England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Peter Smith

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th July 2004

Lord Justice Brooke :

1. This is an application by Mr Perotti for permission to appeal against an order of Peter Smith J dated 28^th October 2003 whereby he ordered that summary judgment be entered for all the three defendants in this action. He also declared that the proceedings constituted an abuse of the process of the court and that they should be struck out for that reason. These defendants were two firms of solicitors and a member of the Bar who advised Mr Perotti during 1993 in relation to his claim in the administration proceedings concerning his late uncle's estate. Messrs Collyer-Bristow ceased to act for him in April 1993. The first defendant firm had dealings with him (to use a neutral term) between April and mid-July 1993 when their relationship broke up in acrimony. At the end of July the second defendant firm agreed to act for him on a limited basis (in the first instance), and their relationship continued until the end of October 1993 when it, too, broke up in acrimony. On 9^th September 1993 the third defendant, acting on the second defendants' instructions, advised Mr Perotti in a four-hour conference and thereafter settled a letter at Mr Perotti's request which expressed a willingness to settle his claim in the administration proceedings for £100,000. This was his only involvement in the matter. The writ in this action was issued in April 1999, nearly six years after the matters which Mr Perotti made complaint.
2. The background history of the matter is set out in my judgment in connection with Mr Perotti's claim against Messrs Collyer-Bristow [2004] EWCA Civ 639, and in greater detail in Lindsay J's judgment in that action at first instance. In paragraph 19 of my judgment I described how the senior partner of Messrs Collyer-Bristow terminated that firm's retainer on 14^th April, telling Mr Perotti that his firm had no confidence that Mr Perotti was willing to accept their advice and that it would be much better if he were to find another firm willing to act for him.
3. Mr Perotti then approached Mr Fairthorne, of the first defendants' firm, to whom he paid £500 on account of costs. After an initial meeting he wrote to Mr Fairthorne on 17^th May 1993, and in this letter he made five points:

(1) that he was overwhelmingly concerned about appealing the orders of Mr Roger Kaye QC (for which see para 9 of my earlier judgment);

(2) that he would be suing Messrs Collyer-Bristow for failing to appeal those orders;

(3) that he was instructing Mr Fairthorne to instruct a first class competent and experienced counsel;

(4) that Mr Kaye's order did not include his refusal of leave to appeal;

(5) that he repeated his oral instructions to the effect that Mr Fairthorne should study fully the 475 documents he left with him so that he would have noted all things that give rise to any cause of action.

4. On 20^th May he wrote a second letter, including further correspondence he had obtained from Messrs Collyer-Bristow. On 9^th June Mr Fairthorne replied to the effect that he had had an opportunity of considering the documentation to a certain extent, but that it was quite clear to him on looking at the papers that the work was going to be considerable and would cost considerably more than the £500 already paid.
5. In his judgment Peter Smith J described (at paras 56-57) the subsequent course of the correspondence which culminated in Mr Perotti giving him "informal disinstruction" of his "non-existent services" on the matter on 29^th June. He followed this up with a letter of abuse on 12^th July, in which he accused Mr Fairthorne's firm of being dishonest and/or incompetent and/or fraudulent and/or negligent. The firm returned to him £147.50 out of the sum he had paid them on account of costs, and that was the end of their dealings with him in this matter.
6. Mr Perotti then approached Mr Stone of the second defendants' firm. On 27^th July Mr Stone wrote to him and said that he would initially obtain an authoritative counsel's opinion on his various claims. If counsel's advice was negative he would not act any further. If it was positive he would take the case on subject to a payment on account of his firm's costs (to be agreed at that stage) and monthly invoices thereafter. In the meantime Mr Perotti paid the firm £1,000 on account of costs.
7. It was against that background that the third defendant was instructed to advise. The judge described what happened at the long conference on 9^th September, of which a contemporary note was made. Mr Barlow advised that a claim against Mr Watson for lost capital by reason of a failure to invest in equities was inherently unsustainable. He also advised that although there was no charging clause in the will he did not have a good case in relation to his contention that Mr Watson was not entitled to charge fees at all.
8. Mr Barlow's view on the merits was the same as that expressed by Mr Hinks nine months earlier, namely that while there were issues that could be raised in the proceedings the exercise did not look cost effective. At the end of the conference Mr Perotti accepted that he should seek a settlement of £100,000, and Mr Stone indicated his firm's willingness to act for the purpose of settlement only. Unhappily when he sent Mr Perotti the draft letter settled by Mr Barlow on 20^th October, Mr Perotti berated his firm for not following his instructions to plead fraud. He described the conference with counsel as trench warfare. Mr Stone wrote a long letter refuting these complaints on 29^th October, and on 7^th December Mr Perotti responded, accusing both Mr Stone and Mr Barlow of dishonesty. That brought their dealings with him to an end.
9. Peter Smith J set out the relevant facts in considerable details in his judgment. In relation to Mr Perotti's claim against the first defendants he said (at para 61):

