Dookwah v Pulsford

An appellate challenge to factual findings has no reasonable prospect where fresh material affects only an immaterial aspect of a witness’s evidence and does not undermine the findings on which the decision depended. In a solicitor-negligence claim based on failure to advise, the evidence must show that the relevant matter was presented for advice and that instructions were accepted. General background information, unparticularised documents or later updates do not, without more, establish such instructions.

The claimant sued his former solicitor in negligence. He alleged that matters concerning financial assistance for his education, including the conduct of an earlier solicitor, had been put before the defendant for advice. The Oxford County Court rejected the claim, treating it principally as an allegation that express instructions to pursue judicial review had been given in March 1995. On an application for permission to appeal, the Court of Appeal considered both that formulation and the claimant’s original failure-to-advise case. The central issues were whether the trial judge’s factual findings could be disturbed and whether the documents established any accepted instructions to advise.

Lord Justice Latham, giving the single judgment, dismissed the application for permission to appeal.

1. The court considered the case on the basis on which the County Court may have addressed it, namely a conflict about whether express instructions to pursue judicial review had been given in March 1995. If that was the issue presented at trial, the judge’s conclusion, reached by comparing the parties’ evidence with contemporaneous correspondence, was unassailable.
2. The additional documents produced by the claimant might cast doubt on one aspect of the defendant solicitor’s evidence. They did not affect any material matter on which the trial judge had been required to decide the case. They therefore could not upset or sufficiently undermine the factual findings to give the proposed appeal a reasonable prospect of success.
3. The court also considered the claim as originally formulated: negligence in failing to give appropriate advice. The correspondence did not show that the claimant had instructed the solicitor to advise on the grant, on the earlier solicitor’s conduct, or on any related legal issue. One letter merely enclosed documents concerning the college and grants authorities. A later letter described the grant issue as an update and contemplated that assistance might be requested in the future. These matters formed part of the background to the claimant’s wider educational complaints, but did not establish accepted instructions.
4. There was consequently no reasonable prospect that an appeal would succeed. Application dismissed.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal.
• Oxford County Court: His Honour Judge Morton Jack rejected the negligence claim on 4 July 2001.