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 BIRMINGHAM COUNTY COURT
(His Honour Judge Alan Taylor)

		The Royal Courts of Justice Strand London WC2 Friday 16th August, 2002

1. LORD JUSTICE ALDOUS: Mr Yardley, the claimant, seeks permission to appeal against the decision of His Honour Judge Alan Taylor sitting in the Birmingham County Court. In that decision he dismissed Mr Yardley's claim for damages for professional negligence against the defendants, Challinors Lyon Clark and Clark Brookes, two firms of solicitors. His claims were dismissed on the grounds that Mr Yardley had no reasonable prospect of success. That conclusion was reached after a hearing lasting five days commencing on 8th April 2002.
2. The basic background facts are these. Mr Yardley was a licensed operator of a taxi in Birmingham for a period up to January 1992. It was his case that in January 1992 he returned his taxi licence (called "a plate") and his driver's licence (called "a badge") after he sold his taxi. They were, he said, to be "put on the shelf". It was Mr Yardley's case that a few months later he was able to start work again as a taxi driver and he therefore applied for a return of his plate and badge. His case was that he was met with a refusal to renew by the council on the ground that they had not received his plate or badge. His case was that that was totally false.
3. Mr Yardley wrote many letters to the council complaining of their actions, but I am not concerned with the detail of those complaints by Mr Yardley against the council. These proceedings were concerned with his complaint as to the inaction of two firms of solicitors and in particular the inaction of a Mr Breen, who was the person he initially consulted in March 1994. At that time he told Mr Breen that the council were preventing him from working, and Mr Breen agreed to act for him and as a start to seek to obtain legal aid. The mechanics of obtaining legal aid took some time and it was not until June 1994 that Mr Breen sent instructions to Mr Michael Stephens of counsel to advise generally. That advice was slow in coming as it was not provided until 28th November 1994. Counsel advised that there was no private law remedy available to Mr Yardley. The advice given at that stage did not contain anything about possible remedies in public law, although Mr Stephens did suggest that the council should be asked to explain itself and that a letter might be sent to the Ombudsman.
4. Subsequently, a conference was arranged for 26th April 1995. At that conference Mr Stephens advised along the same lines as his written advice. He referred to the possibility of judicial review, but indicated that the time limit had passed. The time limit for an application for judicial review is three months. Of course the decision not to supply Mr Yardley with his licence went back to 1992/1993 and therefore any chance of an application for judicial review had gone by that time. An extension of time could have been obtained in certain circumstances but, as counsel advised, the time had already gone.
5. Subsequently, in a further written advice dated 10th May 1995, Mr Stephens raised the question of whether the council had been guilty of misfeasance in public office. But he indicated in his advice that there was no legal remedy available to Mr Yardley, and he suggested that the right course was to seek a meeting with the council to resolve the matter.
6. Mr Yardley continued to communicate with the council, with the result that he was offered his plate back and received it back. However, the council indicated that he would need to submit to certain tests to obtain back his badge. That displeased him and on 23rd January 1996 he again contacted Mr Breen. Mr Breen was not requested to take legal proceedings, but Mr Yardley continued to write letters to the council. On 1st July 1996 Mr Breen informed Mr Yardley that he would have to pay for any advice that he wanted because he did not have any legal aid. That being so, Mr Yardley attended and took possession of the papers.
7. Between August 1996 and September 1997 Mr Yardley sought help from the Ombudsman. That did not lead to satisfaction. By September 1997 Mr Breen had moved to the second defendants. In that month Mr Yardley contacted him at his new firm, stating that he had obtained new evidence and that the council had acted in breach of its policy. Upon that basis Mr Breen applied for legal aid which was initially refused, but was granted on appeal. The papers were then sent to Mr David Watson of counsel to advise. A conference took place on 26th January 1998. At that conference Mr Watson advised that he did not think that any action against the council would succeed. He put that advice in writing and part of it is contained in the papers which are in the bundle before the court.
8. He concluded that there was no cause of action in contract or tort. He also advised that there was nothing before him which suggested that an action for misfeasance in public office would succeed. He went on to consider whether judicial review was appropriate and whether legal aid should be continued. His conclusion was that there was no real prospect of success and that he would advise a privately-paying client not to take proceedings. He therefore concluded that he could not advise that Mr Yardley should be supported in his case from public funds. His conclusion was in these terms:

"I think Mr Yardley has been poorly treated by the Council, but I reluctantly conclude that he is not in a position realistically to seek a legal remedy by way of damages against the Council. He may be able to take steps by way of judicial review in relation to his current status regarding the Hackney Carriage Driver's Licence, but I give no definitive opinion on that at this stage.

