Batey v Burton

Permission to appeal should be refused where the proposed grounds have no real prospect of success. That is especially so where the challenge seeks to overturn findings of fact supported by compelling reasons, or relies on hindsight about tactical decisions made during earlier litigation. An appeal cannot succeed where each of several essential grounds would have to be established and their combined prospects are practically non-existent.

Mr Batey applied for permission to appeal from His Honour Judge Bryant’s judgment of 6 March 2002 in a negligence claim against his former solicitors, Watson Burton. He alleged that their handling of revised evidence from a solicitor witness had caused an adverse costs order in earlier defamation proceedings. The judge rejected the factual and causation allegations. Tuckey LJ had already refused permission, concluding that the proposed challenges to the factual findings had no real prospect of success. The central issue was whether the proposed appeal had a real prospect of succeeding on the three grounds advanced.

Application refused. Permission to appeal was refused.

1. Findings of fact. The challenge to the judge’s finding that the solicitors had informed leading counsel of the witness’s revised evidence was an attempt to overturn a finding of fact. The evidence was not clear, but the judge was entitled to draw the inferences he did. Nothing identified undermined his conclusion or gave a real prospect that the Court of Appeal would disagree.
2. Professional judgment and hindsight. The allegation that competent counsel would have deployed the revised witness statement earlier was substantially a hindsight argument. The witness had changed his account and was plainly dangerous. It was understandable, and there was no real prospect of showing that counsel’s tactical decision to seek exclusion of opposing hearsay evidence while keeping the witness in reserve was negligent or would have been different.
3. Costs and causation. The judge was entitled to conclude that the cross-examination of the witness would have occurred in any event. The adverse costs order arose from the earlier non-disclosure of a letter and Mr Batey’s delay in responding to the application to rely on it, matters not attributable to Watson Burton. The central negligence allegation therefore did not cause the costs order.
4. Cumulative grounds. Mr Batey needed to succeed on all three grounds for the proposed appeal to succeed. Each ground lacked a real prospect of success, and their combined prospects were practically non-existent.

Order: permission to appeal refused.

1. Court of Appeal (Civil Division): Permission to appeal from the judgment and order of His Honour Judge Bryant dated 6 March 2002 was refused. Tuckey LJ had previously refused permission on 17 May 2002.
2. Middlesbrough County Court: His Honour Judge Bryant rejected the negligence claim’s factual and causation case.