Burke v Ashe Construction Ltd

Permission to appeal should be granted where the proposed appeal raises something close to a question of principle and has realistic prospects of success. Prolonged delay caused during successive solicitors’ retentions, together with prejudice to an employer through no fault of its own, may make arguable an alternative claim against the solicitors responsible for failing to issue proceedings promptly. The decision concerned permission only. It determined neither limitation nor liability in the underlying claim.

The defendant sought permission to appeal from proceedings in Slough County Court before His Honour Judge Harris QC. The judgment does not state the county court’s substantive decision. Tuckey LJ had refused the application on the documents on 18 November 2002. Lord Justice Simon Brown reconsidered the application, with the respondent absent and unrepresented. The proposed appeal concerned a claim issued four years out of time, seven years after the accident, following successive periods in which different solicitors had conduct of the matter. The central issue was whether the proposed appeal raised a question of principle and had realistic prospects of success.

1. Permission granted. Lord Justice Simon Brown took a different view from Tuckey LJ’s earlier refusal of the application on the documents. He considered that the proposed appeal involved something close to a question of principle and had realistic prospects of success. The application therefore deserved consideration by a full court.
2. Delay and possible solicitor responsibility. The proposed appeal concerned a claim brought four years out of time and seven years after the accident. The matter had passed through successive solicitors over several years. The employer was said to be prejudiced by the delay through no fault of its own. Lord Justice Simon Brown considered it arguable that, if the underlying claim was sufficiently meritorious to justify litigation against the employer despite the delay, the more appropriate claim might be against those responsible for failing to bring it in time or substantially sooner.
3. Scope of decision. The court did not determine the limitation issue, the merits of the underlying claim, or any liability of the solicitors or employer. It decided only that the proposed appeal should proceed.
4. Order. The application was allowed and permission was granted, with a time estimate of one day before three Lord Justices.

1. Court of Appeal (Civil Division): Lord Justice Simon Brown allowed the application and granted permission to appeal.
2. Slough County Court: The proceedings originated before His Honour Judge Harris QC. The judgment does not state the substantive decision under appeal.
3. Earlier permission decision: Tuckey LJ refused the application on the documents on 18 November 2002.