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B v B [2005] EWCA Civ 237

Appeal to lift stay on civil proceedings for damages arising from alleged sexual abuse

Neutral Citation No: [2005] EWCA Civ 237

Case No: 2004 1139 B1







Royal Courts of Justice




Date: 10th March 2005

Before :


Vice-President of the Court of Appeal (Civil Division)




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Between :

B Appellant/


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B Respondent/Defendant

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(instructed by Kelcey & Hall, BS1 1DE) for the Appellant/Claimant


(instructed by Bobbetts Mackan, BS8 1HB) for the Respondent/Defendant

Hearing date : Tuesday 20th January 2005

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Lord Justice Longmore:

1. Introduction

The claimant Ms B asserts that between 1990 and 1996 she was sexually abused on a regular basis by her father Mr B. In particular she asserts that she was raped by him in April 1995. She reported these allegations to the police in 1996. A trial took place in January 1997 at which Mr B was acquitted on certain counts but the jury could not agree on other counts. A retrial was planned for a date in April 1997 but did not take place since Ms B was not able to give evidence at that time. The judge therefore directed an acquittal.

2. History of Civil Proceedings

Ms B became 18 on 31st May 1997 and could, if she wanted to bring civil proceedings against her father, have begun those proceedings at any time up to 30th May 2003. She did in fact issue a claim form on 29th July 1997 but the impetus for these proceedings was an allegation that her father had moved to an address near to her apparently waiting to see her or approach her; she claimed a non-molestation injunction and, as the law then required her to do, she also claimed general damages. On 31st July District Judge Stuart-Brown granted an ex parte interim injunction preventing Mr B from harassing or communicating with her. On the return date of 8 August 1997 the case came before District Judge Frenkel and cross-undertakings were given by the parties to one another; formal orders of the court were drawn up setting out the undertakings but not recording any other order of the district judge. There was then no further progress in those proceedings. If they still existed, they were automatically stayed on 25th April 2000 pursuant to CPR Part 51. By that time Ms B had instructed her present solicitors, Kelcey and Hall.

3. On 23rd May 2003 (a week before the time-limit expired) Ms B issued proceedings for damages for the sexual abuse which she claimed to have suffered. Mr B has argued (and on 4th May 2004 District Judge Bird held) that the earlier proceedings did continue to exist and that it was an abuse of process to have started second proceedings which should, therefore, be struck out. Ms B denied any abuse of process but claimed that, if the second proceedings were to be struck out, the stay of the first proceedings should be lifted. The district judge held that it was far too late now to lift the stay imposed by the new Civil Procedure Rules. The circuit judge HHJ Bursell QC gave permission to appeal because he considered it to be arguable that the district judge had taken into account prejudice occurring within what he called "the prime limitation period" and that he ought not to have taken such prejudice into account but only prejudice arising thereafter. In the event he held that the district judge was entitled to take such prejudice into account and he dismissed the appeal. Permission has been granted for a second appeal to this court.

4. There was debate before District Judge Bird whether late evidence of Ms B's former solicitor, David Burrows, should be admitted in relation to question whether District Judge Frenkel had made any oral order on 8th August 1997. District Judge Bird held that, in the light of the order of 28th November 2003 (also of District Judge Frenkel) that, if no evidence had been filed by 12th December 2003, no further evidence could be relied on, he should not admit that evidence, which was, in any event, disputed. The circuit judge upheld that order.

5. At the outset of the hearing before us, there was an application that we should admit the evidence in statement form of a Mr Tarren who dealt with the case on behalf of Ms B's new solicitors when she first instructed them in May 1999. The evidence was to the effect that Mr Tarren had, in May 1999, inspected the then existing court file and seen a note that if notice of intent to proceed was not given by 8th February 1998 the proceedings would be deemed to be withdrawn. The court file in relation to the 1997 proceedings has now unsurprisingly been lost. Despite the lateness of the application we decided we should admit this new evidence since it related to the reasonableness or otherwise of Kelcey and Hall's decision to issue fresh proceedings rather than to try to resuscitate the earlier proceedings. The evidence was, moreover, scarcely capable of any factual contradiction and only went to particularise paragraph 18 of the hearsay statement of Mr Collins of Kelcey and Hall dated 27th November 2003 which had been before District Judge Bird in any event. It is, of course, unusual to admit new evidence on a second appeal but we considered it just to do so because, in the absence of the court file, it was the best evidence of what may well have happened on 8th August 1997 and we considered that the interests of justice required that we should not shut our eyes to this evidence.

