Hicks v Russell Jones & Walker

An appellate court should not maintain permission to appeal where further findings show that the proposed challenge has no realistic prospect of success. A heavy burden applies to an appellant seeking to overturn a trial judge’s findings of fact, particularly in a lengthy and complex case. The appellate court must assess whether the findings are rational and supported by the evidence; disagreement with the judge is insufficient. In assessing causation in a professional-negligence claim, the court considers the hypothetical course that would probably have followed proper instructions, including likely leading counsel’s advice, fresh-evidence constraints and funding considerations.

Henderson J found that the respondent solicitors had been negligent in failing to take proper instructions and obtain timely leading counsel’s advice concerning an August 1991 valuation, but that the negligence had not caused Mr Hicks any loss.

Permission to appeal was granted on a narrow causation issue. The matter was remitted for further findings on what would probably have occurred if proper instructions had been taken. In a supplemental judgment, Henderson J found that Mr Hicks would probably have obtained leading counsel’s advice, and that counsel would probably not have recommended obtaining a retrospective valuation.

Mr Hicks sought permission to expand his grounds to challenge those findings. The central issues were whether the proposed challenge had a real prospect of success and, if not, whether the existing permission to appeal should be set aside.

Appeal dismissed. The application for permission to expand the grounds of appeal was refused, and the existing permission to appeal was set aside.

1. Remitted issue. Lord Justice Toulson held that Henderson J had addressed the question remitted to him: what would have happened if proper instructions had been taken, including a proper explanation of the evidence which Humberclyde sought to adduce.
2. Hypothetical causation. The critical findings were that proper instructions would probably have led to a conference with leading counsel; counsel would probably have advised against obtaining a retrospective valuation; and Mr Hicks would probably have accepted that advice. The assessment properly took account of the other evidence, the difficulties associated with fresh evidence under Ladd v Marshall [1994] 1 WLR 1489, the risk of highlighting weaknesses, and the need for legal advice before public funds could be used.
3. Appellate review of fact. A heavy burden rests on a litigant challenging a trial judge’s factual findings, especially in a lengthy and complex case. The appellate court would, in effect, have to find the conclusions perverse. The judge had given rational reasons supported by the evidence, and there was no real prospect of successfully overturning them. The complaint of judicial predisposition was unsupported by objective material.
4. Permission. Under Civil Procedure Rules 1998, CPR 52.9, the court had power to set aside permission to appeal in whole or in part. Although the respondent, having been present when permission was granted, could not make an application under the rule, it could invite directions concerning the future conduct of the appeal. Lord Justice Lloyd agreed with Lord Justice Toulson.

1. Court of Appeal (Civil Division): Refused permission to expand the grounds of appeal, set aside the existing permission to appeal and dismissed the appeal.
2. High Court of Justice, Chancery Division: Henderson J found the solicitors negligent but concluded that their negligence had not caused Mr Hicks any loss. A supplemental judgment made further findings after remittal.