Allsop v Banner Jones Ltd (t/a Banner Jones Solicitors)

Mr Terry Allsop is a businessman who controlled and owned a number of businesses selling used and new motor vehicles, including through a company known as Chesterfield Motor Company Limited (“CMCL”), of which he was a director and equal shareholder until early 2017 when – for reasons related to his divorce from Mrs Aileen Allsop – he resigned and sold his shares to his former business partner, a Mr Wheeldon-Wright.

In the course of his business, Mr Allsop built up substantial wealth although – as it will be necessary to describe – he also lost substantial sums of money through trading on the stock markets. In the words of the judge who heard and determined the financial remedies claim that Mrs Allsop brought against Mr Allsop during the course of their divorce, District Judge Buxton, Mrs Allsop “…has done her best to be helpful to the court. She has been honest notwithstanding that it has been difficult for her to come to terms with the breakdown of a marriage in which she, in a role much outdated nowadays, stayed at home, supported her husband and brought up three children”. (Footnote: ¹)

Mr and Mrs Allsop were married between 11 March 1972 and 27 July 2016, when they were divorced. They separated in March 2013 and, following their separation, negotiations took place as to the division of the matrimonial assets and the appropriate maintenance for Mrs Allsop. Significant issues between

It will be necessary to consider the findings of District Judge Buxton in greater detail below. For present purposes, however, it is sufficient to note that Mr Allsop was not satisfied with the Financial Remedies Judgment, and sought to appeal the Financial Remedies Order. Detailed grounds of appeal were appended to Mr Allsop’s appellant’s notice, and written submissions were produced in support of the permission application. Permission to appeal was refused by District Judge Buxton and – on renewed application to a Circuit Judge – also refused by Her Honour Judge Carr, QC, who gave a written judgment setting out her reasons for refusing permission to appeal dated 6 May 2016.

The (present) claim by Mr Allsop against Banner Jones and Mr Cohen and the Applications

Mr Allsop brought proceedings against Banner Jones and Mr Cohen, alleging that they had acted in breach of contract and/or negligently in advising and/or acting for Mr Allsop in the course of the matrimonial proceedings between Mr

It will be necessary to differentiate between these different grounds of attack on Mr Allsop’s claim, because they operate independently and in different ways. The abuse of process contention was, as I have noted, that Mr Allsop’s claim should be struck out because it was a collateral attack on the Financial

In contrast with the applications under CPR 3.4(2)(b), the applications under CPR 3.4(2)(a) and CPR 24.2 are concerned with the merits of the claim, specifically whether the claim meets the (low) threshold of what I shall call “reasonable arguability”. (Footnote: ⁴) Although it can be said that there is no material difference between the test applied by these two provisions, there is an important distinction between CPR 3.4(2)(a) and CPR 24.2, in that an application under CPR 24.2 can be supported by evidence, whereas an application under CPR 3.4(2)(a) should not involve evidence regarding the claims advanced in the statement of case. (Footnote: ⁵)

In cases such as this – where the contention is that, but for the alleged breach of contract and/or negligence of the claimant’s legal advisers, the earlier ruling against the claimant would have been “better” for the claimant – the claimant must show (in addition to breach of duty) that he or she has suffered loss in the sense that there was a “real” or “substantial” chance that the outcome of the earlier litigation would have been better for the claimant. In Mount v. Barker

The hearing before Judge Pearce and the Judgment

The Applications came before His Honour Judge Pearce, and were heard by him over two days (27 and 28 February 2019). Judge Pearce gave a reserved judgment (the “Judgment”) dated 19 July 2019, but apparently handed down later, on 5 August 2019. An order, consequential to the Judgment, was made on 5 August 2019 (the “Order”).