6. There was a somewhat half-hearted application made to us to admit the evidence of Mr Burrows as to what actually occurred before District Judge Frankel on 8th August 1997 but we do not think the discretion of District Judge Bird to exclude that evidence can be successfully attacked. I call the application half-hearted because Mr Christopher Sharp QC who made the application on Ms B's behalf recognised that the evidence was disputed and also submitted, correctly, that it was comparatively insignificant if Mr Tarren's evidence was to be admitted. We therefore leave that matter there.

7. Both the District Judge and the Circuit Judge had the advantage of a psychological assessment of the claimant by Ms Vanessa Davies, a qualified psychologist and psychotherapist. This stated that she had been traumatised and has had conflicting impulses over the years in relation to bringing proceedings against her father. For a considerable period she was not in a position to take long-term decisions. In these circumstances it is difficult to criticise Messrs Kelcey and Hall for deferring the initiation of the proceedings if they were in law entitled to do so. The mere fact that in May 1999 the claimant decided to instruct them as new solicitors, in preference to the solicitors who had acted for her in the injunction proceedings, shows that she did then want to bring proceedings or (at the very least) keep the possibility of bringing such proceedings under review. It is, perhaps, unfortunate that the criminal proceedings never reached a resolution and that the current position means that there cannot be a resolution in civil proceedings either.

8. Submissions

Mr Sharp for the appellant submitted:-

(1)that the 2003 proceedings could not be categorised as abusive since the damages claim in the 1997 proceedings had only been included because the law then required an application for an injunction to be attached to a substantive claim. Nothing further had happened in those proceedings; Kelcey and Hall having inspected the court file reasonably thought that an order had been made that the proceedings were to be deemed to be withdrawn if no intent to proceed had been given within 6 months, which it had not;

(2)that if the 2003 proceedings were (or were arguably) abusive, because the 1997 proceedings still existed, then there should be no debate about lifting the stay imposed on 25th April 2000 by virtue of CPR Part 51;

(3)that, conversely if it were right to say that it was now too late to lift the stay, then all the more should the 2003 proceedings be allowed to continue so that a resolution could be reached.

9. Mr Wilson-Smith QC for Mr B submitted:-

(1)that there was no order of the court saying that the proceedings were to be deemed to be withdrawn if the claimant did not serve a notice of intent to proceed within 6 months of 8th August 1997; District Judge Bird was right to have said that the claimant was seeking to amend the 1997 order years later in the absence of the court file and that that was unacceptable. Although Mr Tarren may have found a note to that effect on the court file in 1999, it was impossible now to discover whether that was a record of a submission by one or other of the parties as to a possible order without finalising it; all that could now be said is that there was never a formal order to that effect;

(2)that, in these circumstances, the 2003 proceedings were begun while the 1997 proceedings continued to exist; it was always abusive to issue second proceedings even if those proceedings had been stayed, whether by order of the court or the automatic application of the Rules; there was no alternative but to strike out the 2003 proceedings;

(3)the only application open to the claimant was to apply to lift the stay; to lift the stay now would be contrary to the spirit of the new Civil Procedure Rules whose philosophy was that litigation should be proceeded with expeditiously; once the claimant had failed to make progress with the 1997 proceedings and certainly once the procedural stay had been imposed in April 2000, the defendant was entitled to assume that the distressing and hurtful allegations against him were not to be pursued; he would inevitably be prejudiced in defending the case so long after the events of which complaint was made;

(4)that a request to lift the stay was to be treated as an application to be absolved from a sanction and the factors set out in CPR Part 3.9, therefore, applied see Woodhouse v Consignia [2002] EWCA Civ 275, [2002] 1 WLR 2558, para 29. The District Judge had acted within the discretion properly to be accorded to him in deciding that the sanction should not be lifted.

