Brown v Alan Edwards & Co

Permission for a second appeal requires both a realistic prospect of success and a point of legal principle or other particular reason justifying permission. Solicitors may remain on the record after their retainer has ended, without remaining obliged to attend, although they should come off the record. An alleged misunderstanding of a legal aid limitation does not establish negligence where it had no effect on the conduct of the case. Failure to amend pleadings cannot cause recoverable loss where the evidence could not have established the claim. Judicial questions intended to clarify a litigant’s case do not amount to findings on the facts. A litigant is entitled to be properly heard on a substantial costs bill.

The claimant brought negligence proceedings against his former solicitors, alleging that they had mishandled an action arising from an alleged assault by his former landlord and landlady. A District Judge dismissed the negligence claim after a full hearing. Judge Hallgarten QC dismissed the claimant’s appeal, which had proceeded by way of review rather than rehearing.

The claimant applied to the Court of Appeal for permission to bring a second appeal. He challenged the solicitors’ retainer and conduct, the treatment of the legal aid certificate and tape recording, the failure to amend the pleadings, and the assessment of costs. The central issue was whether any of those matters disclosed both a realistic prospect of success and a point of legal principle or other particular reason for a second appeal.

Permission to appeal was refused. The proposed appeal did not satisfy the requirements for a second appeal.

1. The solicitors might technically have remained on the record, but that did not mean that they remained instructed or obliged to attend and represent the claimant. On the findings, their retainer had ended. Any error lay in failing to come off the record, not in failing to attend.
2. Any misunderstanding of the limitation in the legal aid certificate had no effect on the solicitors’ conduct. They had acted conscientiously and obtained a second counsel’s opinion after the first opinion was adverse. Both counsel considered that the case was likely to fail. Their advice would have led to withdrawal of legal aid in any event.
3. The county court judge was not required to listen to the tape recording. It had been heard by the District Judge and by counsel, and was regarded at best as inconclusive. The private note sent by the District Judge did not influence Judge Hallgarten, whose judgment did not proceed on the basis that the claimant had instigated the assault.
4. A judge’s questioning of a litigant may be directed to eliciting and clarifying the case. It does not necessarily indicate acceptance of the evidence. A judge must retain an open mind until judgment is given.
5. Even if there had been negligence in failing to amend the pleadings, no recoverable consequence was shown. If counsel’s advice was correct, the evidence could not have established the case and an amendment would not have saved it.
6. The claimant was entitled to a proper hearing on the substantial costs bill. The court directed Smith Bernal to transcribe, at public expense, the post-judgment discussion concerning the defendants’ bill of costs and reserved the matter to itself.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 980, Lord Justice Sedley refused permission for a second appeal and directed the provision of a transcript concerning the costs bill.
2. Central London County Court: Judge Hallgarten QC dismissed the claimant’s appeal from the District Judge’s decision. The appeal proceeded by way of review.
3. District Judge Lightman: After a full hearing, dismissed the negligence action against the claimant’s former solicitors.