Browning & Anor v Messrs Brachers (a firm)

On an appeal from a refusal to amend a statement of claim, the court applied the real prospect of success test applicable to summary judgment under CPR Part 24. The court must avoid conducting a mini-trial, but may refuse an amendment where the material facts disclose no viable cause of action. A proposed professional-negligence claim against an earlier solicitor was parasitic upon the underlying counterclaim and had no independent value. Once the counterclaim was effectively lost, the contingent claim was also lost, so the proposed claim was statute barred. The appeal was dismissed.

The claimants appealed from an order of Master Turner dated 19 December 2002 refusing permission to amend their professional-negligence claim against their former solicitors. The proposed amendment alleged that the solicitors had negligently failed to pursue a claim against an earlier solicitor who had prepared a memorandum recording an oral business transaction.

The proposed claim depended upon the claimants first establishing the underlying counterclaim in earlier County Court proceedings and then showing that the counterclaim failed because of the memorandum. The issues were whether the amendment had a real prospect of success and whether it was barred by limitation.

1. Appeal dismissed. On an amendment application the relevant test was the summary-judgment test under CPR Part 24. The proposed claim required a real, rather than fanciful, prospect of success. The court had to avoid a mini-trial and should not pre-judge genuinely disputed facts, but could assess whether the pleaded and undisputed material disclosed a viable claim.
2. The proposed negligence claim against the earlier solicitor had no realistic prospect of success. The evidence did not show that the solicitor had been instructed about the alleged representations concerning the goats. The memorandum was presented for the clients’ consideration and approval, and they signed it. The Master was entitled to conclude that no breach of duty had been shown. That conclusion alone disposed of the appeal.
3. The proposed claim against the defendants was parasitic upon the underlying counterclaim. It could assist the claimants only if the counterclaim had underlying merit and had failed because the memorandum’s representations clause was relied upon. It therefore had no independent value once the opportunity to pursue the counterclaim had been lost.
4. For limitation purposes, the contingent claim accrued when the counterclaim was effectively lost, at the latest on the order of 25 October 1996 restricting the evidence. The proposed amendment was consequently statute barred. This supplied an additional reason for upholding the Master’s order.
5. The court expressed no concluded view on whether successive solicitors could both be responsible for the same loss in circumstances such as those considered in Macpherson & Kelly v Prunty [1983] VR 573. The issue was unnecessary to decide because the proposed claim failed on its merits and on limitation.

The appeal was brought from Master Turner’s order dated 19 December 2002, following his reserved judgment dated 2 December 2002. Permission to appeal was granted by Leveson J on 19 February 2003. The High Court reviewed, rather than reheard, the Master’s decision and dismissed the appeal.