England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE THOMPSON QC)

		Royal Courts of Justice Strand London WC2 Thursday, 29th November 2001

Thursday, 29th November 2001

1. LORD JUSTICE CLARKE: These proceedings have a very long history. The applicant, Mrs Jones, who is a litigant in person, applies for permission to appeal against the order of Langley J refusing permission to appeal against the order of His Honour Judge Thompson QC, dated 14th April 2000, whereby the judge struck out the applicant's claim for damages for professional negligence against the first and second defendants under CPR 3.4 and gave judgment for the defendants under Part 24. The judge also refused the applicant permission to appeal.
2. Langley J, sitting in the High Court in Winchester, refused the applicant permission to appeal on paper. He gave his reasons on 4th October 2000. They were in these terms:

"Notwithstanding the delay in making this application, I have considered the prospects of an appeal on the merits. I am quite satisfied that even if time were extended an appeal has no realistic prospect of success."

3. The applicant subsequently made an oral application to Langley J on 7th November 2000. She also applied for an adjournment of that hearing on the ground that she was not legally represented and that she did not have a copy of the transcript of the judgment of Judge Thompson. Langley J refused those applications and considered the application for permission to appeal on its merits. He had before him the materials which had been prepared by Mrs Jones for the purposes of that application. He said:

"I regret that, having read the papers in this case and listened with care to the claimant, Mrs Jones, this is a case of a claimant who has simply been unable to accept negative advice which has been given over a considerable period of time by several solicitors and several counsel who have been fully instructed by her in relation to the original complaint.

In my judgment, having looked at that advice, and having looked at her present claim, the advice which she has been given on so many occasions by so many people has been both realistic and right, and Mrs Jones unfortunately has been both unrealistic and wrong in being unable to accept it and seeking to conclude on each occasion that those who have been advising her have been guilty of professional negligence.

I would add that the claimant is only in a position to pursue claims through legal aid and it is no surprise at all, having looked at the nature of these claims, that legal aid has proved to be unavailable to sustain them.

In my judgment the learned judge was plainly right in this case to reach the conclusion that these claims were ones which had no realistic prospect of success any more than the probability was that the original claim, which goes back to the end of the 1970s and the beginning of 1980s, itself was one which would in all probability have failed.

In those circumstances this oral application for permission to appeal will be refused."

4. The applicant now seeks permission to appeal the order of Langley J to this court. In effect, she seeks permission to appeal against the refusal of permission to appeal by an appellate court.
5. In seeking permission to appeal from a refusal of permission to appeal the applicant faces the insurmountable hurdle that the Court of Appeal has no jurisdiction to entertain such an appeal. Section 54(4) of the Access to Justice Act 1999 provides:

"No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."

6. This is further made clear in paragraph 4.8 of the CPR Part 52 Practice Direction as follows:

"There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. See section 54(4) of the Access to Justice Act 1999 and rule 52.3(3) and (4)."

7. The applicant filed her appellant's notice on 13th December 2000, just over a month after Langley J's decision. She would therefore need an extension of time. The applicant sought an adjournment of the hearing of this appeal. May LJ, having initially declined to grant an adjournment in advance of the listed date, which was 22nd October 2001, subsequently granted it on the basis that the applicant wanted to adduce fresh evidence. He granted it with some considerable reluctance. In any event the applicant refiled an amended appellant's notice on 16th November 2001. That notice includes an application to seek permission to adduce fresh evidence on appeal.
8. When I received the papers in the matter it appeared to me that, for the reasons I have just given, the court had no jurisdiction to entertain the application for permission to appeal. Mrs Di Mambro therefore wrote to the applicant on 27th November enclosing copies of section 54(4) of the 1999 Act and 4.8 of the Practice Direction. She also added this:

"In addition to refusing permission to appeal Langley J refused your request for an adjournment and made an order for costs. It is open to you to seek to appeal those provisions in paragraphs 1 and 3 of his order, but Clarke LJ wanted you to have the opportunity to consider whether or not you wish to proceed with your application. This court has explained in the judgment which he gave in Clark v Perks that: 'Where the appeal court makes a further order such as a costs order or an order refusing an adjournment an appeal does in theory lie to this court with permission, although it is likely to be a very rare case in which such permission would be granted.'"