Paragraph 1 of the Order provided that the Applications “are allowed to the degree provided for in the Judgment handed down today”. The effect of the Judgment is summarised in two tables set out at paragraph 193 of the Judgment:

The allegations in these tables are numbered “A1...”, “B1...”, etc. These are not references to the paragraphs in the pleaded allegations in Mr Allsop’s statement of case, but to the Judge’s own referencing system, setting out the essence of the alleged breaches, in paragraphs 38 and 40 of the Judgment. The pleaded allegations set out in that table were summaries of the allegations pleaded in draft Amended Particulars of Claim filed on behalf of Mr Allsop. Although permission to amend had not been given at the time of the Judgment, the Judge quite rightly considered Mr Allsop’s case in this proposed amended form, for the reason he gave in paragraph 36 of the Judgment:

“...Since both striking out and entering summary judgment are draconian orders, in that they prevent a litigant pursuing their claim, it is usually inappropriate to make such orders when a lesser order, such as granting permission to amend, would put right any defect in the case such that striking out or summary judgment was inappropriate. Therefore, for the purpose of this application, I consider the Claimant’s case as set out in the APOC. Further, I have made allowance as noted above for the possibility that the case may be put in a slightly different way so far as it is alleged that either the First or Second Defendant should have acted themselves or advised others to take action.”

Although the Judge considered the Applications in the context of the draft Amended Particulars of Claim, and although he indicated, in the Judgment, that the draft Amended Particulars of Claim would, in some respect, require further amendment, no further version of the draft Amended Particulars of Claim has been produced, nor has permission to amend been granted by any court. Nevertheless, for the reasons given by the Judge, it is appropriate, on this appeal, to consider (as the starting point, at least) the draft Amended Particulars of Claim.

It is helpful at this point to set out the Judge’s very useful summary of Mr

The grounds of appeal and permission to appeal

Mr Allsop appeals the Order on five grounds. Mr Allsop’s grounds of appeal are as follows:

The Judge refused permission to appeal in relation to all of these grounds (paragraph 7 of the Order). By an order dated 8 November 2019, Arnold LJ gave permission to appeal on all grounds.

The approach of the Judge

The Judge noted that a claim such as Mr Allsop’s inevitably involved the contention that, but for the alleged breach of contract and/or negligence of the Defendants, there was a real or substantial chance that the earlier judgment – here the Financial Remedies Judgment of District Judge Buxton – would have been different, to the financial advantage of Mr Allsop. It followed that the effects of the alleged breach of contract/negligence on the earlier Financial Remedies Judgment must be considered as part of such a claim. As I have described in paragraph 8 above, the Judge was entirely right in this regard.

The Judge then made the point that such an inquiry into the Financial Remedies Judgment brought with it the risk of an impermissible collateral attack on that judgment. He therefore conducted a careful review of the authorities on this point in paragraphs 52 to 69 of the Judgment.

The Judge set out the law as he understood it in the following paragraphs:

“63.

In considering the proper application of the doctrine of collateral attack in such circumstances, a balance must be struck between two principles. On the one hand, it is desirable that those who have arguably suffered loss as a result of the tort of another should be allowed to litigate their claim; on the other hand, the litigation of a fresh claim may so closely overlap the findings in another case that it is impossible to find for the Claimant in one case without examining the decision of the Judge in the other, yet to do so is almost impossible when different parties and potentially different sources of evidence are before the later court.

64.

In my judgment, this difficult tension is resolved by bearing in mind the availability of an appeal process. If a Judge has erred in their findings on the material before them, then, even if it is arguable other material should have been before them that may have put the case in a different light, the litigant’s remedy normally lies in appealing (including, if necessary, an application for permission to rely on fresh evidence) rather than in bringing a claim against the lawyers whose alleged negligence was the cause of the evidential deficiency in the first place. The alternative result would be an abusive relitigation of the same issues. Only evidence that “entirely changes the aspect of the case”, as referred to in Phosphate Sewage, can justify the cost and potential unfairness of allowing fresh proceedings to be brought in order to consider what the first court might have decided on the same issue.

65.

I see no reason to depart from the Phosphate Sewage test in considering the abuse of process argument. The passage cited at paragraph 60 above…”

…pausing there, paragraph 60 of the Judgment was the Judge’s citation of Buxton LJ in Laing v. Taylor Walton (a firm) at [27], a case that is considered further below…

“…expressly refers to errors in assembling a case as well as errors in its conduct. That passage is binding upon me. In any event, as a matter of principle, the Phosphate Sewage test reflects a proper balance between the desirability of permitting access to justice for those with legitimate complaints about how previous cases have been prepared and presented and with preventing the inconsistencies and injustices that may arise if litigation between two parties are [sic] re-visited in proceedings brought by one of those against a third party.”

