England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday, 25th June 2009

MR JUSTICE KITCHIN:

1. I have before me an application by the claimant, Mr Davda, for permission to appeal against a judgment and order of His Honour Judge Dight dated the 23 September 2008 upon the trial of a professional negligence claim brought by Mr Davda against his former solicitors, the second defendant, Mrs Harris, and her assistant, the third defendant, Miss Parsloe.
2. As the judge recorded, the essential issue in the case was whether Mrs Harris and Miss Parsloe were negligent and in breach of their duty of care to Mr Davda in not ensuring, insofar as they were able, that, while they acted for him in the conduct of his ancillary relief application on his divorce from Mrs Davda, the property jointly owned by him and Mrs Davda at the time, 2 South Cottage Gardens, Chorley Wood, Hertfordshire, was transferred into his name as part of the settlement or court order made on the ancillary relief application.
3. The allegations of negligence and breach of duty were identified by the judge as follows:

a. Mrs Harris and Miss Parsloe consented to the sale of the property without Mr Davda's authority;

b. Mrs Harris and Miss Parsloe negligently conducted a hearing which took place on the 21 October 1997 before District Judge Millian at which an interim order for sale of the property was made and specifically that no application was made to adjourn the hearing, there was no adequate argument put forward and that the question of Mr Davda's ability to finance a remortgage or purchase of the property was not sufficiently or adequately advanced;

c. Mrs Harris and Miss Parsloe did not raise at the hearing the question of whether or not the court had jurisdiction to make the order which was sought by Mrs Davda;

d. Mrs Harris and Miss Parsloe failed to ask for permission to appeal or pursue an appeal or apply for a stay of the orders made by the district judge.

