English and Welsh Courts - Miscellaneous

Claim No. 3YL55248

IN THE WANDSWORTH COUNTY COURT

The Courthouse

76-78 Upper Richmond Road

Putney

Date: Tuesday, 27^th May 2014

Before:

DISTRICT JUDGE HUGMAN

Between:

MR. CEDRIC SPRIGGS

Claimant

-v-

SANTANDER UK plc

Defendant

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Counsel for the Claimant: MR. D. BURTON (instructed by Wixted & Co. Limited)

Counsel for the Defendant: MS E. SKITTRELL (instructed by Squire Sanders (UK) LLP)

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JUDGMENT APPROVED BY THE COURT

APPROVED JUDGMENT

1.             THE DISTRICT JUDGE: I offered the preliminary view that the correct approach that I should adopt in looking at this, and the rule (inaudible) that I should look at it, is indeed Part 26.10 and 26 PD. I have heard nothing in the submissions that leads me to any other view. Therefore, if I am going to reallocate, I need a good reason to do so.

2.             To summarise, the claimant’s argument is that there is a need for expert evidence for the court to be able properly to assess the matter and that there will be such an imbalance between the parties’ positions before the court that it would be, in effect, a denial of justice. You did not use the phrase, Mr Burton, but I am summarising the denial of justice if he were not represented.

3.             The defendant’s argument is that expert evidence is not required, even if one of the heads of the claim is expressed to be negligence, dressed up as professional negligence.

I do not believe it is professional negligence. I have already, by my question I think, identified the distinction I draw between the actions of an employed adviser who would be limited, I would imagine, to the product (as they insist on calling them) of the financial institution which employs them and that is standard.

4.             Advice generally would, in this sort of situation, consist of illustrating the different options available to the customer - and there is another distinction: they are “customers” not “clients” and I will not remind you of the two professions that are said to have clients. The question is really: “Should one have been offered rather than another?”

5.             The claimant’s case appears to me to be that there were other products - an Abbey one has been mentioned - which would have returned 4.7% rather than what, in reality, turned out to be 0.5 or thereabouts. It is going to be a question of fact, primarily, and even if there is expert evidence, at the end of the day it is the judge who makes the decision and the judge who makes the factual findings, even where expert evidence is offered.

6.             Expert evidence is likely to cost probably more than this claim is worth. It is, in my view, not only not necessary in this case, but would be utterly disproportionate. That is not a reason for reallocating. So far as the equality of arms (inaudible) point is concerned, I think it goes without saying that lawyers, like everybody else, are entitled to be paid for the work they do, but that is not necessarily to say that a self-represented party, a litigant in person, cannot expect to receive guidance - a “steer”, I think, was the phrase that was used in the submission - from the judge. It is what we do several times a week. In fact, some days we do it all day long: that is, to assist litigants in person to understand what they need to be doing. The biggest danger, I think, for somebody without the appropriate background, is that they do not recognise the necessity of relevance and a lot of them do not understand that things are not self-proving (inaudible) and it is not enough merely to assert something.

7.             There is the defendant here who is going to be dealing with production of most of the documentation, I gather, and if, as Ms Skittrell has pointed out, the claimant is capable of dealing with his case in the detail he has, he already has the paperwork available. What I would hope, certainly, is that his solicitors are not going to stand on their dignity, if they feel they are not going to be rewarded for their efforts thus far, by refusing to provide him with papers. That I think I would regard as being beyond the pale.

8.             The upshot, however, is this: we have a claim which is worth, on the defendant’s assessment, some £2,000. On the figures and the percentages that have been offered to me today, if I do the calculation and take out the amount of income he did derive from the investment, we are indeed looking at something which has a maximum value of £6,000. The idea to go with some underlying point of general (inaudible) importance, or indeed importance to this gentleman, that requires his solicitors to be pitching it at something in excess of £50,000, is nothing short of ridiculous. Even on the fast-track, I cannot see that the solicitors’ costs are going to be any less than about 15,000 to 20,000 in my experience of dealing with these things. That is also utterly disproportionate. I am afraid in this day and age I think the solicitors have fallen foul, in fact, of the change. They started this before the Jackson reforms, or they took on the instructions before the Jackson reforms bit. They issued the proceedings on 14^th May of last year, after the reforms bit, and they are stuck with them. I am afraid the concept of proportionality - although I might not necessarily always feel that one needs to go as far as the court has done in the case of Mitchell... Bear in mind, of course, you can go to decisions of the (inaudible) Court of Appeal and effectively (inaudible) lose sight of the fact that they are fact-specific. In that case you were dealing with solicitors who had all the expertise in the world to do with costs budgeting because they were defamation experts and costs budgeting in defamation cases had been their business for quite some time. For them to be saying, “Oh dear, we got caught out because we didn’t have enough staff,” really was not cutting the mustard. In the rest of the world, however, what has changed is that proportionality has to mean the correct use of scarce resources. You do not spend tens of thousands of pounds on a claim worth six.

9.             At the risk of introducing a red herring, one example of that is the approach that has always been taken by those who have managed the legal aid fund. The test was always: “Would a reasonable, privately paying litigant spend this amount of money on pursuing this litigation?” – the merits test it was called. I do not know whether that test is still defined as it used to be (inaudible due to loud background noise) but I would imagine that the merits test is very much the same as it always was. It has a common sense to it and the proportionality that the court should now be applying has, by and large, to come from the same intellectual background. It is bound to affect people who are going to be more reliant upon the court ensuring that they are given a fair opportunity of presenting their case and that the large organisation, such as in this case a major clearing bank and financial services provider, is not allowed to run the individual ragged. However, I do not accept the argument that he would be denied a fair hearing.

10.         For those reasons, without going through every last minute point that has been raised with me, I have come to the conclusion that there is no good reason for reallocating this matter. The interpretation of proportionality that the court has to bring to bear I am afraid is the new reality, and it may well be that the defendant’s solicitors have certainly got some experience and no doubt they (inaudible), but of course, prior to the time that this was issued, a claim worth £6,000 would have been allocated to the fast-track anyway, on anybody’s analysis. It is a different world now, I am afraid.

11.         I am not persuaded that there is a good reason and, therefore, I am not persuaded that the matter should be reallocated. The application is accordingly refused.

(End of Judgment)