Perotti v Collyer Bristow (A Firm) & Anor

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success. In a professional-negligence claim, the adequacy of legal advice must be assessed in the context of the instructions, information and time available to the legal adviser. Counsel instructed urgently to keep an action alive need not identify every possible claim or investigate matters which could reasonably be considered later. A defendant is entitled to have the claim against that defendant assessed on its own merits. A judge’s professional connection with counsel through membership of the same chambers does not, without more, impair the judge’s function.

The claimant sought permission to appeal against Lloyd J’s order granting summary judgment to the second defendant, Frank Hinks, in a negligence claim. The claim concerned advice and pleading provided in earlier administration proceedings, including alleged failures concerning investment of estate funds, administrators’ charges and the joinder of parties. The claimant had been unable to attend the hearing below, but the judge considered the merits and concluded that none of the allegations had any realistic prospect of success. The Court of Appeal considered whether the judge had erred in deciding the merits, whether issues identified in earlier proceedings required a trial, and whether there was any proper basis for alleging judicial impairment.

1. Application refused. The claimant had shown no realistic prospect of persuading the court that Lloyd J’s approach was wrong.
2. The alleged negligence had to be assessed against the circumstances in which Mr Hinks was instructed. His immediate task was to prepare a suitable pleading within a few days so that the action would not be struck out. He prepared an appeal which kept the action alive. There would then have been opportunities to investigate additional issues if he had remained instructed. He could not be treated as negligent, with hindsight, for failing to identify every point during that limited period and on the information available.
3. The complaint concerning investment in equities did not establish a viable claim against Mr Hinks. The judge was entitled to accept that there had been insufficient information to advise effectively or plead such a claim at the time.
4. The complaint concerning administrators’ charges could not establish loss because the administrator had admitted that he was not entitled to retain those sums. The possible availability of a claim therefore had no practical relevance to the claimant’s loss.
5. The claimant’s complaints concerning costs advice and joinder were also matters judged with hindsight. There appeared at the time to be good reason for joining the parties against whom maladministration was alleged, and there was no evidence contradicting Mr Hinks’ account.
6. The concern about judicial recusal was unfounded. Consistently with Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 All ER 65, a professional connection arising from membership of the same chambers as counsel did not itself impair the judge’s function.
7. The application was dismissed with costs subject to detailed assessment. The transcript was to be supplied at public expense.

• Court of Appeal (Civil Division): Permission to appeal against Lloyd J’s summary judgment order was refused, with costs subject to detailed assessment.