10. The judgments below

District Judge Bird did indeed apply CPR Part 3.9. He thought that the most relevant factors were those set out at (h) and (i) viz the effect which the failure (sc the failure to proceed expeditiously) has had on each party and the effect which the granting of relief would have on each party. He dealt with both aspects together and said this:-

"7.. . . Before the issue of the 1997 proceedings [he must I think here mean the 2003 proceedings] (or at any rate, before the service of the letter of claim) the defendant was entitled to think that these allegations were no longer to be litigated. The allegations go back 14 years and are, of themselves, of a highly personal, unpleasant and distressing nature. Were they to be proved, the defendant would find himself the object of justified public opprobrium and would probably be placed on the sex offenders register. I am told that he is in poor health, and that he does not qualify for public funding so that he would have the severe financial difficulty of facing a publicly funded litigant with all the risks that involves.

On behalf of the claimant, it is said that there would [be] no evidential prejudice to the defendant. All the evidence was gathered for the criminal proceedings so it cannot be said that memories will have faded. Had she done nothing at all, and merely commenced the 2003 proceedings, she could not be prevented from proceeding to trial. The allegations are serious and if true may have had a very profound effect on the claimant and she should not be deprived of her just remedy.

8.In my judgment, weighting up all these factors, I should not give permission to remove the stay. I am not considering the hypothetical situation of what might have been the case if the 1997 proceedings had never been issued; the 1997 proceedings were issued, it is now more than 6 years since they were issued, and nothing has been done to progress them. The explanations for the delay are unconvincing and unsatisfactory and seem to reflect on the claimant's advisers.

It cannot be in the interests of justice for the court now to have to adjudicate on allegations of matters so long ago when it was within the power of the claimant or her advisers to bring them on for trial much earlier."

Judge Bursell saw no reason to disagree with the judgment of the District Judge.

11. Overall View

For my part I find Mr Sharp's submissions more persuasive than those of Mr Wilson-Smith. It is true that the allegations are personal, unpleasant and distressing but that is not a reason for them to be struck out and remain unresolved. It would be more unfair to the claimant to prevent a resolution of her claims than for the defendant to be given the opportunity to rebut them. These cases often have to be determined (whether criminally or civilly) years after the alleged events; this, of course, causes difficulties to the parties and to the judge; often such cases have to be determined on the burden of proof. That is (or should be) no disadvantage to the defendant.

12. There is a moderately close analogy between the present case and the cases where an automatic stay is imposed under Rules of Court on proceedings in which a claimant accepts money paid into court by a defendant. Such cases are not common but can happen in a road traffic context where a claimant sues for his uninsured loss and a sum of money is paid into court in respect of that loss, which the claimant accepts without informing his insurers of the existence of proceedings. In such a case it would be axiomatic that one way or another the insurer should be able, in the name of the claimant, to proceed, by way of subrogation, to claim for the loss which is insured and for which he has indemnified the claimant.

13. In one such case, Buckland v Palmer [1984] 1 WLR 1109, the claimant's insurers erroneously thought that they had a knock for knock agreement with the defendant's insurers; by the time they discovered that no such agreement existed, the claimant had instituted proceedings for his uninsured loss and accepted a payment made into court in respect of that loss. The action was, therefore, automatically stayed. The insurers in the name of their insured (Mr Buckland) then issued a second set of proceedings for the uninsured loss only to be met with the assertion that the second set of proceedings was abusive. Sir John Donaldson MR said (page 1114H):-

"Whilst I dislike procedural technicality and, on the facts of the instant appeal, the defendant's argument [viz that the second proceedings were an abuse of process] might be thought to have no other justification, in reality there are wider issues involved. The public interest in avoiding any possibility of two courts reaching inconsistent decisions on the same issue is undoubted and this alone would suggest that two actions based upon the same cause of action should never be allowed. Equally clear is the public interest in there being finality in litigation and in protecting citizens from being "vexed" more than once by what is really the same claim. Against this must be set the public interest in seeing that justice is done. It will not be done if, for example, a plaintiff accepts payment of a small sum which is only part of his claim in the belief that the remainder is not in issue and will be paid in due course. These competing public interests will be differently reconciled on the differing facts of particular cases and this is best achieved if we hold, on principle and on the authorities to which I have referred, that (1) it is an abuse of the process of the court to bring two actions in respect of the same cause of action but (2) where there has been no judgment in the first action, that action can, in appropriate circumstances, be revived and amended so as to enable there to be an adjudication upon the whole of the plaintiff's claim. Should the original claim be brought in the county court and the enlarged claim be outside its jurisdiction, that court has power to transfer the whole matter to the High Court."

