Huttons (A Firm) v Harris & Ors

Permission to appeal is refused where the proposed grounds disclose no prospect of showing that the lower court erred. A costs order following an unsuccessful amendment application cannot be challenged without identifying error in that underlying decision. The Civil Procedure Rules do not prohibit summary assessment merely because a hearing lasted more than one day. The relevant practice direction states a general rule for hearings shorter than one day. In professional-negligence litigation, the question is whether it was reasonable for a solicitor to rely on counsel’s advice. A solicitor is not required to guarantee that counsel’s advice is correct. An appeal cannot introduce unsupported points not advanced below, or justify a retrial without evidence capable of affecting the result.

Two defendants sought permission to appeal against orders made by His Honour Judge Moseley QC on 23 May and 11 June 2001 in proceedings concerning solicitors’ costs. The first order refused an amendment to the defence and awarded costs, including a summary assessment. The second gave judgment for the solicitors.

The defendants argued that the solicitors had acted negligently in handling proceedings concerning a receiver appointed under the Charities Act 1993, and challenged the reliance placed on counsel’s advice. They also sought an extension of time and a retrial based on proposed further evidence. The central issue was whether any ground had a prospect of success.

1. The application concerning the 23 May 2001 order. The defendants accepted that costs followed the event in relation to their unsuccessful amendment application. They did not challenge the judge’s decision on the amendment itself. There was therefore no basis for contending that the costs order was wrong, and no prospect of success on that ground. The extension-of-time application was refused.
2. The Civil Procedure Rules did not prevent a judge from summarily assessing costs relating to a hearing lasting more than one day. Practice direction paragraph 13.2 stated a general rule for hearings of less than one day. It did not create a prohibition in longer hearings. The defendants had received sufficient notice of the costs schedules, including 48 hours’ notice in the latest instance. No arguable error was shown in choosing summary rather than detailed assessment.
3. The negligence claim. The trial judge had correctly identified the relevant question as whether it was reasonable for the solicitors to rely on counsel’s advice. A solicitor is not responsible for guaranteeing that counsel’s advice is correct, nor does reliance become unreasonable merely because the advice was not written. Counsel was practising in the relevant area in general Chancery chambers and was an appropriate person to instruct. The findings that the solicitors acted reasonably therefore disclosed no arguable error.
4. The remaining complaints did not provide grounds for permission. The evidence of counsel was treated as factual, no prejudice from its admission was shown, and the judge’s professional acquaintance with counsel did not establish improper influence. The proposed evidence from Mrs Harris did not show that it would have altered the result or that she would have withdrawn instructions. Points not advanced at trial, and unsupported assertions about the possibility of obtaining the Charity Commissioners’ consent, could not properly be raised on appeal.
5. Lady Justice Arden tentatively expressed doubts about the importance attached to the date of the authority, observing that a receiver entitled to collect and preserve charitable assets might have been able to withdraw instructions or recover the deposit. That observation was unnecessary to the decision. The application was refused.

• Court of Appeal (Civil Division): [2002] EWCA Civ 282 — permission to appeal against both orders was refused. The related extension-of-time application was also refused.
• High Court: the appeal against the 23 May 2001 order was transferred to the Court of Appeal by Jacobs J.
• Cardiff County Court: on 23 May 2001, amendment was refused and costs were awarded and summarily assessed; on 11 June 2001, judgment was entered for the solicitors for £22,012.15 plus interest and costs.