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 Friday, 19th April 2002

1. LORD JUSTICE BROOKE: This is a renewed application by Mrs Bridget Robinson for permission to appeal from the order of Judge Tetlow in the Bury County Court on 7th December 2001 whereby he allowed the second defendant's appeal from the order of District Judge Horan on 28th August 2001. The district judge on that occasion refused to set aside an earlier order made at the same court on 13th February 2001 granting permission for the joinder of the second defendant in the action. This therefore is a second appeal, so that the claimant must show that the appeal raises an important point of principle or practice or that there is some other compelling reason for this court to hear it.
2. This is a professional negligence action. The first defendant is a firm of solicitors who acted for the claimant in 1994. On 19th May 1994 they issued a writ on her behalf in a professional negligence action against an accountant and a solicitor in relation to alleged shortcomings in the services they rendered to her in May 1988 in connection with a disclaimer which she signed in respect of a charge executed by her husband over the matrimonial home which was in his sole name. The May 1994 proceedings were a nullity because the claimant was at that time bankrupt and the necessary permission had not been obtained from her trustee in bankruptcy.
3. During the course of 1994 she changed solicitors and the second defendant firm took over the conduct of her claim in October 1994. They served the writ on her behalf on 19th October 1994 when it was still a nullity. In May 1995 the second defendant in that action served a defence which drew attention to the problems of the claimant's status to bring proceedings. As a result the action was, shortly afterwards, struck out against that defendant and discontinued against the other because no right of action had vested in her when she brought the action.
4. These proceedings were commenced against the first defendant alone on 9th November 2000, a long time after the matters to which I have just referred.
5. On 20th December 2000 the first defendant served a defence. One of their contentions was that the claimant's right of action against the two defendants in the 1994 action was not statute barred when they were retained, or when her action was struck out the following year, and that she suffered the loss of which she makes complaint as a result of the second defendant's negligence, given that the first defendant had ceased to act for her long before the relevant limitation period expired. This argument is founded on the proposition that although the primary limitation period expired on 20th May 1994, the existence of her cause of action was concealed from the claimant until March 1990 so that her claim against the original defendants was not statute barred until March 1996. I pause to comment now that the first defendant's defence was certainly predictable and that the conduct of the claimant's claim would not have run into difficulties which it did run into if it had been brought a comfortable distance before the six-year limitation period expired.
6. The second defendant opposed their joinder on the grounds of the delay between 9th November 2000, when the claim was issued, and 13th February 2001, when they were joined. If the joinder stands the effect of the rules is that they will be treated as having been parties to the suit from the outset. The second defendant complains that they will thereby be deprived of a potential limitation defence on the basis that it may turn out at the trial that Mrs Robinson's claim against the original defendants became statute barred between 9th November 1994 and 13th February 1995.
7. The judge applied the principles set out in the judgment of
8. Lord Justice Glidewell in Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409. He held on the facts that the second defendant's joinder in February 2001 by relation back to November 2000 may well have prejudiced them. The relevant passage in his judgment is paragraph 22:

"Standing back, the claimant may well, if I leave the second defendant joined, gain an advantage by reason of Section 35 (1). The second defendant, if he can elicit evidence that the claimant's cause of action arose prior to the 13th February 1989, will not be able to pray the Limitation Act in aid unless the cause of action arose prior to the 9th November 1988. Mr Taylor, on behalf of the claimant, says it is fanciful or theoretical to say there is any Limitation Act defence. I do not see it that way because (a) the cliamant, if the bank file notes are correct knew the clients' money was not there where it should have been. It is at least arguable that if she did not know the full facts, she could with reasonable diligence have done so. (b) the amended particulars of claim are ambivalent as to when the limitation period starts and I get the impression that the later date was only pursued because the first defendant raised it, (c) the longer time runs, the more likely discovery of concealment would occur especially as the business ceased some time in 1989, and therefore I conclude that the claimant may well gain an advantage if the joinder stays."

9. In his skeleton argument Mr Taylor made no reference to the problem which confronts him on this appeal, that this is a second appeal. Parliament has enacted in Section 55 of the Access to Justice Act 1999 that second appeals should be very sparingly brought to this court. They can only be granted permission if they meet the tough criteria set out in the Act, and repeated in CPR Part 52. He has to show that the appeal raises an important point of principle or practice or that there is some other compelling reason why permission to appeal should be allowed. Mr Taylor was unable, when pressed by the court, to identify any important point of principle or practice, although he suggested that the court might like to revisit Lord Justice Glidewell's judgment in Welsh Development Agency in the light of what was said in the earlier case of Leicester Wholesale Fruit Market Ltd v Grundy.
10. I see no reason why the court should revisit that area. Any difficulty in what was said in Leicester was straightened out by the court in a considered judgment in Welsh Development Agency.
11. Mr Taylor then says there is a compelling reason because the judge was wrong. In my judgment the approach the judge adopted, with his great experience of the way litigation is conducted in practice, was one which he was entitled to adopt. He took the view that even if it could be shown that Mrs Robinson did not know her husband was stealing money from the firm in May 1988 it might turn out at the trial that either she did know or, with reasonable diligence, she could have found out by December. Mr Taylor submits that there is no evidence on which that conclusion could have been reached. One knows enough about litigation to know it is certainly on the cards that a judge, looking at the whole of the evidence, could have come to the conclusion that by the end of 1988 a let out under Section 32 of the Limitation Act was no longer available to Mrs Robinson.
12. Finally, Mr Taylor says that the judge should not have overruled the district judge on the facts. This was a case covered by the new Civil Procedure Rules regime. The judge's only power to disturb the decision of the district judge is if, on a review, he finds the district judge is clearly wrong or misdirected himself in law. He is entitled to review the decision but it is not a pure appellate function.
13. In my judgment, having read the judgment with care, this was a matter on which he was entitled to overrule the district judge. He considered carefully the crucial passage in the judgment of Lord Justice Glidewell. He applied it and he held, as he was entitled to hold, that the district judge did not apply the law correctly in this case. For those reasons, so far as the substance of the matter is concerned, I can see no grounds on which we could properly permit a second appeal to this court.
14. Mr Taylor also challenges the judge's decision on costs. The effect of the judge's decision on costs - and we have the transcript of the discussion - was that he took the view, so far as this action is concerned, the second defendant was entitled to recover against the plaintiff the costs it had incurred in defending the action. This did not affect the position as between the claimant and the first defendant. The judge took the view that if an argument was to be raised that costs incurred by the second defendant should not be allowed to them until a new action, which the claimant has now brought against them, has been pursued, that was a matter for the costs judge to consider the merits of the argument.
15. I would agree with that approach. I see no reasonable ground for challenging it in this court and, for those reasons, I would dismiss this application.
16. SIR CHRISTOPHER STAUGHTON: I agree. Section 55 of the Access to Justice Act 1999 provides, as my Lord has said, that if there has been an appeal to a County Court judge or a High Court judge there may not be a further appeal to this court unless there is an important point of principle or practice or there is some other compelling reason for an appeal. That is the case not only when both the courts below have been in agreement but also when they have not. In other words, it applies even when the second court disagrees with the first court. I must say I wonder why Parliament thought that was a suitable provision in a statute dealing with access to justice; but there it is, and we must comply with it.
17. I would dismiss this application.
Order: Application dismissed