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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 >> Donsland Ltd v Van Hoogstraten & Ors [2001] EWCA Civ 339 (23 February 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/339.html
Cite as: [2001] EWCA Civ 339
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(MR DISTRICT JUDGE JACEY)
Royal Courts of Justice Strand London WC2 Friday, 23rd February 2001 |
||
B e f o r e :
and
LORD JUSTICE SEDLEY
____________________
| DONSLAND LIMITED | Appellant | |
| v - | ||
| (1) NICHOLAS VAN HOOGSTRATEN | ||
| (2) BARNHILL INVESTMENTS LIMITED | ||
| (3) SELECTIVE MANAGEMENT LIMITED | Respondents |
____________________
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR H REZA (instructed by Minaides Robson, London WC2A 1JB) appeared on behalf of the 8th, 14th and 15th Defendants
____________________
Crown Copyright ©
- LORD JUSTICE SCHIEMANN: Sedley LJ will give a short judgment.
- LORD JUSTICE SEDLEY: It is unnecessary, because we are proposing to give leave, to set out the history of this case. That will emerge very adequately at the hearing. Our reasons for granting leave are essentially these. There is no question that the general issue in this case, namely in what circumstances solicitors' implied authority may extend to taking steps in litigation without express instructions, is one of public importance and one of legal principle as well.
- The issue that troubled me when, on sight of the papers, I refused permission to appeal, was whether on the facts this case offered the intending appellant a respectable prospect of success. Both the district judge and the circuit judge took the view that it did not. The district judge thought that the material application on behalf of a company whose sole director had been killed was "wrong and should never have been made." The judge on the appeal concluded that the application was "wholly misconceived".
- But in order to make good his ground that what the solicitors who were mulcted in costs did was an abuse of process, Mr Reza, who has put his case in opposition clearly and succinctly, would have to show precisely that what they had done lay outside any implied retainer. It seems to me that it is one thing to say, as I said in refusing permission on paper, that the solicitors' action "meant running up costs in circumstances in which there was no dereliction of professional duty in standing back." That remains my present view, but it does not answer the separate question Mr Irvin has persuaded me the court needs to answer, as to whether it was a dereliction of duty in those circumstances to go on in the limited way in which the solicitors did in order to try to protect the company's position. That seems to me to involve an arguable proposition with a realistic prospect of success, and one which justifies us in giving permission to bring what is, of course, a second appeal and must therefore pass a high hurdle.
- The consequence in terms of a respondent's notice is this. The "Ridehalgh" issue, if I can call it that for short, on wasted costs were quite rightly and sensibly left on one side by the judges below in the light of their decisions on the exercise of the court's inherent power. If, however, Mr Irvin succeeds in relation to the latter, Mr Reza will want to raise the former and he will be entitled to do so by respondent's notice. He accepts, however, that if that situation arises, it will be appropriate to do no more than send the Ridehalgh issue back to the county court for its further consideration.
- Finally, I should say that, for my part, it seems to me that the solicitors' indemnity fund, whatever its private attitude is as to the existence or non-existence of cover on the facts of this case, may very well have an interest in taking it over or at least ensuring that its view is heard on an argument which affects, it seems to me, all solicitors in the conduct of litigation.
- LORD JUSTICE SCHIEMANN: I agree that permission ought to be granted. I only add in relation to the last remarks that if no interest is shown by the solicitor's indemnity fund it might be sensible for the Law Society to be informed of this litigation so that they may consider whether or no they wish to apply to make representations to the court either in written or other form.
Friday, 23rd February 2001