Asiansky Television Plc & Anor v Khanzada & Ors

On an application for summary judgment, a client alleging that professional negligence caused the loss of an appeal need not prove that the appeal would have succeeded. The client must show a real and substantial, rather than negligible, prospect of success. The court must assess that issue without conducting a mini-trial. Where several events may have contributed to the loss, the defendant’s breach need only be an effective cause; it need not be the sole effective cause. The value of the lost opportunity is generally assessed at the date of breach, unless justice requires another date. A court may determine an unpleaded argument on a summary judgment application where it gives the claimant a fair opportunity to address it, but the argument must still have a real prospect of succeeding.

The claimants sued their former solicitors and barristers for negligence and breach of duty. They alleged that delay caused an application for permission to appeal against a judgment in earlier professional-negligence proceedings to be made out of time, depriving them of a valuable opportunity to obtain greater damages.

The defendants applied for summary judgment. The central issue was whether the claimants had a real prospect of showing that a timely application for permission to appeal would itself have had a real and substantial prospect of success. The claimants relied on criticisms of the earlier judgment, including an argument that any renegotiated transaction would have involved changes to contractual terms as well as price.

1. Summary judgment test. The defendants had to show that the claimants had no real prospect of succeeding and that there was no other compelling reason for trial under CPR Part 24. The court was required to avoid a mini-trial.
2. Lost appeal opportunity. Applying Mount v Barker Austin (a firm) [1998] PNLR 493, the claimants had to show that the lost appeal had a real and substantial, rather than merely negligible, prospect of success. The same principle applied to a lost opportunity to pursue an appeal.
3. The pleaded challenge to the earlier judgment could not succeed. The earlier judge was entitled to conclude that the transaction would have proceeded at a reduced price. The reference to minimum requirements described the risks which the purchaser would accept, not terms which the vendor would necessarily have been required to include in the contract.
4. The alternative argument concerning changes to the completion date and additional contractual protection was sufficiently arguable to require consideration, despite not being properly pleaded. It nevertheless disclosed no realistic basis for a successful appeal. The earlier judge’s reasoning did not depend on findings about the precise timing of planning permission, waste removal or grants. It was sufficient that the purchaser would regard the risk of delay as workable and would negotiate a price reduction.
5. The solicitor defendants’ causation argument failed at the summary judgment stage. Even if the application would ultimately have failed because it was presented on an unmeritorious basis, delay could still be an effective cause of the loss. Recoverable loss may have more than one effective cause.
6. The cause of action accrued at breach, and damages were generally assessed at that date. It was arguable that the value of the opportunity should be assessed before the later presentation of the application for permission to appeal.
7. The applications succeeded in principle. The court invited submissions on the terms of the order and consequential relief.

The judgment itself concerned applications arising from an earlier Court of Appeal decision in the underlying professional-negligence litigation. The Court of Appeal had refused permission to appeal against that judgment, including on the merits and because the application was out of time. That underlying litigation was not the present claim.