Israel Russell v Barry Coulter is a notable example of the complexities surrounding professional negligence claims, the handling of expert witness evidence, and the procedural requirements underpinning litigation in the courts of England & Wales. Here we consider the key aspects of that case, with a particular focus on the nature of witness evidence.
Background – the Adaptainer Proceedings
Israel Russell had instructed barrister, Barry Coulter, on a direct access basis to represent him in the defence of a claim brought by his former business partner, Adaptainer Ltd. The claim was about the use and ownership of shipping containers ("the Adaptainer Proceedings").
In his defence and counterclaim, Mr Russell had relied on complex arguments under the Consumer Credit Act 1974. However, his main argument was that Adaptainer Ltd was part of a conspiracy against him.
Mr Russell lost the Adaptainer Proceedings and was ordered to deliver up the disputed shipping containers and pay damages. He was twice denied permission to appeal that decision.
Rather than accepting the court's findings, Mr Russell then started a professional negligence claim against his barrister. There were nine issues of alleged negligence accusing Mr Coulter of failing to advance or negligently advancing various legal arguments under the Consumer Credit Act 1974.
Litigation 'whack-a-mole'
Presiding over the case, Mr Justice Saini delivered an impressively thorough 226 paragraph judgment which fully exonerated Mr Coulter.
It is fair to say that Saini J was unimpressed with Mr Russell's claim, describing it as a "moveable feast" that had become a game of "litigation whack-a-mole" due to the shifting nature of the allegations, which had caused the case to "balloon out of all proportion".
The judge was very critical of this approach to a claim where a professional's reputation is at stake. Much of Mr Russell case was incoherent and inconsistent and Saini J went as far as to encourage Mr Russell's counsel to 'professionally re-evaluate whether it was appropriate to make such wide-ranging allegations of negligence against a fellow member of the Bar', (albeit apparently to no avail).
In dismissing all nine allegations of negligence brought against Mr Coulter, the judge praised him as a thorough and diligent barrister who had done everything he could to represent his client.
Expert opinion masquerading as a witness of fact
As a preliminary issue, the judge was asked to strike out parts of a witness statement filed by Mr Russell's legal team. In fact, the judge went even further than the defendant requested and exercised his own case management powers to strike out the entire statement. In doing so, the judge gave a useful reminder of the court's expectations on the distinction between witness evidence and expert evidence in professional negligence claims.
The requirements for the form and content of witness statements are set out, in particular, at CPR Part 32. These include the fact that statements must only contain evidence that the witness would be permitted to give orally. English law traditionally requires witnesses to present factual evidence rather than opinions or arguments. This distinction is crucial in preserving the procedural integrity of legal proceedings, ensuring that witness statements serve as reliable sources of fact rather than tools for advocacy: arguments and innuendos have no place in witness evidence.
Further, while independent expert evidence is often required to resolve issues in professional negligence claims, that rarely applies to claims against legal professionals where the judge is generally well-qualified to assess negligence from their own knowledge. In addition, specific permission from the court is normally required before expert evidence may be adduced.
The disputed statement in Mr Russell's claim had been made by a self-described 'lawyer' (though he held no legal qualifications!) at a firm which had been instructed by Mr Russell in his unsuccessful attempts to appeal the Adaptainer Proceedings.
While packaged as a witness of fact giving evidence about the attempted appeal, the statement set out numerous legal opinions on the Consumer Credit Act arguments and the quality of representation given by Mr Coulter. The witness even gave his views on what a 'reasonably competent barrister' would have done in the circumstances.
Unsurprisingly, the judge considered these elements of the statement to be an attempt to introduce expert evidence by the back door, without the permission of the court. That was 'plainly abusive' and those elements of the statement were struck out.
In addition, Saini J also struck out the rest of the statement which had given the witness's subjective views on how additional Consumer Credit Act arguments appeared to have gone down with the appeal judge. It was noted that 'Experience at the Bar shows that little is to be gained by guessing what is in a judge's mind by seeking to assess his or her reactions including body language during submissions'. That being the case, the witness's views on that were irrelevant, particularly where the court could simply read the appeal judgment to find out exactly what the appeal judge actually thought.
Collateral challenges – appeal by the back door
The judge was clear that the alleged negligence of Mr Coulter had to be assessed against the background of the factual findings which been made in the Adaptainer Proceedings. Any attempt by Mr Russell to re-open those factual findings would be considered an impermissible collateral attack on the findings of the court, i.e. an attempt to re-litigate the same factual issues under the guise of a professional negligence claim.
Despite Mr Russell's counsel accepting this point, his claim nevertheless made a number of submissions which the judge considered to be such collateral attacks.
Saini J was left with an 'overall impression' that this claim was a form of 'backdoor appeal' against the original decision, as opposed to a legitimate professional negligence claim.
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