ANGELO PEROTTI and ILIFFE BOOTH BENNETT and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Maurice Kay |
| Judgment Date | 27 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1018 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2004 |
| Docket Number | Case No: A3/2003/2446 |
[2004] EWCA Civ 1018
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Peter Smith
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division) and
Lord Justice Maurice Kay
Case No: A3/2003/2446
The Appellant appeared in person
This is an application by Mr Perotti for permission to appeal against an order of Peter Smith J dated 28 th October 2003 whereby he ordered that summary judgment be entered for all the three defendants in this action. He also declared that the proceedings constituted an abuse of the process of the court and that they should be struck out for that reason. These defendants were two firms of solicitors and a member of the Bar who advised Mr Perotti during 1993 in relation to his claim in the administration proceedings concerning his late uncle's estate. Messrs Collyer-Bristow ceased to act for him in April 1993. The first defendant firm had dealings with him (to use a neutral term) between April and mid-July 1993 when their relationship broke up in acrimony. At the end of July the second defendant firm agreed to act for him on a limited basis (in the first instance), and their relationship continued until the end of October 1993 when it, too, broke up in acrimony. On 9 th September 1993 the third defendant, acting on the second defendants' instructions, advised Mr Perotti in a four-hour conference and thereafter settled a letter at Mr Perotti's request which expressed a willingness to settle his claim in the administration proceedings for £100,000. This was his only involvement in the matter. The writ in this action was issued in April 1999, nearly six years after the matters which Mr Perotti made complaint.
The background history of the matter is set out in my judgment in connection with Mr Perotti's claim against Messrs Collyer-Bristow [2004] EWCA Civ 639, and in greater detail in Lindsay J's judgment in that action at first instance. In paragraph 19 of my judgment I described how the senior partner of Messrs Collyer-Bristow terminated that firm's retainer on 14 th April, telling Mr Perotti that his firm had no confidence that Mr Perotti was willing to accept their advice and that it would be much better if he were to find another firm willing to act for him.
Mr Perotti then approached Mr Fairthorne, of the first defendants' firm, to whom he paid £500 on account of costs. After an initial meeting he wrote to Mr Fairthorne on 17 th May 1993, and in this letter he made five points:
(1) that he was overwhelmingly concerned about appealing the orders of Mr Roger Kaye QC (for which see para 9 of my earlier judgment);
(2) that he would be suing Messrs Collyer-Bristow for failing to appeal those orders;
(3) that he was instructing Mr Fairthorne to instruct a first class competent and experienced counsel;
(4) that Mr Kaye's order did not include his refusal of leave to appeal;
(5) that he repeated his oral instructions to the effect that Mr Fairthorne should study fully the 475 documents he left with him so that he would have noted all things that give rise to any cause of action.
On 20 th May he wrote a second letter, including further correspondence he had obtained from Messrs Collyer-Bristow. On 9 th June Mr Fairthorne replied to the effect that he had had an opportunity of considering the documentation to a certain extent, but that it was quite clear to him on looking at the papers that the work was going to be considerable and would cost considerably more than the £500 already paid.
In his judgment Peter Smith J described (at paras 56–57) the subsequent course of the correspondence which culminated in Mr Perotti giving him "informal disinstruction" of his "non-existent services" on the matter on 29 th June. He followed this up with a letter of abuse on 12 th July, in which he accused Mr Fairthorne's firm of being dishonest and/or incompetent and/or fraudulent and/or negligent. The firm returned to him £147.50 out of the sum he had paid them on account of costs, and that was the end of their dealings with him in this matter.
Mr Perotti then approached Mr Stone of the second defendants' firm. On 27 th July Mr Stone wrote to him and said that he would initially obtain an authoritative counsel's opinion on his various claims. If counsel's advice was negative he would not act any further. If it was positive he would take the case on subject to a payment on account of his firm's costs (to be agreed at that stage) and monthly invoices thereafter. In the meantime Mr Perotti paid the firm £1,000 on account of costs.
