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
(MR JUSTICE DOUGLAS BROWN)

		Royal Courts of Justice Strand London, WC2
		19th December 2002

1. LORD JUSTICE ALDOUS: This is an appeal by Mr Kaberry against the orders of Douglas Brown J of 30th May 2002. By those orders the judge gave summary judgment in favour of the defendants, Freethcartwright, a firm of solicitors, and Mr Oliver Thorold, a barrister. Mr Kaberry alleges that Freethcartwright, the solicitors who were then acting for him, and his counsel, Mr Thorold, acted negligently and were in breach of contract. The defendants denied negligence and breach of contract and applied under CPR 24.2 for summary judgment.
2. Summary judgment should only have been granted if it was established that Mr Kaberry had no real prospect of success. It is trite law that the court when considering whether there is such a prospect of success should not conduct a mini-trial. It should assume all questions of credible fact in Mr Kaberry's favour.
3. With that in mind I turn to the background facts. Many are in dispute, but I will assume for the purposes of the appeal that they are as stated by Mr Kaberry unless I state to the contrary.
4. Mr Kaberry was born in 1948 and was admitted as a solicitor in 1974. He set up in practice on his own in April 1986, and continued to practice until 1994 when he was struck off. Between 1975 and 1994 Mr Kaberry was prescribed the sleeping pill Dalmane. Dalmane is the brand name of the drug Flurazepam which is a benzodiazepine ("BDZ"). From 1985 Dr Zoltowski was his general practitioner. According to the evidence he prescribed up to three pills a night for Mr Kaberry, despite the recommendations of the Committee on the Safety of Medicines in January 1988 that Dalmane should not be prescribed for more than 28 days. There are a number of literature references before us which show that although BDZs are particularly good sleeping medication, they have side effects, including affecting the brain, resulting in cognitive dysfunction, ranging from short-term memory impairment and confusion to delirium.
5. During the period when Mr Kaberry was taking Dalmane he encountered difficulties in his practice. That resulted in him being fined by the Law Society in 1991 for disciplinary offences relating to his accounts. Despite this, he failed to file accounts thereafter. In 1994 the Law Society inspections revealed shortages in his clients' accounts. In March 1994 the Law Society intervened in his practice and he was subsequently struck off the roll of solicitors.
6. On 25th March 1994 Mr Kaberry was interviewed by the police in the presence of his solicitor, in connection with confessions that he had made to certain of his clients. In those confessions he had admitted taking money missing from clients' accounts and spending it on gambling. At this police interview he confirmed the confessions and referred to the fact that he had been on sleeping pills. In August 1994 the appellant returned to the police station to retract his confessions. He was charged on 4th August 1995 with 14 counts of dishonesty.
7. On 17th October 1994 Mr Kaberry saw a World in Action programme in which a Professor Hindmarch appeared and described the effects of BDZs. This caused him to carry out research and to discover by March 1995 that Dalmane might have accounted for his behaviour. On 28th March 1995 Mr Kaberry was interviewed a third time by police, and he explained to them that the cause of his problem was the wrongful prescribing of Dalmane and that such had caused his impairment and strange conduct and other failings.
8. At the end of April 1995, Mr Kaberry instructed Mr Paul Balen of Freethcartwright. Freethcartwright acted for him in his defence of his criminal charges and in respect of his potential claim for negligence against Dr Zoltowski, the general practitioner who had prescribed the drug. Freethcartwright were experts in the field of claims arising from the prescription of BDZs. Legal aid was granted on 5th May.
9. The description of the legal aid was as follows:

"to take proceedings for damages for medical negligence, to include (if appropriate) an application for pre-action disclosure against J.A. Zoltowski."

Conditions were imposed which limited the work to obtaining medical records, a report of one expert, the production of papers for counsel, obtaining counsel's opinion, including settling the proceedings if so advised, but not service. The matter had to be reported back to the area office if £7,500 was exceeded.

