation of a subsequent civil claim was not shown to be time-barred. The effect of the earlier tribunal strike-out, withdrawal and any estoppel involved questions of discretion, causation and loss of a chance. The possibility that the tribunal might have preserved the right to bring later proceedings was not fanciful.
6. The adverse-costs allegation was also realistically arguable. The relevant costs consequences followed the later issue and service of the county court proceedings and the subsequent abuse finding. It could not be assumed at the summary stage that all loss flowed from earlier, time-barred breaches.
7. Professional-negligence allegations are capable of summary determination only exceptionally. Where the context of the alleged acts, missing documents, oral evidence, overlapping breaches and separate losses require detailed assessment, there is a compelling reason for trial.