Kaberry v Freethcartwright & Anor

Summary judgment is appropriate only where the claimant has no real prospect of success. The court must assume credible facts in the claimant’s favour and must not conduct a mini-trial.

In a professional-negligence claim alleging loss of an underlying action, causation may be broken where the claimant retains a known and practicable opportunity to issue proceedings before limitation expires but fails to do so. The alleged negligence must also have made the loss reasonably foreseeable. A claimant should receive a final opportunity to amend where the existing pleading has no real prospect of success, but the court may impose strict terms to secure finality.

Mr Kaberry appealed from summary judgment granted by Douglas Brown J in favour of his former solicitors, Freethcartwright, and his former counsel, Mr Thorold.

He alleged negligence and breach of contract in connection with advice concerning a potential clinical-negligence claim against his general practitioner for prescribing Dalmane. He claimed that the respondents’ advice caused him to lose that underlying claim, including through limitation, failure to address bankruptcy and compensation-fund issues, and inadequate expert instructions.

The judge held that the pleaded claim had no real prospect of success. The central issues before the Court of Appeal were whether the respondents’ conduct caused the loss of the underlying claim, whether that loss was reasonably foreseeable, and whether Mr Kaberry should be permitted to amend his pleading.

1. Summary judgment. The court applied the principle under CPR 24.2 that summary judgment requires the claimant to have no real prospect of success. The court must assume credible factual allegations in the claimant’s favour, but need not accept every assertion and must avoid resolving disputed primary or secondary facts by conducting a mini-trial. The judge had not fallen into that error.
2. Limitation and causation. The earliest date on which the limitation period for the proposed claim against Dr Zoltowski could begin was 17 October 1994, when the claimant’s suspicions became sufficiently informed by the television programme and subsequent material. His earlier knowledge was too vague. The limitation period therefore had not expired when the respondents ceased acting in early August 1997.
3. The claimant knew of the approaching cut-off date, knew that a writ was required, stated that he would issue one, and was advised to do so. He could have issued proceedings without paying a court fee, following R v Lord Chancellor ex parte Witham [1998] 2 WLR 849. His failure to issue the writ, or seek an extension under section 33 of the Limitation Act 1980, broke the chain of causation.
4. Foreseeability. It was not reasonably foreseeable, when the alleged advice was given, that the claimant would lose the underlying claim through limitation. The pleaded claim therefore failed on causation and foreseeability. The other allegations concerning insolvency and expert instructions were irrelevant to those pleaded issues.
5. Amendment and disposal. The appeal was adjourned to give the claimant one final opportunity, with assistance from the pro bono unit, to formulate an appropriate amended pleading. The matter was retained in the Court of Appeal. If the amended pleading was not served by the specified date, the appeal was to be dismissed with costs.

• Court of Appeal (Civil Division): Appeal from summary judgment granted by Douglas Brown J on 30 May 2002. The court adjourned the appeal on terms to permit a final amended pleading, with dismissal and costs to follow if it was not served by the specified deadline.