10. On 5th July Mr Kaberry was made bankrupt on the petition of Courage Plc, who had sought to enforce a guarantee signed by Mr Kaberry in 1995.
11. On 27th July 1995 the Solicitors' Disciplinary Tribunal found Mr Kaberry guilty of conduct unbecoming a solicitor in nine respects, and struck him off the roll of solicitors. In the years that followed the Solicitors' Compensation Fund (SCF) paid out over £3 million. That fund meets claims in respect of losses caused by dishonest solicitors on a discretionary basis. The majority of those payments were to institutional lenders for "windmilling". That involved obtaining money from lenders to remortgage property and failing to pay off the original mortgagor.
12. The Solicitors' Indemnity Fund ("SIF"), who were the appellant's professional insurers, also met claims arising from his alleged negligence during this period.
13. The appellant was committed for trial and at his trial, which took place in April 1997, he entered pleas of not guilty. He admitted most of the relevant facts required to prove the acts, but denied that the necessary mens rea was present because he contended that he had been influenced by Dalmane. He was acquitted by the jury on all counts.
14. These proceedings are concerned with the alleged negligence of Dr Zoltowski in prescribing Dalmane for use by Mr Kaberry. To enable counsel to advise in accordance with the legal aid certificate that had been provided, Freethcartwright obtained Mr Kaberry's medical records and a report from Dr Scott, who was an expert on matters relating to the duty of prescribers. They also obtained a report from Professor Hindmarch on the effects of overprescription of BDZs.
15. The certificate was amended on 2nd April 1996 so as to include a conference with the experts. Mr Thorold was the counsel instructed to advise, as he also had expertise in the field of BDZ claims. He first advised in conference on 21st May, at which the experts were present. He produced his first written advice on 25th February 1997. In that advice counsel considered the effect of Mr Kaberry's bankruptcy. He advised that to the extent that an action against Mr Kaberry's former general practitioner was for personal injuries, it could be pursued by him personally provided always that it was not seen to be incidental to a claim for damage to property. Any damages for personal injuries could be retained by him to the extent that they were for basic living expenses. Any sums awarded for damage to professional earnings would accrue to the trustee. He concluded that without more detailed instructions he could not go further to decide whether a claim by the SCF or SIF would survive the discharge of his bankruptcy. He advised that application of the legal aid test required him to say that a person of moderate means, unsupported by a legal aid certificate, would pursue the action.
16. Having considered whether Mr Kaberry would be liable for contributory negligence, he said:

"I cannot see, at the moment, that it is possible to meet that test at all, because any damages recovered could not be retained. Indeed unless the criminal trial yields an outcome which casts virtually all blame onto the pattern of the Dalmane prescribing, this will not change."

17. Clearly the question of limitation was in the minds of both Mr Kaberry and those advising him. In February 1997 Mr Kaberry raised the possibility that the date of knowledge could be as early as 25th March 1994, when he had wondered about a possible connection with Dalmane at the police interview of that date. Freethcartwright sought advice from Mr Thorold on 26th March 1994 as to whether a protective writ should be issued before 28th March 1997. That was discussed and his advisers did not believe that their advice should change, namely that matters should be left until after the criminal trial had taken place.
18. Following Mr Kaberry's acquittal, Freethcartwright instructed Mr Thorold to provide an advice for the Legal Aid Board, which if favourable would be used to seek an extension of the legal aid certificate. In that advice, dated 19th May 1997, Mr Thorold again raised the question of contributory negligence and expressed the concern that the recovery of damages would lead to a claim for repayment by the SCF which would extinguish any residual benefit for the appellant. Counsel pointed out that there were periods when Mr Kaberry had been lucid, and even so he had failed to take action to put right or prevent what was happening. He proposed a conference to be attended by expert witnesses, to include Professor Lader, who had not given evidence at the criminal trial but had expertise in the effect of BDZs. Certain documents were provided to the Professor in advance of the conference, but these did not include a transcript of the appellant's evidence at the criminal trial or the statements of the witnesses who gave evidence.
19. The conference was followed by a third advice dated 26th July 1997. It was a substantial and thorough document of over 23 pages. Counsel's conclusion was in these terms:

"59. In order to be in a position to identify any personal benefit to Mr Kaberry it would be necessary for contributory negligence to be limited to a modest percentage figure. I do not think that there is any realistic chance of Dr Zoltowski being held predominantly to blame for the conduct which caused the losses. If Dr Zoltowski is held to be responsible at all, which is far from certain, I think it would be to a very small degree, leaving Mr Kaberry's liability to the Fund largely unaffected, and any damages independent of those losses greatly reduced."

The advice went on to set out further difficulties, and concluded that it was the firm opinion of counsel:

"... that this is not a case which justifies legal aid support because on the basis of the likely finding of contributory negligence Mr Kaberry would not obtain any net financial benefit."