Before us, the parties referred extensively to the relevant law – I have no doubt in far greater detail than was done before the Judge. Section B(2) sets out, in some detail, the substance of a number of the cases that we were referred to. Section B(3) then considers the extent to which the Judge correctly

The law regarding collateral challenge

The law regarding collateral challenge to judicial decisions is an offshoot from or extension of the rules regarding res judicata. Indeed, as will be seen, Phosphate Sewage itself is best understood as a case concerning, not collateral challenge, but res judicata. (Footnote: ⁷)

A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes, once and for all, of all the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment. A party to a res judicata will be estopped, as against any other party, from disputing the correctness of the decision, except on appeal. This is known as “cause of action estoppel”. The same is true – save to a narrower extent – of “issue estoppel”. A final decision will create an issue estoppel if it determines an issue in a cause of action as an essential step in its reasoning.

I shall, for convenience, refer to both sorts as “res judicata estoppel”.

Res judicata estoppel has as its rationale the importance of finality in judicial decision-making. In The Ampthill Peerage Case, [1977] AC 547 at 569, Lord Wilberforce put the point as follows:

“English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”

There is, thus, a particular form of finality that attaches to final decisions at first instance. It is important to differentiate final decisions from interlocutory decisions, and appeals from decisions at first instance:

Apart from appeals, and without intending to be exhaustive, there are two main ways in which a final judgment that gives rise to a res judicata estoppel can be re-visited by a party who would otherwise be bound by or estopped from challenging that decision in other litigation. These are where:

The Phosphate Sewage rule (like the rule in Takhar) thus constitutes an exceptional case where a party, who would, in the ordinary course, be estopped against another party to a final decision from challenging that decision, can properly re-visit that decision.

Collateral challenges to prior decisions ex hypothesi do not give rise to res judicata estoppel. For the purposes of this judgment, a collateral challenge is one where – no matter how similar the issue in question – the parties to the later dispute are different from the parties to the earlier dispute that is the subject of the collateral challenge. (Footnote: ¹⁰) As a matter of principle, collateral challenges should not give rise to an estoppel because – even though a dispute or issue has been determined by an anterior final judicial decision – that decision was binding only as between A and B, whereas the later claim arises between A and C. In short, whereas B could allege that A is estopped from bringing a later claim as against B, C can make no such assertion, because C was not a party to the anterior decision. Generally speaking, where no res judicata estoppel arises, A is permitted to bring a claim without being fettered by what has been decided previously. There is, in these circumstances, no need for A to rely on exceptions like that articulated in Phosphate Sewage, because there is, in fact, no limit arising out of the doctrines of res judicata estoppel to prevent A from proceeding with his or her claim. As Lowry CJ noted in Shaw v. Sloan, [1982] NI 393 at 397, “[t]he entire corpus of authority in issue estoppel is based on the theory that it is not an abuse of process to relitigate a point where any of the…requirements of the doctrine is missing”.

Of course, the courts retain a general jurisdiction to control abuses arising out of proceedings that come before them, and the real question on this appeal is the extent of that jurisdiction and the extent to which Phosphate Sewage forms a part of or informs that jurisdiction. The starting point for these purposes is the decision of the House of Lords in Hunter v. Chief Constable of the West Midlands Police, [1982] AC 529. In that case, the claimants (the “Birmingham Six”) brought proceedings against the police claiming damages for injuries caused by assaults allegedly perpetrated by the police. The question of whether the police had indeed assaulted the claimants had been considered and determined in the course of a prior criminal trial, the point being relevant to the question of whether confessions made by the claimants had been extorted by violence or not. (Footnote: ¹¹) After an eight-day “trial within a trial” (voir dire) in the absence of the jury, during which the police officers and the claimants gave evidence, Bridge J held that the prosecution had discharged the burden of proving beyond reasonable doubt that the claimants had not been assaulted by the police and that their statements had been voluntary and should be admitted into evidence. The claimants were convicted at trial.

