Douglas v Clifford Coppock And Carter (A Firm)

Permission to appeal out of time requires consideration of the length and reasons for delay, the prospects of success and any prejudice to the respondent.

A solicitor is not negligent for declining instructions where the proposed underlying claim could not succeed because of delay, abuse of process or lack of recoverable damage. A trainee solicitor declining instructions is not thereby acting as a solicitor for the purposes of section 25 of the Solicitors Act.

The applicant’s negligence claim against a firm of solicitors was struck out by His Honour Judge Tetlow in the Manchester County Court on 23 February 1999. She sought permission to appeal out of time. The claim concerned advice allegedly given when she consulted a trainee solicitor about possible proceedings against the College of Law arising from a racially offensive remark and difficulties with examination assessments.

The Court considered whether the solicitors had accepted wider instructions, whether any alleged failure could have caused recoverable loss, and whether the trainee solicitor had acted contrary to section 25 of the Solicitors Act.

1. Permission out of time. The relevant considerations were the length of the delay, the reasons for it, the prospects of a successful appeal and any prejudice to the respondent. The applicant’s delay was substantial, and the evidence was relevant to the abuse-of-process ground and to the application for an extension.
2. Nature of the retainer. The solicitors’ letter showed that they had declined instructions to act in the racial-harassment claim because legal aid was unavailable. It did not show that they had accepted wider instructions concerning contractual or negligence claims against the College of Law.
3. No recoverable loss. The possible Industrial Tribunal and County Court routes were both affected by limitation difficulties. The underlying proceedings had already been comprehensively addressed in the Industrial Tribunal and Employment Appeal Tribunal, and allowing further proceedings against the College of Law would have been an abuse of process. There could therefore be no winning claim and no damage flowing from any alleged negligence. The letter also showed that the trainee solicitor had not been negligent.
4. Statutory argument. Section 25 of the Solicitors Act concerns recovery of costs for work done by an unqualified person acting as a solicitor. Declining instructions on behalf of a principal was not acting as a solicitor within that provision. In any event, no payment was sought or expected, and the costs order related to defending the unsuccessful proceedings.
5. The claim alleging breach of the Law Society’s professional codes could not be entertained by the County Court, for the reasons given by the judge below. Permission to extend time was refused and the appeal was dismissed.

• Court of Appeal (Civil Division): permission to appeal out of time refused and appeal dismissed.
• Manchester County Court: His Honour Judge Tetlow struck out the negligence claim on 23 February 1999.