20. As a result of that advice, the legal aid certificate was not extended and was subsequently discharged on 1st September 1997. An appeal was dismissed.
21. The appellant was dissatisfied with the advice and expressed concern about the imminent expiry of the limitation period. In a postscript of a long letter which he wrote on 21st July 1997 to Mr Thorold, complaining about the conduct of the conference which had taken place and the advice that he had given, he said:

"I seek lawyers who understand the issues and will put together my case with no more delay as I have now waited for two years, three months since consulting those who hold themselves out as experts and they have done nothing to promote my claim. By 17 October 1997 this claim will be statute barred, if not already by reason only of their delay."

In the body of the letter he said:

"Finally, you have delayed so long, knowing the limitation will be a problem, that I have only two months left to issue a protective writ - which I will do. I consulted Freeth Cartwright in April 1995 and so far they have done absolutely nothing to promote my very strong claim. You have let me down abysmally. The Law Society issue should have been discussed thoroughly quickly and fully, but your intransigence makes that impossible."

22. Mr Kaberry told us in his submissions that when he wrote that letter he was angry and the statement should be understood in that context. He likened it to a person coming home and finding that the lawn had not been mown and then blurting out that he would do it himself. So be it, but it is clear from that document that Mr Kaberry knew that the limitation period could expire soon, and it was not surprising that any person who read it would take it for what it said, being written by the person who had been a solicitor.
23. Mr Kaberry did not issue the protective writ which he said that he would. He consulted other solicitors in August and September 1997, but was unable to obtain legal aid to bring proceedings against Dr Zoltowski.
24. Mr Kaberry obtained an assignment from his trustee in bankruptcy which was dated 15th August 2000, and was granted legal aid to bring the present proceedings against Freethcartwright and Mr Thorold. The proceedings were issued on 24th April 2001, and the particulars of claim followed on 8th August. In that pleading Mr Kaberry alleged that Dr Zoltowski had been negligent, with the result that he had been unable to work properly and therefore had effected irregular mortgage transactions. As a result of the negligence of Dr Zoltowski, Mr Kaberry suffered loss and damage, which resulted in the destruction of his practice and his life. His claim is said to exceed £500,000, probably approach the £1 million figure. I believe he also claims to recover all the money that had been lost and paid out by SCF.
25. As to limitation, he averred that he suspected Dalmane could be a cause of his problems in about February or March 1994. The pleading went on:

"The suspicion was confirmed as a result of a television programme on 17th October 1994 and subsequent advice from Professor Hindmarch. The claimant then consulted the first defendants on 28th April 1995. The claimant's date of knowledge for the purposes of section 11A of the Limitation Act 1980 was in or about February or March 1994 and/or in or about October 1994."

26. The principal allegations of negligence against both defendants and of breach of contract by Freethcartwright were, first, failing to issue a writ against Dr Zoltowski; second, failing to consider properly the effects of Mr Kaberry's bankruptcy and the potential claims by the SCF; and third, failing properly to instruct Professor Lader. The result of those negligent acts was pleaded in paragraph 48 in this way:

"48. As a result of the aforesaid, the claimant has lost his cause of action against Dr Zoltowski. He had a good chance of obtaining substantial damages as particularised above. The action would probably have settled or been tried in or about late 1998."

