David Truex, Solicitor (A Firm) v Kitchen

LADY JUSTICE HALLETT: The firm of David Truex, solicitor, renews its application for permission to appeal a decision of HHJ Ryland delivered in the Central London County Court on 7 December 2005, whereby the judge dismissed essentially most of Mr Truex’s claim for professional fees against the defendant and he gave judgment for the defendant for the return of fees that she had paid on account.

The chronology of events was at the heart of this matter at trial and appears in a helpful document prepared by the defendant’s legal representatives. She consulted the applicant firm in connection with difficulty she was having with her husband on 19 February 2003. That was what Mr Truex described as a one-off meeting, for which the judge accepted the firm was entitled to be paid a set fee. Thereafter, having considered her position the defendant on 26 February faxed a document to the applicant firm authorising them to proceed with a divorce petition for which, as Mr Borrows, who appeared on behalf of Mr Truex today, wished to emphasise, there would be no public funding. The fax was received on 27 February by Mr Truex’s firm and the solicitor dealing with the matter issued a petition the very next day on 28 February. On Monday 3 March, a letter was written to the defendant which included a reference to the fact that the defendant might be eligible for legal aid for some of the proceedings and advising the defendant that the firm of David Truex did not undertake legal aid work. The letter contained the follwing passage:

That document was followed by a telephone call of 6 March, in which there was a discussion between Ms Beyer acting on behalf of the applicant firm and the defendant’s father. Again the question of public funding was raised, and again the terms of business were explained to the defendant’s father. Ms Beyer explained that if it was thought that the defendant might be entitled to public funding then she should talk to Ms Beyer further about it.

In essence, the defendant insisted that these attempts at advising her did not meet the required standards of a solicitor and that the applicant firm had failed in their duty to advise her properly or at all about her entitlement to public funding. HHJ Ryland found a number of breaches of duty on the applicant firm’s part and held that cumulatively they constituted a departure from the reasonable standard of service which the defendant was entitled to accept. The breaches as found included a failure to advise on the availability of legal aid at the appropriate time and a failure to advise when put on notice that the defendant might be eligible for public funding. The judge also found that there was a failure to advise properly on the ongoing costs of the proceedings. This was a matter Mr Burrows argued that should have been taken into account, if it was relevant, at the time of taxation.

The proposed appeal essentially is on the basis that the learned judge seems to have based his findings on a misunderstanding of the position. For example, he has clearly found as a fact in paragraph 15 that the retainer was entered into on 19 February 2003. Apparently, it was the defendant’s case at trial that the retainer was entered into on 26 February and the applicant firm’s case was entered into on 27 February. Insofar as that finding has influenced his further conclusions, Mr Burrows argues plainly it was wrong.

There also appears to be, Mr Burrows argues, no recognition that public funding was not available for divorce proceedings and up until and including the date of the telephone call of 6 March; because the only step taken was the issue of a divorce petition. At the very least, Mr Truex’s firm was entitled to payment for the work done to that date.

In summary, Mr Burrows argues on behalf of the applicant firm that the judge’s findings are wrong, that the applicant firm was not in breach of its duty, and that in any event, had they advised the defendant in the way the judge seems to have thought they should have done, by the chronology of events it looks as if the defendant would have stayed with them in any event.

I have considered those submissions with care. I confess that initially my reaction was the same as Jonathan Parker LJ’s, who refused permission to appeal on paper, namely that these were findings the judge was entitled to make. But on reflection, having heard oral argument, I am persuaded there is a real prospect of successfully appealing the judge’s decision, if on no other basis than he appears to have based his findings on a fundamental error, namely the date on which the retainer was entered into. Plainly, that was a highly significant date from which a great deal would have flowed. It is also not clear to me, having heard only the applicant firm’s submissions, the findings made against the applicant firm as to what they should have done, when, and what the causative effect of any established breach of duty would have been.

Accordingly, I give permission to appeal.