A3/2001/0836

Neutral Citation Number: [2001] EWCA Civ 1676
IN THE SUPREME COURT OF JUDICATURE
SITTING AT EXETER COMBINED COURTS
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION 
(BRISTOL DISTRICT REGISTRY)
(MR JUSTICE SILBER)
								Exeter Combined Courts
								Castle Road
								Exeter

								Thursday 1 November 2001
B e f o r e:

LORD JUSTICE MUMMERY

LORD JUSTICE TUCKEY

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TERENCE THOMAS BLAKE
Claimant/Applicant

- v -

HARDING & ROWE (A FIRM)
Defendant/Respondent
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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The Applicant appeared in person.

MR A SIMMONDS QC (Instructed by Messrs Bond Pearce, Plymouth, PL1 3AE) appeared on behalf of the Respondent

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J U D G M E N T

1.	LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. It was adjourned from 18 June 2001 for a hearing to be attended by those representing the proposed respondents to the appeal. 
2.	Mr Blake seeks permission to appeal from the decision of Silber J on 19 March 2001, dismissing his action for professional negligence against a firm of solicitors, Harding & Rowe. He made his decision on the hearing of a preliminary issue following a direction for a split trial. He was only concerned to decide whether or not Mr Blake had established liability. He was not concerned with any questions of assessment of damages. 
3.	Mr Blake, who has conducted both the earlier application and today's application in person, was the managing director and shareholder of a company called Galaedge Limited. It is one of a number of his companies which carry the name Galaedge. We have seen documents relating to the incorporation of other companies at the beginning of 1998 called Galaedge Estates Limited and Galaedge Leisure Limited. 
4.	On 22 May 1987 Galaedge Limited purchased the Lee Bay Hotel, near Ilfracombe, North Devon. It is a seaside hotel set in 35 acres of grounds. There is a gift shop and car park. There are individual bungalows and garages in a development on the edge of the site. The conveyancing has not been straightforward. It was at that time an unregistered title with complications. 
5.	Harding & Rowe were the solicitors instructed to act on the acquisition by Galaedge. They were instructed before the exchange of contracts on 5 March 1987. Mr Chittock of that firm was responsible for handling the matter. Galaedge had to raise the finance to fund the purchase in order to complete it. For the purposes of gaining the time that was necessary to raise the money, Galaedge agreed for the purchase price to be increased to £825,000. A bridging loan was arranged with the National Westminster Bank. They were granted a debenture as security for the loan. More permanent funding was later obtained from ANZ Finance. 
6.	On 18 September 1987 Galaedge granted to ANZ Finance a legal charge over the hotel. The gift shop and the car park were excluded from that charge. A floating charge was also granted to ANZ Finance over all the assets of Galaedge, including the gift shop and the car park. It was agreed that loans which Mr Blake had made to Galaedge should be postponed to ANZ's floating charge. The charge was registered in September 1987. Mr Chittock then sought registration of the title at the Land Registry under two different title numbers, one for the hotel and one for the gift shop and the car park. Requisitions were raised by the Land Registry and the question of registration took until the autumn of 1989. 
7.	In June 1989 Galaedge and Mr Blake decided to refinance. The scheme was that Galaedge would sell property to Mr Blake, who would borrow money in order to fund the sale. In connection with these transactions, two other firms of solicitors came on the scene, Muscatt Walker & Hayim, who were acting for Mr Blake personally, and Clintons, who were acting for Galaedge. On 5 June 1989 Muscatt Walker wrote to Harding & Rowe asking for title deeds and outstanding requisitions. On 2 January 1991 Muscatt Walker wrote to Harding & Rowe alleging that Galaedge had suffered loss resulting from the time which it had taken to register the title, which was not completed until November 1989. 