27. On 28th February 2002 Freethcartwright issued an application for summary judgment supported by a witness statement of Suzanne McDowell. That application sought summary judgment in respect of all three elements of the alleged negligence. On 20th March 2002 Mr Thorold also issued an application for summary judgment. It was supported by a witness statement of Mr Cooke. The witness statement made it clear that the application related to the issue of limitation only.
28. Those applications were heard together by the judge over the course of two days. As I have said, he granted summary judgment. He said that the starting point for the consideration of limitation was the particulars of claim. He referred to witness statements of Mr Foss, served on behalf of Mr Kaberry, which stated that Mr Kaberry's best case as to when he had knowledge for the purposes of the Limitation Act was 17th October 1994 when he saw the World In Action programme. The judge went on to conclude that on the material that had been put before him, it was clear that Mr Kaberry was not aware that he had suffered significant injury which was attributable to the acts and omissions of Dr Zoltowski until, at the earliest, 17th October 1994, the date of the World in Action programme. Thus on the material before him, he concluded that the overwhelming probability was the limitation period had not started to run before 17th October.
29. The judge then drew attention to the fact that Freethcartwright and Mr Thorold had ceased to act for Mr Kaberry in early August 1997, and it therefore followed that the allegation that the action against Dr Zoltowski was lost as a result of the defendant's negligence had no real prospect of succeeding, as the limitation period did not expire until the middle of October of that year. The judge concluded that Mr Kaberry had no real prospect of persuading a court that the chain of causation was not broken and therefore his claim was bound to fail. He also concluded that it was not reasonably foreseeable that the action would be lost by failure to issue a writ by 17th October 1997. He drew attention to the letter of 21st July, to which I have referred, and concluded that it was not reasonably foreseeable that Mr Thorold, at the time of the alleged breach, namely the final advice, that any negligent pessimism would cause Mr Kaberry to lose the opportunity to issue a writ before 17th October 1997.
30. The judge went on to conclude that there was no real prospect of Mr Kaberry succeeding on the insolvency allegations, as it was highly unlikely that a deal could have been struck with SCF to his advantage. The judge said that he could not make any finding of fraud on the part of Mr Kaberry, as that would have involved an investigation amounting to a mini-trial which was not appropriate upon an application for summary judgment. However, the judge said:

"44. ... It was however, apparent from the material before me that it was inevitable that with such large sums involved the Fund would take into account the fact that Mr Kaberry had been stuck off for offences of dishonesty and that the transcript of his evidence at the criminal trial, however persuasive it was for the jury, demonstrated the great difficulty he had explaining his responsibility for his undoubted actions. He had to admit in cross-examination that he had paid regular mortgage instalments when due to put the financial investigators off the scent. No settlement initiated by Freeth Cartwrights would have produced a commercial result which would have left Mr Kaberry with worthwhile compensation. At the lowest, as Mr Spencer submits there is no evidence to justify the pleaded contention that the fund would be prepared to leave Mr Kaberry with 75% or even 100% of his damages."

31. On the question of failure to instruct the expert properly, the judge drew attention to the fact that the legal aid certificate was limited at the time and that judgment had to be exercised by the solicitors as to how much material should be prepared. The purpose of the conference was to enable Mr Thorold to consider whether there was a sufficient case to merit the continued support of legal aid, and for that purpose he did not need all the evidence which would have been required at trial to prove the case against Dr Zoltowski. In essence, he concluded that the alleged deficiency in the evidence did not result in Mr Thorold giving the advice that he did.
32. The judge also had to consider an amendment which was put forward at the trial to meet the submission that there was no causation. The amendment was:

"The claimant's claim against Dr Zoltowski vested in his trustee in bankruptcy. Any writ issued by the claimant against Dr Zoltowski would therefore have been struck out or probably stuck out."

