Murphy v the Law Society

Permission to appeal may be granted where the proposed appeal raises a discrete point of law and has a strong prospect of success. The court may consider whether deciding that point promptly would avoid a lengthy trial and a probable later appeal.

At the permission stage, the court may accept the claimant’s factual assertions while assessing whether a duty of care is legally arguable. Granting permission does not determine whether that duty exists.

The Law Society made a renewed application for permission to appeal from a judgment of Mitting J dated 17 December 2014. Briggs LJ had previously refused permission.

The proposed appeal concerned whether the Law Society owed the claimant a duty of care arising from the performance of its statutory functions. For the application, the Law Society accepted the claimant’s factual assertions. The central question was whether the proposed duty-of-care appeal had a real prospect of success and should be determined before a lengthy trial.

1. Permission to appeal was granted. Hallett LJ concluded that the Law Society had a strong prospect of successfully arguing that it owed no duty of care to the claimant. If that argument succeeded, there would be no reasonable grounds for bringing the claim or no reasonable prospect of establishing it.
2. For the purpose of deciding permission, the Law Society accepted all the claimant’s factual assertions. The existence of a duty of care on those assumed facts was a discrete point of law capable of being determined at a one-day appeal hearing. The court did not decide the substantive duty-of-care issue.
3. Mitting J had been concerned to ensure that all matters were resolved in the same proceedings. Briggs LJ, when refusing permission, had been concerned about the delay which an appeal would cause. Those considerations did not outweigh the strength of the proposed appeal. The anticipated delay had already occurred.
4. Refusing permission would leave the parties facing a five-to-seven-day High Court trial, unlikely to take place until late 2016 or later, followed by an almost inevitable appeal on the same point. In those circumstances, determining the discrete legal issue immediately was the best and most effective course.
5. The appeal was to be listed for a one-day hearing before three Lord or Lady Justices, subject to confirmation by the parties. The parties were directed to narrow the issues, agree a reading list and notify the court of the required reading time.

1. Court of Appeal (Civil Division): On the renewed application reported as [2015] EWCA Civ 290, Hallett LJ granted the Law Society permission to appeal.
2. Court of Appeal (Civil Division): Briggs LJ had previously refused permission to appeal because of the delay which an appeal would cause.
3. High Court, Queen’s Bench Division: The proposed appeal arose from a judgment of Mitting J dated 17 December 2014. No citation for that judgment is stated.