"I do not see how it can possibly be alleged given the tenuous period of contact as between Mr Perotti and the First Defendants that any allegation as alleged by Mr Perotti against them has any realistic prospect of success. The correspondence speaks for itself. Mr Perotti expects instant action and when instant action (as perceived by him) is not forthcoming, instead of agreeing to have a meeting he simply terminates the employment of the First Defendants and makes the usual allegations of dishonesty against them. That is enough in my judgment to dispose of the claim against the First Defendants."

10. In the course of his judgment Peter Smith J explained why he considered that Mr Perotti's allegations of negligence against the second and third defendants in respect of what he called the charging issue and the Nestlé issue (being the issues I described as "the administration fees issue" and the "investment issue" in para 11 of my earlier judgment) had no real prospect of success, since he was given non-negligent advice on each. Of the three remaining allegations of negligence against these defendants, the judge said (at para 79):

"Allegation 3 is hopeless. Mr Perotti before me ultimately acknowledged that. He would be personally liable to the costs in whatever capacity he sued. The fourth allegation equally has no sense. Mr Barlow advised him the case had no prospect of success and he should not pursue them. The same allegation was made against Mr Hinks and that was dismissed by Lloyd J. The allegation against Collyer-Bristow met a similar fate before Lindsay J. Allegation 5 equally fails for the same reasons. Adding Mr Rudolph would simply have added to the Defendants against whom the same allegations would have failed."

He went on to say:

"All of these issues as I have set out in this judgment have been dealt with before. Independently of that, and on the material before me, I have come to the overwhelming conclusion that they have no prospect of succeeding against these Defendants either."