33. The judge rejected the case upon the basis that there was no evidence which supported the allegation.
34. Against that background I come first to an application by Mr Kaberry to adduce further evidence. The additional evidence falls into four categories: first, letters passing between the Law Society and Mr Kaberry between the autumn of 1994 and 11th March 1996; second, certain medical reports; third, witness statements; and fourth, papers which have been extracted by Mr Kaberry which he say show the Law Society's position.
35. The introduction of that evidence was resisted by the respondents. They point to the fact that there is no explanation as to why it was not placed before the judge. Further, they submit that it contains nothing of relevance.
36. I have looked at that evidence and have been unable to understand how it assists Mr Kaberry's case. There is nothing which shows that the SCF would have waived their right to claim if Mr Thorold was likely to obtain a substantial sum of money. To the contrary, there are certain letters which suggest to the contrary. The witness statements do not appear to me to be relevant, as it must be accepted for the purposes of the appeal that Dr Zoltowski was negligent and that Mr Kaberry acted under the influence of Dalmane.
37. Further, it is accepted that although fraud is an issue, it should not be presumed that Mr Kaberry acted fraudulently. I therefore can see no reason why the application should be successful and I would reject it. However, as is clear from my judgment, I have read all the documents.
38. Mr Kaberry's complaint, as put forward in the documents which he has put before the court, is that all that befell him was the result of Dr Zoltowski's negligence. In effect Dr Zoltowski's negligence was the cause of the "windmilling" which resulted in a loss to SCF of over £3 million. Thus, Mr Kaberry should recover from Dr Zoltowski damages to recompense him for the loss of his practice and his home and, in effect, his lifestyle. I will refer to that as "the Dalmane loss".
39. Mr Kaberry's case against the respondents as pleaded is that the negligence and/or breach of contract resulted in him losing the action against Dr Zoltowski. The respondents' primary submission is that the damage is too remote. Their case is that the assessment of damages at common law is always subject to the overriding principle that damage in respect of which compensation is sought must not be too remote. Broadly speaking this means that the breach of duty must have caused the damage and the damage in question was foreseeable.
40. I come first to the issue of causation. The question can be broadly stated: were the respondents' pleaded breaches of duty the cause of the action being lost? The burden of proof remains on Mr Kaberry. In the present case it is the respondents' contention that the limitation period for the action against Dr Zoltowski did not expire until 17th October 1997 at the earliest. As they had ceased to act for Mr Kaberry in early August 1997, Mr Kaberry had not lost the opportunity to bring his action against Dr Zoltowski. To put it bluntly, the cause of the loss of the action against Dr Zoltowski was Mr Kaberry's failure to issue the writ between August 1997 and 17th October, or to apply for an extension of time under section 33 of the Limitation Act. That defence involves two considerations. First, a decision as to when the limitation period began and, second, whether the opportunity of Mr Kaberry to issue the writ between 15th August and 17th October broke the chain of causation.
41. I have no doubt that the judge was right to conclude that the earliest date upon which the limitation period would start to run would be 17th October. The test has been set out in many cases and there is no need for me to add to the law on this matter. Although Mr Kaberry began to wonder in February or March as to whether the drugs had played an important part in the way that he had acted, it was not until watching the World in Action programme in October that it could be said that sufficient knowledge had accrued. In his reply he accepted that he continued to take Dalmane after March 1994, up to I think about October when he saw the World in Action programme. That was not the act of a person who had the requisite knowledge before October. He also pleaded that his suspicions as to the effect of Dalmane only became real on 17th October 1994. In my view his knowledge before that date was too vague. It follows that the limitation period had not expired prior to the respondents ceasing to act for him.
42. The judge correctly concluded that the chain of causation had been broken, because Mr Kaberry had failed to issue the writ. He knew of the importance of the cut-off date. He knew of the need to issue the writ, and he even said in July that he would do so. That is ample evidence of his knowledge.
43. It also seems that he was advised by solicitors on 24th September 1997 to issue a writ. He was a solicitor who used to have a personal injury practice. He had not taken Dalmane since 1994, and therefore his intellect was not impaired.
44. Mr Kaberry asserts that poverty was the reason why he did not issue the writ, but as he was on assistance no fee would have been payable. He drew to our attention R v Lord Chancellor ex parte Witham [1998] 2 WLR 849, in which it was decided in March 1997 that the regulations requiring persons on income support to pay was ultra vires. Thus, if Mr Kaberry had in July or August 1997 tried to issue the writ he would have been able to do so without payment.
45. That conclusion on causation in effect decides the appeal. However, the respondents also put their case upon foreseeability, namely that it was not reasonably foreseeable that the action against Dr Zoltowski would be lost by reason of the alleged negligence. At the highest the alleged negligence resulted in state funding being withdrawn, but it was not reasonably foreseeable that it would result in Mr Kaberry losing his right to pursue his claim by reason of the Limitation Act.
