David Truex, Solicitor (A Firm) v Kitchen

Permission to appeal may be granted where the lower court appears to have based its conclusions on a fundamental factual error concerning a significant date. This is particularly so where the timing may affect the duties owed and the consequences of any breach. Permission is also appropriate where the lower court’s findings do not clearly identify what should have been done, when it should have been done, or the causative effect of any breach.

The claimant solicitor’s firm renewed its application for permission to appeal against a decision of HHJ Ryland in the Central London County Court on 7 December 2005. The judge had dismissed most of the firm’s claim for professional fees and ordered the return of fees paid on account.

The proposed appeal challenged findings that the firm had failed to advise the defendant adequately about public funding and ongoing costs. The firm also contended that the judge had wrongly found that the retainer began on 19 February 2003, rather than on 26 or 27 February. The central issue was whether those apparent errors and uncertainties gave the proposed appeal a real prospect of success.

Permission to appeal granted.

1. The application was initially considered to raise findings which the trial judge was entitled to make. Following oral argument, however, there was a real prospect of successfully appealing the decision.
2. The trial judge appeared to have made a fundamental error concerning the date on which the retainer was entered into. That date was highly significant because many subsequent matters depended upon it. If the finding that the retainer began on 19 February 2003 had influenced the judge’s conclusions, the proposed appeal had a substantial issue to examine.
3. It was also unclear what the firm should have done, when it should have done it, and what the causative effect of any established breach of duty would have been. Those uncertainties concerned the findings that the firm had failed to advise properly about public funding and the ongoing costs of the proceedings.
4. The court did not determine the merits of the proposed arguments, including whether public funding was available for the steps taken before 6 March 2003 or whether the firm was entitled to payment for work already performed. Those matters were appropriate for consideration on the appeal.

Order: application granted.

1. Court of Appeal (Civil Division): granted permission to appeal on 3 November 2006.
2. Central London County Court: HHJ Ryland dismissed most of the solicitor’s firm’s claim for professional fees and ordered the return of fees paid on account on 7 December 2005.