LSG (Europe) Ltd v Payen

Permission to appeal should be refused where the proposed grounds seek to introduce a different, unpleaded cause of action, rely on evidence that could and should have been adduced at trial, or concern alleged solicitor failures that do not undermine the opposing party’s judgment. Such matters may support recourse against the solicitor, but do not ordinarily justify an appeal or retrial. The decisive question is whether the proposed appeal has a real prospect of success on the pleaded case and evidence before the trial court.

LSG claimed more than £32,000 from Payen after Payen’s negligent driving injured LSG’s employee. The claim concerned the cost of temporary electronic security personnel during the employee’s absence. Wandsworth County Court dismissed the claim because it lacked sufficient supporting evidence and was legally unsustainable as consequential financial loss where LSG was not involved in the accident and no relevant duty of care was established.

Longmore LJ refused permission to appeal on the papers. On oral reconsideration, LSG relied on an alleged assignment of the employee’s cause of action, inadequate notice of the trial, alleged mishandling by its solicitor, and evidence not placed before the trial judge. The central issue was whether any proposed ground had a real prospect of success.

The application for permission to appeal was refused. Lord Justice Kitchin concluded that the proposed appeal had no real prospect of success.

1. Different cause of action. The suggested claim based on an assignment by the employee would have been wholly different from the claim pleaded and advanced at trial. It could have been pleaded, supported by evidence and pursued below, but it was not. The court did not decide whether such a claim had merit or remained available in other proceedings.
2. Conduct of the solicitor. The solicitor was on the record and represented LSG throughout the proceedings. Alleged failures to advise LSG, follow instructions or seek an adjournment were matters potentially giving rise to recourse against the solicitor. They did not provide a ground for depriving Payen of the benefit of the judgment obtained at trial.
3. Further evidence. The evidence relied on by LSG could and should have been adduced at trial. There was no proper basis for admitting it on appeal or ordering a retrial.
4. Disposition. The judge’s findings that the claim lacked evidential support and was unsustainable in law were not displaced by the proposed grounds. The application was therefore refused.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 217, Lord Justice Kitchin reconsidered orally Longmore LJ’s refusal of permission on the papers dated 20 December 2012 and refused permission.
• Wandsworth County Court: His Honour Judge Welchman dismissed LSG’s claim on 23 August 2012.