Veitch & Anor v Avery Barry & Co

On a summary judgment application, the court must address the claim as pleaded, including any amendments previously permitted. Where the lower court decides the application on superseded particulars, that may provide a compelling reason to grant permission on a second appeal and remit the matter for reconsideration. A claim should not be struck out where pleaded facts, if proved, could establish causation and loss, and the availability of alternative mitigation remains uncertain. The appellate court should avoid deciding a materially unconsidered issue for the first time unless a clear dispositive answer makes remittal unnecessary. Professional-negligence pleadings should identify the retainer, each alleged failure, what ought to have been done, why the omission was negligent, and the loss said to flow from it.

Mr and Mrs Veitch brought professional-negligence claims against their former solicitors arising from possession proceedings brought by Barclays Bank concerning two hotel properties. They alleged, among other matters, that the solicitors failed to raise a defence that there had been no default and failed to ensure that an agreement for a business current account was honoured.

A District Judge refused the solicitors’ application for summary judgment. On appeal, His Honour Judge Overend granted the solicitors permission to appeal and dismissed the claims, holding that there was no realistic prospect of proving causation or loss. The Court of Appeal found that the county court had considered the original particulars and had overlooked amended particulars permitted in 1998. The central issue was whether the amended claims were nevertheless bound to fail or should be reconsidered below.

Ward LJ delivered the leading judgment, with Tuckey LJ agreeing. Permission to appeal was granted, the appeal was allowed, and the matter was remitted to the court below.

1. Consideration of the correct pleaded case. The county court judge had decided the summary judgment application on the basis of the original particulars of claim. The amended particulars, which included allegations concerning the absence of default and the agreed business account, had been overlooked. That was a compelling reason to intervene despite the matter being a second appeal. The Court of Appeal should ordinarily remit the case for consideration on the correct pleaded case rather than hear it de novo.
2. Causation and loss. For the purposes of summary disposal, the alleged agreement between the bank and the claimants had to be assumed. It was arguable that the bank would have opened the account if the agreement had been drawn to its attention, and that access to the account might have enabled the business to trade for a period. The court could not assume that opening an account at another bank was available mitigation. A substantial claim could not therefore be excluded at that stage.
3. Unconsidered defence allegation. The alleged failure to raise the no-default point had not been considered by the judge below. Although the point presented formidable difficulties, it was inappropriate for the Court of Appeal to determine it summarily for the first time.
4. Pleading guidance. The claimants were required to clarify the retainer, each alleged breach, what the solicitors should have done, why the omission was negligent, and the loss said to result. The court warned that any damages were likely to be modest and that the claimants’ broad case seeking restoration after repossession was unrealistic.

• Court of Appeal (Civil Division): permission to appeal granted; appeal allowed; matter remitted to the court below.
• Plymouth County Court: District Judge Wainwright refused summary judgment on 29 June 2001. His Honour Judge Overend subsequently granted the defendants permission to appeal and, on 17 August 2001, dismissed the claimants’ action on the basis that it had no realistic prospect of success.