Thomson Snell & Passmore (A Firm) v Armstrong & Anor

A party cannot ordinarily reopen arguments, introduce fresh evidence or seek to alter a judgment after it has been circulated, particularly where the material could have been advanced earlier. On an application for permission to appeal, the court may refuse permission on an issue where the lower court had ample unchallenged evidence and no triable issue arose. Permission may nevertheless be granted on another issue where justice requires it, subject to a condition requiring payment into court to protect the respondent against costs wasted by a late amendment.

Thomson Snell & Passmore sought unpaid legal fees from Terence and Jason Armstrong. Deputy Master Mark granted summary judgment for the firm and struck out the defendants’ Defence and Counterclaim. The defendants renewed an application for permission to appeal.

The proposed appeal concerned the reasonableness of the solicitors’ charges and a proposed negligence counterclaim alleging inadequate advice about the merits of the underlying litigation and settlement. During the hearing, the court also received further evidence about the advice given, but that evidence was inconclusive.

1. Reopening the lower court’s decision. Once a judge has circulated a judgment, that is not the proper occasion for a party to reopen argument, serve fresh evidence or take other steps intended to change the result, especially where the material could have been produced earlier.
2. Reasonableness of costs. The Deputy Master was clearly correct to conclude that the charges were reasonable. There was a detailed breakdown, supported by evidence from a costs draftsman, and no evidence challenging any particular item. The defendants could not rely on Points of Dispute raised only after the decision. They were not entitled to a second opportunity to present that challenge, and permission to appeal was refused on this issue.
3. Proposed counterclaim. The court was troubled by the proposed appeal concerning the defendants’ allegation that the solicitors had failed to advise them adequately. The evidence obtained for the permission application was inconclusive. With considerable hesitation, the court concluded that justice required permission to appeal on that issue.
4. Condition. Permission was granted only on condition that the defendants pay £20,000 into court within 28 days, representing the condition they offered in view of costs thrown away by the late proposed amendment.

• High Court (Chancery Division): On appeal from Deputy Master Mark, permission to appeal was granted on the proposed counterclaim issue subject to payment of £20,000 into court within 28 days. Permission was refused on the costs-reasonableness issue.
• Deputy Master Mark: Granted summary judgment for Thomson Snell & Passmore and struck out the defendants’ Defence and Counterclaim. The judgment date was 14 March 2006; no citation is stated in the judgment.