Ritchie: Deputy master misdirected himself
A deputy master was wrong to give weight to witness statements from a defendant’s solicitor that “strayed well beyond what she could legally give evidence about from her own knowledge”.
They “included hearsay from unnamed sources and included statements of opinion which she did not have the expertise to give”.
It was one of several reasons that Mr Justice Ritchie gave [1] for allowing an appeal against Deputy Master (DM) Charles Bagot KC’s decision to strike out a claim for unjust enrichment and order summary judgment for North Central London Integrated Care Board, whose solicitors were Hill Dickinson.
The dispute concerned fees that the claimant, Fairmont Residential, was seeking for the accommodation, care and support it provided to a severely disabled person.
The DM rejected Fairmont’s criticism of the lack of evidence from any witness employed by the care board and the fact that the only evidence came from its solicitor.
“The DM accepted the evidence of Ms Burge [the solicitor]. He specifically considered the appellant’s submissions that it was not appropriate for the respondent’s solicitor to give evidence, but he rejected those. In doing so I consider the DM fell into error.
“Ms Burge did not purport to be an expert on care service rates. She is not qualified as a nurse, an occupational therapist or a case manager.
“In addition, Ms Burge was not a witness of fact who could give evidence about negotiating appropriate market rates either in contract (IC) or out of contract (OOC), for residents with complex needs.
“She could give evidence of facts about the meetings which she herself attended. Therefore, the assertions which she made in her witness statements could not have been her own.”
In her first witness statement Ms Burge stated that the knowledge she used to assert the facts in her statement were true and were her own knowledge, and that where matters were not within her own knowledge, she had indicated the source.
However, the judge said the solicitor had no expertise for several of the assertions she made and provided no source for them, except for saying in one instance that she “informed by the respondent”.
Ritchie J said: “She did not say who asserted this from the respondent. For all the DM knew, it could have been a secretary or junior in the respondent’s organisation.”
He continued: “Regretfully, in her second witness statement, Ms Burge criticised the evidence of the complex care needs of WG, but had no medical expertise for being able to do so. She stated she was instructed that WG’s needs remained the same but did not say the source of those instructions. This was a point in issue…
“It was not for the respondent’s solicitor to seek to give evidence where there was a dispute concerning the care needs of a disabled person.”
The solicitor corrected “a serious error of fact” from her first statement, which “again shows the danger of a party’s solicitor purporting to give evidence without citing the source”.
The judge said: “I regret to say that I consider that the DM misdirected himself, when relying on Ms Burge’s evidence and her opinions, about the relevance of [a benchmarking tool].
“I doubt that Ms Burge will be permitted to give evidence at trial, in relation to either the market rate for IC or OOC services in this case, she having no expertise and, as far as I can tell, no evidence of fact to contribute to the relevant issues.”
The defendant could have put in a witness statement from a person with experience “but wholly failed to do so”.
Ritchie J allowed the appeal against the summary judgment on multiple grounds, including the DM accepting the evidence of Ms Burge.
He concluded: “In my judgment, the evidence of Ms Burge, the respondent’s solicitor, strayed well beyond what she could legally give evidence about from her own knowledge, included hearsay from a unnamed sources and included statements of opinion which she did not have the expertise to give.”