Perotti v Iliffe Booth Bennett & Ors

Summary judgment is appropriate where the claimant has no real prospect of success. An appellate court considers whether the lower court was wrong on the claim actually decided, not whether the claimant could formulate a substantially enlarged claim on appeal. Proceedings may be an abuse of process where they seek to re-litigate issues already determined against the claimant in proceedings involving different parties. A new allegation does not prevent abuse if pursuing it requires the claimant to reopen matters already decided. A reliable contemporary conference note may be relied upon despite minor inaccuracies. Permission to appeal should be refused where the material discloses no realistic prospect of showing error in the orders below.

Mr Perotti applied for permission to appeal against summary judgment entered by Peter Smith J on 28 October 2003 in favour of two firms of solicitors and a barrister. The judge had also declared the proceedings an abuse of process and ordered that they be struck out.

The proposed claims concerned professional negligence in advice and representation provided in 1993 during administration proceedings concerning Mr Perotti’s late uncle’s estate. The action had been issued in April 1999. The application raised complaints about the judge’s handling of the case, the reliability of a contemporary conference note, the merits of proposed negligence allegations, and a proposed substantial amendment to the particulars of claim. The central questions were whether the claim had a real prospect of success and whether its pursuit improperly sought to reopen issues already determined.

1. Application dismissed. Brooke LJ, with whom Maurice Kay LJ agreed, held that there was no realistic prospect of establishing that Peter Smith J had been wrong to enter summary judgment or to strike out the proceedings as an abuse of process.
2. Proceedings may constitute an abuse of process where a claimant seeks to ventilate issues already determined against him in litigation with other parties. This remained so although one allegation, concerning the new lawyers’ failure to advise about negligence by the former lawyers, had not previously been raised. The claimant was also seeking to re-litigate the viability of issues already decided against him. The court applied the dictum of Sir Andrew Morritt V-C in [2003] EWCA Civ 321.
3. The appellate court’s task was confined to deciding whether the judge was wrong on the claims then before him. It was not appropriate to consider a substantially extended claim which the claimant wished he had brought earlier. The approach to amendment under Civil Procedure Rules 1998 Part 17 was distinct from the approach to summary judgment under rule 24.2, where the issue was whether the claimant had a real prospect of succeeding on the claim.
4. The court was entitled to rely on the contemporary note of the September 1993 conference. Such notes may contain inaccuracies on points of detail, but that did not justify alleging deliberate falsification. The advice recorded in the note supported the conclusion that the negligence claims had no real prospect of success.
5. The court upheld the judge’s conclusions that the first defendants’ limited dealings with Mr Perotti gave no realistic prospect of liability and that the allegations against the second and third defendants lacked substance in light of the advice given. Authorities concerning amendments and other professional-negligence claims, including [2003] EWCA Civ 1342, [2004] EWCA Civ 816 and [2004] EWHC 1402 (QB), did not assist on these facts.

• Court of Appeal (Civil Division) — The application for permission to appeal was dismissed. The court agreed with Peter Smith J’s order of 28 October 2003 entering summary judgment for the defendants, declaring the proceedings an abuse of process and ordering that they be struck out: [2004] EWCA Civ 1018.
• High Court of Justice, Chancery Division — Peter Smith J entered summary judgment for all three defendants, declared the proceedings an abuse of process and ordered that the proceedings be struck out.