Baker Tilly (a firm) v Makar, Re Application to Appeal

Permission to appeal should be granted where the proposed appeal has a real prospect of success, even though the appellant’s prospects are not necessarily high and the court does not prejudge the merits. An appeal may properly proceed where grounds concerning the scope or termination of a retainer are arguable, and where consequential grounds depend on those issues. It is also arguable that an agreed fee for professional work cannot be recovered when the contracted report was never produced, unless subsequent events discharged or altered that obligation.

Baker Tilly claimed £30,000 plus VAT from Ms Makar under retainers relating to expert accountancy work connected with her Employment Tribunal proceedings and intended regulatory complaints. Ms Makar counterclaimed for negligence and breach of fiduciary duty.

After a trial before His Honour Judge Seymour QC, judgment was given for Baker Tilly and the counterclaim was dismissed. Ms Makar sought permission to appeal on seven grounds, challenging the construction and termination of the retainers, the effect of later discussions and instructions, the alleged obligation to produce a report, and her liability to pay the fee. The central question was whether the appeal had a real prospect of success.

1. Application granted. The court was required under Civil Procedure Rules Part 52 Rule 52.36(a) to consider whether the appeal had a real prospect of success. Granting permission did not involve expressing a concluded view on the merits.
2. Ground 2, concerning whether the retainer had two purposes—work for the Employment Tribunal proceedings and work intended for regulatory authorities—was properly arguable, although the prospects of success were not high. Ground 1, concerning whether an inadequately recorded voicemail terminated the retainer, was also properly arguable, particularly because the precise terms of the message were unavailable and the written terms of business had not been incorporated.
3. Ground 3 was parasitic upon grounds 1 and 2. Its prospects depended upon whether the existing retainer had been terminated and whether the work had more than one purpose.
4. Grounds 4 and 5 were the strongest. On the trial judge’s findings, a fresh retainer had required Baker Tilly to carry out broadly similar work and produce a report for the agreed fee of £30,000 plus VAT. It was properly arguable that later events did not release Baker Tilly from the obligation to produce the report or entitle it to recover the fee without doing so.
5. Grounds 6 and 7 were consequential upon grounds 4 and 5 and were therefore also properly arguable. The court expressly reserved the outcome of the appeal for determination after full argument and consideration of the evidence.

• Queen's Bench Division: His Honour Judge Seymour QC gave judgment for Baker Tilly on its claim and dismissed Ms Makar’s counterclaim after trial.
• Court of Appeal (Civil Division): Lord Justice Jackson granted permission to appeal because the appeal had a real prospect of success.