11. He then went on to apply a dictum of Sir Andrew Morritt V-C in Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 at [38]; [2003] 3 WLR 841 and gave his reasons (in paras 81-82 of his judgment) for saying that it would plainly bring the administration of justice into disrepute if he allowed Mr Perotti to ventilate issues against these defendants which had already determined against him in litigation with other parties, and when there was no realistic prospect of any costs being recoverable. He therefore made the orders to which I have referred at the beginning of para 1 of this judgment.
12. The hearing before Peter Smith J lasted more than a full day. In a recent witness statement a solicitor for the second defendants said that it took place on a number of days, while the title page to the judge's judgment records 9^th and 13th October 2003 as the hearing dates. At all events the judge seems to have had the opportunity of considering far more evidence than Mr Perotti has filed with the Civil Appeals Office in connection with this appeal, since it is evident from the same witness statement that the parties exchanged witness statements and that five bundles of documents were filed with the court, four of them being bundles prepared for that hearing and the fifth containing other relevant documents (such as Mr Perotti's two witness statements) which had been supplied in advance of that hearing. Mr Perotti brought with him for the oral hearing of his application for permission to appeal a black bundle which appears to represent Bundle 3C "Documents and Exhibits: 5. Exhibit DMCS2 to the Witness Statement of Mr Stone". It is not clear what other documents were before Peter Smith J, although some of them were contained in a red file of miscellaneous documents Mr Perotti also brought to this hearing.
13. Mr Perotti's original grounds of appeal ran to eight pages. The main burden of his complaints are contained in section 4. Having had the opportunity of observing Mr Perotti for a full day on the hearing of his 14 applications relating to his case against Messrs Collyer-Bristow, and having read many descriptions of the way he has conducted himself at hearings before other judges, I am not willing to consider that any of his complaints concerning the judge's handling of the matter have any real prospect of success on appeal. The difficulties Mr Perotti presents as a litigant are well documented: see, for example, this court's description of the proceedings before Lindsay J in October-November 2002 (see [2004] EWCA Civ 639). Peter Smith J's judgment (at para 29) illustrates the difficulties Mr Perotti presented to that judge.
14. There are a few matters which call for particular mention under Section 7.4 of the grounds of appeal. Mr Perotti made great play of the judge's error in his description of the proceedings in the Court of Appeal on 6^th October 2003, but this error can, in my judgment, have made no difference to the substantive outcome of the case and it is an incontrovertible fact that by October 2003 Mr Perotti had made a very great number of applications to the Court of Appeal in different matters which had failed.
15. He also believes that the judgment of this court in Hemmingway v Rodden [2003] EWCA Civ 1342 assists him in some way. There is, however, a very great difference between the way the court may approach an application to amend a party's statement of case pursuant to CPR Part 17 at some distance from the trial date (the matter with which that case was concerned) and the way it handles an application by a defendant for summary judgment pursuant to CPR 24.2, on the basis that the claimant has no real prospect of succeeding on the claim.
16. Mr Perotti also takes issue with the judge's willingness to place reliance on the contemporary note of a conference with counsel in September 1993 taken by someone who could have had no conceivable reason for taking a note which was deliberately false. It is common for such notes to be inaccurate on points of detail which the note-taker has not properly understood (this often happens when our oral judgments are transcribed), but it is a very different matter to charge the note-taker with deliberate falsification.
17. Given that the judge rightly found no reason to doubt the general reliability of the note, it is worth referring to certain parts of it to show the nature of the advice the second and third defendants (for this purpose Mr Stone ("DS") and Mr Barlow ("FB")) were giving to Mr Perotti ("AP"):

"FB You cannot just interpret delay as intention to defraud. Proof is needed to support any claim (Page 3).

FB Turning to commercial realities you are facing four Defendants with three sets of legal representation. This will cost a substantial amount. The matter of costs is entirely discretionary and in the circumstances it is entirely reasonable for the Defendants to appoint different lawyers as they have entirely different interests. (Page 9).

FB I am very worried on your account as you are undertaking a mammoth task. It is highly expensive and this litigation may end in disaster for you. Whether you are right or not, you should ask whether the costs will justify the recovery of the amount in issue. This is the case especially since there is already a Costs Order made against you up to an amount of £43,000.

The court decided that the form of proceedings was too oppressive to the other side as it did not allow them to plead adequately. That was why the Statement of Claim was struck out and a new Statement of Claim was required. (Page 11).

FB The Court of Appeal will only interfere with discretionary decisions if the decision was completely unreasonable… [It] would be most unwise [to appeal against the Deputy Judge … All along you have assumed that the case should continue but you should think about the consequences of continuing such actions.

DS Mr Barlow and I both think that the appeal would have failed. You did not appeal and you cannot do so now. Secondly, as regards suing Collyer-Bristow for not recommending an appeal, you would have to demonstrate that the chances of winning the appeal were more probable than not. (Page 15).

FB I have to advise you that you will fail against Collyer-Bristow. If you accept our advice that the costs order will not be overturned, you are liable for £43,000. What is the most favourable outcome if witnesses give evidence as you expect? (Page 16).

