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 OXFORD COUNTY COURT
(His Honour Judge Morton Jack)

		Royal Courts of Justice Strand London WC2 Friday, 8th March 2002

Friday, 8th March 2002

1. LORD JUSTICE LATHAM: This is an application by Mr Dookwah for permission to appeal from the decision of His Honour Judge Morton Jack dated 4th July 2001. The judge rejected his claim against a Michael Pulsford, who had been his solicitor, in negligence. The judge concluded that the applicant's claim was based essentially upon the proposition that Mr Pulsford had been instructed in March 1995 to pursue proceedings for judicial review of a decision by the Avon County Council to decline to grant him financial assistance, that decision having been taken on 20th July 1993. The judge, having considered the evidence of the applicant and Mr Pulsford against the contemporaneous documents, concluded that the contemporaneous documents could not have been created in the form they were if such instructions had been given. In particular, he referred to correspondence in April and June 1995 and in June 1997. It is correct to say that in none of those letters was any mention made by the applicant of any request for Mr Pulsford to take proceedings by way of judicial review.
2. It is not entirely clear to me how the issue came to be dealt with in that particular way, because the claim before the judge was not that Mr Pulsford had been expressly instructed in March 1995 to make an application for judicial review, the claim as formulated by the applicant (who has conducted these proceedings in person throughout) was to the effect that he put before Mr Pulsford in both 1994 and 1995 the facts relating to the grant on the basis that he was seeking advice in relation to that and that he was not provided with the proper advice. In particular, he says before me today that he was anxious for Mr Pulsford to give him advice, not so much in relation to the question of whether or not he had an existing right by way of judicial review against Avon County Council, but as to whether or not his previous solicitor, Mr Clough, had in fact failed to deal properly with matters when Mr Clough was acting as his solicitor.
3. As I have indicated, the judge dealt with the matter on the basis that it was simply a question of recollection as between Mr Pulsford and the applicant as to what was said in March 1995, and disbelieved the applicant on the basis that the correspondence could not support the applicant's recollection. If, indeed, the case was presented in that way by the applicant to the judge, so that the judge was given the clear dichotomy between an account that instructions were given in March on the one hand and denial of that on the other, then the judge's conclusion seems to me to be wholly unassailable.
4. The applicant has produced before this court documents which, he submits, establish that Mr Pulsford was not honest in the evidence that he gave to the judge. I have to say that, having considered that material, it is quite plain that, even if it casts doubt on the accuracy of Mr Pulsford's evidence to the judge, it does not do so in relation to any material matter as to which the judge considered he had to come to a conclusion. It follows that there is nothing in the material which could upset the judge's findings of fact or so undermine them as to give to the applicant any reasonable prospect of succeeding on an appeal. But, as I have said, the applicant before me has put the case in a different way in accordance with the claim as it was originally formulated, which was negligence in failing to give appropriate advice rather than failing to carry out instructions, and I propose to deal with the matter on the basis that that is the real claim which the applicant sought to make before the judge.
5. It seems to me that the applicant runs into insuperable difficulties in seeking to persuade the Court of Appeal that, nonetheless, the order made by the judge was one which cannot stand. The documents before the court do undoubtedly raise a question as to one aspect of the evidence given by Mr Pulsford. On two separate occasions Mr Pulsford headed correspondence in reply to the applicant with the comment that there was a claim against the Devon County Council, which the applicant submits is only referable to the issue that he stated that he had put before Mr Pulsford for his advice in relation to his grant. The problem, however, seems to me to be this. There is in fact nothing to suggest that that was the nature of the claim referred to by Mr Pulsford in any of the correspondence that I have seen. But, more significantly, it is quite plain, from two particular letters from the applicant dated 5th June 1995 and 14th June 1997, that the question of the grant was not a matter which was being put to Mr Pulsford in such a way as to justify the conclusion that Mr Pulsford could be said to have accepted any instructions in relation to it.
6. In the letter of 5th June 1995 the applicant gives a heading to the letter relating to the matters about which he was asking Mr Pulsford to advise him. They read as follows:

"Re:My application for Legal Aid

Compensation Claim Against Avon and Somerset Constabulary

Return of missing Funds

Repairs to Damaged Motor Vehicle During Search."

7. There is later in the letter a reference:

"In the matters of Bath College and the Grants Authorities..."

where he simply enclosed two photocopies of documents without any indication that there was anything that Mr Pulsford was supposed to advise about.

8. In the letter of 14th June 1997, the reference to grant funding was headed:

"Re: On the issue of my grant funding:

& update."

9. The applicant then set out the up-to-date position as far as his course was concerned, and then wrote as follows:

"On this issue I was refused a grant and on Friday next, I am to attend an appeal, against their decision. If I should fail I may need to go to arbitration. I vaguely recall that Equity stated that no rule cannot or is it should not be too rigid or dictatorial, if it is then that rule is unlawful. I stand corrected. I cannot remember if, indeed, it was Equity or Contract Law."

10. It does not seem to me that that is material from which a court could come to any other conclusion but that Mr Pulsford had not been asked to advise in relation to the grant in the terms that the applicant submits before me today and is suggested in the claim that he originally brought. It formed part of the background to his overall complaints in relation to the way that he was being treated educationally, and it was not a matter about which, in my judgment, there was any question of Mr Pulsford being specifically instructed to give advice either in relation to the way in which Mr Clough had dealt with it or in relation to the advice which Mr Pulsford himself should give at any time in 1964 or 1965. It is clearly the case that in 1967 the applicant considered that he was merely keeping Mr Pulsford up-to-date with matters which might or might not result in his asking for assistance. There is no question, it seems to me, of there being any evidence that Mr Pulsford accepted any instructions, whatever the applicant considered may have been the position.
11. In those circumstances, I do not consider that there is any prospect of an appeal being successful. Accordingly I dismiss this application.
Order: Application dismissed.