I apologise for the length of this opinion, in which I have tried to deal with matters comprehensively. If there is anything which requires clarification, or anything in which Mr Yardley thinks I have fallen into error, or indeed any further information which should be brought to my attention, I remain glad to assist."

9. Mr Watson gave further advice on 30th June of that year. His conclusion as to whether there had been misfeasance in public office was:

"I know Mr Yardley disagrees with my conclusion, but I have seen nothing to enable me to reach a different outcome. This question is devoid of direct authority and it is, therefore, always possible for it to be argued; but it is my role to look at such authority as does bear on the question and take a view. My view remains that any action for damages would, on the legal issue, be speculative and have less than even chance of success.

I understand that Mr Yardley anticipates bringing an action without the benefit of legal aid and I reiterate that he is fully entitled to do so. Indeed I hope my opinions may be some help to him in setting out the law on this question. Nonetheless my advice remains that he does not have reasonable prospects of success."

10. On 13th July 1998 Mr Yardley issued proceedings against the council and on 5th February 1999 his claim was struck out by District Judge Wartnaby and on 29th March 1999 his appeal was dismissed by His Honour Judge Hamilton. His application for permission to appeal to this court was dismissed on 11th October 1999.
11. These proceedings were started against the solicitors that had acted for him on 19th January 2000. In his re-amended particulars of claim Mr Yardley complains as to the way that Mr Breen acted in essence by relying upon the advice of counsel. His complaint was in substance that Mr Breen had failed to pursue an action for misfeasance in public office, Mr Watson of counsel was wrong to base his opinion upon the case law that he did and Mr Breen should have realised that Mr Watson's advice on that matter was plainly wrong.
12. The judge rejected that submission, firstly on the basis that there was nothing to show that the council had acted in a way that would amount to misfeasance in public office and further that Mr Breen had not acted in a way which could amount to negligence. The judge concluded:

"Mr Breen did all he could to help him and it is rather unfair, to say the least, to seek to blame him in any way after all that has taken place."

13. The grounds for appeal relied upon by Mr Yardley are, firstly, that the judge was wrong to dismiss his case without putting the defendants to an election. In my view that is a ground which could not possibly succeed. The judge came to the conclusion that Mr Yardley had not made out his case and therefore there was no prospect of the case succeeding. On that bases he was right to dismiss it at that stage.
14. Secondly, it is said that Mr Breen was negligent not to spot that counsel's advice was wrong. In my view the dismissal of that by the judge was plainly right. The law as to misfeasance in public office is not always easy to understand and nor to predict the outcome of where it is alleged. Mr Breen cannot be faulted for taking counsel's opinion which set out the law and came to a view on it and then acting on that advice.
15. Mr Yardley also submits that this is a case where the solicitors failed to act upon his instructions. There is no evidence that they did act other than in Mr Yardley's interests. His real complaint is that the council acted wrongly and in that respect he was not able to carry on his method of earning his living. He has spent a considerable amount of time writing letters, applying to the Ombudsman and in fact even has taken proceedings. All of that has failed.
16. I have no doubt that Mr Yardley's case was rightly dismissed by the judge and there is no real prospect of an appeal succeeding. Mr Breen consistently considered the risk of litigation with Mr Yardley, and there was ample evidence before the judge upon which he could have concluded that Mr Breen was not negligent in accepting the opinions of counsel and acting in the way that he did. As I have said, the issues of law on misfeasance in public office is not so clear so that Mr Breen should have rejected the advice of counsel. There is nothing in the papers before me which suggests that the action for negligence against the solicitors stands any real prospect of success. The question of judicial review was considered on more than one occasion and it appears to me that Mr Yardley was given appropriate advice.
17. In those circumstances, this application is refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)