FB Your appeal against costs would be impossible. Suing Collyer-Bristow would be a separate issue although I would advise strongly against it. In the present proceedings there is an adverse costs order against you and you should consider a compromise so that you may escape the existing liability. A possible payment could also be agreed. You could then have established you point and can get on with your life. Any alternative may completely ruin you. (Page 17).

AP I cannot lose … I could sue Collyer-Bristow.

FB That is a separate question. In any case, I am absolutely convinced that you will lose. (Page 18).

FB You are exposing yourself to a risk of financial ruin and have not accepted our advice.

DS I would echo Mr Barlow in stating that there are very many difficulties in your case and very little prospect of being successful,. It may lead to further injury to your health and your financial ruin. (Page 19)."

18. It was after Mr Perotti had received the draft letter which he eventually instructed counsel to settle (se para 8 above) that he accused both Mr Stone and Mr Barlow of dishonesty and their relationship came to an end.
19. Mr Perotti also suggests that the judge misinterpreted what Mr Hinks had told him about the need for an accountant nine months earlier. Even if he did, this complaint is linked with Mr Perotti's ineradicable belief that if only issues based on what I have called the administration fees issue and the investment issue had been pleaded in his statement of case in 1993, Mr Watson would have capitulated and the later disastrous outcome to the litigation (which Mr Barlow accurately foresaw) would have been avoided. This, sadly, is to rewrite history in the way Mr Perotti would have liked it to be. There are already judicial determinations against him to the effect that these were not good points (or, in relation to the administration fees issue, not as good as Mr Perotti believed it to be), and I am not willing to travel over that ground again.
20. On 29^th June Mr Perotti addressed us for 30 minutes in support of his application. He stressed to us that he saw this as his last chance of recovering what he had lost, and he begged us to grant him permission, so that he could develop his case before the full court. We told him that he could supplement his submissions by sending us one page of written submissions to cover matters to which he believed he had not done justice. In the event we received three further pages.
21. Mr Perotti contends that because this was the first occasion in which he contended that his new lawyers were negligent because they did not advise him that his former lawyers (Collyer-Bristow) had been negligent this is a quite new point and has not been addressed in previous proceedings. He is of course correct about this, but this does not hide the fact that he was seeking to re-litigate a number of issues such as the viability of the administration fees issue and the investment issue which had already been decided against him and that this aspect of his conduct represented an abuse of process.
22. He then says that he wished to be able to address the court for a day or more, and that for this reason we should either permit him to proceed to a full hearing or adjourn this application to be heard on notice with the appeal to follow if permission to appeal is granted.
23. In my judgment, the court's opportunity to read all the papers and to listen to Mr Perotti for 30 minutes explaining the main points of his appeal has given us ample opportunity to consider whether permission to appeal should be granted, and I see no reason why we should allow Mr Perotti an indulgence we would not allow to other litigants.
24. He then maintains that the first defendants were negligent in not prosecuting an appeal against Mr Kaye's order. By this time the action was on the road once more, and his main grievance related to the costs order in relation to which Mr Barlow advised him, correctly, that he had no chance of persuading the Court of Appeal to alter it. So far as the pleadings were concerned, Mr Watson in due course counterclaimed for an order that the estate be administered, this being another point which Mr Perotti deployed before us in suggesting there was something wrong with Mr Kaye's order. I see nothing in either of these points. It is absurd for him to say that his appeal would have succeeded if he had lodged it about five months out of time in May-June 1993. Mr Kaye made the orders he did because Mr Perotti's home-made Statement of Claim failed to comply with the requirements of the Rules, and was quite impossible to plead to; and he exercised his discretion to order Mr Perotti to pay the costs of the defendants because they had incurred costs in making their successful applications. I am not surprised that Mr Perotti was consistently advised that he had no prospect of persuading the Court of Appeal to alter these orders.
25. I see no purpose in revisiting Mr Perotti's meeting with Mr Saner in December 1985.
26. Mr Perotti then wishes this court to consider a substantial amendment to his particulars of claim in the present action. As an appeal court we are concerned only to determine whether the judge was wrong to enter summary judgment for the defendants in relation to the claim they faced then, not to consider some greatly extended claim which Mr Perotti now wishes he had brought. I do not consider that the judgments of this court in Yorkshire Bank plc v Tinsley [2004] EWCA Civ 816 are of the slightest relevance in the present context. Nor do I find any help in the judgment of Nelson J in Ball v Druce Attlee [2004] EWHC 1402 (QB) at [4]. All these professional negligence actions turn on their own facts.
27. I have considered, at Mr Perotti's request, what Rimer J said in his two main judgments in the Administration Action. In my judgment he is doing himself a disservice by attempting to re-litigate in one form or another the issues that have consumed his life ever since his uncle died. The history of his dealings with the three defendants in this case show that he was virtually impossible to help. He was far too ready to make allegations of fraud or negligence or incompetence against those who crossed his path with no good reason for doing so, and his unwillingness to accept or listen to the advice of the competent lawyers who were trying to assist him in 1993 speaks for itself. He has quoted a long passage from the second page or Rimer J's first main judgment, but he has omitted the last three sentences:

