Dowling & Ors v Bennett Griffin

On a renewed application for permission to appeal, the court may grant permission on limited grounds that are properly arguable while refusing grounds with no real prospect of success. An amendment application is not necessarily a mere formality where it may change the identity of a litigant. In such circumstances, the court may have power to require an explanation of relevant insurance cover and notification as a condition of amendment. Evidence of evasive responses may make it arguable that solicitors failed adequately to advise on, or investigate, an insurance risk and that the failure caused loss. Permission remains properly refused where the proposed grounds depend on a contractual relationship or underlying claim that was not established.

The appellants had brought a negligence claim against Bennett Griffin, a firm of solicitors. Following a trial, Mr Kevin Prosser QC, sitting as a Deputy Judge of the High Court in the Chancery Division, dismissed the claim with costs by an order dated 20 August 2013, following his reserved judgment of 12 July 2013: [2013] EWHC 1995 (Ch).

Kitchin LJ subsequently refused permission to appeal on the papers, although a short extension of time had been granted. The appellants renewed their application. The central issues were whether the firm arguably failed to advise or investigate whether a company’s insurers had been notified of a counterclaim, whether an amendment application changing the identity of a litigant was merely formal, and whether any such failures caused loss.

Permission to appeal was granted in part and refused on all other grounds.

1. The appellants’ allegations of judicial bias were unsupported and did not justify permission. Permission was confined to properly arguable grounds rather than granted by reference to the appellants’ broadly drafted grounds.
2. The lower court had been entitled to conclude that the relevant contract was with APAL, not Mr Phillips personally, and that the later agreement of a 15 per cent fee did not create a new or separate contract with him. Grounds based on the removal or non-reinstatement of Mr Phillips therefore had no real prospect of success.
3. It was arguable that the firm failed adequately to advise the appellants about the risk that APAL had not notified its insurers of the counterclaim, or failed to take reasonable steps to ascertain whether notification had occurred. Coole & Haddock’s intemperate and evasive responses arguably supported an inference that there was a real insurance issue.
4. It was also arguable that the amendment application to substitute APAL for Mr Phillips was not a mere correction of a misdescription. Its effect might have been to change the identity of the claimant and counterclaim defendant. Had the issue been raised, the court could arguably have made amendment conditional on an explanation of APAL’s insurance cover and notification of the claim.
5. Permission was accordingly granted on the alleged negligent failures identified in heads (3), (4), (5), (7), (9) and/or (10), and on causation. Permission was refused on the remaining heads. One day was allowed for the appeal before a constitution of three Lords or Lady Justices, including at least one with Chancery experience. The appellants were warned that pursuing the appeal involved a substantial risk of failure and adverse costs.

• Court of Appeal (Civil Division) — On 16 April 2014, Rimer LJ granted limited permission to appeal on specified negligence and causation grounds and refused permission on all other grounds.
• Court of Appeal (Civil Division) — Kitchin LJ refused permission on the papers on 21 November 2013 after granting a short extension of time.
• High Court of Justice, Chancery Division — Mr Kevin Prosser QC, sitting as a Deputy Judge, dismissed the negligence claim with costs by order dated 20 August 2013, following judgment dated 12 July 2013: [2013] EWHC 1995 (Ch).