Griffiths LJ agreed saying (page 1116G):-

". . . the rule against multiplicity of proceedings in respect of a single cause of action is soundly based on considerations of public policy designed to prevent the harassment of litigants by exposing them to the anxiety and expense of unnecessary legal proceedings; often in the past expressed in the legal maxims nemo debet bis vexari and interest republicae ut sit finis litium. I would not therefore think it right to make this case an exception to that general rule, particularly where there exists a procedure, namely the application for the removal of the stay, which will prevent any injustice resulting to the insurance company. If an exception was to be created in this class of action, it might lead to the very undesirable result of two actions proceedings in respect of the same accident in different courts, e.g., uninsured loss claimed in the local county court, and insured loss claimed by insurers in the High Court, with the possibility of different judges taking different views on liability. Therefore, unless bound by authority to hold otherwise, I have reached the conclusion that the insurers should not have been permitted to commence a fresh action to claim the insured loss."

It is apparent from these passages that the concern of the court was to ensure that claims not yet determined should be tried and that an appropriate method of so trying them may be to lift any stay which impedes such trial. Likewise the overriding concern of this court should be to ensure that, one way or another, the claimant's undetermined claims should be justly tried

14. My own view is that, on the particular facts of this case, it does not matter greatly whether they are tried in the second proceedings or in the first proceedings after the stay has been lifted. But I would prefer to hold that the second proceedings are not, in the circumstances of this case, abusive. I say that for two reasons: first, it is clear that the first proceedings were instituted in order to obtain injunctive relief and were effectively disposed of by the cross-undertakings given by the parties to each other. It was only a technicality of procedure, which in 1997 required the claim for an injunction to be formally attached to a claim for damage for breach of a cause of action, that damages were claimed at all. It would be piling technicality on technicality to hold that the claimant's new proceedings were an abuse of the process of court because there was a formal claim for damages in the original proceedings. In Buckland v Palmer there was actually a compromise of what appeared to be the claimants' whole claim. It was, therefore, a more obvious abuse to start a second set of proceedings.

15. Secondly, it seems to me that Kelcey and Hall cannot be in any way criticised for instituting the second set of proceedings. It is now apparent from the first hand evidence of Mr Tarren (even if it was insufficiently clear from paragraph 18 of the hearsay evidence of Kelcey and Hall's Personal Injury Manager Mr Collins) that in May 1999 Mr Tarren twice inspected the court file for 8th August 1997 shortly after the claimant had instructed her new solicitors. What he found was this:-

"Leave to bring proceedings without med. evidence, such evidence to be filed if she intends to proceed with her claim for damages.

If the Pf does not serve on the Def notice of her intent to proceed with her claim for damages before 8/2/98 [the claim be dismissed deleted] appl. be treated as W/D."

16. It is not disputed that, if the court had made an order in these terms, there would be no bar to a second set of proceedings. But Mr Wilson-Smith submits that it is impossible to be sure whether the second part of the note records an order or an intended but unmade order or merely records a submission made by one or other of the parties. The first sentence must be recording an order since in those days a claim for personal injuries had to be accompanied by a medical report unless the court ordered otherwise. I would, therefore, be prepared to hold, on a balance of probabilities, that the second sentence also records an order actually made. On that basis it is impossible to say that a second set of proceedings, brought within the limitation period, was abusive. But even if that is not right and the solicitor who acted for the respondent on 8th August 1997 appears to dispute that the district judge intended to make a formal order - Messrs Kelcey and Hall were acting reasonably when they inspected the file and concluded that there had been an order that, if no notice of intent to proceed had been served by 8th February 1998, the claim would be treated as withdrawn. They further acted reasonably in seeking to obtain a legal aid certificate to cover the issue of new proceedings; they obtained that certificate in June 1999. In these circumstances I do not consider that the second set of proceedings can be categorised as abusive. I would, therefore, allow the appeal on this ground and permit the 2003 proceedings to continue. It need hardly be said that, since the issues raised are so old, they should now be determined with every expedition that is possible.

