UK: To Litigate Or Not To Litigate?

Last Updated: 29 January 2010

Fitzroy Robinson Ltd v Mentmore Towers Ltd

The 50 page judgment in this case is a stark lesson in some of the realities and risks of litigation, and the vital importance of proper preparation for all concerned. None of the parties emerged very well from the judgment, and one of Fitzroy Robinson's witnesses in particular was severely criticised by the Judge.

The Background

Fitzroy Robinson was employed as architect in respect of the design and development of buildings in Piccadilly, London into an exclusive private members' club, and of Mentmore Towers in Buckinghamshire into a country house hotel. Fitzroy Robinson sued its employer in respect of each project for unpaid fees, and the employers then counterclaimed and alleged that Fitzroy Robinson was negligent in its handling of the application for planning permission for the Piccadilly site, that Fitzroy Robinson was guilty of fraudulent misrepresentation and deceit in inducing the employers to employ the firm, and that Fitzroy Robinson had not done the work for which it was seeking payment.

The misrepresentation and deceit centred on the fact that a Mr Blake, the project architect, had tendered his resignation during the course of the negotiations with the employers, and this fact was not revealed to the employers until several months later. The employers said that Fitzroy Robinson would not have been employed if they had known that Mr Blake was leaving, such was his reputation and his importance to the project in their eyes.

After a nine day trial, the cost of which will be several hundred thousand pounds, the Judge ultimately found that:

  • Fitzroy Robinson was entitled to some fees, but that part of its claim sought payment for work which had not been done and they had also been paid for work which they had not done and the fee claim had to be reduced to take this into account
  • Fitzroy Robinson was not negligent
  • Fitzroy Robinson was guilty of fraudulent misrepresentation and deceit, but the damages recoverable by the employers would be modest

The judgment did not make new law, but the Judge was scathing in his criticism of some of the individuals involved.

What lessons can be learned from this case?

1. Witness statements must be true, must not contradict the documentation, and must not omit material facts

These requirements may seem obvious, but in this case the Judge was highly critical of the evidence of Fitzroy Robinson's CEO, Mr Thompson, and decided that his witness statement was "evidentially worthless". Parts of Mr Thompson's statement were, according to the Judge, "incorrect, misleading, inaccurate, unfair, and, in at least one case, knowingly untrue". The Judge also impliedly criticised the architect's solicitors in the following statement "I accept that there can be a regrettable tendency on the part of those preparing witness statements to 'accentuate the positive', but I have never before come across a witness statement which attempted to do so to such a great extent that the document itself became evidentially worthless".

2. Economising on expert witness fees is a false economy, the expert must have access to all the relevant papers, he must be paid properly for his work

One of the reasons that the Defendant in the Piccadilly claim failed to substantiate its counterclaim for professional negligence was that its expert's report was wholly inadequate. Its expert, Mr Salisbury, had been 'stood down' repeatedly during his preparation for trial, as the Judge said "presumably in order to save fees". As a result, he had never seen all the relevant documentation, even by the time he was in the witness box being cross-examined. He had therefore come to court without being in possession of the necessary information to form a concluded view. The Judge's criticism was harsh, describing it as unacceptable that Mr Salisbury had been seriously hampered in his preparations, and describing the state of affairs as a "sorry story".

Expert witness evidence is critical to any allegation of professional negligence, and a case will be won or lost on the quality of the expert evidence. It is extremely foolhardy to seek to economise on experts' fees to the extent that they cannot do their job properly.

3. The importance of ADR

The parties in this case did not attempt any form of ADR. The Judge was critical of this failure, noting that at the least ADR would have narrowed the issues, and it might, if successful, have avoided a public judgment so critical of the conduct of certain individuals.

4. Stress test your case before starting and only start a case if you are willing to fight it to the bitter end

The conduct of both the parties to this case was criticised, but the architects undoubtedly came off worst. Their reputation has undoubtedly been significantly harmed by this litigation.

Before starting any litigation, and at regular intervals, it is essential to assess and reassess the strengths and weaknesses of the case and think about the consequences of losing. If you start legal action, you must be prepared to take it to the bitter end, and to face the costs consequences. The level of fees which will be recovered by the Claimant and the damages recovered by the Defendant in this case will not be high and, the costs of this nine day trial will probably vastly exceed the amounts recoverable by each party.

5. Was it worth it?

Both parties must be asking themselves this question, particularly as they face further litigation to bring matters to an end, as this trial dealt only with liability but not quantum.

This case is a graphic demonstration of what can go wrong, and how badly it can go wrong, in litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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