Perotti v Collyer-Bristow (A Firm)

An appellate court will not interfere with a trial judge’s case-management rulings where they fall within the wide ambit of the judge’s discretion and disclose no viable error. A litigant seeking appellate review must state clear grounds showing why the decision was wrong or unjust through serious procedural or other irregularity.

Publicly funded transcripts should not ordinarily be obtained before the court is satisfied that the proposed appeal has a real prospect of success. A witness summons cannot be used solely to secure the cross-examination of a witness. Solicitors may lawfully terminate a retainer for good reason, including an irreconcilable conflict arising from a complaint and a serious breakdown of confidence.

The claimant, acting in person, had unsuccessfully sued the respondent solicitors for professional negligence arising from their short retainer in administration proceedings concerning his uncle’s estate. His principal allegations were that they had failed to plead a challenge to administration fees and an inquiry concerning investment of estate funds before an urgent pleading deadline.

Lindsay J dismissed the claim after a lengthy trial. The claimant sought permission to appeal from that judgment and from twelve interlocutory case-management rulings made during the trial. He also sought reconsideration of a refusal to provide further trial transcripts at public expense.

The central issues were whether any proposed appeal disclosed a real prospect of success, whether the trial judge’s procedural rulings could be impugned, and whether the solicitors had negligently conducted or unlawfully terminated their retainer.

1. All fourteen applications were dismissed as totally devoid of merit. The court considered their merits despite serious delay and deficiencies in the notices of appeal.

2. The application for further publicly funded transcripts was correctly refused. A litigant who attended the trial and has the judgment must first identify grounds showing that the decision may be wrong. If an appeal then has a real prospect of success, the court can decide what additional transcripts are needed. Ordering them earlier would waste public resources.

3. The twelve challenges to Lindsay J’s procedural rulings disclosed no basis for intervention. His decisions on adjournment, disclosure, amendment, witness evidence, recusal and related matters were within the broad discretion of a trial judge. The proposed late amendments and applications would have caused substantial prejudice or concerned matters not properly pleaded.

4. A witness summons could not properly be issued merely to permit cross-examination of a witness. That approach accorded with McPhilemy v Times Newspapers Ltd (No 2), [2000] 1 WLR 1732.

5. The substantive appeal was also hopeless. In an administration action, a beneficiary’s complaints may more readily be developed by amendment as the proceedings progress. The solicitors were therefore not negligent merely because, during the urgent period in which they saved the action from strike-out, they did not identify and plead every possible argument. The claimant showed no error in the judge’s findings on the administration-fees issue, the investment issue, or the other allegations of negligence.

6. The judge was entitled to find that the solicitors had good reason to terminate the retainer. The client’s unresolved formal complaint created a conflict of interest, and the evidence established a serious breakdown of confidence. Either reason independently justified termination, particularly after the immediate crisis in the administration proceedings had passed.

After dismissing the applications, the court indicated that it would hear submissions on possible further civil-restraint directions. Those directions had not yet been made in this judgment.

• Court of Appeal (Civil Division): By this judgment, [2004] EWCA Civ 639, the court dismissed the claimant’s fourteen applications, including his proposed appeal from the substantive judgment and challenges to interlocutory rulings.
• High Court of Justice, Chancery Division (Lindsay J): On 21 January 2003, dismissed the professional-negligence claim after trial, refused permission to appeal, and extended time for appealing.