17. I should add that one reason District Judge Bird gave for saying that the 2003 proceedings were an abuse was that in Overseas and Commercial Developments v Cox [2002] EWCA Civ 635, this court had held, following Buckland v Palmer, that subsequent proceedings for the same relief following a stay under CPR Part 51 of earlier proceedings would be an abuse of process. I do not, for my part, read Cox's case in that way. The facts were complicated; it is only necessary to say that this court did, in fact, lift the stay imposed by Part 51. No second proceedings had been instituted and part of the argument was that the claimant should, before seeking to lift the stay, have started second proceedings and seen what happened to them. The district judge appears to have accepted this argument and thus invited Dyson LJ's comment (in para. 39) that the consequence of that decision was "probably to commit the parties to further proceedings involving yet more delay and costs" viz the institution of second proceedings and an application to strike them out as abusive. In relation to such application Dyson LJ merely commented:-

"that application would have very real prospects of success."

This is hardly a decision of this court that subsequent proceedings after earlier proceedings have been stayed pursuant to CPR Part 51 are invariably an abuse of process. It must all depend on the circumstances.

18. Lifting the stay

If, contrary to my view, the second set of proceedings are abusive, it is necessary to decide whether to lift the stay imposed by CPR Part 51. Mr Wilson-Smith naturally submitted that we should not interfere with the exercise of the district judge's discretion and that is, of course, a very powerful argument. In my judgment, however, his exercise of discretion was flawed because the district judge proceeded at once to the factors listed in CPR Part 3.9 without giving any weight to the overriding objective of CPR (see 1.1(1)) that cases between litigants should be determined justly. He also said, in my view wrongly, that the delay reflected on the claimant's advisers. For the reasons I have given, this is unfair to Kelcey and Hall who have acted reasonably throughout. In these circumstances we would be entitled to set aside the district judge's decision and exercise our discretion afresh.

19. In so doing, I would regard the overriding objective of determining cases justly as being dominant. If there were irreparable prejudice to the defendant, it might be more just to prevent these matters from being determined. But it is not right to regard the delay which has undoubtedly occurred or the fact that the defendant faces a legally aided litigant as being such irreparable prejudice. I can deal with the Part 3.9 factors briefly:-

(a)the interests of the administration of justice; these interests are that cases, brought within the time limits settled by Parliament, should be resolved;

(b)promptness of the application; the application has been rendered necessary by the application to strike out the second proceedings; the application to lift the stay was issued within weeks of service of the application to strike out the second proceedings for being abusive;

(c)whether the failure was intentional; the failure to apply to lift the stay earlier was intentional but occurred because the claimant's solicitors reasonably thought that second proceedings were necessary;

(d)the existence of a good explanation; the above explanation is a satisfactory explanation;

(e)other defaults; there are none;

(f)whether the failure was the fault of the claimant herself or her legal advisers; it was nobody's fault at all;

(g)effect of failure on trial date; none;

(h)effect of failure on each party; both parties are prejudiced to some extent by the overall delay that has occurred; it is not a delay stretching any further than the delay contemplated by Parliament in requiring proceedings to be brought within six years of the claimant reaching 18; there is a record of the claimant's allegations at the time she made her police statement in about May 1996;

(i)the effect which the granting of relief would have on each party; the defendant has to face unpleasant and distressing allegations which he, no doubt, hoped would not resurface once the criminal proceedings were abandoned in 1997. He could never be sure, however, that civil proceedings would not be taken. If the proceedings continued to exist after February 1998, they were stayed in April 2000. In the unlikely event that the defendant appreciated that the proceedings were stayed, he would have appreciated that an application might be made to lift the stay and that it might be granted. In this respect the defendant is in no different position from other defendants who have proceedings against them stayed. The effect on the claimant of never having the issues resolved is incalculable but not to be dismissed on that account.

20. If one stands back and views the matter in the round, the proper conclusion is that the issues should be resolved. They should, in my view, be resolved in the 2003 proceedings. But, if those proceedings were to be struck out, they should be resolved by lifting the stay and allowing the 1997 proceedings to continue. I would allow this appeal.

