Bhamjee v Forsdick & Ors

A legal representative acting for one side in litigation owes no duty of care to the opposing litigant. The abolition of advocates’ immunity from suit by their own clients did not alter that rule.

Permission to pursue a second appeal requires an important point of principle or practice, or some other compelling reason. Repetitive and meritless litigation, including attempts to reopen concluded planning matters and claims against opposing lawyers, cannot meet that threshold.

The court may stay current and future applications pending consideration by a three-judge court of an injunction controlling a litigant’s future proceedings. Finality is especially important in planning enforcement, where confirmed decisions affect others and breach of an enforcement notice is criminal.

The claimant sought an extension of time and permission to appeal from Park J’s order of 27 January 2003. Park J had struck out two Chancery claims against five barristers and the Treasury Solicitor as incoherent and incomprehensible. He had also dismissed the claimant’s appeal from Master Bowman’s strike-out of a related claim against the Secretary of State.

The claims arose from earlier planning litigation. They alleged, among other matters, negligence, breach of statutory duty, malicious prosecution and misconduct by lawyers who had acted for the opposing side. The claimant also sought to add solicitors and the Legal Services Ombudsman.

The central issues were whether there was any merit in the proposed appeals, whether time should be extended, and whether further measures were required to control repetitive litigation.

1. Application dismissed. Brooke LJ, with whom Carnwath LJ agreed, granted an extension of time but refused permission to appeal. The proposed appeals were hopeless. The proposed second appeal did not identify an important point of principle or practice, or another compelling reason for the Court of Appeal to entertain it.

2. The claimant’s reliance on Hall v Simons [2002] 1 AC 615 and the Access to Justice Act 1999 did not affect the rule in Connolly-Martin v Davis [1999] PNLR 826. A barrister, or a solicitor conducting litigation, owes no duty of care to the litigant on the other side. Public-policy reasons supported that conclusion. The negligence claims against opposing lawyers were therefore misconceived, as was the proposed private-law claim against the Legal Services Ombudsman.

3. The claimant was attempting to relitigate matters already determined, while failing to address the reasons for the prior adverse decisions. The court refused the proposed joinder of further lawyers for the same reasons.

4. Because the applications illustrated serious resource implications of persistent meritless appeals by fee-exempt litigants, the court ordered a stay of all current and future applications by the claimant to that court pending a three-judge hearing. That hearing would consider an injunction controlling his future litigious activity, with the Attorney General invited to consider assistance.

5. Carnwath LJ added that the planning issues had been conclusively determined. Planning cases particularly require finality because uses affect persons beyond the parties, and breach of a confirmed enforcement notice is a criminal offence. Any further challenge was far too late.

• Court of Appeal (Civil Division): Extension of time granted, but permission to appeal refused; the applications were dismissed. A stay was imposed pending consideration of a litigation-control injunction.

• High Court (Chancery Division): Park J, on 27 January 2003, struck out two claims and dismissed the claimant’s appeal from Master Bowman’s strike-out order.

• Master: Master Bowman struck out the related claim against the Secretary of State and, on reconsideration, refused to vary that order while granting permission to appeal.