Wednesday, 2 February 2011

Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB): importance of paperwork

In 2003, Mrs Hill, then aged 78 sold her house and gave the proceeds to her daughter.  So they could live together.  A quotidian transaction.

Trouble was Mr Thorpe was not happy.  Mr Thorpe is Mrs Hill’s son.  He didn’t get a penny.  What’s more, Mrs Hill then suffered from dementia.  Mr Thorpe decided that Mrs Hill must have been influenced by her daughter to sell the house and give her the money.  He didn’t want to sue his mother or daughter, indeed, how could he?  He had no legal standing.  Instead he applied to Court to become Mrs Hill’s guardian, so that he could bring claims on her behalf, and then did so against Mrs Hill’s solicitors.  Saying that they should have spotted Mrs Hill’s dementia and her daughter’s undue influence.

It took until late 2010 for the claim to come to Court.  Nearly 8 years after the sale of the property.  Mainly because it took until late 2009 to issue the claim.  Not surprisingly, the solicitor who advised Mrs Hill, Ms Butler, could not remember a one-off instruction from way before.  The important thing was that Ms Butler had kept a very good record of what happened.  Contemporaneous documentation.  It proved to be one of the key difference makers in the case.

What did Ms Butler do?  She did the usual things a conveyancing solicitor should do; client care letter, mortgage redemption statement, searches on the property Mrs Hill was going to buy with her daughter.  And she took another step.  Most of the instructions were dealt with by Mrs Hill’s daughter, so Ms Butler asked the daughter to bring Mrs Hill to their offices to sign the contract of sale.  And she noted on the file why she did so.  A clear attendance note stating that Ms Butler wanted to check that Mrs Hill had fully agreed to the sale.  That she was not being forced.

They duly met, and Ms Butler made another attendance note.  Mrs Hill fully understood what was going on.  And again the note contained the reason  behind their meeting – and that Mrs Hill was “adamant” that she wanted to sell up and live with her daughter.

It’s all crystal clear.  Even though Ms Butler had no suspicion at all that Mrs Hill might have been suffering from dementia, she had assessed Mrs Hill and recorded that Mrs Hill was perfectly compos mentis.  And this had a huge effect on the case.  The only way to prove that Mrs Hill was suffering from dementia in 2003 was to go to an expert; the expert had to go through medical records and contemporaneous documents to see what Mrs Hill might have been like at the time. 

The Court decided to order a single, jointly-instructed, expert.  A Dr Cockerell.  His view was that Mrs Hill might have been suffering from dementia in 2003, but that it would not have interfered with her decision making.  Even such decisions like selling her house.  And certainly a competent solicitor would not have perceived any problems; even a medic may not have noticed anything amiss.  Essentially, he destroyed Mr Thorpe’s case.  Would he have reached that conclusion without the clear attendance notes from Ms Butler?  Very possibly not.  Dr Cockerell relied on those notes - an independent witness to Mrs Hill's state of mind - to verify Mrs Hill’s state of mind in 2003.

Mr Thorpe continued with the case, disastrously.  He issued a witness summons on Dr Cockerell, forcing him to cancel a day’s worth of clinic or face contempt proceedings.  The judge didn’t like that.  Mr Thorpe tried to call his own doctors who had previously suggested the dementia angle.  The judge didn’t like that either, there was no permission for calling any experts other than Dr Cockerell.  He tried to claim a signature had been forged without any evidence.  The judge didn’t like that.

The case therefore collapsed in fairly short order.  Ms Butler’s careful and considered approach to her client and keeping her file up to date may well have won the case outright.  Certainly the judge liked THAT.

One knock-on effect: Mr Thorpe’s solicitors wrote to his own pre-case experts demanding why they had come to a different conclusion to Dr Cockerell.  As the judge pointed out, this is not uncommon; medicine is a developing science.  What the judge certainly didn’t like was the insinuation in the letters that the difference of opinion might be a professional standards issue.  An unwonted threat.  Currently a case is going before the Supreme Court concerning whether you can sue a Court expert for going off on one; this case may be of some importance.  Would any expert be happy making concessions in a case if those instructing them promptly sued them?  Would that be not inhibitive of justice? 

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