It was contended that the subsequent civil proceedings, putting this conclusion in issue, constituted an abuse of the process of the court. Lord Diplock articulated the following proposition (at 541):

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”

At 542, Lord Diplock cited, to similar effect, dicta of AL Smith LJ in

Stephenson v. Garnett, [1898] 1 QB 677 at 680-681 and Lord Halsbury LC in

Reichel v. Magrath, (1889) 14 App Cas 665 at 668. Beginning with AL Smith LJ:

“…the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has already been decided by a competent court.” Lord Halsbury LC said:

“…I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”

Lord Diplock made clear that this relitigation of the identical issue was but one instance of a wider abuse of process doctrine. Earlier in his speech (at

The civil proceedings in Hunter were not complete re-runs of the earlier criminal proceedings. The allegation that the assaults had been committed by the police was the same, but it was supported by additional evidence in the civil proceedings that had not been before Bridge J at the criminal trial. Lord Diplock considered this point at 545:

“I can deal with this very shortly, for I find myself in full agreement with the judgment of Goff LJ. He points out that on this aspect of the case Hunter and the other Birmingham Bombers fail in limine because the so-called “fresh evidence” on which they seek to rely in the civil action was available at the trial or could by reasonable diligence have been obtained then. He examines also the two suggested tests as to the character of fresh evidence which would justify departing from the general policy by permitting the plaintiff to challenge a previous final decision against him by a court of competent jurisdiction, and he adopts as the proper test that laid down by Earl Cairns LC in Phosphate Sewage Company Ltd v. Molleson, (1879) 4 App Cas 801, 814, namely that the new evidence must be such as “entirely changes the aspect of the case”. This is perhaps a little stronger that that suggested by Denning LJ in Ladd v. Marshall, [1954] 1 WLR 1489, 1491 as justifying the reception of fresh evidence by the Court of Appeal in a civil action, viz, that the evidence

“...would probably have an important influence on the result of the case, though it need not be decisive;...”

The latter test, however, is applicable where the proper course to upset the decision of the court of first instance is being taken, that is to say, by appealing to a court with jurisdiction to hear appeals from the first-instance court and whose procedure, like that of the Court of Appeal (Civil Division) is by way of re-hearing. I agree with Goff LJ that in the case of collateral attack in a court of coordinate jurisdiction the more rigorous test laid down by Earl Cairns in appropriate.”

Hunter is, of course, a decision of the highest authority, but it must be treated with a degree of caution in the present context, for this reason: Hunter concerned the use of subsequent civil proceedings to challenge an earlier decision in the criminal jurisdiction. As Lord Diplock himself stressed, questions of res judicata estoppel – and, by a parity of reasoning, collateral challenge of anterior civil proceedings – arise differently when the anterior proceedings are criminal. Where an anterior criminal decision is later challenged in civil proceedings, it is very difficult to say that a res judicata estoppel arises at all, simply because there is no identity of party.

Nevertheless, as a statement of general principle, Hunter has informed cases dealing with the collateral challenge of earlier civil proceedings in later civil proceedings.

Since the decision in Hunter, the law regarding an advocate’s immunity from suit has changed. Advocates are no longer immune from suit, the rule in

The abolition of the immunity has obviously had the effect of increasing the number of cases in which a collateral challenge may be mounted, and for this reason, statements of the rule regarding collateral challenge post-dating Arthur JS Hall & Co. v. Simons and relating to anterior civil rather than criminal proceedings are of particular value. One such statement is Secretary of State for Trade and Industry v. Bairstow, [2003] EWCA Civ 321, [2004] Ch 1, where Sir Andrew Morritt V-C (with whom both Potter and Hale LJJ agreed) reviewed the law and articulated the following principles (at [38]):

“(a)

A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.

… (Footnote: ¹²)

(c)

If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings.

(d)

If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge…in the earlier action (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re-litigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.”

