England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE DOUGLAS BROWN)

		Royal Courts of Justice The Strand London Tuesday 30 July 2002

Tuesday 30 July 2002

1. LORD JUSTICE POTTER: I have decided to grant permission to appeal in this case which presents, and will on appeal present, considerable difficulties for Mr Kaberry. This is a case where, if the action proceeds, the damages sought will be assessed on the basis of the loss of a chance to sue successfully Mr Kaberry's former general practitioner for prescribing to him the drug Dalmane over a period of years, which drug Mr Kaberry believes was responsible for his conduct which led to criminal proceedings in which he was eventually acquitted apparently on the grounds that he lacked mens rea owing to the influence of the drug.
2. So far as the chances of success in the original action against the general practitioner are concerned, there is available to Mr Kaberry: (1) expert opinion that the prescription of the drug was negligent; and (2) that the effects of the drug were responsible for his actions and therefore his subsequent disgrace and misfortune.
3. I do not propose further to set out the background facts. They appear from the pleadings and the careful judgment of Douglas Brown J following a hearing which exceeded two days. However, despite the unusual history and unpromising material underlying the claims of Mr Kaberry, and which faced solicitors and counsel against whom Mr Kaberry now seeks to proceed, the facts have to be assumed in Mr Kaberry's favour that he will be able to establish a substantial chance of success against his former general practitioner. The judge accepted this. However, the question before him was whether Mr Kaberry could show an arguable case that he lost such chance through the negligence of his solicitors and counsel.
4. I have received lengthy submissions from Mr Kaberry on the question. He will clearly have an uphill task of persuading the court that Douglas Brown J was in error in reaching his decision. However, it seems to me that there is some substance in his argument that in the event the judge conducted a "mini trial" of the issues unsuited to applications under Part 24 and in the case of counsel also Part 3(4)(ii)(a).
5. Further, Mr Kaberry has raised points which deserve argument in respect of both foreseeability and causation, including the argument that despite the possibility and Mr Kaberry's own declared intention that, if denied legal aid he will commence proceeding himself, it was foreseeable that he could not practicably be expected to do so.
6. There is an application to rely on further evidence, first in the form of a statement which was submitted to the judge, as I understand it, at the end of the proceedings, but also in relation to various other statements which are not before me at this stage. I have made clear to Mr Kaberry the desirability, in my view, that he be legally represented upon the hearing of the appeal. It appears that he considers that he will be in a position to procure such representation. If he does so, it will plainly be appropriate as soon as possible for counsel in the case to consider and advise on the question of the possible adducing of further evidence so that the matter is put in proper form and notice given to the other side. The application can then be dealt with by the court when it hears the appeal. On that basis I grant permission to appeal.