Wilkes v Ballam Delaney Hunt (a firm)

For a second appeal, permission requires an important point of practice or principle, or another compelling reason for the Court of Appeal to hear the case. A claim by one party to litigation against the opposing party’s solicitors ordinarily has no reasonable prospect where the solicitors’ duties are owed to their own client. Procedural complaints about late evidence do not meet the second-appeal threshold unless they disclose a genuinely important issue or compelling reason. Where an appeal is totally without merit, the court must consider a civil restraint order, but the order remains discretionary. A prior assurance not to commence fresh proceedings, if observed, may justify leaving matters to that assurance despite further misconceived applications.

The applicant challenged the striking out of his claim against solicitors who had acted for his former wife in matrimonial financial proceedings. The District Judge struck out the claim form as disclosing no reasonable cause of action. His Honour Judge Stewart QC dismissed the appeal and made a costs order, accepting the applicant’s assurance that he would not commence fresh proceedings against the solicitors without permission.

The applicant sought an extension of time and permission for a second appeal. He also sought removal of what he called a gagging order and resisted an extended civil restraint order. The central issues were whether the second-appeal threshold was met and whether a restraint order was appropriate.

1. Disposition. The extension of time was granted, but permission to appeal was refused because the proposed appeal was entirely without merit. An extended civil restraint order was refused, and there was no order for costs.
2. Under section 55 of the Access to Justice Act 1999, a second appeal requires an important point of practice or principle, or another compelling reason for the Court of Appeal to hear it. The applicant’s contention that the opposing solicitors had acted without their client’s instructions disclosed no such point or reason.
3. The ordinary position is that solicitors acting for one litigant owe their professional duties to that client. They do not ordinarily owe a duty of care to the opposing party. The confidentiality inherent in the client–solicitor relationship also illustrates the difficulty of such a claim.
4. The complaint that the judge had relied on a witness statement served shortly before the hearing, or should have adjourned or declined to accept it at face value, did not come remotely near satisfying the statutory threshold.
5. Because the application was found to be totally without merit, CPR 52.10(5) and (6) required the court to consider whether a civil restraint order was appropriate. The practice direction to CPR Part 3 supported considering an extended order in the circumstances, but the court retained a discretion.
6. The applicant had complied with an earlier assurance not to commence fresh proceedings against the solicitors without permission. Although the Court deprecated two later misconceived applications, they did not justify an extended or other civil restraint order. The court therefore rested on the assurance.

• Court of Appeal (Civil Division): Granted an extension of time, refused permission for a second appeal as entirely without merit, refused an extended civil restraint order, and made no order for costs.
• Liverpool County Court: The District Judge struck out the claim form as showing no reasonable cause of action. His Honour Judge Stewart QC dismissed the applicant’s appeal and accepted his assurance concerning further proceedings.