Aisbitt v Conrathe & Anor

LORD JUSTICE PILL: This is an application by Miss Kirsty Aisbitt for permission to appeal a judgment of Wilkie J dated 19th October 2004 whereby it was ordered that the applicant have judgment in the sum of £2 against a firm of solicitors, Coningsbys, and a member of that firm, Mr Paul Conrathe; that the applicant pay 60 per cent of the defendants' costs, such costs to be subject to detailed assessment if not agreed; that the claimant's application for permission to appeal be refused; and that the claimant pay an interim payment in the sum of £10,000, such sum not to be enforced until any appeal to the Court of Appeal has been determined.

The applicant has two points. First, in the matters to which I will refer, the solicitors had no authority to act, and secondly, the judge having found breach of contract and negligence by them, it was disgusting and disgraceful that damages were limited to the nominal sum of £2 and that she should have to pay 60 per cent of their costs.

The solicitors were instructed in an application for judicial review by the applicant against South Bank University. That arose out of the circumstances in which the University decided to require her to withdraw from a two-year postgraduate diploma in Psychosexual Therapy at Whittington Hospital.

It is not necessary to set out the background in detail for present purposes. On 11th February 2000 the examining board met to consider the position of the applicant, difficulties having arisen during the course. The board agreed to fail the applicant and require her to withdraw from the course. She appealed against that decision on the basis that the assessment had been premature and she was informed on 28th June 2000 that the panel had concluded that her appeal did not warrant further consideration.

Counsel was instructed in the judicial review proceedings against the South Bank University, Mr Ian Wise, who first advised that the appellant had a 65 to 70 per cent prospect of success. She was granted public funding on the basis of that advice. The application was made on 26th September 2000. On 7th December 2000 permission to apply for judicial review was granted by Hunt J, the applicant relying on that as showing she had an arguable case in judicial review, and she also refers to a subsequent order made by Newman J.

When the University had served its evidence, Mr Wise stated that the application was unlikely to succeed on the substantive issue and he advised that public funding be withdrawn. The Legal Services Commission imposed an embargo on further public funding on 23rd February 2001. Further material was supplied by the applicant and Mr Wise wrote a further advice on 6th March to support further public funding, which was indeed restored.

When the hearing date drew close, Mr Wise was unavailable for the hearing and the solicitors were obliged to instruct a different barrister, Mr Chamberlain. His opinion was that the prospects for the success of the application were minimal and, as a result of that, public funding was terminated on 29th March 2001. The judge found that the applicant thereupon gave instructions to the solicitors to withdraw the application. The question of costs arose and there was discussion between the solicitors and the solicitors on the other side. Complaints were made by the applicant about the manner in which the solicitors had handled the case and of course it is unfortunate that counsel's advice varied in the way I have described, though it is not necessary to consider that further because I do not know what information at each stage counsel had before them. But I can well understand that an applicant who has this varying advice feels a sense of grievance.

The claim for judicial review was withdrawn, a consent order being made on 8th June:

The second of those paragraphs is what is commonly known as, and referred to by the solicitors as, a lottery order and does give a degree of protection to the person on the wrong side of it, in this case the applicant.

The judge found that the solicitors had been entitled to consent to an order in those terms. Their signature appears on the face of the order, as does that of the other firms of solicitors involved. The judge found that subsequently, in respects which the judge has set out at paragraph 76 of his judgment, there was a breach of contract and negligence by the solicitors but, for reasons he also gave, he made the order to which I have referred.

The grounds of appeal are that the learned judge was wrong to find that the solicitors had authority to withdraw the judicial review application; that the applicant was not informed of the amended consent order; that the judge had erred by holding a judicial review within a professional negligence trial; and that the judge was wrong not to award substantial damages in respect of distress and injury to health.

In her bundle, the applicant has included a skeleton argument, which I have considered, and she has orally addressed the court, underlining points in that skeleton argument. The points she has underlined orally are that she went on the record on 25th April. That is the relevant date. She submits that it is immaterial that before that date the solicitors had had authority. They had no authority after she went on the record, and there was no authority on 27th April when the solicitors agreed the consent order with other solicitors. That is the order subsequently sealed which I have read.

The applicant has referred to Chitty on Contracts, current edition, paragraph 31-099. She has referred to decisions of this court: Sharpe v Addison [2003] EWCA Civ 1189 and Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005. She relies, in relation to the judge's finding that the judicial review had no prospects of success, to the decisions of Hunt J and Newman J on which I have referred.

This was a detailed and, if I may say so, conscientious judgment where the issues and the material before the judge were set out in great detail. The applicant has helpfully referred to parts of the judgment in her skeleton argument and in her oral submissions. The judge referred to letters which the applicant had written. They are referred to at paragraph 53 and paragraph 57 of the judgment, letters of 10th April 2001 and 21st April 2001.

It is correct that legal aid had been discharged and that the solicitors had come off the record before they made the agreement which led to the consent order. The judge has set out in considerable detail at paragraphs 71 to 75 of his judgment his conclusions, and he concluded that instructions were given to withdraw the claim for judicial review and that, even though the solicitors were by then not on the record, they were entitled to do what they did on the basis of express instructions which they had received from the applicant. Whether a solicitor is on the court record is of course an important consideration, certainly as to showing to third parties the ostensible authority of the solicitor to act. But in my judgment the judge was correct to hold that coming off the record does not deprive the solicitors of authority to act in the way they did where actual authority has been given by the client and has not been revoked.

The judge went on to consider the conduct of the solicitors following the consent order and, in paragraph 76, as I have indicated, he found fault on their part. However, he went on to hold, first, that the case would have been withdrawn by the order of 8th June in the same terms, even had the applicant been negotiating for herself. There was no evidence, he held, for any conclusion that the applicant would have withdrawn the instructions which she had given.

Moreover, he went on to find, as judges customarily do and are entitled to do, what the position is, even if he was wrong about the question of authority. The judge went on to hold, on the basis of a consideration he was bound to give to the question, that there was no loss because the prospects of success in the judicial review proceedings were negligible. When there is an action of this kind against solicitors and they are assumed to be negligent in one or more respects, it is necessary for the judge to consider what would have happened had they not been negligent. The judge did carefully assess that, as he was required to, and in my judgment he was entitled to reach the conclusion he did.

The further ground of appeal is in relation to the medical condition which unhappily the applicant has developed. The applicant has quoted medical reports and I bear in mind of course what Lord Bingham said in Fairchild [2003] 1 AC 32 about the nature of tortious proceedings and the importance of providing remedies where appropriate.

However, the judge, as the trial judge, carefully considered the medical evidence. He has set out paragraphs from it, in particular a paragraph in the joint report of the two doctors, Dr Shaw and Dr Cooling. He was entitled to conclude on the evidence that no causative link had been established between the medical condition and the failings which he had found in the defendant's conduct.

On each of these issues the judge was entitled to reach the conclusions he did. In my judgment it is not arguable that, upon a fuller consideration, this court would reverse the findings of the judge. While I understand the applicant's feelings about this whole dispute, I am quite unable to hold that it is arguable that this court would take a different view from the judge. Accordingly, permission to appeal is refused.