Miller v Garton Shires (a firm)

Summary judgment under the Civil Procedure Rules 1998 requires both no real prospect of success and no other compelling reason for a trial. The court must avoid a mini-trial, but may assess documentary evidence and act where the asserted factual basis is entirely without substance. Conflicting witness evidence does not automatically prevent summary judgment where other evidence makes it manifestly unreliable. On a second appeal, an important point must concern a principle or practice not already established. A challenge to the application of established principles is insufficient. A compelling reason ordinarily requires very high prospects of success, subject to exceptional procedural injustice.

The claimant alleged that two firms of solicitors had negligently failed to issue timely proceedings arising from a road traffic accident, causing him to lose a valuable claim against the other driver. A District Judge granted summary judgment, finding that the underlying claim would have been worthless. His Honour Judge Bartfield upheld that decision on the first appeal. Permission for a second appeal was refused on paper, and the renewed application was heard on notice by the Court of Appeal. The central issues were whether the proposed appeal raised an important point of principle or practice, or whether another compelling reason justified a second appeal under CPR 52.13(2).

The Court of Appeal unanimously refused permission to bring a second appeal.

1. Rule 24.2 of the Civil Procedure Rules 1998 imposes cumulative requirements. The applicant must show both that the claim has no real prospect of success and that there is no other compelling reason why the matter should proceed to trial. The word other must be given effect so that the rule does not create a reason for trial merely because the claim lacks real prospects.
2. The prohibition on a mini-trial does not make summary judgment exceptional or unavailable whenever the papers disclose some evidential conflict. The court must not prefer untested witness evidence merely by choosing between competing accounts. It may nevertheless assess the evidence where, taken with incontrovertible material, an account is manifestly unreliable, or where the asserted factual basis is so lacking in substance that the claim is no more than fanciful. If cross-examination is required, the matter should proceed to trial.
3. In a professional-negligence claim based on the loss of an opportunity to sue a third party, the claimant need only show that the lost underlying claim could not be dismissed as worthless. It is not necessary at the summary stage to establish that the underlying claim would probably have succeeded. The approach in Sharpe v Addison [2003] EWCA Civ 1189 was consistent with that analysis.
4. Under section 55(1) of the Access to Justice Act 1999 and CPR 52.13(2), a second appeal is permitted only if it raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. Following Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, the first limb concerns a principle not yet established. It does not include the ordinary application of an established principle to the facts.
5. The second limb generally requires very high prospects of success, although an extreme procedural failure, such as denying an appellant any effective right of appeal, may suffice without that prospect. The seriousness of the claimant’s injuries, the solicitors’ alleged failures and the asserted mini-trial did not amount to a compelling reason. The claimant’s own failure to provide clarifying witness or expert evidence was also relevant. Neither lower decision was plainly wrong, perverse or procedurally unfair.

The application therefore failed at the permission stage, and no appeal was heard on its merits.

• Court of Appeal (Civil Division) ([2006] EWCA Civ 1386): refused permission for a second appeal.
• Leeds County Court, first appeal: His Honour Judge Bartfield upheld the District Judge’s summary dismissal of the claim.
• Leeds County Court, summary judgment: District Judge Spencer dismissed the claims against the solicitors under Rule 24.2 of the Civil Procedure Rules 1998.