4. At the trial Mr Davda represented himself and evidently sought to advance various other allegations but given the history of the matter, the time for which it had been proceeding and the numerous interim hearings that had taken place, the judge decided that the only allegations upon which he was prepared to adjudicate were those to which I have referred and of which Mrs Harris and Miss Parsloe had proper notice. In the light of the fact that the claim was issued in October 2002 and the events about which our complaint is made took place in 1997, I consider that was an entirely reasonable and appropriate approach for the judge to have taken.
5. Mr Davda has appeared on this application before me in person and has advanced his submissions with a considerable degree of thoroughness and care. Mr Benjamin Wood of counsel has appeared (not specifically at the court's request) on behalf of Mrs Harris and Miss Parsloe in case the court might require assistance on any particular issues.
6. Mr Davda contends that the judge fell into error in a number of respects and that accordingly permission to appeal should be granted. I will address them in turn.
7. First he submits that the judge wrongly found him to be an unreliable witness. Specifically in this regard, the judge found Mr Davda's evidence as a whole unreliable and, in large measure, rejected it. He explained in some detail the reasons for arriving at that conclusion and they are set out in paragraphs 9 to 11 of the judgment.
8. Subject to a complaint that the judge wrongly found and attributed some importance to his finding that Mr Davda's company had gone into liquidation, I do not believe that Mr Davda has any real prospect of challenging any of those findings. So far as that single point is concerned, Mr Davda explained to me that the company was in fact struck off because it had failed to file accounts for two years. This, I am quite satisfied, is a point of detail which does not in any way undermine the judge's overall findings in relation to Mr Davda and I do not believe that Mr Davda has any real prospect of upsetting them on appeal.
9. Second, Mr Davda contends that the judge wrongly failed to have regard to a decision of Mr Guy Newey QC sitting as a deputy judge of this division of the High Court. That judgment was given upon an appeal from a judgment and order of Master Lancaster of 5 March 2004 whereby he granted the defendants' summary judgment and dismissed the claim. Permission to appeal was given by Peter Smith J on the 12 May 2004 and it is apparent that a lengthy hearing subsequently took place before the deputy judge on the substantive appeal. He concluded, with some hesitation, that Mr Davda had real prospects of succeeding in his claim and accordingly allowed the appeal. His reasoning was, as I understand it, that the case raised issues which could not properly be determined at that stage and should be investigated at a trial.
10. In these circumstances it seems to me entirely appropriate that the judge considered all of the allegations made by Mr Davda in the light of the evidence before him and arrived at his own conclusions.
11. Third, Mr Davda contends that the judge wrongly refused to adjourn the trial and failed to give any or any proper weight to the fact that Mr Davda was suffering from ill health, that key witnesses were not available and that he was presented with a large number of files only shortly before the commencement of the trial.
12. The judge noted that a large quantity of documents contained in no fewer than five bundles had been presented to Mr Davda but concluded that Mr Davda had represented himself well and took all the points which were open to him and, indeed, even some that were not. Moreover, he was able to produce closing submissions in writing and, although he noted Mr Davda's submission that he had had insufficient time to negotiate his way around the bundles, observed that Mr Davda displayed a fair understanding of the contents of the bundles and gave his evidence fluently.
13. As for Mr Davda's ill health, it is quite clear to me that the judge did not consider that Mr Davda was disadvantaged as a result of the ill health from which he says he was suffering.
14. As for the inability of Mr Davda's witnesses to attend, it is to be noted that the trial date was fixed in June 2008 but it was not until the 20 August 2008 that Mr Davda issued an application to have the trial adjourned. More importantly, it seems to me to be clear from the judgment that the judge has in all relevant respects accepted the accuracy of careful attendance notes made by Mrs Harris and Ms Parsloe of the meetings which it is said these witnesses attended and, indeed, there was no real dispute as to their accuracy. Accordingly, I have reached the conclusion that upon this issue too Mr Davda has no real prospect of success on an appeal.
15. Turning to the substantive allegations advanced by Mr Davda at the trial, the first was that Mrs Harris and Miss Parsloe consented to a sale of the property without Mr Davda's authority. In relation to this allegation, the judge found as a fact in paragraph 91 of his judgment that he had no doubt that Mr Davda communicated his consent to the sale of the property not only to Mrs Harris and Miss Parsloe but that he had also indicated the same thing to Fisher Meredith, solicitors who had earlier acted for him in connection with his matrimonial proceedings. Further, the original proposal to market the property for sale was Mr Davda's and the judge had no doubt that Mrs Harris and Miss Parsloe would not have agreed to the sale of the property without express instructions from Mr Davda.
16. That is a very concise summary of a long and complex history which is detailed in paragraphs 26 through to 77 of the judgment. I do not propose to recite all of the details of that history again in this judgment. However some of the more material aspects of it are these. An initial meeting took place between Mr Davda and Mrs Harris on or about the 31 July 1997 in the course of which Mr Davda made clear that he wished to have the property transferred to him because he wanted to let it out. Mrs Harris understood Mr Davda's instructions to be clear: Mr Davda wished to retain the property if at all possible and she responded that she would help him to do so insofar as she was able. However, as the judge noted, in acting for and advising Mr Davda, Mrs Harris always had and had always expressed to Mr Davda a very realistic assessment as to whether or not he was likely to hold onto the property.
17. On or about the 9 September 1997, Miss Parsloe, having had an opportunity of looking in detail at the materials by that time received from Fisher Meredith, was able to advise Mr Davda in writing. She recorded in her letter that Mrs Davda wanted the property sold and that until recently so did Mr Davda. Again, she noted that in the course of their most recent conversation Mr Davda had told her he did not want the property to be sold but wanted it transferred into his sole name. She anticipated difficulty in achieving this result and advised Mr Davda that he should consent to the property being sold on the basis that the proceeds remained in an account until determination of the case in November. She then provided detailed reasons for that advice and the steps that would have to be taken if an application for sale, which had at that time been threatened by Mrs Davda's solicitors, was successfully to be resisted.