It was against that background that the third defendant was instructed to advise. The judge described what happened at the long conference on 9 th September, of which a contemporary note was made. Mr Barlow advised that a claim against Mr Watson for lost capital by reason of a failure to invest in equities was inherently unsustainable. He also advised that although there was no charging clause in the will he did not have a good case in relation to his contention that Mr Watson was not entitled to charge fees at all.
Mr Barlow's view on the merits was the same as that expressed by Mr Hinks nine months earlier, namely that while there were issues that could be raised in the proceedings the exercise did not look cost effective. At the end of the conference Mr Perotti accepted that he should seek a settlement of £100,000, and Mr Stone indicated his firm's willingness to act for the purpose of settlement only. Unhappily when he sent Mr Perotti the draft letter settled by Mr Barlow on 20 th October, Mr Perotti berated his firm for not following his instructions to plead fraud. He described the conference with counsel as trench warfare. Mr Stone wrote a long letter refuting these complaints on 29 th October, and on 7 th December Mr Perotti responded, accusing both Mr Stone and Mr Barlow of dishonesty. That brought their dealings with him to an end.
Peter Smith J set out the relevant facts in considerable details in his judgment. In relation to Mr Perotti's claim against the first defendants he said (at para 61):
"I do not see how it can possibly be alleged given the tenuous period of contact as between Mr Perotti and the First Defendants that any allegation as alleged by Mr Perotti against them has any realistic prospect of success. The correspondence speaks for itself. Mr Perotti expects instant action and when instant action (as perceived by him) is not forthcoming, instead of agreeing to have a meeting he simply terminates the employment of the First Defendants and makes the usual allegations of dishonesty against them. That is enough in my judgment to dispose of the claim against the First Defendants."
In the course of his judgment Peter Smith J explained why he considered that Mr Perotti's allegations of negligence against the second and third defendants in respect of what he called the charging issue and the Nestlé issue (being the issues I described as "the administration fees issue" and the "investment issue" in para 11 of my earlier judgment) had no real prospect of success, since he was given non-negligent advice on each. Of the three remaining allegations of negligence against these defendants, the judge said (at para 79):
"Allegation 3 is hopeless. Mr Perotti before me ultimately acknowledged that. He would be personally liable to the costs in whatever capacity he sued. The fourth allegation equally has no sense. Mr Barlow advised him the case had no prospect of success and he should not pursue them. The same allegation was made against Mr Hinks and that was dismissed by Lloyd J. The allegation against Collyer-Bristow met a similar fate before Lindsay J. Allegation 5 equally fails for the same reasons. Adding Mr Rudolph would simply have added to the Defendants against whom the same allegations would have failed."
He went on to say:
"All of these issues as I have set out in this judgment have been dealt with before. Independently of that, and on the material before me, I have come to the overwhelming conclusion that they have no prospect of succeeding against these Defendants either."
He then went on to apply a dictum of Sir Andrew Morritt V-C in Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 at [38]; [2003] 3 WLR 841 and gave his reasons (in paras 81–82 of his judgment) for saying that it would plainly bring the administration of justice into disrepute if he allowed Mr Perotti to ventilate issues against these defendants which had already determined against him in litigation with other parties, and when there was no realistic prospect of any costs being recoverable. He therefore made the orders to which I have referred at the beginning of para 1 of this judgment.
The hearing before Peter Smith J lasted more than a full day. In a recent witness statement a solicitor for the second defendants said that it took place on a number of days, while the title page to the judge's judgment records 9 th and 13th October 2003 as the hearing dates. At all events the judge seems to have had the opportunity of considering far more evidence than Mr Perotti has filed with the Civil Appeals Office in connection with this appeal, since it is evident from the same witness statement that the parties exchanged witness statements and that five bundles of documents were filed with the court, four of them being bundles prepared for that hearing and the fifth containing other relevant documents...
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