46. I believe the judge correctly concluded that at the time of the respondents' alleged negligence it was not reasonably foreseeable that Mr Kaberry would lose the opportunity to pursue his claim against Dr Zoltowski by issuing a writ before 17th October. Mr Thorold knew that it was Mr Kaberry's intention to issue a writ before that date, as he had so stated in his letter of 21st July.
47. In the proposed amended grounds of appeal Mr Kaberry raises a number of points in which he says the judge was wrong. I will shortly set out the allegations made and the reasons why I have concluded that they are either not justified or are irrelevant.
48. Mr Kaberry alleges that the judge was wrong to strike out what was called "a total loss claim" prior to hearing and testing the evidence. That of course would be right if the judge had failed to assume the relevant facts in favour of Mr Kaberry. I do not believe that the judge fell into that error.
49. Second, it was said that the judge carried out a mini-trial of the entire claim and that was contrary to the conclusion reached by this court in Swain v Hillman. Upon an application for summary judgment the court does not have to accept everything said. However, the court should not seek to resolve disputes as to primary or secondary fact. I do not believe that this a criticism that can be levelled at the judge. The hearing took two days before him and he reviewed the submissions made by the parties at length. His primary conclusion was that the action could not succeed because the chain of causation that had been pleaded had been broken and the damage was not foreseeable. That did not require a mini-trial and none was conducted.
50. Third, it is said that the judge unfairly and wrongly made assumptions that Mr Kaberry unwisely chose not to act in person, pursuing his own clinical negligence claim. That allegation is clearly wrong. Mr Kaberry stated in his letter that he would issue the writ and it is accepted that he did not do so. That decision by him, albeit made in haste, was unwise, in that issuing the writ would have prevented the limitation period coming to an end. He may not have meant to make the statement, but as I have said, he cannot object if the recipients rely upon it as stating his true intention.
51. It is also said that judge was wrong to assume that Mr Kaberry had knowledge and skills in the law and practice of both insolvency and clinical negligence, whereas in fact he had entrusted his claim on both matters to the respondents and their advice had been negligent. I do not consider that that fairly represents the conclusion that the judge arrived at. He took into account the fact that Mr Kaberry was a solicitor, with legal knowledge and was fully aware of the Limitation Act and the consequence that it might have, and what appears from the correspondence.
52. Fourth, it alleged that the conclusion reached by the judge on foreseeability was perverse. Mr Kaberry contends that it was the expectation of the respondents that the advice given by the respondents would put to an end Mr Kaberry's claim and it was therefore foreseeable that the consequences of the advice would be that Mr Kaberry lost his claim against Dr Zoltowski. That allegation disregards the crucial letter that he wrote to Mr Thorold stating that he would issue the writ. That letter was written after the final conference, when Mr Kaberry knew that Mr Thorold would produce a written advice which almost certainly have the result that the legal aid certificate would not be extended.
53. Fifth, it is contended that the judge had failed to consider the incorrect advice given by the respondent as to the merit of the claim, the law on insolvency and the position and rights of Law Society. Even if those contentions are correct, they are in my view irrelevant to the pleaded issues of causation and foreseeability, and as such could not have provided a defence to the application for summary judgment.
54. Sixth, it is alleged that the judge failed to grasp the facts, including that the frauds were perpetrated on Mr Kaberry by third parties. He submits that the question of dishonesty was tried by the jury and was decided in his favour. Therefore that issue was res judicata; alternatively, could not be decided without trial. It is true that the question of the dishonesty of Mr Kaberry could not be decided in these proceedings without trial. However, the suggestion that it would be res judicata is hopeless. The criminal standard of proof is completely different to that in a civil action, and in any case the criminal trial was between different parties.
55. Seventh, it is contented that the judge's decision as to insolvency law and practice was wrong. I do not believe it necessary to get into that, as it is irrelevant to the pleaded questions of causation and foreseeability.
56. Finally, it is said that the judge was wrong to have concluded that Mr Kaberry could have mitigated the respondents' negligence by issuing in person a writ. It is contended that such a conclusion was wrong, because the writ would have been struck out for three reasons. First, the limitation period had passed; second, the medical experts would not have supplied the requisite reports without instruction from lawyers, which could not be obtained without legal aid; and third, that Mr Kaberry had no right in law to issue and prosecute such a claim.
57. I do not understand his third contention, which appears completely inconsistent with the claim that the respondents should have issued proceedings in his name and also his assertion that he would issue the writ. I reject the allegation that the limitation period had passed, for the reasons that I have already given. It is quite clear from counsel's written opinions that there were sufficient medical reports for proceedings to be started, such that it would not have been immediately struck out.
