It is not often that an appeal raises a question of whether counsel exceeded his or her instructions.
In Atkins v Co-Operative Group, Supperstone J was invited to substitute an order entering judgment on breach of duty, with causation and quantum to be assessed, for the one made by a master at a telephone CMC, which entered judgment on liability with damages to be assessed and ordered an interim payment. The application to set aside the master’s order was made just a week short of five months after the order had been made. The defendant’s case was that counsel had been instructed to admit breach of duty but not causation or quantum, and that this had been heralded to the claimant’s solicitors two months before the original hearing.
It was argued for the defendant, and this does not appear to have been contested, that counsel engaged at the telephone CMC had at least ostensible authority to consent to judgment being entered for the claimant, with damages to be assessed. It followed, as the judge then found, that the master was entitled to enter judgment as he did.
A second ground of appeal was whether there had been a material change of circumstances which could lead to the judgment being set aside. The case had been brought on the basis that the claimant had asbestosis, and the defendant wished to place new medical evidence before the court suggesting that he did not suffer from an asbestos related condition at all. Without giving any consideration to the question of whether the fact that the master’s judgment was made by consent made any difference to the position, the judge considered the Ladd v Marshall principles.
Since the judgment had been entered, the claimant had had further medical tests, including specialist radiology. On the basis of the test results, the defendant’s expert changed her original diagnosis of asbestosis and prepared an addendum to her original report, now concluding that the claimant did not have a condition for which he should be compensated, but merely a benign pleural disease. The judge decided that the new evidence could not have been obtained with reasonable diligence before the date of the telephone CMC and the consent judgment was set aside.
This was obviously the just answer, but it was not necessarily reached in full accordance with authority. On the one hand, the error made at the CMC is something the defendant just had to live with, but on the other, it ended up not mattering a jot because the judge refused to let the case go forward to assessment of quantum on what had by then turned out to be the wrong basis. The reasoning on “could not have been obtained with reasonable diligence” is extremely sketchy, with no explanation of why matters did not progress more rapidly, but since the new evidence would most certainly be capable of having an important influence on the outcome of the case, it was too significant to ignore.
