David W. Flavell Consultants Ltd v Uddin

Time limits for appealing under the Civil Procedure Rules 1998 apply equally to litigants in person. An extension of time requires justification beyond the mere assertion of dishonesty or public interest in investigating allegations against a solicitor. The Court of Appeal is not a fact-finding tribunal and will not grant permission simply to conduct a fresh investigation into disputed evidence. Fresh evidence is unlikely to justify an appeal where it was available, with reasonable diligence, for use at trial. Permission should also be refused where the proposed grounds do not show a real prospect of success.

The claimant sought permission to appeal, together with an extension of time of nearly three years, from an order of Birmingham County Court dismissing its claim for fees for property inspections and reports. The claim had failed because the trial judge found that the parties’ only fee arrangement was an unenforceable conditional fee agreement.

The claimant alleged that the respondent solicitor had lied at trial and relied on evidence from an earlier Leeds County Court action and on alleged inaccuracies in a Civil Procedure Rules 1998 Part 18 response. Floyd LJ had refused permission on the papers. The renewed application required the Court of Appeal to decide whether time should be extended and whether the proposed appeal had a real prospect of success.

1. Application refused. The court refused both an extension of time for appealing and permission to appeal. The appellant’s notice was nearly three years out of time.
2. Time limits imposed by the Civil Procedure Rules 1998 mean what they say and apply equally to litigants in person. The fact that the applicant alleged dishonesty by a solicitor did not, without more, justify a belated appeal. The public interest in professional integrity had been addressed through the trial judge’s referral to the Solicitors Regulation Authority and the resulting disciplinary proceedings.
3. The Court of Appeal is not a fact-finding tribunal. There was no proper basis for concluding that the trial judge was not entitled to assess the evidence as he did. The proposed appeal therefore had no real prospect of success.
4. The evidence concerning the earlier Leeds County Court case was not fresh evidence. The applicant knew of that case before trial and could, with appropriate diligence, have sought disclosure of the judgment or obtained its transcript. In any event, the Solicitors Disciplinary Tribunal had considered the earlier case and still found, to the criminal standard of proof, that the 6 June 2007 arrangement was as the respondent asserted.
5. Alleged understatement of fees in the Part 18 response carried little weight on the central issue. The trial judge’s finding that the conditional fee agreement had been made was supported by matters beyond the respondent’s evidence, including matters addressed at paragraphs 80 to 99 of the trial judgment.

• Court of Appeal (Civil Division) — renewed application for an extension of time and permission to appeal refused: [2014] EWCA Civ 901.
• Birmingham County Court — His Honour Judge Robert Owen QC dismissed the claim by order dated 28 July 2010, later amended in early September 2010.
• On the papers — Floyd LJ refused permission to appeal on 19 December 2013.