Forrester Ketley & Co v Brent

Permission to appeal should be refused where the proposed challenge has no real prospect of success. A second-tier appeal requires an important point of principle or practice, or another compelling reason, under the Access to Justice Act 1998. The Court of Appeal should respect discretionary case-management decisions made to progress litigation proportionately and fairly under the Civil Procedure Rules 1998. It is insufficient that the appellate court might have made different orders; intervention requires an error of approach or principle.

Forrester Ketley & Co v Brent concerned a claim by patent agents for unpaid fees and a counterclaim alleging misleading cost estimates, negligent advice and consequential loss. Following extensive interlocutory proceedings, His Honour Judge Tetlow made case-management orders in the Queen’s Bench Division on 26 May 2000. Master Leslie later extended time for witness statements, transferred the proceedings to the Chancery Division and made costs directions on 23 November 2000.

Mr Brent sought permission to appeal against both orders. The central questions were whether the proposed appeals had a real prospect of success and, where relevant, whether the statutory second-tier appeal threshold was satisfied.

Lord Justice Chadwick gave the principal judgment. Lord Justice Keene agreed and added limited comments. Both applications were refused.

1. The challenge to the order of 26 May 2000 had no real prospect of success. Technical objections concerning the issue and service of the amended statement of claim could be treated as curable irregularities where the claim was sufficiently clear to proceed to trial. There was no substantial basis for striking out the amended claim or defence.
2. The proposed challenge to the requirement to provide particulars was a second-tier appeal. Under section 55 of the Access to Justice Act 1998, such an appeal could not be entertained unless it raised an important point of principle or practice, or there was another compelling reason. That threshold was not met.
3. The judge was entitled, applying the overriding objective in the Civil Procedure Rules 1998, to concentrate on bringing the long-running proceedings to trial rather than revisiting earlier procedural skirmishes. The appellate question was not whether different orders might have been made, but whether the judge had erred in principle or in his approach. No such error appeared. The order concerning the trial date had been overtaken by the transfer to the Chancery Division, and the costs order was within the judge’s discretion.
4. Master Leslie was entitled to extend time pending determination of the permission application, since requiring immediate compliance might cause unnecessary expense. His subsequent costs directions disclosed no arguable basis for appellate interference.

Lord Justice Keene confirmed that the judge’s reference to justice being obtained at trial did not imply that Mr Brent would be denied justice at the interlocutory hearing. Order: applications dismissed.

• Court of Appeal (Civil Division) — [2001] EWCA Civ 199, 29 January 2001: refused permission to appeal against both orders and dismissed the applications.
• High Court, Queen’s Bench Division — His Honour Judge Tetlow made case-management and procedural orders on 26 May 2000, including directions concerning pleadings, particulars, trial preparation and costs.
• High Court, Queen’s Bench Division — Master Leslie made an order on 23 November 2000 concerning an extension of time, costs and transfer of the proceedings to the Chancery Division.