Hughmans (a firm) v Dunhill

On a renewed permission application, summary judgment is inappropriate where disputed evidence, fact-sensitive duties, scope of retainer or causation may require a full hearing, and the lower court may have conducted a mini-trial. It is enough at permission stage that the proposed challenge is properly arguable, including an argument that trust property was wrongly treated as the client’s free asset and that disclosure could have affected the matrimonial outcome. Permission can be granted on some grounds and refused on another that is unarguable.

A firm of solicitors obtained summary judgment for unpaid fees against a former client. The former client’s counterclaim alleged negligent advice and conduct concerning matrimonial proceedings, trust assets, maintenance payments and the loss of her home. The High Court also dismissed her own summary judgment application and her counterclaim.

On renewal, the Court of Appeal considered whether the proposed grounds disclosed an arguable error in applying CPR Part 24, and whether issues concerning the retainer, duties, breach, causation, trust monies and claims by the children required a full appeal. Permission was also sought on grounds concerning expert evidence and applications under the court’s inherent jurisdiction and s 51(6) of the Senior Courts Act 1981. The central issue was whether the matters were suitable for summary determination.

1. Permission and summary judgment. Lord Justice Patten granted permission on the general complaint that the judge had conducted a mini-trial in a case arguably unsuitable for determination under CPR Part 24. It was properly arguable that 71 Eaton Terrace remained substantially a trust asset and that disclosure of that fact, and of the alleged 2003 non-disclosure, could have affected the matrimonial outcome. The issue might have required the exercise of powers under Matrimonial Causes Act 1973 s 31, including consideration of s 31(7).
2. Scope of duty and retainer. Permission was granted on grounds concerning what a reasonably competent solicitor should have done in handling the matrimonial affairs, including advice about the Alexandra Settlement Trust and the trust character of the property. The scope of the retainer and whether any duty was owed to the children were fact-sensitive and not suitable for summary determination. The children’s interests in the outcome meant that the retainer was not necessarily conclusive of whether a tortious duty of care could arise.
3. Other grounds. Permission was granted on issues concerning the alleged trust payments, breach, causation, and applications under the inherent jurisdiction and s 51(6) of the Senior Courts Act 1981. The court doubted whether the latter grounds added much. Permission was refused on the complaint concerning Professor Gazzard because it was unarguable for the reasons given in the High Court judgment.
4. The appeal was to be listed for two days with a constitution including Chancery and Family judges. The application to adduce additional evidence was adjourned to the appeal, and the existing stay continued until judgment.

• Court of Appeal (Civil Division): On renewal, Lord Justice Patten granted permission on numerous grounds, refused permission on the Professor Gazzard ground, adjourned the additional-evidence application to the appeal, and continued the stay: [2015] EWCA Civ 1307.
• High Court (Chancery Division): Arnold J granted summary judgment to Hughmans for £187,593.28, dismissed the former client’s application for summary judgment on aspects of her counterclaim, and dismissed the counterclaim under CPR 24.2: [2015] EWHC 716 (Ch).