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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brealey v Prescotts (A Firm) [2001] EWCA Civ 1449 (9 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1449.html Cite as: [2001] EWCA Civ 1449

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE CHARLES HARRIS QC)

		Royal Courts of Justice Strand London WC2 Monday, 9th July 2001

Monday, 9th July 2001

1. LORD JUSTICE SCHIEMANN: Mr Brealey asks for permission to appeal a judgment of His Honour Judge Charles Harris, QC, of 6th March 2001. The background to the matter is that Mr Brealey was divorcing his wife, there was a dispute in relation to ancillary relief and District Judge Dickinson granted ancillary relief on 25th March 1996. The order made by the district judge is one which made Mr Brealey unhappy and he had been advised by counsel that that order was arguably wrong and could have been made the subject of an appeal with some prospect of success. In particular, the district judge ordered that the applicant transfer his interest in the matrimonial home to the wife, in return for some £13,500. Mr Dickinson thought that was inappropriately low and it should at least have been at least £22,000.
2. The long and the short of it is that there was no immediate appeal. However, Mr Brealey was subsequently granted legal aid to pursue an appeal out of time in October 1996. That appeal was way out of time and counsel in due course advised that the prospect of appeal would be severely damaged by the lapse of time between the order of the district judge in March and the appeal six or seven months later. The appeal has not been pursued, instead, the applicant has sued his former solicitors, a firm called Prescotts; and he has alleged they were negligent. Originally he alleged that they were negligent in a whole variety of matters, all of which the judge dealt with. But his prime ground before the judge I think, and certainly before this court, was that the solicitors did not advise him as to the existence of legal aid which would help fund any appeal which he might make. He of course was very distressed at the time, was a layman, knew that there was such a thing as legal aid but was by no means clear as to the circumstances in which legal aid would be granted. The essence of his complaint against the solicitors is that they failed to discuss legal aid with him with appropriate care. In that he relies on the legal aid provisions and the provisions in relation to the professional conduct of solicitors in relation to legal aid. It is clear, and was accepted by the judge, that failure to advise clients of their rights under the Legal Aid Act can amount to unbefitting conduct and may also lead to a claim in negligence against the solicitor for breach of duty owed to the client. That is the basis of Mr Brealey's claim.
3. Why then did the judge dismiss it? The judge said in relation to this particular matter that immediately after the hearing the barrister had told the claimant: "It can be appealed but it will cost you." And the claimant at that stage went back and thought about it. He then contacted his solicitors and had a half-hour phone conversation with them. The note of that phone conversation indicates that the solicitor was pointing out that if he were to appeal he might be throwing away good money after bad, and that in any event he would not receive any money for several months even if the appeal were successful. And the solicitor suggested that in so far as there were funds available from the relatives (and there had evidently been some discussion about that) they might be used in recapitalising the business rather than appeal in a case where there was relatively little money available on the wife's side.
4. The judge went on to record that the claimant had explained that he wanted to appeal, but he did not know if he could afford to, and did not in the event get round to asking for Legal Aid until 30th September 1996. The judge cited counsel's opinion that if the matter had proceeded to appeal immediately counsel took the view that Mr Brealey would have a reasonable argument for overturning the order of the district judge, but that Mr Brealey was handicapped by the lack of time since the original order.
5. The judge recorded that various letters were sent by the claimant to the defendants later on that year in which he said nothing about failure to appeal being the defendant's fault, or about any earlier failure to obtain legal aid. And the judge quoted from a letter indicating that a note written by the claimant indicated that his position at the time was that he had all sorts of financial problems and debts owed to a variety of people, including the tax authorities which greatly exceeded his assets.
6. The judge found that the solicitor's representative was a truthful man, and he accepted his evidence. The evidence of this gentleman, Mr Easton, was that the claimant had had enough of the legal profession and did not want to appeal. It is actually quite common for people when they have lost a case to feel that they want out. People react in different ways: some run away, some battle on to the end up to the House of Lords. The judge goes on to say that legal aid was not mentioned and that:

"Mr Brealey is a man who would have been very well aware of the existence of legal aid... if he had wanted it and felt he was entitled to it, I am sure he would have asked for it."

7. Mr Easton said the question of funding was not in issue. Mr Brealey had indicated that funding was available but that at the end of the day Mr Brealey had decided that he did not want to appeal. Mr Easton said that if Mr Brealey had said he would like to appeal but he could not afford it, then he would have applied for legal aid for him. Mr Easton evidently gave evidence which the judge accepted that it was not a matter of costs that was deterring Mr Brealey - he wanted to do something else, he did not want to appeal.
8. The judge found that the reason Mr Brealey did not want to appeal was probably out of a combination of feeling distressed and fed-up with the law, and the hope that he would be able to pull the situation together, although no doubt he realised that he might have some difficulty in financing an appeal.
9. This was the basis upon which the matter was decided against Mr Brealey. Mr Brealey says the judge got that wrong, and although he knew about legal aid it should have been up to the solicitor not merely to say to him, "you do realise there is legal aid" - because that would merely have been telling Mr Brealey what he knew - but the solicitors should have said, "you realise that there is legal aid which may very well apply to you and enable you to go to it for appeal."
10. The judge had to decide whether the solicitors were negligent in not doing more than they did. A solicitor has to tread a rather careful path between encouraging clients on the one hand to fight litigation which it might be in their interest not to fight further and in which they did not really want to fight; and on the other hand letting clients down by not making plain to them what the opportunities are. That is a question of careful judgment by the solicitor and although there clearly is a duty to take care in these cases, which the judge accepted, for my part I cannot see that there is a good chance of success in the Court of Appeal in persuading the court that the solicitors were negligent in what they did here. The judge actually went on to say that, even had there been an appeal, it is not clear to what extent Mr Brealey would have succeeded. That is clearly right. He might conceivably have obtained a few thousand pounds more. Whether those would have gone to his creditors, to the Inland Revenue or to himself, the judge said was uncertain. That is no doubt so; but that was not really the basis of the finding against him. For my part I think the judgment which the judge made was one which was legally open to him, and therefore this court has no power to interfere with that judgment.
11. For that reason I am going to refuse permission to appeal.
(Application refused; no order for costs).