England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Kevin Prosser QC, sitting as a Deputy Judge of the High Court
[2013] EWHC 1995 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/04/2014

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. Whilst granting the applicants a short extension of time for appealing, Kitchin LJ, on the papers on 21 November 2013, refused permission to appeal for shortly expressed reasons to the effect that in his view an appeal would have no real prospect of success.
2. The applicants are Terence, Anne and Anthony Dowling, the claimants. The defendant/respondent is Bennett Griffin, a firm of solicitors. The applicants' claim for damages for negligence against the firm was dismissed with costs by Mr Kevin Prosser QC, sitting as a Deputy Judge of the High Court in the Chancery Division, by an order of 20 August 2013. That order followed the judge's reserved judgment of 12 July 2013 after a trial in March 2013.
3. The applicants appeared in person at the trial, their case being presented by Terence Dowling, who also presented their application to me. Having considered Mr Dowling's representations, I have concluded that I ought to give the applicants a limited permission to appeal. I do not, however, propose to give permission by reference to any of the, with respect, somewhat ill-drawn grounds of appeal prepared by the applicants. They are mainly devoted to accusing the judge of bias in his handling of the trial, for which there is no shred of support, and Mr Dowling sensibly recognised at the hearing before me that these allegations did not merit the giving of permission to appeal and he did not attempt to persuade me otherwise. Paragraph (8) of the grounds makes a more substantive point to the effect that Mr Alan Phillips, rather than his company Alan Phillips Associated Limited ('APAL'), was always the correct claimant in the earlier fees action and counterclaim. I do not accept that this is seriously arguable. The deputy judge was, in my view, right to find, in [17] to [19] of his judgment, that the relevant contract was with APAL, not with Mr Phillips personally, and the applicants have no real prospect on an appeal of showing that he was wrong in this respect. Nor, for the reasons given by the judge in [37] to [41], was any new, or separate, contract entered into with Mr Phillips personally when the 15% fee was later agreed.
4. On the other hand, I consider that the applicants have an arguable case that the firm did not advise them adequately as to the risk that APAL had not duly notified its insurers of their counterclaim in the fees action, and/or that the firm did not, in relation to the hearing of the amendment application on 9 July 2004, take all steps that it ought reasonably to have done to ascertain that APAL's insurers had been so notified. Contrary to the judge's view, it appears to me arguable that an inference from Coole & Haddock's intemperate and evasive responses to the firm's requests as to APAL's insurance cover for the counterclaim is that there was a very real question about this.
5. The judge, contrary to the views of the judge and the Court of Appeal in the third party costs proceedings, regarded the amendment application to name APAL as the fees claimant – and therefore also as the defendant to the Dowlings' counterclaim – as a mere formality, as, so he found, everyone had to date proceeded on the basis that the fee claimant originally named in the proceedings was a mere misdescription of APAL. He was in consequence also of the view that, not only was it not open to the Dowlings to apply for an order for the disclosure of APAL's insurance position, nor would the firm have succeeded in persuading the judge at the July 2004 hearing to make it a condition of the giving of permission to amend that APAL's insurance position be disclosed.
6. I regard it as properly arguable that the amendment application was not the mere formality that the judge attributed to it, and that its effect was to change the identity of the claimant from that of Mr Phillips personally; and that, given Coole & Haddock's evasive responses to date as to APAL's insurance position, and the additional inference that they were not instructed in the litigation by APAL's insurers, it would have been open to the court, had it been asked, to make it a condition of the amendment application for Mr Desoutter to explain whether APAL was covered by insurance and whether – and when – it had notified the insurers of the claim.
7. That being so, and by reference to the heads of the applicants' complaints listed by the judge in [178] of his judgment, I consider that the applicants ought to be permitted to appeal on the grounds that the judge was wrong not to find established: (a) the negligent failures alleged in heads (3), (4), (5), (7), (9) and/or (10); and (b) that one or more of such failures caused the applicants loss and damage. I give permission to appeal on these grounds.
8. I refuse permission to appeal on all other grounds. In particular, I refuse permission to complain that the firm consented to the removal of Mr Phillips as a defendant to the counterclaim and/or that it failed to secure his reinstatement as a defendant after 9 July 2004 (heads (1) and (2) in [178] of the judgment). There was no negligence there on the part of the firm because the applicants had no claim against Mr Phillips. In each case, for the reasons the judge gave, I consider also that there is no arguable case under heads (6) or (8). I also refuse permission to appeal in respect of head (11), in [179] of the judgment, the applicants having had no arguable claim against Mrs Phillips; and also in respect of head (12), as, for the reasons given by the judge, I again do not regard the applicants as having an arguable case.
9. The result is that I give the applicants permission to appeal on the limited grounds described in [7] above, but refuse permission on all other grounds. I shall direct that one day be allowed for the hearing of the appeal and that the constitution of the court shall be three Lords/Lady Justices, including at least one Lord/Lady Justice with Chancery experience.
10. Finally, I add that the applicants should recognise that the pursuit of an appeal on the permitted grounds will be a high risk strategy and that success will by no means be certain. They should recognise that there is a high risk that their appeal will fail and that, if it does, it is likely that they will be ordered to pay the respondent's costs of its successful resistance of the appeal. They should consider with the greatest care whether this is a risk they can afford to run.