Taefi v Russell

At the permission stage, leave may be granted where the proposed grounds are arguable and the court cannot say that the appeal has no prospect of success, even if the case presents substantial difficulties. Permission may be confined to properly arguable issues. A ground seeking to reopen factual findings may be refused in its existing form, while a narrower replacement ground may be permitted. A false defence does not necessarily establish, for permission purposes, that any solicitor’s negligence caused no loss. Potential consequences, including a retrial, should be considered only if the appeal succeeds.

Mr Taefi brought negligence proceedings against his former solicitors concerning their conduct of his defence to a claim by Pegasi Management Company Ltd for rent, interest and costs. Default judgment had been entered after no acknowledgment of service was filed, and was later set aside on a defence which Mr Taefi accepted was false. He alleged failures concerning the acknowledgment of service, the solicitors’ insistence on recovering their costs, and advice about the risk of costs.

The appeal was from a decision of His Honour Judge Reynolds in the Central London County Court. The central question was whether the proposed grounds disclosed an arguable appeal, including issues of causation, the scope for challenging factual findings, and a narrower point concerning the lease relied on in the claim form.

Lord Justice Longmore granted qualified leave to appeal. The judgment determined the scope of the proposed appeal and did not finally decide the negligence or causation issues.

1. The three negligence allegations were sufficiently interlinked, and grounds 1 to 7 were arguable. Although the proposed appeal presented substantial difficulties, the court could not say that there was no prospect of success.
2. Grounds 8 and 9, concerning causation and related matters, were also permitted. It was arguable that the judge had treated the false nature of the defence as meaning that, even if there had been negligence, no loss could have been caused. The judge had stated that the ex turpi causa maxim was not being applied, but the reasoning arguably produced that consequence through the findings on causation.
3. Permission was refused on grounds 10 and 11 in their existing form because they sought to reopen findings concerning the original underlease. A replacement ground could be formulated on the confined point that, although Mr Taefi accepted liability for the rent, he disputed being a party to the lease relied on in the claim form. That point could bear on whether an arguable defence should have been advanced in the acknowledgment-of-service form.
4. Permission was not refused on ground 12 in the light of Polanksi v Condé Nast Publications [2005] 1 WLR 437, although the court considered it unlikely that any decision on that ground would be decisive.
5. The amended grounds were to be supplied within seven days. If the appeal succeeded, the likely consequence would be a retrial, which the parties were directed to consider. The formal order was: leave granted.

1. Court of Appeal (Civil Division) granted qualified leave to appeal on grounds 1 to 9, permitted a confined replacement for grounds 10 and 11, and did not refuse ground 12: [2005] EWCA Civ 357.
2. Central London County Court the appeal was brought from a decision of His Honour Judge Reynolds. No citation or formal disposition of that decision is stated in the judgment.