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
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
MERCANTILE COURT
(His Honour Judge Havelock-Allan QC)

		Royal Courts of Justice Strand London, WC2 Friday, 22 November 2002

1. LORD JUSTICE CLARKE: This is an application for permission to appeal, and for an extension of time within which to appeal, the judgment given by His Honour Judge Havelock-Allen QC on 13 September 2002, whereby he struck out Mr Dobb's claim for an injunction and his application for an interim injunction to restrain the defendant firm of solicitors from acting for or in any way assisting Triodos Bank NV ("the bank") and/or Acorn Televillages Ltd ("Acorn") and/or the receivers of Acorn.
2. This is a complex dispute. The essential facts of the case are set out in considerable detail in the judgment of the judge. It is right to say that Mr Dobbs (who has appeared in person today, as he did before the judge) has expressed some concern as to the accuracy of some of those facts. Indeed, he wrote to the judge on 22 September 2002. In that letter he said that he would not be appealing against the judge's decision except in relation to his decision about costs. He also, however, set out a number of what he then described as "a few factual errors and misunderstandings". His concern was that those statements of fact might be held against him in other litigation. He has on foot a claim against both the bank and the receivers of Acorn. The judge wrote back on 24 September 2002. In that letter he said this:

"the suggested modifications to paragraph 6-29(2) are put forward by Mr Dobbs in the erroneous belief that the summary of the background facts in the judgment may later be relied upon against him in other proceedings as a definitive statement of all relevant matters. This is not so. The recital of the background in the judgment in this action does not purport to be exhaustive or to include all relevant or potentially relevant matters."

3. In the event, partly for that reason, the judge declined to make any amendments to the factual statements in his judgment, save that he did adjust paragraph 33 in some respects. That view expressed by the judge is plainly correct; that is to say, that nothing in the recital by the judge in this judgment could possibly lead to any adverse findings being made against Mr Dobbs in his proceedings against the receiver or the bank.
4. As I understand it, since the decision of Judge Havelock-Allan, Neuburger J has given directions in the proceedings between the applicant and the bank and the receivers. I am told that there is to be an application for summary judgment, which will probably be heard between 18 and 20 December 2002, which is, of course, very soon. The applicant has also told me that the judge has indicated that any trial should take place in the early part of next year. It thus appears that the issues between the applicant and the receivers and the bank are likely to be resolved, at least at first instance, within the next six months, and hopefully less.
5. The applicant has further shown me a letter from the respondent's solicitors, TLT, dated 20 November 2002 (only two days ago), in which they expressly say that TLT are not acting for Grant Thornton, the receivers in that litigation. Thus, in the litigation between the applicant and the bank and the receivers, the bank and the receivers are separately represented. It follows that any concerns which the applicant may previously have had that TLT were acting both for the bank and the solicitors are no longer relevant, at any rate for the future. It appears that the true position is that TLT were initially instructed as the bank's solicitors. They subsequently were asked to advise the receivers in a number of particular respects, which is of course not unusual.
6. The essence of the claim, in so far as I have understood it, by the applicant against the bank is that the bank ought not to have put the company into receivership, and that in doing so it acted in bad faith. He further complains about the way in which the receivership has been conducted. He makes a number of allegations which include, I think, allegations of bad faith against the receivers too. He submits that, quite apart from bad faith, the receivers owed a duty to him, inter alia, as a guarantor of the company's indebtedness to the bank. He thus submits that there is a potential conflict of interest between the receivers and the bank. He submits that, while it is common for solicitors to act for both the bank and the receivers, where there is a potential conflict of interest between the receivers and the bank it is the solicitors' duty to advise the receivers that the receivers should take separate legal advice in relation to those aspects of the matter in respect of which there is a conflict of interest. He submits that in those circumstances, where the solicitors' client owes a duty to a person in his position as guarantor, the solicitors too must owe such a duty. That seems to me to be very doubtful.
7. However, it is plain that this is a complex matter. The applicant has not so far had the benefit of legal advice in relation to it. It appears to me at present that the applicant will have the very greatest difficulty in persuading this court to grant permission to appeal against any aspect of the order made by the judge. However, because of the complexity of the matter; and because the applicant has not so far managed to obtain legal advice; and because the issues between the applicant and the bank and the receivers appear to be likely to be resolved in the comparatively near future, I have reached the conclusion that the sensible course would be to grant his application for an adjournment of this application for six months, or until the resolution of the issues between the applicant and the bank and the receivers, whichever is the sooner.
8. It appears to me that there will be no injustice to the solicitors if that occurs. However, if the respondents, TLT, wish to have the application by the applicant restored to hearing before that, it will be open to them to have the matter restored before the court. The court on that occasion would hear representations on behalf of the solicitors. I have warned the applicant that if that occurs he will be exposed to a risk of liability for costs on any such application. Equally, I think it appropriate to grant a stay of the order for costs pending the hearing of the adjourned application, although there again, if the solicitors wish to make representations that the stay should be removed, they can do so and the court will hear them. On any such resumed application for permission to appeal it would be appropriate, I think, for the matter to be considered by a court with two members; either two Lords Justices or one Lord Justice and a High Court judge. But in reaching this conclusion I do not wish to give the applicant any encouragement.
9. If the matter is resumed, it would be of very great assistance to the court if the Bar Pro Bono Unit could be persuaded to give some assistance to Mr Dobbs. This is a complex matter. It is not easy to grasp the whole matter without assistance, either for the applicant or indeed for the court. I understand that the Bar Pro Bono Unit has declined assistance in relation to this application on the ground that the applicant did not on some previous occasion take up the unit's offer of assistance. I can understand that, but I do think that it would be of assistance to the court if he were to be given such assistance on any future application.
10. Finally, by way of postscript, I would say that the applicant has indicated that he would only wish to restore this application if it were clear, as a result of what emerges from the proceedings against the receivers and the bank, that the the solicitors had acted in some improper way vis à vis the applicant.
11. In all the circumstances, however, I would grant the application for an adjournment on those terms.

ORDER: Application adjourned for six months or until the resolution of the issues between the applicant and the bank and the receiver, whichever is the sooner. Application for stay of the order for costs pending the adjourned application. Liberty to the respondents to have the application for permission to appeal restored on notice to be heard before a court of two Lords Justices or a Lord Justice and a High Court Judge.

(Order does not form part of the approved judgment)