Solland International Ltd and Others v Clifford Harris & Company

JurisdictionEngland & Wales
JudgeMr Justice Henderson
Judgment Date27 October 2016
Neutral Citation[2016] EWCA Civ 1147
Docket NumberA3/2015/4251
Date27 October 2016
CourtCourt of Appeal (Civil Division)

[2016] EWCA Civ 1147

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(MR JUSTICE ARNOLD)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Mr Justice Henderson

A3/2015/4251

Between:
(1) Solland International Limited
(2) Solland Interiors Limited
(3) Abner Solland
(4) Grazyna Urszula Solland
Appellants
and
Clifford Harris & Co
Respondent

Mr R Millett QC (instructed by Bird & Bird LLP) appeared on behalf of the Appellants

The Respondent did not appear and was not represented

Mr Justice Henderson
1

This is an oral application for permission to appeal following refusal of permission on the papers by Patten LJ on 10 February 2016.

2

The proposed appeal is a second appeal, so the position is governed by CPR 52.13(2), which states that the Court of Appeal will not give permission unless it considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the court to hear it. The stringent nature of both limbs of the second appeal test was explained by the Court of Appeal in the case of Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, [2005] 1 WLR 2070. I have in mind particularly paragraph [18], where Dyson LJ explained the importance of the distinction between on the one hand establishing an important point of principle or practice for the first time, and on the other hand applying it correctly in a later case. It is only cases of the former type, he said, which pass the threshold imposed by the second appeal test. That guidance is not of course statutory or set in stone, but it is highly authoritative, and should in my view be followed unless there is good reason to modify it.

3

The present case is a solicitor's negligence action relating to underlying events which took place as long ago as 1998 to 2004, and which culminated in the settlement of proceedings in the Chancery Division brought by Daraydan Holdings Limited and others against the four Solland defendants ("the Sollands"). The Sollands now sue the solicitors who acted for them in that litigation, Clifford Harris & Co, alleging that but for the negligence of that firm, they would not have settled on such unfavourable terms and would have succeeded in full on their £8 million counterclaim arising out of the refurbishment and redecoration of various properties in London and Qatar undertaken by Mr and Mrs Solland and their two companies.

4

The factual and procedural background to the matters now before me is of some complexity, but is clearly set out in paragraphs [3] to [27] of the judgment of the judge below, Arnold J, and those paragraphs should be treated as incorporated in this judgment. As that history makes clear, the present action was not started until November 2008. The claim form was not served until March 2009, and matters were then stayed by agreement to enable the defendant to respond to a lengthy second letter of claim which had been sent shortly before service of the claim form. Then, as now, the defendant was represented by Clyde & Co. Eventually, Clyde & Co provided a letter of response in October 2010, and after further agreed stays, the Sollands served their particulars of claim in December 2011, followed by the defence in March 2012. The court then required the parties to file allocation questionnaires by 3 April 2012. The defendant complied with that obligation but the Sollands did not, despite receiving a reminder from Clyde's.

5

At that stage, the Sollands decided to act in person and they then allowed the action to go to sleep for the best part of three years. The defendant for its part was content to let sleeping dogs lie, and the court, by what I am sure was an unusual and uncharacteristic oversight, took no steps of its own motion to progress the action, for example by making an unless order or by convening an allocation hearing. Eventually, on 13 August 2014, the defendant applied to strike out the proceedings as an abuse of process and on related grounds, including that a fair trial was no longer possible.

6

In November 2014, the Sollands belatedly filed an allocation questionnaire and applied for an extension of time to do so, and in February 2015 the two applications were heard by Master Bowles. In his reserved judgment delivered in July of that year, he dismissed the claim as an abuse of process. There was then an appeal to the High Court, with permission granted by Warren J, which was heard, as I have said, by Arnold J in November 2015. He dismissed the appeal for reasons given in his reserved judgment, the neutral citation reference of which is [2015] EWHC 3295 (Ch).

7

In deciding to strike out the action, Master Bowles found that two types of abuse had been established: firstly, so-called Grovit abuse, and secondly, so-called Choraria abuse. Broadly speaking, Grovit abuse consists of warehousing a claim with no intention to bring it to a conclusion: see Grovit v Doctor [1977] 1 WLR 640, per Lord Woolf at 647 Choraria abuse consists of delay which is not only inordinate and inexcusable, but also involves complete, total or wholesale disregard of rules of court, with full awareness of the consequences: see Choraria v Sethia [1998] CLC 625 at 630, per Nourse LJ.

8

Either form of abuse then gives the court a discretion whether or not to strike the action out, if it is fair and just to do so in all the circumstances, and bearing in mind the well established principle that striking out should always be a last resort because, obviously, it prevents further access to the courts on the part of the party struck out. The master exercised his discretion in favour of striking out the claim for the reasons given...

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