8.	It was not until 31 July 1995 that Mr Blake issued proceedings against Harding & Rowe claiming damages for negligence. The only part of the claim we are concerned with on this application for permission to appeal is what is described as “the car park claim”. Mr Blake says that Mr Chittock was negligent. Mr Blake claims that Mr Chittock failed to carry out an instruction which he had given to him to transfer the car park from the name of Galaedge to Mr Blake personally. Mr Blake's pleaded case was that an instruction had been given by him to Mr Chittock on 15 August 1989 at a meeting in Mr Chittock's office. The significance of that date is that it is within the period of six years, leading up to the issue of the proceedings. A claim based on negligence committed on that date would not be statute barred. 
9.	In the defence served by Harding & Rowe, they denied that any instructions had been received from Mr Blake to Mr Chittock on 15 August 1989 to transfer the car park from Galaedge to Mr Blake. Part of their case was that, not only had there been no instruction, but, if there had been, no such instruction could, when viewed in the context of all the circumstances, have been lawfully carried out. Among their arguments were that Mr Blake knew that the car park had not been transferred into his name, and that he knew that the car park was subject to another charge to the Skipton Building Society, and that it was subject to a quite different kind of agreement entered into on 14 August 1989. That agreement was not consistent with his case of giving an instruction of the transfer of the car park into his name on 15 August. 
10.	An important part of the case, as appears from Silber J's judgment, was that the evidence given by Mr Blake in paragraph 53 of his witness statement, and orally, was that he had in fact given instructions in October 1987 (nearly two years earlier) to transfer the car park into his name. When he went to the offices at Harding & Rowe on 15 August 1989, he told Mr Chittock that he believed that the car park was owned by him. 
11.	As is pointed out in the skeleton argument submitted by Harding & Rowe for this hearing, the pleading in the statement of claim and its reference to 15 August 1989 had never been amended to plead the date stated in Mr Blake's evidence. If it had been pleaded as an instruction given in October 1987, the defence would have pleaded that the claim was barred by the Limitation Act. The judge decided the case on the basis of Mr Blake's evidence, which, as is apparent, was inconsistent with his pleaded case, and that the 15 August 1989 had not been established as the date on which the relevant instruction was given. 
12.	When this application for permission to appeal was first made, I dealt with it on the papers in accordance with the normal procedure. Two points were raised. I refused permission in respect of both of them on the grounds that the proposed appeal by Mr Blake had no real prospect of succeeding. That is the test that applies to determine whether permission to appeal should be given. In respect of the car park claim, this failed as there was a finding of fact by the judge, which he was entitled to make on the evidence before him, that it had not been proved that instructions, as pleaded, had been received by the firm of solicitors on 15 August 1989 regarding the transfer of the car park. 
13.	When the matter came on before myself and Wilson J on a renewed application at an oral hearing, Mr Blake produced to the court a large number of documents. It became apparent that further time would be needed in order to clarify the position on the documents. In particular, it appeared from a number of letters, which were written in August 1989 and thereabouts, that there were references to the question of a transfer of the property from Galaedge into the name of Mr Blake. I was particularly concerned, as was Wilson J, with the letters which were written, first, on 14 August 1989 by Harding & Rowe to Mr Walker of Muscatt Walker, and a further letter written on 16 August 1989 by Mr Chittock to Mr Walker, which in the third paragraph stated: 
“As regard the car park this is part of the land included in part 2 of the First Schedule of the 1983 Conveyance and the Mortgage to AMZ [sic] BANKS specifically excluded in this land. This land is to be transferred into the name of Mr Blake and the Deeds to be lodged with the National Westminster Bank. Please could you write direct to the Bank to give such undertaking in which case we can then be released from our own.”
14.	There was a letter written by Harding & Rowe, again by Mr Chittock, to the Plymouth Land Registry on 16 August 1989 which refers to the title number of Lee Bay Hotel. It is now clear, on closer examination, that it does not refer to the title to the car park. 