The Hunter principle is thus quite broadly based, as was also emphasised by

The mere fact that an earlier judgment undergoes scrutiny in later proceedings will not render that later scrutiny an abuse of process. Indeed, as has already been noted (paragraph 8 above), it will generally be the case in later professional negligence proceedings that the question will have to be asked,

“What would have happened to the (earlier) judgment, if the defendant had behaved as he or she should have done?”

In Walpole v. Partridge & Wilson, [1994] QB 106, Mr Walpole and his company JJ Walpole & Sons were convicted before Beccles justices of obstructing a veterinary officer in the execution of his duty. His appeal against conviction was dismissed. Subsequently, Mr Walpole instructed a new firm of solicitors – who had not acted for him either before the justices or the Crown

In Laing v. Taylor Walton (a firm), the Court of Appeal was considering the case where a collateral challenge was being mounted to an earlier decision, where the claimant bringing the later proceedings was doing no more than seeking to re-argue the same case without any fresh material. The later claim, as here, involved a claim against the solicitors who had acted, in the earlier proceedings, for the claimant in the later proceedings.

At first instance, Langley J considered that the judge in the first proceedings, His Honour Judge Thornton QC, might well have been wrong in the decision that he reached. Buxton LJ summarised the position as follows (at [20]):

“...Langley J concluded...that there was a reasonably compelling case that the decision of His Honour Judge Thornton on the terms of the agreements is open to serious challenge. That conclusion enabled Langley J to find that it would not bring the administration of justice into disrepute to permit the issue of the terms of the agreements to be relitigated; and that in terms of fairness, it would be unfair to Mr Laing if he were not permitted to pursue a case in which he alleges that it was the negligent drafting of the documentation which exposed him to the claim by Mr Watson/Burkle.”

Buxton LJ noted that there were two difficulties with this approach (at [21]).

The decision of Moses LJ was to similar effect:

“36 I should explain why I conclude that the challenge is impermissible. Allegations of negligence during the course of litigation, against solicitors or advocates, will normally involve an attempt by a claimant to demonstrate that the previous conclusion of the court would have been different, absent negligence on the part of the lawyer. In many cases it will, indeed, be necessary to do so in order to prove causation and loss. The paradigm is the loss of a case due to negligent advocacy. But to bring such proceedings for negligence does not bring the administration of justice into disrepute; Hall v. Simons teaches to the contrary.

37.

But such cases differ from the instant appeal in two important respects. Firstly, in the normal run of case, the impugned conduct of the lawyer is independent of the factual conclusions of the court; those conclusions are only relevant to prove causation and loss. His case does not, in reality, involve any challenge to the findings or conclusion of the court. He merely contends that, in the light of the negligence of which he now complains, the court’s conclusions would have been different. But this not so in the present case. As Buxton LJ has demonstrated (at [19] and [27]), the claimant cannot establish that his adviser’s drafting of the agreements was negligent without challenging the judge’s findings as to credibility and fact. To make good the allegations of negligence, Mr Laing must show that his account of the agreements is the truth. He must demonstrate that His Honour Judge Thornton’s judgment of his credibility was wrong.

38.

Secondly, generally in actions against legal advisers arising out of litigation, the losing party’s allegations of negligence could not have been advanced in the case which he lost. They arise only after the case is concluded. But in the present case, the claimant had every opportunity during the course of the trial to raise, as he would have it, the inadequate drafting. The more Mr Marks, QC emphasised the strength of Mr Laing’s position on the basis of the written evidence, the harder it became to understand why the errors of Mr Kelly were not fully aired at trial. On Mr Laing’s account the 1999 and 2002 written agreements were inadequate. Mr Laing had every opportunity at trial to explain that the inadequacies were due to the incompetence or misunderstanding of Mr Kelly.”

Laws LJ agreed with both judgments. (Footnote: ¹³)

Synthesis and the Judge’s approach

From this discussion of the cases, the following points emerge:

In short, the doctrine of abuse of process is best framed, at least in the context of a “collateral” attack on a prior civil decision, by reference to the test expounded by Lord Diplock and Morritt V-C:

Conclusions

It follows that Ground 1 and, because embraced by Ground 1, Ground 2 both succeed. The Judge erred, in his careful judgment, in placing reliance on the Phosphate Sewage test, and in failing to apply the test set out in paragraph 45 above. As was noted in paragraph 18 above, the Judge relied upon [27] of Laing: he should also have borne in mind [12], [22], [25] and [36]-[38].

