Hiseman v Janes

Permission to appeal should be refused where the proposed grounds are hopeless because they cannot overcome findings that professional negligence was not established, no recoverable loss was shown, and the claim was statute-barred. A solicitor instructed that a purchaser cannot complete is not negligent merely because he does not attend completion to test whether the vendor is ready, willing and able to complete. Candour may properly be preferred. Under the Limitation Act 1980, later failures to answer correspondence or release papers do not postpone time where the essential facts were already disclosed. A possible extension for fraudulent concealment cannot stop time after it has begun to run. A defect capable of prompt rectification need not prevent readiness to complete.

Mr Stephen Hiseman applied in person for permission to appeal, and for an extension of time, from an order of Mr Justice Holland dated 4 October 2000. The order dismissed his negligence action against his former solicitor, Mr David Janes, concerning two failed leasehold purchases and related litigation. The judge found that liability had not been established and that the claim was statute-barred. The proposed grounds concerned the deposit arrangements, the vendor’s readiness to complete, advice and instructions in the litigation, failure to pursue a counterclaim, and alleged concealment affecting limitation. The central question was whether any proposed ground was arguable.

The Court of Appeal dismissed the application for permission to appeal. It did not need to decide whether to extend time, and the second application was adjourned.

1. The trial judge had rightly rejected most of the allegations of negligence as unarguable. The remaining conveyancing complaint was also unsustainable. A solicitor acting for a purchaser who had instructed that he could not complete was not negligent merely because he declined to attend completion in order to expose a possible weakness in the vendor’s position. The judge was entitled to prefer straightforward candour.
2. The expiry of the assignment licence did not necessarily mean that the vendor was unable to complete. The judge had found that a further licence could readily have been obtained on 24 hours’ notice. Matters capable of being dealt with at or immediately after completion, including discharge of an outstanding mortgage, did not necessarily prevent readiness, willingness and ability to complete.
3. The complaint concerning the related litigation was also hopeless. There was no evidence that the solicitor had been instructed to take the initiative in pursuing the counterclaim. The judge had found that further pursuit would have been wasteful and that no loss resulted. The enforceability of any judgment against the vendor was speculative, particularly after it had been struck off the register.
4. The six-year limitation period under the Limitation Act 1980 could be extended for fraudulent concealment in an extended sense, but later failures to answer correspondence or provide papers could not stop time running if the essential facts had already been disclosed in counsel’s advice and pleadings in 1990. A failure to hand over papers, already dealt with in separate concluded proceedings, could not be relied on as a separate substantive breach in this action.
5. The proposed appeal therefore had no realistic prospect of success.

1. High Court: On 4 October 2000, Mr Justice Holland dismissed the negligence action, finding that liability had not been established and that the claim was statute-barred.
2. Court of Appeal (Civil Division): In [2001] EWCA Civ 1007, Lord Justice Robert Walker dismissed the application for permission to appeal. The extension-of-time issue was not considered.