18. Shortly thereafter, a lengthy conversation took place between Mr Davda and Mrs Harris and Miss Parsloe in which they advised him that the time had come to seek advice from counsel. In the course of that conversation Miss Parsloe told Mr Davda what would happen if Mrs Davda sought an order for sale and as to the potential outcome of such an application. She recorded that, at the end of the discussion, Mr Davda observed that if that was what she thought then he had no choice but to abide by that advice, but that he was unhappy about it.
19. In the light of all the evidence before him, the judge concluded that, at the end of the conversation, Mr Davda agreed that the property should be sold because that was the likely outcome if the matter were to proceed to court. In accordance with the advice given, a conference duly did take place with counsel, a Mr Peel, on the 15 September 1997. Miss Parsloe attended the conference and made a detailed attendance note of the advice given. The assets of both Mr and Mrs Davda were considered and counsel advised that Mr Davda could expect a settlement or an award of between £15,000 and £25,000 if the matter were to be fought. Counsel also advised that there was no possibility that the court would allow retention of the house and would undoubtedly order its sale. Mr Davda was accordingly advised to agree to the sale of the house at that time. Mr Davda is recorded as having reluctantly accepted the advice but wanted to put in a Calderbank offer whereby the property would be transferred into his name and he would promise to pay Mrs Davda the sum of £25,000 plus interest at the Bank of England rate within a period of two years.
20. The judge recorded that Mr Davda accepted in the course of his cross examination that the attendance note of the conference was accurate. It seems that Mr Peel also advised that a questionnaire should be prepared and sent to Mrs Davda to probe the missing money that Mr Davda said that she had. The judge also found that it was agreed at the conference that the Calderbank offer and Mr Davda's agreement to the sale of the property should be communicated to Mrs Davda's solicitors; that counsel would then prepare the questionnaire which would be sent off and that, when replies had been received and if the case had not settled, further consideration would be given to sending a new Calderbank offer to provide Mr Davda with a measure of protection.
21. Mr Davda disputed aspects of this particular record and apparently maintained that at the end of the conference it had been agreed that the questionnaire would be sent out, replies awaited and the question of what would happen to the house would then be considered. The judge rejected that evidence because it conflicted with the clear record of the conference in the attendance note and with the recollection of Miss Parsloe. In his view it also flew in the face of common sense and was further contradicted by two letters which Mrs Harris sent out the following day. One was an open letter to Mrs Davda's solicitors confirming Mr Davda's consent to the sale of the property and the other was a without prejudice letter offering to pay Mrs Davda over two years the sum of £25,000 on the transfer of the house into Mr Davda's sole name.
22. The judge concluded having heard the witnesses that he had no doubt at all that the letters would not have been sent unless Mrs Harris and Miss Parsloe had Mr Davda's express consent.
23. On the 18 September 1997, Miss Parsloe, apparently writing separately from Mrs Harris, reminded Mr Davda of the correspondence, of the discussions that had taken place in conference and said that in due course she would send him a copy of the questionnaire.
24. The questionnaire was sent out on 22 September 1997 and, over the following days, Mrs Harris pressed Mrs Davda's solicitors for an answer to it and an application was issued returnable on the 3 November for an order compelling her to provide one. In the meantime it seems that Mrs Davda's solicitors were themselves becoming concerned about the property remaining unsold while there was an offer to purchase it on the table.
25. A contract was duly prepared but Mr Davda apparently decided that he was now not prepared to sign it and was proposing to raise the money to buy Mrs Davda out. He so informed Mrs Harris and Miss Parsloe on the 16 October 1997, which provoked Mrs Harris to respond that he had agreed to sell the property and to say: "If we were now to say 'no' we would have to put forward very convincing reasons. We were being threatened by Miles Preston that they would make an application to court and I suspected on such an application an order for sale would be made."
26. Later that day two conversations took place between Mr Davda and Mrs Harris' secretary. In the first Mr Davda indicated that he would, after all, agree to sign the contract. In the second he again changed his mind and said that he would not. This prompted Miss Parsloe to advise him that he would need firm evidence of his ability to finance the purchase of the property from Mrs Davda. At this point in time it became clear that an application by Mrs Davda's solicitors to the court for an order for sale was imminent.
27. Accordingly, Mr Davda attended a meeting with Mrs Harris at her office at which she provided him with advice as to what would be needed to see off Mrs Davda's application. The judge concluded that the view that Mr Davda had apparently reached that he could secure the necessary finance was fanciful, he being at that stage on state benefits, his company not trading and he not having a mortgage offer, nor any real prospect of getting one. The judge concluded that Mr Davda understood what he was being told but refused to recognise or accept it. Nevertheless, and acting on Mr Davda's revised instructions, Mrs Harris wrote to Mrs Davda's solicitors indicating that Mr Davda wished to have the property transferred to him and had been working hard to arrange the necessary finance.
28. The following Monday, 20 October 1997, Mrs Davda's solicitors responded that they viewed Mr Davda's proposals as an absurdity and indicated that they would be making an application to court that day for an order for sale. All of this was related to Mr Davda by Miss Parsloe, who told him that he would have to get a letter from the mortgage company confirming that he would be able to raise the necessary finance.
29. It seems that a good deal of correspondence passed between the parties over the course of the next 24 hours but, in the end, an affidavit was prepared on behalf of Mrs Davda in support of the application and it was served upon Mr Davda. The affidavit was lengthy and contained four reasons why the court should make the order sought by Mrs Davda:

a. there had already been consent to the sale, a proposal initiated by Mr Davda in the early part of the year;

b. solicitors for the purchaser had said that if completion did not take place by the 24 October, some three days hence, they would withdraw from the sale and the estate agents had said that if that did not proceed it might take longer to find an alternative;

c. the property was no longer let and therefore the mortgage would go unpaid;

d. on the basis of his own evidence, Mr Davda did not have the finance to meet the mortgage on the property.

30. On the 24 October 1997, Mr Davda was told the application would be made later in that afternoon and he was advised that his prospects of successfully opposing it were very slim. That advice reiterated the advice he had previously been given and was to the effect that unless the finance was available, Mrs Harris could not see how the court could do other than make the order sought.
31. The judge found on the evidence that at that time Mr Davda did not have the 'wherewithal', as he put it, and was, in the circumstances, never likely to get it and that Mrs Harris' judgment was completely accurate.
32. It is apparent from this brief summary that the judge has made a series of detailed findings of fact as to Mr Davda's state of mind and of his consent to the sale of the property which he subsequently withdrew. That, of course, was part of the problem which he and his advisors faced. I see no real prospect of those findings being overturned on an appeal and Mr Davda has put forward nothing to persuade me otherwise.
33. Second, it was alleged that Mr Davda was inadequately represented at the hearing. In this regard the judge found in paragraph 92 of his judgment that Mr Davda was properly represented and that his case, insofar as it was at all sustainable, was properly put forward and developed and every proper point was taken on his behalf. The reason why he failed on the application was for the reasons set out in the affidavit served on behalf of Mrs Davda to which I have referred. The judge accepted entirely the evidence given by Mrs Harris and Miss Parsloe.
34. Again, this conclusion is underpinned by a series of more detailed findings made by the judge as to the conduct of the hearing which are set out in paragraphs 77 to 83 of his judgment. In short, when faced with the imminent application, Miss Parsloe immediately set about preparing for the hearing and gathering any available evidence to resist the application. In this regard Mr Davda gave to Mrs Harris and Miss Parsloe two letters from an insurance, finance and mortgage company called Blue Star Investments which are detailed in paragraph 77 of the judgment. That, it seems, was the only evidence that Mr Davda was in a position to deploy.
35. The hearing took place on the afternoon of the 21 October 1997 before District Judge Millian. The district judge himself made an attendance note, the material part of which is set out in paragraph 79 of the judgment. The district judge rejected Mr Davda's proposals and observed that his position was one of prevarication and that there was nothing in the papers to persuade him that there was any alternative to the sale of the property and he duly made an order to that effect. Throughout the hearing, Mr Davda was sitting beside Miss Parsloe and could hear what was being said and he accepted the attendance note as being accurate. In the light of that note the judge concluded that first, Miss Parsloe did ask for the application to be adjourned, and second, Mr Davda's opposition to the application was advanced by Miss Parsloe entirely properly and as the judge put it, 'She said everything she properly could.'
36. Moreover, the available material from Blue Star Investments was put before the district judge but he was evidently not satisfied with it and rejected it as a satisfactory basis for finding that Mr Davda had the ability to pay off the mortgage and buy out Mrs Davda. As I have said, the district judge made an order for sale and, in the light of Mr Davda's continuing refusal to sign the contract, directed that a district judge of the Principal Registry of the Family Division be appointed on behalf of Mr Davda to sign the contract if need be. The following day, the contract for the sale of the property was signed on behalf of Mr Davda by District Judge Bowman.
37. In the light of all of these matters I see absolutely no prospect of Mr Davda succeeding in any argument on appeal that Miss Parsloe or Mrs Harris failed properly to advance his case.
38. The third allegation has not been pushed strongly by Mr Davda before me today but is that Miss Parsloe negligently failed to query the jurisdiction of the court to make an order on an interim basis. That matter was addressed by the judge in paragraph 93 of his judgment and I am satisfied that the conclusions expressed there are entirely sound and unimpeachable.
39. Finally, Mr Davda contended that Miss Parsloe and Mrs Harris negligently failed to seek permission to appeal or to stay the order. That was addressed by the judge in paragraph 94 of his judgment and he found that it was unrealistic for an application for a stay or permission to appeal to be made at that stage for a number of reasons but chiefly because such an application would not have had any merit. Again, I see no real prospect of that conclusion being overturned.
40. For all of these reasons, and despite the submissions advanced by Mr Davda before me today, I have reached the conclusion that an appeal has no real prospect of success and accordingly this application must be dismissed.

