Kaberry v Cartwright & Anor

At the permission stage, an arguable complaint that a judge conducted a mini-trial of issues unsuitable for determination under Part 24 may justify permission to appeal. Permission may also be appropriate where substantial issues of foreseeability and causation require argument. The court may assume in the claimant’s favour, for that limited purpose, that the underlying claim carried a substantial chance of success. Granting permission does not determine the merits of the appeal.

The claimant alleged that his former solicitors and counsel negligently caused him to lose the chance to sue his former general practitioner. The proposed underlying claim concerned the allegedly negligent prescription of Dalmane and its effect on conduct leading to criminal proceedings in which the claimant was acquitted on the apparent basis that he lacked mens rea.

Douglas Brown J heard the matter over more than two days. The judge accepted that the claimant could establish a substantial chance of success against the general practitioner, but decided that the claimant had not shown an arguable case that the chance was lost through negligence by the solicitors and counsel. The claimant sought permission to appeal, raising alleged errors in the approach to summary disposal, foreseeability, causation and further evidence.

Permission to appeal granted. Lord Justice Potter considered that the claimant faced an uphill task, given the unusual history and unpromising material underlying the proposed claims. Nevertheless, there was sufficient substance in the proposed appeal.

1. Assumed underlying merits. For the purpose of considering permission, the facts were assumed in the claimant’s favour. It was therefore assumed that expert evidence could establish negligent prescription of Dalmane and that the drug’s effects caused the conduct leading to the claimant’s subsequent difficulties.
2. Summary disposal. The claimant had an arguable case that the judge had conducted a mini-trial of issues unsuitable for applications under Part 24 and, in the case of counsel, under Part 3(4)(ii)(a). That proposed procedural error deserved consideration on appeal.
3. Foreseeability and causation. The claimant also raised points requiring argument on foreseeability and causation. These included whether it was foreseeable that, despite the claimant’s stated intention to commence proceedings personally if denied legal aid, he could not practically be expected to do so.
4. Further evidence. An application to rely on additional statements was not determined at this stage. If the claimant obtained legal representation, counsel should consider the evidential application and ensure that it was properly formulated and notified to the respondents. The application could then be dealt with when the appeal was heard.

The court made no determination of the merits of the underlying negligence claims or of the proposed appeal.

• Court of Appeal (Civil Division): On 30 July 2002, Potter LJ granted permission to appeal.
• High Court of Justice, Queen’s Bench Division: The matter arose from a decision of Douglas Brown J after a hearing exceeding two days. The judgment does not state a citation for that decision.