England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
(Mr Justice Smedley)

		Royal Courts of Justice Strand London WC2 Tuesday 5th February, 2002

1. LORD JUSTICE ALDOUS: I ask Lady Justice Hale to give the first judgment.
2. LADY JUSTICE HALE: This is an application for permission to appeal out of time against the order of Smedley J in the Queen's Bench Division dated 13th February 1998. He struck out the claimant's claim for professional negligence against counsel and solicitors who had acted for her in matrimonial proceedings 10 years earlier. The issue is whether she should be permitted to appeal against a decision which was founded upon a principle of law which was binding at the time, but which has since been overturned by a decision of the House of Lords in a different case.
3. The chronology briefly is this. The claimant and her husband were married in 1970. They had two children. They divorced in 1988. The claimant was represented by the second defendant firm of solicitors and the first defendant as counsel. The case was listed for a contested hearing on 5th February 1988. The parties came to terms at the court door. These were later embodied in a consent order dated 30th June 1988. Briefly, the claimant was to have the house, free of mortgage, and a small lump sum. She was to have periodical payments for herself for three years. There was also to be provision for the children. Otherwise the order purported to provide for a clean break; in particular her claims under the Inheritance (Provision for Family and Dependants) Act 1975 were dismissed.
4. Before the three-year period for the periodical payments had elapsed, she applied for them to be extended and increased. That application was granted by the District Judge for an unlimited time. The husband's appeal against his jurisdiction to do that was dismissed, in the first case reported as Richardson v Richardson [1994] 1 FLR 286. But when dealing with the amount of the variation, Thorpe J made an order which gave her increased payments but for a limited period of time, which expired on 5th March 1999. That was reported at Richardson v Richardson (No 2) [1994] FLR 1051. The wife's appeal to the Court of Appeal was dismissed and that is reported as Richardson v Richardson (No 2) [1996] 2 FLR 617. Despite the date, that decision was made on 8th December 1994. It is the claimant's case that the decision to impose a term upon those periodical payments was heavily influenced by the clean-break nature of the original order. For my part, I would see the force of that submission in the light of the observations of Thorpe J (as he then was) and Balcombe LJ in the second case.
5. Meanwhile, the claimant launched an action against counsel and solicitors on 14th December 1993, only just within the limitation period (assuming that this was not to be treated as a claim for personal injuries, although in fact such a claim was included). On 17th October 1997 the first defendant applied for the claim to be struck out, and on 13th February 1998 Smedley J struck it out against both defendants.
6. The application by the first defendant relied upon the advocate's immunity. The existence of that immunity had of course been confirmed by the House of Lords in the case of Rondel v Worsley [1969] 1 AC 191. The question as to how far it extended to settlements, and in particular settlements at the door of the court, had remained open to considerable debate. But the Court of Appeal held in Kelley v Corston [1998] QB 686 that it did so extend. All three of the Lords Justices held that it did so where the settlement had to be approved by the court, as in the case of ancillary relief; and two of them went further than that and regarded the settlements at the court door as being encompassed in the advocate's immunity generally. That case was decided on 10th July 1997. It is a fair inference that the application for this claim to be struck out was made in response to that decision. In striking out the claim against the first defendant, Smedley J relied upon Kelley v Corston. He also held that that immunity could not be circumvented by an alternative claim that undue pressure had been placed upon the claimant to agree to the settlement.
7. As far as the second defendant was concerned, his decision depended partly on the advocate's immunity in Kelley v Corston, but also took into account that the solicitor's position was simply that of having briefed counsel to present the case in court and conduct the negotiations for settlement. He was either covered by the immunity granted to the advocate or counsel's intervention broke the chain of causation. Smedley J quoted the observations of Stuart-Smith LJ in Somasundaram v Melchior [1988] 1 WLR 1394.
8. Smedley J refused permission to appeal. There was, until this application, no further attempt to appeal against his order. The claimant sought a moratorium on the costs ordered against her until the outcome of a petition to the House of Lords in Kelley v Corston was known. This was agreed to by both defendants. The House of Lords dismissed that petition in July 1998. The parties then proceeded to deal with the question of the costs order. This was finally settled by payment of the costs in October 1999. During that process nothing was said to either defendant about the possibility of further attempts to appeal.
9. However, a witness statement from the claimant's solicitor tells us that the claimant had in fact instructed solicitors in September 1998 that she wished to appeal. Legal aid limited to obtaining counsel's opinion and various ancillary steps was granted in July 1999. Instructions were sent to counsel in January 2000. Counsel's opinion was not received until 12th January 2001.
10. Meanwhile, the House of Lords decided the case of Arthur JS Hall & Co v Simons [2000] 3 WLR 543 on 20th July 2000. The advocate's immunity from suit was abolished. Counsel therefore advised, some months later, that if the basis of the strike out had been the advocate's immunity, then the reinstatement of this claim was warranted. Very shortly after receipt of counsel's opinion, the legal aid certificate was extended to cover further steps in the action on 2nd February 2001. The Appellant's Notice, however, was not sealed until 6th June 2001. The first indication received by the first defendant that the matter was to be revived in this way was a letter dated 11th June 2001. The first indication received by the second defendant was a phone call on 8th June 2001. These were, therefore, some 10½ months after the House of Lords' decision in Hall v Simons.
11. The principles governing an application such as this are tolerably clear. They attempt to balance two competing interests: first, the public interest in an end to litigation; second, that wrongs should be righted. The factors considered by the court in exercising its usual discretion to extend time are normally: first, the length of the delay; second, the reasons for the delay; third, the chances of the appeal succeeding if time is extended; and fourth, the degree of potential prejudice to the respondents. But in a case where the reason for a large part of the delay is an intervening change in judge made law, there also have to be what have been termed `special circumstances'. That stems from Lord Greene MR in Berkeley, Re, Borrer v Berkeley [1945] Ch 1, at 4, repeated by Roskill LJ in Property and Reversionary Investment Corporation v Templar [1978] 2 All ER 433, at 435.
12. The authorities were extensively reviewed by this court in Greig Middleton & Co Ltd v Denderowicz [1997] 4 All ER 181. The context of that case was the former provision in the County Court Rules providing for the automatic strike out of certain claims in certain circumstances, after which there was a change in whatever law was applicable to the claim in question. The Court of Appeal pointed out, at paragraph 7.26 of the judgment, that that rule led to actions being struck out where there had been no trial on the merits:

"In other words, this is a quite different context in which to apply the general principle that there must be finality in litigation. ... it is difficult to imagine circumstances more special than those which have flowed from the introduction of [the rule]."

Even then, in paragraph 7.27, the court held that an extension of time for appealing would not be given automatically. Among the factors which would strongly militate against the grant of such an extension four were lists. The first of these was any inexcusable delay in applying for an extension of time. The third was if "the respondent can demonstrate that he or his insurers have reasonably acted on the basis that the claim is at an end, and their affairs have been conducted on this basis or if prejudice has been suffered in any other way."

13. Applying those principles to this case, Mr Pointer QC, on behalf of the claimant, argues that she is not to blame for the delay which has taken place since the decision in Hall v Simons. It was of course reasonable to wait until then. He also points out that the prejudice that might otherwise have been thought to be suffered by the delay since the subject matter of the action is not as great as it might have been. Everyone is still alive. Extensive witness statements must have been made for the purpose of the detailed pleadings in the case. No application to strike out the claim for want of prosecution or for any other reason was made until the decision of the Court of Appeal in Kelley v Corston. He ventures the opinion that that decision was something of a surprise to the profession, and thus that until 1997 at least the matter was proceeding in the normal way. Thus, he argues that there will have been no real prejudice to the respondents.
14. The respondents, in resisting the application for an extension of time, rely principally on the delay. They and their insurers have assumed that the claim was concluded and they point out that there will be considerable prejudice given the passage of time and the fact that counsel in particular, on whose actions the action principally depends, will have put matters from his mind. Indeed, the first defendant says in his witness statement that the matters complained of occurred over 13 years ago. He was not aware of any allegation until March 1994, which was six years after those events. Even then, with the assistance of documentation, it was difficult to recollect the conversations he had had at court. Now another seven or more years have passed and obviously those difficulties have exacerbated. Leave to appeal to the House of Lords in Kelley v Corston was refused in July 1998, and therefore for the last three years he had believed that the matter had been finally concluded. In other words, the defendants were in the position thereafter of thinking that they did not have to retain a memory of these events for the purpose of resisting this claim.
15. The question ultimately is: where does justice lie? In my view it is quite plain that the justice of this case lies in refusing the application to extend time in which to appeal. No proper excuse has been given for the very long delay since the House of Lords' decision in Hall v Simons. This is quite surprising, given that a delay in enforcing the costs had been negotiated until the outcome of Kelley v Corston was known. There would have been nothing to prevent the solicitors, who had by then obtained legal aid to seek counsel's opinion, putting the defendants on notice that they had legal aid and this was what they were intending to do. Any litigant who is seeking to take advantage of a change in the law in this way must act with the utmost dispatch if there is not to be a serious injustice to defendants, who were entitled to put the matter from their mind when, for all intents and purposes, it was over and done with.
16. For those reasons, I would refuse this application.
17. LORD JUSTICE MANTELL: I agree.
18. LORD JUSTICE ALDOUS: I also agree.
ORDER: Application for an extension of time for permission to appeal refused; claimant to pay the first and second defendant's costs of the appeal, to be determined by a costs judge; assessment of the claimant's Community Legal Services Funding. (Order not part of approved judgment)