9. (See paragraph 20 of the judgment of Brooke LJ). Since receiving that letter the applicant has indicated that she wishes to seek permission to appeal against Langley J's refusal of her application for an adjournment.
10. The facts are set out in considerable detail in the transcript of the judgment of His Honour Judge Thompson from which it appears that they have a very long history. It is not necessary to spell out that history for present purposes. In summary, the applicant instructed various solicitors in relation to conveyancing matters between 1979 and 1981 which the solicitors carried out for a limited company of which the applicant was a proprietor and director; so too was her husband, who has unfortunately died since then. The company went into liquidation in 1985 and the applicant formed the view that those conveyances had been carried out negligently. In short, as a result of the negligence of the solicitors instructed at the time, the solicitors failed to inform the applicant and her husband of a very extensive sewage program in Nantwich. It is said by the applicant that if they had known the facts (which the solicitors should have discovered if they had not acted negligently) they would never have bought the property, they would not have sought to conduct their business in that vicinity and the losses which were sustained and which were disastrous for the applicant and her husband, would not have been sustained.
11. Having instructed a number of solicitors and barristers between 1985 and 1991, all of whom had given advice that she had no viable course of action against the conveyancing solicitors, she instructed Leicester Aldridge, a further firm of solicitors (the first defendants) in 1992 in respect of her proposed claim for professional negligence against various former conveyancing solicitors.
12. The applicant at that stage obtained legal aid limited to obtaining counsel's opinion. The first defendant instructed the second defendant, Mr Ungley (then a barrister) for his advice. He advised that there was no cause of action against any of the various potential defendants just as several other barristers had advised before him. As a result the legal aid certificate was discharged. The applicant then sued Leicester Aldridge and Mr Ungley for damages for professional negligence for (a) giving negligent advice; and (b) in the solicitor's case failing to obtain a second opinion. Both defendants applied for summary judgment and/or that the applicant's claim be struck out.
13. Judge Thompson considered the matter very fully. He formed the view that no possible criticism could be made of Mr Ungley and that there was no possible prospect of proceedings against him succeeding. He also held that, given Mr Ungley's advice, there was no basis upon which it could be said that the solicitors were negligent in failing to seek a second opinion. In short, the judge found against the applicant on almost every point. In particular (a) the claimant had no capacity to sue or recover damages since it was only the company that had arguably suffered loss; (b) the claim against the second defendant, the solicitors, was statute barred; (c) the defendants had not been negligent, their advice was correct and was supported by a number of fellow practitioners who had been consulted in the past; and (d) the defendants had not caused the claimant any loss since her claim was at most for the loss of a chance to sue for the loss of a chance (and maybe more than one chance) which was wholly speculative. In short, the judge held that the claim had no prospects of success.
14. The applicant has now set out in a further detailed skeleton argument a number of criticisms of the judgment of Judge Thompson, which she says she was only able to do when she received a copy of the transcript of the judge's judgment which she only did some time in 2001. The transcript that I have seen, which I think is wrongly dated 14th July 2000 when the hearing was April 2000, contains a note signed by the judge dated 23rd July 2001, so that this transcript can only have been available after that. It was received by the Civil Appeals Office in September 2001.
15. In the result, since this court has no jurisdiction to consider the judgment of or proceedings before Judge Thompson on the merits because of section 54(4) of the Access to Justice Act 1999, I turn to the applications before Langley J. Essentially, the applicant, Mrs Jones, takes two points, both of which she relies upon to seek to challenge his refusal to adjourn the oral hearing. Her first ground for the application was that she did not have legal advice or assistance. In truth, the position is that she had not managed to obtain legal for that hearing. However, the problem is that a litigant has no legal right to legal representation however hopeless the case. The judge was in my view entitled to refuse to grant the adjournment in so far that it was based on the hope that at some future moment legal aid might be granted to the applicant. In fact legal aid has not been granted to the applicant for some very considerable time now.
16. The second ground for the adjournment was that the applicant did not have available to her a transcript of Judge Thompson's judgment. However, by the time the matter came before the judge a very long time had expired between the decision of the judge, which was in April 2000, and the time the matter came before Langley J in November 2000. The applicant says that she could not afford a transcript and she had not obtained legal aid to pay for a transcript up to that moment.
17. It is entirely a matter for the discretion of a judge whether he or she grants an application for an adjournment. There is no rule of law that a court must not consider an application for permission to appeal against a decision of a lower court unless a transcript is available. It is a matter for the judge to decide whether in all the circumstances of the case the application before him or her can be fairly considered in the absence of a transcript. Langley J plainly reached the conclusion that it could be fairly considered. He had before him all the material which the applicant had put before him, and reached the conclusion that the decision of the judge was plainly correct. In my judgment there is no basis upon which this court could interfere with the exercise of that discretion.
18. It therefore follows that this application must be refused; in part for want of jurisdiction and in part because there is no basis for interfering with the exercise by the judge of his discretion. I only add this. I have read as carefully as I can the skeleton arguments which the applicant has now produced challenging the decision of Judge Thompson, and it appears to me that an appeal (supposing one were possible on the merits) would, after all this time, have no realistic prospect of success. I well understand that this whole saga has been disastrous for Mrs Jones and previously for her husband, and I have every sympathy for her. But eventually the time comes when one must say enough is enough. She does seek to rely upon further evidence, but there is really no material to support the conclusion that that could not have been obtained before the autumn of 2001. In short, I am afraid that this whole litigation must now come to an end and I urge Mrs Jones to look now to the future and not to the past.
(Application refused; no order for costs).