15.	There is a letter on 20 November 1989 from Muscatt Walker to Mr Chittock about the question of registration of the two titles at Lee Bay Hotel. More significantly, there is a letter of 1 March 1998, written by Harding & Rowe to Mr Tongue, the manager of the Clerkenwell Branch of the National Westminster Bank. It is necessary to refer to it in order to make sense of the reference made in the mid‑August letter as to the question of an undertaking to the National Westminster Bank. That letter, headed Galaedge Limited/T Blake Limited, said in the last paragraph: 
“ We have been requested by our client and client company to confirm that when we receive the Land Certificate relating to the car park site at Lee Bay Hotel we will deal with a transfer of this land from the name of the Company into the sole name of Mr Blake and forward the Land Certificate to you just as soon as this further registration is completed.”
16.	That letter makes it clear, in the context of the letters of August 1989, that some instruction must have been given at a much earlier date than 15 August 1989 for the transfer of the land from Galaedge to Mr Blake. That is consistent with Mr Blake's evidence to which I have referred. But it is not consistent with the pleaded case and the case which Mr Blake is seeking to support on this appeal, that it was on 15 August 1989 that the instruction was given about that transfer. 
17.	Mr Simmonds QC, who appears for Harding & Rowe, has referred us to a number of other documents which were either not in the bundles with which we were provided in June or, if they were, were not readily detectable because of the confusing way in which the documents in this case have been prepared. In particular, Mr Simmonds has referred us to the agreement dated 14 August 1989 which he says supports the judge's finding that it was not factually or legally possible to carry out any instruction for the transfer that Mr Blake alleges was given to Mr Chittock on 15 August. The agreement of 14 August 1989, which was prepared by Clintons, the solicitors for Galaedge, relates to an agreement by Galaedge to sell the Lee Bay Hotel. 
18.	It is clear from the plan attached to, and referred to, in the agreement that this sale was to include a number of lot numbers, including the car park. It was part of lot number 2. That point is clarified by Mr Blake's own evidence and skeleton arguments. As Mr Simmonds points out, the nature of that agreement is inconsistent with the transfer which Mr Blake says he was directing Mr Chittock to carry out for the transfers of the car park to him in part satisfaction of the money owed by the company to Mr Blake arising under loans. 
19.	Mr Blake has, with the assistance of a detailed skeleton argument and with further assistance from a friend during the oral hearing, made a large number of points. The points are all directed at the car park point. Although Mr Blake may believe those points are relevant to the claim, many of them are of no assistance to him in establishing that he has a real prospect of success. 
20.	He makes complaints that he was not competently represented by solicitors and counsel at the trial so that his case was not properly advanced; he makes complaints that the judge did not conduct the case in an objective manner; he makes a great many points about the unreliability of Mr Chittock as a witness (which is probably an understatement of the way he castigates Mr Chittock in respect of his evidence); and he makes a large number of other points in support of his case. It really comes down to the narrow issue of the alleged instruction on 15 August 1989. 
21.	I have considered all these points. I have taken into account a number of alleged errors which it is said were made by the judge. I have to ask, is there a real prospect of Mr Blake successfully persuading this court on an appeal (and I have explained to him that an appeal is not a re‑trial) that the judge was wrong in finding that no instruction was given by Mr Blake personally to Mr Chittock on 15 August 1989 for the transfer of the car park to Galaedge? That is the only question. 
22.	It is clear to me, having been taken through the documents both by Mr Simmonds and by Mr Blake, that he has no real prospect of upsetting that finding by the judge. It is a finding of fact that the judge was clearly entitled to make on the basis, first, on the documents; secondly, on the basis of the evidence of Mr Chittock; and, thirdly and perhaps most important of all, on the basis of the evidence given by Mr Blake himself in his witness statement and in his oral evidence. 
23.	This application must be rejected. 
24.	LORD JUSTICE TUCKEY: I agree. 
Order: Permission to appeal refused with costs summarily assessed in the sum of £5,000.