Walpole v Partridge & Wilson (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE BELDAM,LORD JUSTICE PETER GIBSON |
| Judgment Date | 01 July 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0701-6 |
| Date | 01 July 1993 |
| Court | Court of Appeal (Civil Division) |
[1993] EWCA Civ J0701-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Mantell)
Before: Lord Justice Ralph Gibson Lord Justice Beldam Lord Justice Peter Gibson
MR. P. NORRIS (instructed by Messrs. Barda & Co., Solicitors, South Ruislip) appeared on behalf of the (Plaintiffs). Appellants.
MR. K. PARKER Q.C. (instructed by Messrs. Mills & Reeve,Solicitors, Norwich) appeared on behalf of the (Defendants) Respondents.
)
This is an appeal by plaintiffs from the decision of Mantell J. of 3rd July 1992 whereby he struck out the plaintiffs' action as an abuse of the process of the court. The plaintiffs, who are Mr Brian Walpole and J.J. Walpole & Sons, a firm, are pig breeders in Norfolk. The defendants are Partridge & Wilson, a firm of solicitors. It is not clear what basis of claim is available to the firm as distinguished from Mr Brian Walpole but no point has been taken between them on this appeal and I shall refer hereafter to Mr Brian Walpole as the plaintiff. The plaintiff's action was begun by writ in September 1990. The complaint against the defendants is based on the following facts as alleged in the statement of claim:
(i) On 9th September 1985 information was laid before the justices in Beccles alleging that the plaintiff on 15th May 1985 in Old Hall Farm obstructed a vetinary officer, Mr J.B. Carter, in the execution of his duty of ascertaining whether pigs at the plaintiffs' farm had Aujeszky's disease in that he tried to prevent blood samples being taken from the pigs, contrary to section 66 of the Animal Health Act 1981. On 18th December 1985 the plaintiff, acting in person, pleaded not guilty to the information but was convicted. He was fined £250 and ordered to pay £500 by way of costs.
(ii) In January 1986 the plaintiff instructed a firm of solicitors (not the defendants) to act for him on appeal to the crown court. On 26th March 1986 the plaintiff's appeal was heard and dismissed by the Crown Court at Ipswich, presided over by His Honour Judge Bertrand Richards.
(iii) On or about 4th July 1986 the plaintiff retained the defendants to advise him on the merits of an appeal from the decision of the crown court and on the procedures for such appeal. In instructing the defendants it is alleged that the plaintiff acted on his own behalf and on behalf of the firm.
(iv) In breach of the contract of retainer or negligently the defendants failed to act with due care and skill and to carry out their instructions with due expedition. In particular (a) between July 1986 and April 1987 they failed to lodge an appeal against the decision of the crown court: (b) they failed to heed the plaintiff's instructions that he had never supplied pigs to any other person on whose premises Aujeszky's disease had been found and that the veterinary officer had no or no reasonable grounds for supposing that Aujeszky's disease existed or had ever existed on their premises: (c) although counsel prepared a draft case, for the purposes of appeal by way of case stated, and advised that the questions raised in the draft case were valid, the defendants failed to take steps to prosecute the appeal.
(v) By reason of the breaches of duty of the defendants the plaintiff's suffered loss and damage on the ground that, if the appeal had been lodged and pursued, the appeal would have been successful and the conviction would have been quashed and the fine and costs would have been returned. The claims of the plaintiffs included various items of costs and, in addition, the assertion that, if the appeal had succeeded, the plaintiff's reputation as pig farmers and breeders would have been restored. They would have been able to sue the veterinary officer, or his employer, the Ministry of Agriculture, for damages for trespass and malicious prosecution and thereby to recover substantial sums.
The defendants pleaded that the claims made by the plaintiffs amounted to a collateral attack upon a final decision of a court of competent jurisdiction, namely the decision of the Crown Court on 26th March 1986, and, accordingly, the claims are contrary to public policy and an abuse of the process of the court. The defendants further dispute the breaches of duty alleged against them. They contend that counsel in an advice dated 6th January 1988, had advised that it would be impossible for the plaintiffs to secure a reversal of the decision. A copy of that further advice was sent by the defendants to the plaintiff on 7th January 1988.
The defendants applied for an order that the proceedings be struck out as being an abuse of the process of the court. On 18th May 1992 Master Prebble dismissed their application. On 3rd July 1992 Mantell J. allowed the appeal of the defendants. After reference to the allegations in paragraphs 11 and 12 of the statement of claim, which I have summarised above, and which allege the loss and damage which the plaintiffs suffered as a result of the conviction not being quashed, the learned judge continued:
"If pursued, the allegations in these paragraphs would necessarily involve the court of trial in an inquiry as to whether or not the Ipswich Crown Court came to a correct decision in the plaintiff's appeal against conviction. The principle upon which Mr Parker, for the appellants, relies found early expression in Stevenson v. Garnet [1898] 1 QB 677… Lord Justice A.L. Smith put it thus: 'The judge heard evidence upon the question and decided it. The issue now sought to be raised in this action has been determined by a court of competent jurisdiction, and the cases show that it would be an abuse of the process of the court to allow a suitor to litigate over again the same question which has been already decided against him. Though 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 shown that the identical question sought to be raised has been already decided by a competent court."
After reference to Rondel v. Worsley [1969] 1 AC 1991, the judge cited the well known passage from the speech of Lord Diplock in Hunter v. Chief Constable of West Midlands [1982] AC 529 at page 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."
Then, after reference to Sinanan v. Innes Pitassi & Co., transcript 0125/91 CA, the learned judge noted cases in which solicitors have been successfully sued for breach of retainer on the ground that their negligence had caused either the loss of an opportunity to litigate or a result in the litigation which was less advantageous than ought to have been achieved. He referred to Ketteman v. Hansel Properties [1987] 1 AC 189; to Cook v. Swinfen [1967] 1 WLR 457, to Groom v. Crocker [1939] 1 KB 194 and to Heywood v. Wellers [1976] QB CA 446. The judge then expressed his conclusion as follows:
"At first blush all these might be seen as departures from the principle that, save by appeal, one cannot seek to impugn the decision of a court of competent jurisdiction. No doubt they are cited as exceptions. However, looked at more closely, it becomes apparent that not one of them involves an attack on a decision by another court which has been reached after consideration of the merits. It is for that reason, I believe, that Lord Diplock limited the application of principle to cases in which the attack was made upon a decision in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision.
For my part, I am satisfied that what is intended here does involve mounting a collateral attack upon a final decision against the plaintiff made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision. For that reason I shall allow the appeal and strike out paragraphs 11 and 12 of the statement of claim".
An Arguable Point of Law
Before stating the arguments advanced in this court, it is to be noted that the plaintiff does not assert that the decision of the Crown Court, which was a rehearing, can be shown to have been wrong by reference to fresh evidence which was not put before that Court. His case is that the decision of the Crown Court was wrong in law and that the error would have been corrected, and the decision of the Crown Court set aside, if the appeal by case stated had been pursued. It has been conceded in this Court by the defendants that the plaintiff has advanced arguable grounds for his assertion that the decision of the Crown Court was wrong in law.
The Arguments
Mr Norris for the appellants contended that the principle stated by Lord Diplock in Hunter, and cited by Mantell J., is not, when correctly understood in the context in which it was formulated, applicable to the facts of this case. In summary, Mr Norris advanced the following submissions:
(i) The main issue in the action is not the rightness of the decision of the Crown Court at Ipswich but the merits of the plaintiff's appeal to the High Court of which he was deprived by the fault of the...
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