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Jackson v Thompsons Solicitors (A Firm) & Ors [2016] EWCA Civ 138 (08 March 2016)
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The origin of the dispute which has given rise to the appeal lies in the administration of the British Coal Health Compensation Schemes ("the BCHCS schemes"), under which compensation was paid to miners in respect of industrial injuries in the form of respiratory disease ("COPD") and 'vibration white finger' ("VWF"). British Coal had been found liable for both COPD and VWF in various judgments and, following the assumption by the Department for Trade and Industry ("DTI") of the liabilities of British Coal, the DTI set up compensation schemes to deal with the large number of claims that were expected. One of these was the British Coal Respiratory Disease Litigation ("BCRDL") scheme. From 1995 Sir Michael Turner acted as the judicial administrator of the BCRDL scheme.
Various firms of solicitors acted for individual miners in their pursuit of compensation under the BCRDL scheme. Most, if not all, of the miners were members of one or other of the mining trades unions, which traditionally supported claims by their members against employers for compensation for industrial injuries. It was the practice of the unions in accordance with the agreements with their members to retain a small part of any award of damages in order to support claims made by other members that ultimately failed. It was a feature of the BCRDL scheme that miners whose claims were unsuccessful would not be expected to bear any costs.
Miners who made claims under the scheme were represented by a number of different unions and a large number of different firms of solicitors. The DTI entered into detailed claims handling agreements ("CHAs") with the miners' solicitors, the purpose of which was, as far as possible, to settle the claims without recourse to the courts. The claimants' solicitors set up a 'Claimants' Solicitors Group' ("CSG") as a body to represent them, which was in turn led by a much smaller 'Co-ordinating Group' ("CG"). The CHAs provided that the members of the CG were six firms of solicitors: Irwin Mitchell, Hugh James, Towells, Nelson and Co, Ross & Co and Thompsons, England. In practice most of the work of the CG was carried out by five individuals: Andrew Tucker (Irwin Mitchell), Roger Maddocks (at the material time with Irwin Mitchell), Lawrence Lumsden (Thompsons, Scotland, but who, at all material times, had a connection with Thompsons, England), Gareth Morgan and Peter Evans (Hugh James). Membership of the CG was individual rather than as a representative of the firm.
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Cooke J. rejected the allegation of negligence and in the course of his judgment expressed the view that experienced solicitors and counsel "could justifiably take the view that a GLO was an appropriate way of proceeding and indeed was the only way in which the miners' claims could reasonably and properly be dealt with by the courts." He concluded that, notwithstanding Sir Michael's views as expressed in his judgment, it was clear to him that proper consideration had been given to whether a GLO was the appropriate way forward. In paragraphs 179-195 of his judgment Cooke J. addressed in some detail each paragraph of Sir Michael's summary of his conclusions, all of which he criticised. It must be remembered, however, that Cooke J. was not concerned with whether Sir Michael's decision was right or wrong, but with the question whether GWM and their counsel had acted negligently. Moreover, in our view some of his comments are themselves open to question, particularly those in relation to the existence of group litigation issues, which in some respects appear to confuse similar issues with common issues, and the desirability of including the solicitors as defendants. Although Mr. Green was prepared to submit that Sir Michael's decision fell outside the ambit of his discretion, in our view that argument has no prospect of success whatsoever.
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For these reasons we are not satisfied that there is a real prospect of persuading this court that, if another judge had heard the application, he or she would have reached a different conclusion.
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For all these reasons we have reached the conclusion that an appeal in this case would have no real prospect of success. We therefore refuse permission to appeal.
The origin of the dispute which has given rise to the appeal lies in the administration of the British Coal Health Compensation Schemes ("the BCHCS schemes"), under which compensation was paid to miners in respect of industrial injuries in the form of respiratory disease ("COPD") and 'vibration white finger' ("VWF"). British Coal had been found liable for both COPD and VWF in various judgments and, following the assumption by the Department for Trade and Industry ("DTI") of the liabilities of British Coal, the DTI set up compensation schemes to deal with the large number of claims that were expected. One of these was the British Coal Respiratory Disease Litigation ("BCRDL") scheme. From 1995 Sir Michael Turner acted as the judicial administrator of the BCRDL scheme.
Various firms of solicitors acted for individual miners in their pursuit of compensation under the BCRDL scheme. Most, if not all, of the miners were members of one or other of the mining trades unions, which traditionally supported claims by their members against employers for compensation for industrial injuries. It was the practice of the unions in accordance with the agreements with their members to retain a small part of any award of damages in order to support claims made by other members that ultimately failed. It was a feature of the BCRDL scheme that miners whose claims were unsuccessful would not be expected to bear any costs.
Miners who made claims under the scheme were represented by a number of different unions and a large number of different firms of solicitors. The DTI entered into detailed claims handling agreements ("CHAs") with the miners' solicitors, the purpose of which was, as far as possible, to settle the claims without recourse to the courts. The claimants' solicitors set up a 'Claimants' Solicitors Group' ("CSG") as a body to represent them, which was in turn led by a much smaller 'Co-ordinating Group' ("CG"). The CHAs provided that the members of the CG were six firms of solicitors: Irwin Mitchell, Hugh James, Towells, Nelson and Co, Ross & Co and Thompsons, England. In practice most of the work of the CG was carried out by five individuals: Andrew Tucker (Irwin Mitchell), Roger Maddocks (at the material time with Irwin Mitchell), Lawrence Lumsden (Thompsons, Scotland, but who, at all material times, had a connection with Thompsons, England), Gareth Morgan and Peter Evans (Hugh James). Membership of the CG was individual rather than as a representative of the firm.
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Cooke J. rejected the allegation of negligence and in the course of his judgment expressed the view that experienced solicitors and counsel "could justifiably take the view that a GLO was an appropriate way of proceeding and indeed was the only way in which the miners' claims could reasonably and properly be dealt with by the courts." He concluded that, notwithstanding Sir Michael's views as expressed in his judgment, it was clear to him that proper consideration had been given to whether a GLO was the appropriate way forward. In paragraphs 179-195 of his judgment Cooke J. addressed in some detail each paragraph of Sir Michael's summary of his conclusions, all of which he criticised. It must be remembered, however, that Cooke J. was not concerned with whether Sir Michael's decision was right or wrong, but with the question whether GWM and their counsel had acted negligently. Moreover, in our view some of his comments are themselves open to question, particularly those in relation to the existence of group litigation issues, which in some respects appear to confuse similar issues with common issues, and the desirability of including the solicitors as defendants. Although Mr. Green was prepared to submit that Sir Michael's decision fell outside the ambit of his discretion, in our view that argument has no prospect of success whatsoever.
...............
For these reasons we are not satisfied that there is a real prospect of persuading this court that, if another judge had heard the application, he or she would have reached a different conclusion.
.....................
For all these reasons we have reached the conclusion that an appeal in this case would have no real prospect of success. We therefore refuse permission to appeal.