"Angelo appears to have been either insensitive or indifferent to that possibility. He described himself as an 'all or nothing person'. The action has received his 'all' treatment."

28. At the end of his judgment, when he considered who might replace Mr Watson as administrator, Rimer J said (at p 124):

"Frankly, I should be surprised if there were any willing takers. Dealing with this family is not easy and dealing with Angelo is thoroughly difficult. A newcomer to this administration would be likely to take the view that there was a high probability that, sooner or later, Angelo would sue him. That is the sort of consideration which is going to limit the potential field very considerably."

29. So far as the second main judgment is concerned, Rimer J's descriptions of Mr Perotti's relentless pursuit of his action against Mr Watson (at pp 14-20) and his quotations from Mr Perotti's letters (at pp 14-18) give the lie to his present contention that things would have turned out differently if only these defendants had advised him differently or had taken different steps on his behalf.
30. I see no reason for accepting Mr Perotti's assertion that justice demands that he should be allowed to pursue this action against these defendants if there is no substance in his contentions that they did not act with appropriate care during the very short periods when they were trying to advise him.
31. It is also not the duty of this court to advise a litigant about the parts of the judgment in the court below on which he should address the court. It is for him to identify where the judge went wrong, and the grounds of appeal give him the opportunity to set this out crisply and clearly (see the Practice Direction to CPR 52, para 3.2). Nor would we be willing to consider any further representations from Mr Perotti on the merits after our judgments have been sent to him in draft. This is not the purpose of that procedure.
32. I have considered all the pages in the Black bundle which Mr Perotti expressly invited us to consider. I do not consider that they furnish any good grounds for suggesting that Peter Smith J was wrong when he made the orders he did. In 1993, for instance, Mr Perotti was quite clearly in no mood to be willing to pay Mr Watson's costs, and a sight of Mr Watson's solicitors' letter dated 5^th May 1993, in which this suggestion was made, takes things no further forward. Peter Smith J gives further examples of Mr Perotti's intransigent attitude at different times in paras 6-19 of his judgment.
33. Before completing this judgment I have re-read the judgment of Peter Smith J from start to finish. Although I have taken into account all the points Mr Perotti has made, I consider that his prospects of persuading the full court that Peter Smith J was wrong are non-existent. I agree with what the judge says in paragraphs 81 and 82 of his judgment, and the way in which he concluded that neither the claim against the first defendant nor the claim against the other defendants had any real prospect of success.
34. I would therefore dismiss this application.

Lord Justice Maurice Kay:

35. So would I. I have nothing to add.