Miller v Shires and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindsay,Lady Justice Hallett,Lord Justice Chadwick |
| Judgment Date | 25 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1386 |
| Date | 25 October 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B/3/2006/0091 |
[2006] EWCA Civ 1386
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HIS HONOUR JUDGE BARTFIELD
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lady Justice Hallett and
Mr Justice Lindsay
Case No: B/3/2006/0091
4LS056390
Mr Tim Hirst (instructed by Green Williamson) for the Applicant
Mr Glenn Campbell (instructed by Beachcroft LLP) for the First Respondent
Mr Hugh Evans (instructed by Browne Jacobson LLP) for the Second Respondent
This application concerns a second appeal by the claimant in proceedings in which there has been a summary judgment dismissing the claimant's claim. The background is this. On 26 th September 1997 the claimant, Mr Miller, was driving a car, a Vauxhall Astra, along Low Road, Hunslet, Leeds. There was a collision between his car and another car, another Astra, driven by a Mr Brown. Both drivers were seriously injured; Mr Miller was so severely injured that the police thought that it could prove to have been a fatal accident. Fortunately, though, Mr Miller survived (but with no recollection at all of the event) and instructed solicitors, first Messrs Gartons (now the first defendant–respondent, Garton Shires) and secondly the second defendant–respondent, Messrs Ison Harrison. But no proceedings against Mr Brown were served within the appropriate period. Displeased at that, to put it no stronger, on 21 st October 2004 Mr Miller issued proceedings in Leeds County Court against both firms of solicitors. He had, he said, lost an opportunity of recovering substantial damages from Mr Brown by reason of those firms' respective professional negligence. Of course, if Mr Miller's case against Mr Brown would in any event have led to no recovery then the opportunity lost (assuming one was) would have been valueless and there would, in turn, be no recovery against either firm of solicitors either in contract or in tort.
That response was amongst the several defences raised on behalf of the solicitors who, on 25 th July 2005, moved before District Judge Spencer in the Leeds County Court (or were taken so to have moved before her) for a summary judgment dismissing Mr Miller's claim.
The Learned District Judge applied CPR 24.2 which provides:
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial".
The conjunctive "and" between (a) and (b) makes it plain that he who seeks the summary relief must attract a consideration by the court favourable to him on both limbs. The word "other" in (b) is inept as, read literally, it would suggest that the fact that a claimant has no real prospect of success or a defendant none of successfully defending would be a compelling reason "why the case or issue should be disposed of at a trial". Plainly, that was not intended and the word "other" is to be given weight by reading the rule as if it said that notwithstanding the absence of real prospects of success, nevertheless there is some reason why the case should go to trial.
It is throughout to be borne in mind that the Learned District Judge did not have before her a road traffic accident case. There never will be a hearing of Mr Miller's road traffic accident case; that, indeed, is what he complains of. But the Learned District Judge did have to do the best she could, on the material before her, to assess whether there would have been any real chance of a successful outcome had there been timely road traffic proceedings by Mr Miller against Mr Brown and to assess the effect of that hypothetical outcome on the proceedings that were before her, proceedings for professional negligence.
The Learned District Judge dismissed Mr Miller's claim against the solicitors. His claim against Mr Brown, she held, would have been worthless. Mr Miller appealed.
The appeal – the first appeal – came on before His Honour Judge Bartfield in the Leeds Court on 18 th November 2005. He upheld the Learned District Judge. Mr Miller sought permission on paper to appeal Judge Bartfield's decision and on 15 th February 2006 Latham LJ refused permission. He said this:
"This is a second appeal. The decision was one which was open to both the District Judge and the Judge on the evidence before them. This appeal does not raise an important point of principle or practice nor is there any other compelling reason for the Court of Appeal to hear it."
Latham LJ was plainly referring to the terms of CPR 52.13(2) , to the terms of which I shall refer below.
Mr Miller renewed his application which came on for oral hearing before Ward LJ on 4 th April 2006. Ward LJ, after observing that he was not at all sure how the claim against Garton Shires "ran" and that it would, if permission were given for it, be a "pretty hopeless" appeal, adjourned Mr Miller's application for permission to be heard on notice to the respondents with an appeal to follow if permission were granted. So it is that we have before us Mr Hirst for the claimant-applicant, and Mr Campbell and Mr Evans for the respective firms of respondent-defendants.
Ward LJ made no express reference to the application before him being for permission for a second appeal, but that is inescapably what it is and, for that reason, when the application came before us, we elected to hear the application for permission first and separately so that we could examine whether the relatively stringent test appropriate to second appeals was passed. However, before I move on to that test I need to say something briefly about the jurisdiction conferred by CPR 24.2. I have not understood Mr Hirst to dispute any of the following summary of that jurisdiction. In Three Rivers District Council & Others v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1– perhaps now to be seen as the high-water-mark of allowing cases to go forward—Lord Hope referred to the rule as a salutary power but one which had to be confined to its proper role. The court had to look to see what would happen were there to be a trial. Normally, parties are to be allowed to lead their evidence so that the trial judge can determine where the truth lies but, where the case being examined is so weak that it has no real prospect of success, then it should be stopped before great expense is laid out. The jurisdiction is not to be used to dispense with the need for a trial where there are indeed issues that should be investigated at trial. Hence there should be no "mini trial"; that would usurp the function of the trial judge and it would lead to conclusions being reached without cross-examination and on documents only. That would be an abuse of the power. But, even so, if the court can say with confidence on the material before it at the summary hearing that the factual basis asserted is entirely without substance then it may be just to use the power which CPR 24.2 confers— Three Rivers at para 95. Such a conclusion is more likely to be capable of being reached in a simple case but, I would add, the fact that the case could be described as simple cannot, of itself, suffice to lead to summary relief.
The inappropriateness of "mini trials" at the summary stage had even earlier been commented on in this court, in Swain v Hillman & Another in [2001] 1 All ER 91 CA where, at page 95, Lord Woolf MR said:
"Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. As [counsel] put it in his submissions, the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily."
The books are replete with similar warnings and it suffices to refer to two recent decisions of this court. The first is Sharpe v Addison [2004] PNLR 23, 426, another case of a road traffic accident and alleged professional negligence but where road traffic proceedings had been begun but were later discontinued. At page 434 in a passage which Mr Hirst draws to our attention, Rix LJ said of the judge below:
"I fear that in these circumstances, although the judge was aware of and sought to apply the correct principles, he was tempted, perhaps by the very fact that the case was presented to him as an entirely documentary exercise, to conduct a mini-trial on paper. But the trial, if it had taken place, would not have been conducted on paper. The taxi driver and his passenger would have been challenged along the lines indicated by counsel's submissions and the possibilities adverted to in this judgment.
Nowadays, under the CPR regime a defendant can apply to strike out a claim at its inception on the basis that it has no real prospect of success: see Part 24.2. The test of a worthless claim for loss of a chance purposes seems to me to be very similar to that modern test. If the question is asked in these terms, whether a case such as this would be struck out under CPR Part 24.2, it seems to me that it would not. To do so would...
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