It will be necessary to reconsider the question of abuse of process to the extent that it informed the Judge’s conclusion that certain allegations in the draft Amended Particulars of Claim should be struck out. Since it will be necessary – when determining Grounds 3 to 5 – to consider the specific allegations made by Mr Allsop against Banner Jones and Mr Cohen, I will consider such questions in the course of my consideration of these specific grounds. In this regard:

It is possible to deal with Ground 5 relatively briefly. The nature of Ground 5 was summarised in paragraph 14(v) above. Essentially, Ground 5 rests on two points. First, that there is an inconsistency between the Judge not striking out allegations A4 to A7 (against Banner Jones) and the Judge striking out allegation G1(b) (against Mr Cohen). Secondly, that the Judge gave no reasons for his decision, and this court cannot be assured as to the basis on which the allegation was struck out.

I consider these two points in turn.

As to the first point, I do not accept that there is a similarity between allegations A4 to A7 and allegation G1(b). Allegations A4 to A7 allege that Banner Jones failed to take certain steps in preparing a point at issue in the financial remedies hearing, as a result of which there was a real or substantial chance that the outcome of the proceedings, on this point, would have been different and to Mr Allsop’s advantage. By contrast, allegation G1(b) contends that Mr Cohen failed in breach of his duty to advise Mr Allsop to seek to appeal the same point.

It is readily apparent that there is a stark difference between presenting a case negligently such that a point might have been decided differently and advising as to whether that point – decided “wrongly” because the case was negligently put together – should be appealed. Indeed, I consider that the fact that the Judge considered allegations A4 to A7 to be reasonably arguable to be an indicator (albeit no more than that) that allegation G1(b) was not reasonably arguable. That is because the one thing one cannot do on an appeal is assert that the judge decided the case wrongly on the basis of material that could have been, but was not, before the court. (Footnote: ¹⁹)

Turning to the second point, it is of course regrettable that the Judge did not provide reasons for his decision. That said, there were a great many allegations for the Judge to consider, and he conscientiously considered them. It is significant that although the Judgment was circulated in draft for the parties to

I do not consider that it is appropriate to seek to guess the reason why allegation G1(b) was struck out. Rather, I should consider whether the order made – to strike out the allegation – was rightly or wrongly made, on basis that it is orders and not judgments that are appealed. In my judgment, the order striking out allegation G1(b) was correctly made:

For all these reasons, Ground 5 is dismissed.

The allegations under appeal are: A8, A10, A12(e), A12(h), A13, C2, E3, G1(b) and G1(c). Most, but not all, of these allegations have specifically been considered in the course of this judgment. Thus:

Allegations A10 and A12(h) have not, so far, specifically been considered. They do not form part of the subject matter of Grounds 3, 4 or 5, although they may fall within Grounds 1 and 2. Allegation A10 alleges that Banner Jones failed properly to take reasonable steps to ensure that Mr Allsop complied with an order that was made earlier in the financial proceedings and as to which District Judge Buxton made critical comment. Allegation A12(h) alleges that Banner Jones failed to instruct Mr Cohen soon enough, thus giving Mr Cohen insufficient time to prepare and/or see Mr Allsop in conference.

Allegation A10 was considered by the Judge in paragraphs 165 to 167 of the Judgment. It is clear from these paragraphs that the Judge struck out allegation A10 not as an abuse of process but because no reasonably arguable case was disclosed. It follows that my conclusions in relation to Grounds 1 and 2 cannot affect the Judge’s decision to strike out allegation A10.

Allegation A12(h) was considered by the Judge in paragraphs 168 to 172. As with allegation A10, the Judge struck out allegation A12(h) not as an abuse of process but because no reasonably arguable case was disclosed. It follows that my conclusions in relation to Grounds 1 and 2 cannot affect the Judge’s decision to strike out allegation A12(h).

For these reasons – and more for the avoidance of doubt than anything else – the appeal against the Order striking out these allegations is dismissed.

I agree.

I also agree.