Lady Justice Arden:

21. I agree with the order that Longmore LJ has proposed and with the reasons which he gives save as follows.

22. What is conspicuous by its absence in the present case is any communication (before the respondent's application to strike out these proceedings) between the solicitors for the appellant and the solicitors for the respondent that they had formed the view that, by virtue of the order of District Judge Frenkel, the 1997 proceedings were to be treated as withdrawn. Mr Christopher Sharp QC, for the appellant, submits that such a communication was inappropriate because the appellant was very frightened of her father, the respondent, and was worried that he would try to contact her. She was in a number of minds whether to proceed with her claim. She was living with her mother who did not wish her to start the new proceedings. If her solicitors contacted her father's solicitors and asked for confirmation as to their understanding of District Judge Frenkel's order, her father would have been notified of her impending claim.

23. In those circumstances, Mr Sharp accepts that the appellant could have made an application for a without notice order restraining her father from harassing her, based on her apprehension of his reaction to the news that she was to bring further proceedings against him. But, he submits, this would not in practice have completely protected the appellant.

24. For my part, I would not accept that submission as disposing of the need for communication between the parties' solicitors. I accept that the appellant's mental state was disturbed and that there was a risk that her father would seek vengeance once the proceedings were issued or threatened. But that was the risk in any event. Therefore, to seek the protection of the court in advance of issue of proceedings so as to permit communication between solicitors about the status of the 1997 proceedings would not have involved any major change of course. Moreover, even if the appellant's solicitors had decided that they could not take this course, it was still open to them to contact the respondent's solicitors as soon as they had issued and served him with the new proceedings in order to explain that they had taken the view that the previous proceedings were to be regarded as withdrawn. The position after the earlier proceedings was far from being clear cut. As I see it, the duty to engage in this sort of dialogue arose as a matter of professional courtesy, and by virtue of the solicitors' duty to the court and by virtue of the appellant's duty to co-operate with the other side under the Civil Procedure Rules 1.3.

25. As it was, nothing was said to the other solicitors. They did not recollect that District Judge Frenkel had made an order in the terms which the appellant's solicitors understood it had been made in. In consequence, the defendant applied to dismiss the new proceedings on the grounds that they were abusive. Those proceedings came before the district judge, the circuit judge and this court. If the steps to which I refer above had been taken, either before or after the new proceedings had been issued, then a great deal of cost to the parties and public resources would have been saved.

26. Notwithstanding this, I take the view that the conduct of the solicitors was not so egregious or erroneous as to amount to abusive conduct on the part of the appellant. Accordingly, though for different reasons, I have come to the same conclusion, and otherwise for the same reasons, as Longmore LJ.

27. I do not reach that conclusion with enthusiasm. There was a criminal trial in 1997 involving matters raised in these proceedings. The respondent was acquitted. The events in issue were described by District Judge Bird as follows:

"The allegations go back 14 years and are, of themselves, of a highly personal, unpleasant and distressing nature."

The appellant is protected by undertakings to the court from the risk of harassment. In view of what we were told about the respondent's financial circumstances, there is little effective relief that can be obtained in these proceedings other than a declaration. Whether this is a good use of public funds is not something which I can judge. These proceedings cannot give the appellant what she really needs, which is an end to her suffering. Moreover, the proceedings will be uncertain and extremely strenuous, particularly for a person in the appellant's delicate state of health.

Lord Justice Brooke:

28. I agree with the judgment of Longmore LJ.

29. I agree with Arden LJ that in the changed climate of the Civil Procedure Rules, which came into force at about the same time as the claimant's present solicitors were instructed, the solicitors for the parties to litigation are required to help the court to further the overriding objective, so far as is consistent with their duty to their clients (see CPR 1.3). And it is certainly possible to see with the benefit of hindsight that the claimant's solicitors might usefully have taken steps to explain the position as they saw it, perhaps just after the new proceedings commenced, instead of leaving the exchange of relevant information to the rough and tumble of hotly contested litigation.

30. But I would be very slow to criticise them for what they did or did not do. They were acting with the benefit of a legal aid certificate (which in itself imposes constraints on what they may do for a client without the express permission of the Legal Services Commission) for a very anxious client. She felt and still feels that her father has ruined her life. Sadly, the criminal justice process did not provide her with a societal judgment on what occurred, because one jury disagreed and the Crown offered no evidence at the retrial when she was simply too ill to give evidence a second time. Any litigation was bound to be bitterly contested, with no leeway given on either side. Her solicitors had to make difficult professional judgments on how best to handle things on her behalf. Even if they had written an explanatory letter, instead of setting down what they knew in a witness statement, I have no great confidence that things would have turned out very different.