Davda v Bross Bennett Solicitors & Ors

Permission to appeal should be refused where the proposed grounds have no real prospect of success. Detailed findings of fact, particularly findings based on contemporaneous documents, witness evidence and admissions, will not ordinarily justify appellate intervention unless a properly arguable error is identified. A professional negligence claim concerning legal representation must be assessed by reference to the evidence of the advice given, the instructions received and the conduct of the relevant hearing. Where the evidence shows that solicitors properly advised and represented the client, and that the adverse result followed from the client’s evidential and financial position, an appeal will have no real prospect of success.

The claimant sought permission to appeal from the judgment and order of His Honour Judge Dight dated 23 September 2008, following the trial of his professional negligence claim against his former solicitors and their assistant. The claim concerned advice and representation during ancillary relief proceedings, including the sale of jointly owned matrimonial property.

The proposed grounds challenged findings about the claimant’s consent to the sale, the conduct of an interim hearing, the court’s jurisdiction, and the failure to seek permission to appeal or a stay. The central question was whether any of those grounds had a real prospect of success.

1. Application dismissed. The court concluded that the proposed appeal had no real prospect of success.
2. The trial judge was entitled to make detailed findings that the claimant had consented to the sale of the property, had later withdrawn that consent, and had been properly advised about the limited prospects of retaining it. Those findings were supported by attendance notes, correspondence, counsel’s advice and the claimant’s own admissions. The complaint about the company’s liquidation or striking-off was a minor matter that did not undermine the overall assessment of reliability.
3. It was appropriate for the trial judge to determine the properly pleaded allegations at trial, notwithstanding an earlier decision allowing the claim to proceed beyond summary judgment. The earlier decision had addressed whether the issues required investigation at trial; it did not determine their merits.
4. The evidence supported the finding that the claimant had been properly represented at the hearing before District Judge Millian. An adjournment had been sought, the available evidence concerning finance had been placed before the district judge, and the arguments open to the claimant had been advanced. The order for sale reflected the weakness of the claimant’s financial evidence rather than negligent representation.
5. The findings concerning jurisdiction, and the decision not to seek a stay or permission to appeal, disclosed no arguable error. An application for a stay or permission would have had no merit in the circumstances.
6. The usual course as to costs was maintained. The defendants were not awarded their costs of attending the permission application, although their assistance was acknowledged. The claimant was permitted to obtain a transcript at public expense because he was on income support and suffering from ill health.

1. High Court (Chancery Division): Permission to appeal from the judgment and order of His Honour Judge Dight dated 23 September 2008 was refused because the proposed appeal had no real prospect of success.