Carford Catering Equipment Limited -v- Peter J Fowler

Permission to appeal may be granted where the proposed ground is arguable and has more than a fanciful prospect of success. The court need not predict that the appeal will succeed. In a professional negligence claim, a proposed challenge is sufficiently arguable where the first-instance reasoning may have addressed foreseeability without adequately addressing causation, including whether subsequent events or advice broke the chain of causation.

Carford Catering Equipment Limited sued its former solicitor, Peter John Fowler, after an agency arrangement for a salesman led to a claim invoking the Commercial Agents (Council Directive) Regulations 1993. Gibbs J held that Fowler had breached his retainer and/or been negligent and that this caused Carford’s loss. Permission to appeal was refused on paper by Sir Anthony Evans. Fowler renewed the application before the Court of Appeal, arguing that the first-instance judge had focused on foreseeability without adequately considering causation and whether later events, including advice from another solicitor, broke the chain. The issue was whether that ground had more than a fanciful prospect of success.

Application allowed. Fowler was granted permission to appeal against the order of Gibbs J.

1. The proposed ground was arguable and had more than a fanciful prospect of success. Mantell LJ stressed that granting permission was not a prediction that the appeal would succeed; it remained entirely possible that it would fail.
2. The ground concerned the distinction between foreseeability and causation. Fowler’s breach of retainer and/or negligence was not contested. The appellant argued that Gibbs J had concentrated on foreseeability and had not adequately considered whether the later history broke the chain of causation. That history included Carford’s subsequent reliance on another solicitor and the making of a second agency agreement.
3. The Court of Appeal did not determine whether causation was in fact broken. It held only that the proposed challenge was fit for consideration on the substantive appeal.

The order was for a three-judge court, with one member permitted to be a High Court judge, and a one-day time estimate.

• Court of Appeal (Civil Division) — In [2002] EWCA Civ 551, Mantell LJ allowed the oral renewal of the permission application and granted permission to appeal. The appeal on its merits was not decided.
• High Court, Queen’s Bench Division — Gibbs J, by order dated 18 January 2002, found Fowler in breach of retainer and/or negligent and found that the breach and/or negligence caused Carford’s loss.