England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND
CITY OF LONDON COURT
(His Honour Judge Simpson)

		Royal Courts of Justice Strand London WC2 Monday, 1st July 2002

1. LORD JUSTICE WARD: Sir Martin Nourse will give the first judgment.
2. SIR MARTIN NOURSE: This is an application for permission to appeal against an order made by His Honour Judge Simpson, sitting as a judge of the Queen's Bench Division at the Mayor's and City of London Court.
3. The circumstances in which the application is made are as follows. On 7th August 2000, in a judgment reserved after a five day trial, Judge Simpson dismissed an action brought by two sons against their father, a company of his and his third son, in which, shortly stated, the claimants alleged that their father had made certain promises to them, which they acted upon to their detriment, and that the father had then reneged on his promises. On 13th February 2001 the father, the first defendant in the action, applied to the judge for a wasted costs order against the barrister who had advised the claimants throughout and who had appeared for them at the trial.
4. The application was argued before the judge on 1st August 2001 and, in a reserved judgment delivered on 28th August, he dismissed it at the first stage. In other words, he did not order that the barrister should show cause. He refused the father permission to appeal and permission was also refused by Lord Justice Clarke on consideration of the documents on 31st May 2002. The application for permission is now renewed before us.
5. At the beginning of his judgment the judge said:

"The trial took place over five days and at the conclusion I disbelieved the sons and held that they were lying. Quite apart from that, I further stated that, even if they had been telling the truth as to the facts, the sons could not have won their action on the law. Arising out of that, the father, who is not legally aided, seeks to recover the costs which in practical terms he will be unable to recover from his legally aided sons, and he seeks to recover those costs from the barrister who advised and appeared for two of the sons in the litigation."

6. The judge then read three passages from the judgment of this court delivered by Sir Thomas Bingham MR in Ridehalgh v Horsefield [1994] Ch 205 and referred to the summary of that decision in the White Book, after which he referred to the facts of the present case, starting with the two advices given by the barrister.
7. At p.37B of the bundle the judge referred to the barrister's final advice dated 19th January 2000. He said:

"He records the fact that there has been a joint conference between all the sons and their advisers. He is asked to give final advice to the Legal Aid Board on the merits of the case so that it may proceed to trial if that course is justified. He sets out the issues. In paragraph 7(iv) he poses the question, `Is the agreement enforceable in law?', but gives no answer. In paragraph 10 he says, `In the circumstances, I advise that the claimants are likely to succeed in establishing liability' and says, `I would assess their prospects of doing so as very good; approximately 70 to 80%.'"

8. Next, the judge referred to paragraphs 1.1.3 and 2 of the Bar Council's legal aid guidelines and continued, at p.38C-D:

"There is set out in paragraph 3 what a barrister's opinion on merits should contain. It is plain that a barrister should go into some considerable detail, so that the Board may come to a view without looking outside the opinion. There is no need for me to cite the whole of paragraph 3 in this judgment; I have all the points in mind. And it has to be said that, bearing those points in mind, this barrister has signally failed to address paragraph 3 and failed to adequately address the various points of law involved. After all, it would not matter that the sons might be believed if, as I held, they had no case in law. In my judgment, this barrister failed to deal with all the points in paragraph 3 of the guidelines as he should have done.

However, I am not concerned with any breach of his duty to the Legal Aid Fund, the Board or the Commission, as it now is. I am concerned with any breach of his duty to the court, and I bear in mind, in any event, that, although the Board could see for themselves on reading these advices that the guidelines had not been adhered to, they nevertheless continued to provide legal aid to the sons."

9. Having then referred to the recent decision of the Privy Council in Harley v McDonald [2001] 2 AC 678, the judge continued, at p.40A:

"It seems to me that the determining factor in the application before me is that the instructions leading to the advices are behind a curtain. I cannot know what material was available to the barrister at the time that he wrote them. On the face of it, the advices are hopelessly optimistic, but I do not have the information that was before him. I cannot know what facts there are behind the advices."

10. Later, at p.41D, the judge said:

"Although it might be said that there is no evidence that these sons were insisting upon maintaining a hopeless case and that it was in fact the barrister who was advising it, I cannot be certain of that because I do not have the instructions or the notes of the conferences."

11. As to these observations, I can well understand that in some cases the absence of instructions to counsel and notes of conferences with him would be most material but, as Mr Davies, who appears for the father, has submitted, the barrister's apparent failure to deal with the points of law involved cannot be ascribed to his instructions, whatever they may or may not have contained. If the claimants' case was hopeless in law and the barrister ought to have known that, then there must be a prima facie case of negligence within the Ridehalgh v Horsefield interpretation of that test.
12. On that ground alone, and without expressing a view as to whether the father is able to rely on any other point, I am unable to say that this application ought to be dismissed today. I should add that in coming to this conclusion I have taken account of a skeleton argument which has been put in on behalf of the barrister and also of the observations of Clarke LJ in Royal Institution of Chartered Surveyors v Wiseman Marshall [2000] PNLR 649, at 659. Equally, I am unable to say that permission ought to be granted today. That view is largely based on the fact that an application to strike out the action on the basis that it was demurrable was mounted by the defendants but was not pursued. In my view it will be necessary, in order to decide whether the judge's decision was correct, to have the case fully argued on both sides. One course would simply be to adjourn this application to come on inter partes at a hearing sufficiently long for the matter to be properly debated. But nowadays it is more usual, in order to save further costs, to direct that the application shall come on inter partes with the appeal to follow if permission is granted. That is the order which I propose we should make in this case.
13. LORD JUSTICE WARD: I agree.

Order: application to come on inter partes with appeal to follow if permission granted; to be heard by 3-judge court, to include one Chancery LJ (time estimate half a day); costs in the application.