Petersen v The Personal Representative of Cyril B RIVLIN (Deceased)

On an application for an extension of time and permission to appeal, the Court of Appeal held that an excusable delay should not prevent consideration of the application. Permission is concerned with arguability and a reasonable prospect of success; it does not indicate that the appeal will succeed. Where a trial judge has found negligence and causation but dismissed the claim for want of damage, permission may be appropriate if the judge may have overlooked evidence bearing on mitigation or failed to address an arguable basis for a claimed loss. Possible recoverability of costs flowing from the transaction, subject to any proper deduction, and loss of property through bankruptcy were sufficiently arguable.

Mrs Pickles, acting for her mother as personal representative of Mr Petersen, sought to challenge the dismissal of a solicitor’s negligence action in the Cardiff Mercantile Court. His Honour Judge Nicholas Chambers QC found negligence and causation but held that no damage had been suffered, relying partly on failure to mitigate and rejecting claimed costs and a £42,500 bankruptcy-related loss. The appellant’s notice was lodged late, following an unsuccessful application to a judge in chambers for permission to appeal. The central questions were whether time should be extended and whether the proposed challenges concerning mitigation and damage were reasonably arguable.

The Court of Appeal unanimously granted the application. The delay in lodging the appellant’s notice was excusable and should not prevent the applicant from seeking permission to appeal. Time was therefore extended.

1. Permission threshold. The court was not deciding whether the appeal would succeed. It had to decide whether the proposed grounds were arguable and carried a reasonable prospect of success. The fact that the applicant faced a substantial task did not justify refusing permission where it could not properly be said that there was no reasonable prospect of success.
2. Mitigation. The trial judge had treated Mr Petersen as the author of his own loss for failing to make, or contribute to, a payment into court in the underlying litigation. The Court of Appeal considered that the judge had not fully accounted for a letter from the solicitor advising that payment into court was inadvisable because of the litigation prospects and potential exposure to costs. The judge’s conclusion that the letter merely reflected instructions from Mr Petersen also appeared strong. The challenge to the mitigation finding was therefore arguable.
3. Damage. If proper advice would have prevented Mr Petersen from entering the transaction, liability for costs arising from it was arguably loss caused by the negligence, subject to any appropriate deduction. The judge had also arguably failed to address the refined case that the £42,500 represented the value of property lost through bankruptcy, rather than money paid by a third party.

Lord Justice Judge agreed, emphasising that permission meant only that the appeal was arguable and was far from a conclusion that it would succeed. Permission was granted in relation to the issues relevant to damages, including mitigation.

• Court of Appeal (Civil Division): On 26 April 2001, allowed the extension of time and granted permission to appeal on the damages-related issues. The decision was unanimous.
• Cardiff Mercantile Court: His Honour Judge Nicholas Chambers QC, on 24 July 2000, found the solicitor negligent and causation established, but dismissed the action on the basis that no damage had been suffered.