MR WOOD: My Lord, I am going to make an application for costs. I know that it is not ordinary to have costs in an application for permission where the respondents' attendance at the court is not specifically requested it but in my submission this is a case where it is entirely appropriate for the respondents to attend. In my submission the court has been assisted by the respondents' presence, indeed not just by their presence but the presence of the documents to which the court needed to refer in order to reach its conclusions. I seek only my brief fee in the sum of £750. In my submission it is an entirely appropriate figure because Mr Davda has been quite frankly unable to prepare his appeal for today himself and therefore it required some legal assistance or legal input in order that the case could fairly and properly be heard here today. For those reasons it is my submission that the respondents ought to be awarded their costs as a departure from the ordinary course as regards costs.

MR JUSTICE KITCHIN: Mr Davda?

MR DAVDA: Whatever you want, it is [inaudible].

MR JUSTICE KITCHIN: Yes.

MR DAVDA: Whatever you want.

MR JUSTICE KITCHIN: Mr Woods, I have reached the conclusion it is not appropriate to depart from the usual course. It is of course correct that you have assisted me on two points. However and grateful though I am, I believe I would have come to the same conclusion absent your presence. Thank you both very much.

MR DAVDA: [Inaudible] appropriate-

MR JUSTICE KITCHIN: Yes.

MR DAVDA: I am sure you are able to keep me a copy of the judgment?

MR JUSTICE KITCHIN: Of my judgment today?

MR DAVDA: Yes, please.

MR WOOD: There is no problem getting a copy, My Lord; if you want it at public expense then you will need to make a direction now.

MR JUSTICE KITCHIN: Yes, Mr Davda you may have a transcript of my judgment today. Why should you have it at public expense?

MR DAVDA: I am in need of some relief. I am not working, I do not have clients[?], I have no money to support me.

MR JUSTICE KITCHIN: How do I know that you do not have the funds?

MR DAVDA: Yes.

MR JUSTICE KITCHIN: How do I know that?

MR DAVDA: I am on income support. I mean [inaudible].

MR JUSTICE KITCHIN: You are on income support. Sorry-

MR DAVDA: On the [inaudible] medical since the [inaudible] medical support and under observation from doctors and I am getting medical [inaudible] which I can prove [inaudible] income support department. If it weren't for that I would be straight [inaudible] a copy.

MR WOOD: Your Honour in my submission it would be an absolute waste of public money. This is the end of the road for the appeal. There is no route of appeal from your decision. In my submission it would simply be a further waste of public time and money.

MR JUSTICE KITCHIN: Mr Davda, in the light of the fact that you are on income support and the fact that you are suffering from ill health I am prepared to direct that you may have a transcript at public expense. However Mr Davda it is, as counsel has said, the end of the road so I would just ask you to consider carefully whether or not you truly do require one.

MR DAVDA: Your Honour I appreciate it.

MR JUSTICE KITCHIN: Reflect on it Mr Davda.

End of judgment.