Hicks v Russell Jones & Walker

On an application for permission to appeal, the court is concerned with whether the proposed grounds cross the threshold of arguability, rather than determining the appeal on its merits. A solicitor’s duty to take instructions may arguably include obtaining the client’s instructions on the course to pursue, not merely comments on evidence. Where solicitors have failed to obtain leading counsel’s advice in time, it may be arguable that they should have discussed the position with the client and prepared evidence the client wished to adduce. Permission was therefore granted on grounds concerning expert rebuttal evidence and causation.

The appellant had sued the respondent solicitors concerning their conduct of an earlier Court of Appeal case. Henderson J found negligence and breach of contract, but concluded that the breaches caused no loss and entered judgment for nominal damages. The appellant sought permission to appeal, contending that the solicitors should have obtained rebuttal valuation evidence and that their breaches caused the failure of the earlier appeal. The central issue was whether those grounds were arguable, including whether the solicitors’ duty extended to taking instructions on the course the client wished to pursue.

Permission to appeal was granted on grounds 1 and 3, and a stay was granted.

1. Henderson J had found that the solicitors should have identified the significance of the August 1991 hotel valuation, taken instructions from the appellant, and sought leading counsel’s advice earlier. He nevertheless concluded that, even if consulted in time, leading counsel would have advised against preparing or adducing fresh evidence. He therefore found no causative loss.
2. Lord Justice Toulson considered that two potentially distinct issues required examination: the failure to obtain timely advice from leading counsel and the failure to take proper instructions from the appellant. The latter might extend beyond obtaining comments on evidence to obtaining instructions on what the client wished to do.
3. It was arguable that, because the solicitors had themselves failed to arrange a timely conference with leading counsel, they should have discussed the matter more fully with the client and prepared evidence which they knew he wished to place before the court. The respondents’ reliance on the possible advice of leading counsel did not necessarily answer that complaint.
4. Ground 1, alleging failure to obtain expert evidence in time to answer the valuation, crossed the threshold of arguability. Ground 3 was also arguable: if counter-evidence ought to have been prepared and adduced, it was possible that the earlier appeal would not have been determined by the short route based on the uncontradicted valuation.
5. Permission was not granted on the challenge to the judge’s conclusion about what leading counsel would have advised. Any attempt to pursue that issue would require renewal before the full court. The appeal was directed to be heard by three Lord Justices.

• Court of Appeal (Civil Division): Permission to appeal granted on grounds 1 and 3; stay granted. The appeal was directed to be heard by three Lord Justices.
• High Court of Justice, Chancery Division: Henderson J found the respondent solicitors negligent and in breach of contract but held that the appellant had suffered no loss; judgment was entered for nominal damages.