Bale v HSBC Bank Plc

On a second appeal, permission should be granted only where there is a point of general public importance or another compelling reason. A compelling reason may arise where an important aspect of the appellant’s case has not received a hearing at either lower level. That includes a material procedural complaint that relevant expert evidence was not considered. The Court of Appeal need not determine the merits when granting permission; the appeal may be listed for a substantive hearing before an appropriate constitution.

The claimant brought consolidated negligence claims against his former bank following the liquidation of his company. Master Leslie granted summary judgment for the bank on part of the claim. Field J dismissed the resulting appeal on the claim concerning the bank’s recommendation of an accountant, while directing that another aspect concerning the accountant’s introduction of a director be reconsidered. The claimant sought permission for a second appeal, arguing that the lower courts had failed to consider an expert report relevant to the accountant’s role and the alleged breach. The issue was whether that procedural complaint supplied a compelling reason for permission.

1. Permission granted. The application concerned a second appeal, so the court had to identify a point of general public importance or another compelling reason before granting permission.
2. The banking issues might have some general interest, but they did not ordinarily satisfy that threshold. The compelling reason was procedural and case-specific: an important part of the claimant’s case appeared not to have received a hearing before either Master Leslie or Field J.
3. The expert report arguably supported a materially different understanding of the accountant’s appointment. It could indicate that he was intended to act as a company doctor, rather than merely as an accountant, and that the appointment of a sole practitioner was contrary to accepted banking practice. That evidence might affect consideration of the alleged breach and causation.
4. The later rehearing of the separate claim concerning the introduced director, at which summary judgment was refused, reinforced the need for the unresolved issue to be properly considered. The claim against the accountant was also proceeding to trial.
5. The court granted permission but did not determine the merits. The appeal was to be listed before two judges, with an estimated hearing time of half a day.

• High Court, Queen’s Bench Division: Master Leslie granted summary judgment for the bank on 1 March 2002. Field J later dismissed the appeal on the accountant-appointment issue, but directed reconsideration of the separate director-related claim.
• Court of Appeal (Civil Division): Lord Justice Carnwath granted permission for the second appeal because an important aspect of the case arguably had not been heard.