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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Veitch v Avery [2001] EWCA Civ 1971 (5 November 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1971.html
Cite as: [2001] EWCA Civ 1971
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATIONS FOR PERMISSION TO APPEAL
Strand London WC2 Monday, 5th November 2001 |
||
B e f o r e :
____________________
| VEITCH | ||
| Applicant | ||
| - v - | ||
| AVERY | ||
| Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
The Respondent was not represented and did not attend
____________________
Crown Copyright ©
- LORD JUSTICE WARD: This is an application made by Mr and Mrs Veitch for permission to appeal against the order made by Judge Overend on 17th August 2001 when he granted the defendant Mr Avery, a solicitor or former solicitor of the Supreme Court, leave to appeal against an order made by District Judge Wainwright on 29th June 2001 and having granted permission to appeal then dismissed the claimants' actions against their former solicitor under the summary judgment procedure.
- I say at the outset that I am adjourning this to be heard on notice to the defendant.
- I shall indicate shortly some of the matters that trouble me. Mr Veitch complains that he was put at a disadvantage because he did not appreciate the case that was going to be advanced against him in a skeleton argument of leading counsel Mr Jones, who appeared for the solicitors. He has shown me a document at page 51 in the bundle, being a letter from the defendant's solicitors dated 15th August enclosing a copy of the skeleton argument and he tells me that he did not receive that until after the hearing had been concluded. It would appear from the transcript at page 2 that the court had not received a copy of that skeleton argument. Part of Mr Veitch's difficulty is that he did not protest loudly. He said he could not have protested about something of which he knew nothing. The logic of that is impeccable. Whether it amounts to a procedural irregularity is another question. It may be that there was not a sufficient unfairness in the proceedings to merit the case being reheard on that basis alone. I leave it open for further argument.
- What gives me slightly more anxiety - and anxiety exacerbated in light of the fact that this litigant in person does not appear to have accepted what the appeal before Judge Overend was about, that is to say, it was about summary judgment - is that he still seems to think that summary judgment was an inappropriate procedure to have been followed in the light of the order of the Court of Appeal of 30th March 2001 remitting the matter back to the County Court, having set aside the order of 2nd December 1998 and allocating the action to the multi-track in the County Court. I fear Mr Veitch may have it wrong in that respect. The claim for negligence against the solicitors appears to have been treated by the judge - if I correctly read the transcript of his judgment at pages 8 to 9 - as a claim based upon home made particulars of claim in the terms of the document being document 3 presented to Judge Overend in the index (page 13 of the bundle before me), the claim form which appears to have been before Judge Overend (page 11 of the bundle before him, page 24 of the bundle before me) was the unamended claim originally made.
- Mr Veitch has handed to me an amendment which is referred to, it is true, in the chronology (page 20 before Judge Overend, page 43 before me) but there is nothing to indicate that the amendment was before Judge Overend. By that amendment Mr Veitch seems to be complaining that aspects of the negligence of his solicitors was their failure to prove that he was in default under the mortgage and that therefore a possession order should not have been made at all. He complains that there was a failure to lodge a proper defence and counterclaim, the settlement was not in their best interests and that they failed to ensure in any event that the bank complied with certain terms of the settlement to which he had referred in his original claim.
- It is because there may be a gist of a claim in negligence against the solicitors on those grounds, or those grounds explained in a further amendment which could have been made, that makes me worry whether summary judgment was the right course to take in this case. Be that as it may, I think the respondent to this application should attend to explain why the amendment was not apparently dealt with and why other aspects of the potential case of negligence do not appear to have had the judge's attention. If a possession order should never have been made in the first place the causation argument upon which the judge depended may be somewhat weakened.
- I shall adjourn this matter to be heard on notice to the other side. It is not by any means straightforward. There is a very complicated history. Mr Veitch is a dedicated litigant in person by this stage. I shall invite the Court of Appeal Office - if Mr Veitch, on reflection, wishes to take up the offer - to see whether a member of the Bar Pro Bono Unit might be prepared to investigate whether there was an available defence to the original possession action which was there for the taking and which, negligently, the solicitors failed to take and, if there was, whether it would in fact have made the difference to the viability of the hotel business which Mr Veitch contends it would have made thereby defeating the causation argument on which this judgment depends. Whether I can obtain that for the applicant I know not, but I will use my best endeavours to see whether he could get some decent legal advice; whether he takes it or not is a matter for him.
- (To applicant) That is the best I can do for you. I am going to give you back your bundles, including the amendment which you have given me. I would advise you to consider before coming back whether you want to amplify the bundle you have before the court and time to refine your skeleton argument in the light of the judgment I have given.
- THE APPLICANT MR VEITCH: We definitely will.
- LORD JUSTICE WARD: A copy of this transcript should be given to both parties, and I will direct that it be made available at public expense. I shall reserve the rehearing to myself if you think that will be sensible. It should be heard before two Lords Justices with the appeal to follow if permission is granted. On the next occasion we will deal with permission and if you succeed in getting your permission we will then hear your appeal.
- I should add this further caveat, and it should go on the transcript. I am not sure that there is not a further obstacle to your future progress and that is the terms of Order 52 of the procedure which says that on a second appeal you have to show an important point of principle or practice or some other compelling reason for the appeal to go further. You might consider that as well.
- THE APPLICANT MR VEITCH: I am learning quick.
- LORD JUSTICE WARD: Not quickly enough.
- THE APPLICANT MR VEITCH: I know why barristers specialise.