England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Tuesday, 19th March 2002

1. LORD JUSTICE MANTELL: This is an application for permission to appeal an order made by His Honour Judge Rundell, sitting in the Walsall County Court, on 10th December 2001 by which the learned judge dismissed the applicant's claim against his former solicitor for damages for negligence and/or breach of retainer.
2. The applicant lives at 31 Brades Rise, Oldbury and has done so since 1997 as the tenant of a housing association. In 1984, so it seems, the then landlord had obtained a suspended order for possession on grounds as to which I am unclear. But it seems that at some stage the order must have been discharged.
3. In 1993 and 1994 a further dispute arose over an allegation that the applicant had fallen into arrears with his rent or the water rate portion of the rent. The applicant denied that he was in arrears. In fact, he contended that he had overpaid the due amount of water rates by reason of the water authority having asked for direct payment to them. That led to proceedings in the Dudley County Court which, in turn, resulted in an order for possession of the property suspended upon payment of a sum of approximately £600.
4. The applicant was dissatisfied with that judgment. He instructed solicitors - a firm called Waldrons - to appeal. Again, as I understand it, he had represented himself during the course of the proceedings. He has now brought an action against Waldrons alleging breach of contract and negligence in that they failed to comply with his instruction to appeal. In the action which is the subject matter of this appeal Waldrons have admitted that they were negligent and in breach of retainer.
5. Nevertheless, His Honour Judge Rundell dismissed the claim. So much appears from page 6 of the transcript. He did so, as it appears from his reasons, on the basis that the applicant had failed to prove any loss. He came to that conclusion for two reasons: first, because, as he held, it was not open to the applicant to appeal the earlier order by reason of Section 77 (6) of the County Court Act 1984 in conjunction with Section 84 (2) (a) of the Housing Act 1985. There is, to my mind, some doubt as to whether the judge was right about that. However, alternatively, he held that there was no loss flowing from the breach of retainer and or negligence on the part of the solicitor. He identified two areas where the applicant claimed to have suffered loss and came to the conclusion in his findings that no such loss could be proved. It is perhaps helpful to refer to the relevant parts of the judgment. The two areas where the applicant claims he suffered loss were, first, in relation to his right to buy the property which he claimed had been lost by reason of the orders of possession. The judge dealt with that in the following way:

"However, in 1984 there seems to be no suggestion made in the papers that Mr Mappouras had ever intended, or at least had ever told his solicitors, that he intended to exercise his right to buy. There is no evidence of his intention to exercise his right. There is no evidence that he would have sufficient means to enable him so to do. Plainly any loss that flowed was not in the contemplation of the parties and is not, therefore, recoverable."

6. The judge went on to refer to the second head of damage which related to the loss of business profit that the applicant had said would have been available to him had he been in a position to put into effect a business plan which was in his mind at that time and which had been thwarted by reason of the order of the court. The judge found as a fact that there was no such business plan within the applicant's contemplation at the relevant time for the following reasons:

"First, because it refers to the national minimum wage, which was not introduced until far later. Secondly, on the third page of what purports to be the document, there is a reference to the date 6th July 1994. I am by no means certain and satisfied that this business plan document is not a recent invention. I am satisfied, and find as a fact, that it did not exist in July 1994. I am also satisfied, and find as a fact, that it was never mentioned - even if it existed in Mr Mappouras' mind - to his solicitors at the time, or indeed for a reasonable period thereafter. Any loss that he might therefore have suffered from a failure to put that plan into operation is plainly outside the reasonable contemplation of the defendants and, equally, cannot therefore sound in damages."

7. It was on that basis that he dismissed the claim.
8. THE APPLICANT: Can I make my point, my Lord?
9. LORD JUSTICE MANTELL: The applicant now seeks permission to appeal from the judgment. As on previous occasions, he has appeared in person but has presented his arguments persuasively on paper and orally. It seems to me that the judge was arguably wrong to dismiss the claim. In effect, liability had been admitted on the pleading. The solicitors were accepting that they had been negligent and in breach of retainer in failing to follow their instructions and initiate an appeal. Whereas the action in tort, that is to say the action for negligence, can only succeed on proof of damage, the same is not true of the claim in contract.
10. What it seems to me it is arguable should have happened is that the judge ought, on his findings, to have found for Mr Mappouras, the claimant in the action, and awarded, if he adhered to his expressed view, a sum by way of nominal damages only. That may have had repercussions so far as costs were concerned.
11. It is for that reason and on that ground only that I am prepared to grant permission to appeal. I have taken time to explain to Mr Mappouras, the applicant, or appellant as he has now become, that it may not be in his best interest to pursue an appeal although he has my permission to do so. I have pointed out that there could be certain consequences as to costs. Whether or not the judge was right in his view as to the effect of Section 77 of the County Court Act and Section 84 of the Housing Act, the applicant may face an uphill task in persuading any court that he has indeed proved his entitlement to more than nominal damages.
12. Having given that warning, my order is that there be permission to appeal. The matter may be heard by two Lord Justices. I estimate a hearing time of not more than 1½ hours, excluding time for judgment.
Order: Application allowed