England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRKENHEAD COUNTY COURT
(LORD JUSTICE LAWS)

		Royal Courts of Justice Strand London WC2 Tuesday, 24th April 2001

Tuesday, 24th April 2001

1. LORD JUSTICE KEENE: This is an application whereby Mr Gibson seeks an order re-instating his application for permission to appeal. I put it like that because an application for permission to appeal came before Laws LJ on 5th October 2000. On that occasion the applicant did not appear and was not represented. Laws LJ dealt briefly with the merits of the proposed appeals and concluded in effect that the case was a hopeless one. He dismissed the applications.
2. The applicant does not appear before me today. The applicant had sought an adjournment of the hearing of his application before Laws LJ on medical grounds. The Civil Appeals Office told him by letter dated 2nd October 2000 that his request had been refused because the medical certificate provided did not indicate an inability to attend court. The office said that if he sent a further certificate in appropriate terms his request could be reconsidered.
3. There is before me a copy of the letter dated 2nd October 2000 from Mr Gibson to the Civil Appeals Office saying:

"Enclosed herewith is medical certificate as requested by telephone of today's date."

4. A copy of a certificate bearing the same date does certify that he is "unable" to attend the hearing on 5th October 2000. Whether that reached the Civil Appeals' Office in time is unclear. Certainly Laws LJ makes no mention of it and so it seems not to have been before him. It seems to me that in the interest of justice his application for permission to appeal and for the extension of time, which is required for such a permission, should be heard afresh, and that is why I would have been prepared to hear Mr Gibson or a representative speaking on his behalf. In the situation which has arisen from his non-appearance and the non-appearance of any representative, I can only deal with this matter on the papers.
5. The facts are somewhat complicated but I will take them as succinctly as possible. The whole matter originates with an action brought by Mr Gibson in the county court for damages arising out of a road traffic accident. He was at that time legally-aided. The defendants in that action made various payments into court. Mr Gibson's solicitors advised acceptance of the payments in, and when he declined that advice they duly reported it to the Legal Aid Board on 4th January 1996. On 12th January 1996 his solicitors sent to the Legal Aid Board a form with his consent to discharge his Legal Aid certificate endorsed on it. The certificate was duly discharged. Subsequently, on 18th June 1997, Mr Gibson brought proceedings against the Legal Aid Board alleging that as a result of the discharge of the certificate he had had to settle the original action for less than he would have done. He alleged a breach of a duty of care by the Legal Aid Board.
6. District Judge Hovington on 10th August 1998 held that the Legal Aid Board had acted perfectly properly and he struck out the summons and particulars of claim as having no prospect of success and as being scandalous, frivolous and vexatious and an abuse of process. Those proceedings were numbered B1750624.
7. On 6th November 1998 Her Honour Judge Daley dismissed an appeal at Birkenhead County Court by the present applicant against the striking out by the district judge of his claims. Judge Daley held that the Legal Aid Board did not owe a duty of care at common law towards Mr Gibson, or, alternatively, if it did, that duty ceased when he consented to the discharge of his Legal Aid certificate. She also ordered that Mr Gibson pay the costs of the appeal but that the district judge's order that each side should bear their own costs at the hearing before him should remain.
8. The applicant, Mr Gibson, subsequently sought to set the costs of the appeal order aside and also to direct that the Legal Aid Board did owe him a duty of care in the circumstances. On 11th February 1996, Judge Daley refused that application. On the same date, the learned judge dealt with an application by the Legal Aid Board in the second case number B1900381. That was, in effect, a repeat of the previous proceedings. It was a case where Mr Gibson issued proceedings in the county court against the Legal Aid Board on 20th January 1999, that is to say after the dismissal of his appeal in the previous proceedings. The claim was in negligence and related essentially to the same subject matter as the first of his actions against the Board.
9. The Legal Aid Board applied to strike out the summons and particulars of claim and to dismiss the action on the basis that the pleadings were repeating the claim in the earlier action which had already been dealt with. The judge held that this claim was in reality the same claim as that which had already been dealt with. She concluded that it disclosed no reasonable cause of action and that it was also an abuse of process. She, therefore, granted the Board's application.
10. There was then a further action brought against the Legal Aid Board by this applicant with the number B1902600. District Judge Clarke struck that out on 6th July 1999 and an appeal was dismissed by His Honour Judge George on 10th December 1999. He held that there might have in certain circumstances be a duty of care owed by the Board depending on the facts, but he concluded that any loss or damage suffered by Mr Gibson resulted not from any breach of duty by the Board but by the failures of Mr Gibson's solicitors. He said in terms that there was no duty on the Board to correct misinformation supplied by a solicitor or to verify that it is not misinformation. Consequently, he held that there was no cause of action in negligence. He also held that this third set of proceedings against the Board was an abuse of process.
11. Mr Gibson in due course sought permission to appeal against all three of Judge Daley's orders and against that of Judge George together with the requisite extensions of time. That was the application which came before Laws LJ on 5th October, which I have been prepared to reconsider.
12. I bear in mind that three of these four matters are ones where permission is sought to appeal against an appeal decision, that in reality being the position in all save for one where the judge granted the Legal Aid Board's own application to strike out action B1900381. In cases involving second appeals permission to appeal to the Court of Appeal is not to be given unless the appeal would either raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. (See part 52.13 of the Civil Procedure Rules.)
13. Even if that were not the case, I can see no reasonable prospect of success in this case. It is very difficult to see that the Board were in breach of any duty of care towards the applicant in the circumstances of this case assuming that such a duty was owed nor is there any prospect if that hurdle could be overcome of establishing that the alleged loss flowed from a breach of duty by the Board.
14. I agree on the merits with the view which was succinctly expressed by Laws LJ. In those circumstances this application must be dismissed.
(Application for re-instatement dismissed)