French v Carter Lemon Camerons LLP

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal following refusal of the application, together with an application for an extension of time and a stay of execution, by Underhill LJ on paper on 6th March 2015.

The background to the case is a protracted and complex dispute between the two parties, spanning some five years and various strands of litigation. For the purposes of the present application, the relevant facts can, I think, be stated fairly shortly.

In March 2010 the applicant, Miss French, instructed the respondent, a firm of solicitors, to act for her in connection with a claim against an insurance company. The applicant terminated the retainer in May 2010, before that litigation had been disposed of. The solicitors subsequently submitted a bill in respect of their fees incurred in connection with the litigation in the sum of a little over £200,000.

On 4th October 2010 the applicant obtained an order for a detailed assessment of the solicitors’ bill of costs pursuant to section 70 of the Solicitors Act 1974. That assessment was carried out by Master Campbell in mid-2012 and finally determined in November 2012.

On 23rd July 2014 the applicant obtained permission from Patterson J to appeal against the Master's decision on three grounds, but there was subsequently some dispute as to the precise meaning and effect of her order. As a result the matter was fixed to come back before the judge for clarification.

On 18th September 2014 Stuart-Smith J gave directions in relation to the hearing of applications made by the respondents for orders that the applicant pay outstanding costs as a condition of being allowed to pursue the appeal. The judge adjourned those applications to be heard by Patterson J on 15th October, when she was also due to hear the respondents' application to clarify the scope of the grant of permission to appeal. However, no doubt in order to ensure that Patterson J had all the relevant material before her, he ordered that the applicant file an affidavit of means by 4 pm on 1st October 2014.

In the meantime, in August 2012 the applicant had brought a claim for professional negligence against the respondent in respect of its handling of the litigation. Disclosure took place in that action in early 2014 and the applicant says that she then discovered that the respondent had failed to disclose in the costs proceedings about 100 documents which were relevant to those proceedings. As a result, she sought permission to make use of those documents in connection with her appeal against Master Campbell's order. That is the first of two applications that were formally before Swift J on 2nd October 2014.

The second application before the judge on that occasion related to a request for further information which the applicant had served under Part 18 of the Civil Procedure Rules in connection with her appeal against Master Campbell's order. The request had been served under cover of a letter dated 28th August 2014 and contained a number of questions which, in substance, asked the respondent to state whether it had made full disclosure for the purposes of the detailed assessment. The respondents declined to respond to those requests on the grounds that it was neither reasonably necessary nor proportionate for them to do so. As a result, the applicant issued an application seeking an order that the respondents deal with those requests. That was the second application before Swift J.

Swift J dismissed both applications. She took the view that the application for permission to make use in connection with the appeal of documents disclosed in the negligence action had been made too late, and in reaching that decision she was clearly influenced by the fact that the hearing of the appeal was only some eight weeks away. Any disruption of the timetable for the appeal would, in her view, also delay the hearing of the negligence claim, which had been stayed pending determination of the costs appeal. Nor was she persuaded that the documents would have been likely to affect the outcome of the assessment or the outcome of the appeal. In addition, she considered that the application was disproportionate in its breadth.

As far as the request for information was concerned, the judge considered that it amounted to an attempt to cross-examine the respondent and was therefore inappropriate. She dismissed it as being, in her words, “totally without merit”.

The applicant now seeks permission to appeal to this court against the judge's order and she also seeks an extension of time because her notice of appeal was filed some 26 days out of time. She has relied as an explanation for delay on the fact that she is a litigant in person, that there was a delay in obtaining a transcript of the judgment, that she has had medical problems and various other matters which she says prevented her from filing her notice of appeal on time.

I have to say that, although I have some sympathy with the applicant, who is a litigant in person, and although I understand that conducting litigation is a stressful and difficult matter, I do not think that these matters, taken individually or together, really provide a sufficient explanation or excuse for failure to file a notice of appeal in time. That deficiency might, however, be made good if the merits of the appeal were strong enough to do so, and I therefore turn to consider them.

The applicant's grounds of appeal run to some 46 paragraphs and consist mostly of argument. They can be fairly summarised under two headings. First, she had a right, she says, to have access to and to make use of the documents disclosed in the professional negligence litigation because they ought to have been disclosed in the costs litigation. Secondly, she says that a Part 18 request was a proper means of discovering what points the respondent was likely to take on the appeal.

Attention has been directed principally to those two aspects of Swift J's order because they were the two matters that were subject to argument and to a reasoned decision by the judge. However, the order made on 2nd October also provided that unless, by 4 o'clock on Monday 6th October, the applicant filed an affidavit of means pursuant to the order of Stuart-Smith J, the appeal should stand dismissed. There does not appear to have been much discussion about that paragraph of the order before Swift J, but both parties were represented by counsel, and I infer from what I have read, including the transcript of the proceedings which followed the delivery of judgment, that there was no real opposition to the making of that order. If there had been, the judge would, I think, undoubtedly have summarised the parties' arguments briefly and would have explained why she thought it appropriate to make such an order.

In any event, make such an order she did. The applicant did subsequently provide an affidavit, but she failed when doing so to deal fully with some of her assets, in particular, as I understand it, a property. She has told me this morning that the reason for that is that the information was already available in other statements that she had made, but it appears not to have been included in the affidavit. As a result, on 6th October the judge held that the affidavit was insufficient to satisfy the requirements of the “unless” order and that therefore the appeal stood dismissed.

The result of that is that the two applications to which attentions has been primarily directed have become irrelevant because they both relate to an appeal which will not now take place. It follows that the applicant cannot succeed unless she is able to overturn either that part of the judge's order which required her to file the affidavit of means or the judge's decision that she had failed to comply with it.

One of the difficulties facing the applicant is that her notice of appeal, even when read in conjunction with the grounds of appeal, does not include a challenge to either of those decisions, and it is not surprising therefore that when dealing with the matter on paper, Underhill LJ did not address them. They have been addressed in additional documents filed in connection with this renewed application, but to pursue them would require an amendment of the notice of appeal some considerable time after the deadline had expired.

Since the affidavit of means was required for the hearing on 15th October, it is difficult to see on what grounds the “unless” order could be challenged, and none of any substance has been suggested. As I pointed out, the applicant was represented on that occasion by counsel. Counsel could have objected to the making of the order, and, had he done so, no doubt the judge would have heard the objection and ruled on it.

In my view, even if the notice of appeal can be read as including an appeal against that part of the judge's order, or even taking de bene esse the recent submissions of the applicant in relation to it as an amendment to the notice of appeal, I do not think there is any real prospect that an appeal against that part of the judge's order would be successful.

Whatever may be said about the breadth of the notice of appeal, however, it certainly does not extend to an appeal against the judge's decision that the affidavit actually served was defective. There is nothing in the grounds of appeal touching on that point, and in my view it is far too late for an appeal against that decision to be made now.

For these reasons, there is in my view no real prospect of the appeal against the order of Master Campbell being reinstated and accordingly I do not think that an appeal against the order made by Swift J. would have any prospect of success. In those circumstances I think the best course is simply to refuse the necessary extension of time.