Blake v Harding & Rowe (A Firm)

Permission to appeal requires a real prospect of success. An appeal is not a retrial. A proposed appellant cannot obtain permission merely by rearguing evidence or criticising the conduct of the first trial. Where the lower court made a factual finding that was reasonably open on the documents and the witnesses’ evidence, including the applicant’s own evidence, the Court of Appeal will refuse permission unless there is a realistic basis for showing that the finding was wrong.

Mr Blake brought a professional negligence claim against Harding & Rowe (A Firm), alleging that the solicitors had failed to act on an instruction to transfer a car park from Galaedge Limited to him personally. Silber J dismissed the claim on a preliminary liability issue following a direction for a split trial.

On a renewed application, Mr Blake relied on documents concerning the proposed transfer and challenged the judge’s factual findings. The central issue was whether he had a real prospect of successfully appealing the finding that no relevant instruction had been given on 15 August 1989.

Lord Justice Mummery gave the reasons for the court. Lord Justice Tuckey agreed. The application was refused unanimously.

1. Applicable test. Permission to appeal should be granted only where the proposed appeal has a real prospect of succeeding. The appellate process is not a retrial.
2. Pleading and evidence. The pleaded case alleged that the instruction was given on 15 August 1989. Mr Blake’s evidence instead indicated that the relevant instruction had been given in October 1987. The pleadings had not been amended. That difference was material because a claim based on the earlier date would have raised a limitation issue.
3. Documents. The correspondence in August 1989 and the later letter to the National Westminster Bank indicated that instructions for a transfer had been given at a much earlier date. The agreement of 14 August 1989, which included the car park in the proposed sale of the hotel, was also inconsistent with the alleged instruction of 15 August 1989.
4. Factual finding. The judge was entitled to find that no instruction had been given by Mr Blake personally to Mr Chittock on 15 August 1989 for the transfer of the car park. That conclusion was supported by the documents, Mr Chittock’s evidence and, most importantly, Mr Blake’s own witness statement and oral evidence. The criticisms of representation, the judge’s conduct and Mr Chittock’s reliability did not create a real prospect of overturning the finding.

Permission to appeal was refused, with costs summarily assessed at £5,000.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Queen’s Bench Division, Bristol District Registry: Silber J dismissed the professional negligence claim on a preliminary liability issue on 19 March 2001.