58. For those reasons I would dismiss the appeal. But that does not conclude the matter, as Mr Kaberry sought at the hearing to amend his particulars of claim. He realised that he might have difficulties upon the pleaded claim when causation was considered. During the hearing he continually came back in his submissions to what he saw was the result of the alleged negligent advice of his lawyers. He reminded us of his position at the time. He had for years been negligently prescribed Dalmane. As a result he had been through a criminal trial and he had been acquitted. He had been disbarred and made bankrupt. He had nothing left except his legal claim for negligence again the doctor. Against that background he came to the respondents for advice and action to enable his cause of action in negligence to be successfully prosecuted. He submits that their negligent advice or inaction resulted in the writ not being issued and his legal aid not being extended. That, in practice and effect he says, put an end to his claim.
59. He now draws attention to the fact that he had no right to issue proceedings in his name, as his property had vested in his trustee in bankruptcy, and during the period in which advice was given no assignment had been obtained from the trustee. He drew to our attention that the case was such that expert witnesses were needed if the case was to succeed and that they would not help unless instructed by lawyers. That was not possible as the legal aid had been refused.
60. In practice, he submits, the negligence of his lawyers meant that it was impractical for him to pursue his claim. That was, in particular, the result of not taking action to provide the ability to do so pursuant to an assignment from his trustee and then obtaining a successful settlement with SCF.
61. Upon that basis he sought to amend his pleading. Over the short adjournment he provided a written amendment which sought to put forward the case that he had in mind. Having considered that amendment, I am of the view that it does not put forward the case which he has put to us in his submissions. Thus the question of an amendment after a final chance in which to put forward an application for amendment cannot be decided at this hearing.
62. We raised with counsel appearing on behalf of the respondents as to whether we should give Mr Kaberry a final chance in which to seek to plead a case which would not be struck out. The respondents resist any amendment. They say, firstly, that it is too late. It would amount to an attempt to plead a new cause of action and that should not be allowed at this stage. I am by no means convinced that it would amount to a new cause of action, and certainly until a proper amendment is put forward I would not come to that conclusion.
63. Next, it is said that Mr Kaberry, who had the advantage of solicitors and counsel before the judge, had every opportunity in which to put forward an appropriate amendment and failed to do so. It was wrong in those circumstances to allow Mr Kaberry a further chance. There was an overriding objective of finality. To allow Mr Kaberry to have what in effect would be a fourth bite at the cherry would be totally wrong, taking into account the position of the respondents. One is a well-known firm of solicitors and the other is an equally well-known barrister. Allegations made against them had been hanging over their heads and this should not be allowed to continue in the circumstances of this case.
64. They also draw attention to the question of costs. There is no chance, on the basis of Mr Kaberry's finances, of them recovering any costs, unless Mr Kaberry is successful in his action against them and of course the respondents say that is not possible.
65. Finally, they say that if you look at the merits of the case as set out in Mr Thorold's advice, the difficulties in Mr Kaberry succeeding, even if he is able to plead a good cause of action, are very substantial. They submit that to bring the matter to an end now would not amount to a substantial injustice.
66. For my part, I am conscious that the action taken by the judge and endorsed by myself that the pleading as it stands shows no real prospect of success is, in effect, a decision which prevents Mr Kaberry putting forward his case that he now puts before us. It prevents a trial on the issues because the pleading may not be in the correct form.
67. In those circumstances, I have, with considerable hesitation, felt it right that Mr Kaberry should be given another chance to put forward an appropriate pleading. I do not believe it right that it should go back before the judge. I believe there should be a final decision and therefore the matter should be retained by this court. If it went back to the judge there would almost certainly be an appeal, as Mr Kaberry is not on risk as to costs at all.
68. I also believe that he should go to the pro bono unit and obtain proper legal advice. Not only should he obtain proper legal advice from the pro bono unit, which is an extremely successful unit, as to how to plead this case, he should also consider the overall position and decide whether it is right to continue.
69. For those reasons, I would dismiss the appeal, but I would adjourn the hearing to allow Mr Kaberry to put forward a proposed amended pleading and would hear counsel and Mr Kaberry as to the conditions to be applied.
70. LORD JUSTICE CHADWICK: I agree with the order which my Lord has proposed. I recognise the force of the submissions that the time has come at which a line should be drawn under this litigation. But a court should be slow to deny a claimant the opportunity to advance his claim at a trial unless satisfied that the claim has no real chance of success.
71. I take the view, in the particular circumstances of this case, that Mr Kaberry should have a further and final opportunity to formulate a claim with the assistance of legal advice -- which I trust will be made available to him -- before the court reaches the conclusion that no claim can be pleaded which has any chance of success.

ORDER: Appeal adjourned upon terms to allow Mr Kaberry to put forward an amended particulars of claim, to be served by 4.00pm on 24th February; failing to service, appeal dismissed; liberty to apply before 28th February 2003; to be relisted before Aldous and Chadwick LJJ with a time estimate of half a day; failing service, appeal to be dismissed with costs to be the subject of detailed assessment, if not agreed; I think Mr Kaberry would have great difficulty in resisting an order for costs of today's hearing.

(Order not part of approved judgment) ______________________________