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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 >> Forrester Ketley & Co v Brent [2001] EWCA Civ 199 (29 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/199.html Cite as: [2001] EWCA Civ 199

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(His Honour Judge Tetlow/Master Leslie)

		Royal Courts of Justice Strand London WC2 Monday, 29th January 2001

Monday, 29th January 2001

1. LORD JUSTICE CHADWICK: There are before us two applications made by Mr David Brent in proceedings brought against him by Forrester Ketley & Co, a firm of patent agents. The first application, under Court of Appeal reference 00/2491, is an application for permission to appeal against an order made on 26th May 2000 by His Honour Judge Tetlow sitting as a judge of the High Court in the Queen's Bench Division. The second application, under Court of Appeal reference 01/0042, is for permission to appeal against an order made on 23rd November 2000 by Master Leslie in the same proceedings.
2. The proceedings were commenced as long ago as 25th February 1994 by the issue of a writ in the Birmingham District Registry of the High Court, endorsed with a claim for £4,402.81. The writ was reissued in August 1996. In response, Mr Brent served an amended defence and counterclaim dated 3rd January 1997. It appears from that document that the claim was for the balance of fees or charges relating to patent applications made in the United States of America and Japan, after setting off an advance payment of £5,000 which had been made to them by Mr Brent.
3. Put shortly, Mr Brent contends by way of defence that he had been led to believe by the claimants that the total cost of the patent applications would be some £3,000 to £4,000; and that, if he had known that costs were to be incurred in excess of that figure, he would never have authorised the claimants to proceed as his agents. He counterclaims for the return of the £5,000 advance payment; and for compensation arising from lost business opportunities, for costs and expenses said to have been incurred as a result of inappropriate advice in connection with the filing of a patent application with the European Patent Office and for personal and family stress said to have been caused by the claimants' conduct.
4. The matter made slow progress, with numerous interlocutory applications; but, on 8th May 2000, Mr Brent filed an application notice which extends to 49 paragraphs over some 27 pages. No summary of that document would do it justice; and I shall not attempt one. It is unnecessary for me to do so in the context of this appeal. On 9th May, that is the day after the application notice was issued, the Master referred the whole of that application to a judge, on the basis that, in part, the application sought permission to appeal against earlier orders made by District Judges. So it was that the matter came before His Honour Judge Tetlow, sitting as a judge of the High Court, on 26th May 2000.
5. The judge's order of 26th May 2000 comprises 12 numbered paragraphs. It is necessary at this stage to refer only to those which are the subject of this application for permission to appeal. Those appear from the appellant's notice, filed on 7th July 2000. They are paragraphs 1, 3, 4, 8, 9 and 10 of the order of 26th May 2000. They may be summarised as follows:

1. The judge ordered that the amended statement of claim be deemed properly constituted and served.

3.He ordered that Mr Brent provide particulars of an amended defence and counterclaim as ordered by Deputy District Judge Jones on 8th June 1999.

4.He held that the claimants' response to the request for further and better particulars of the reply and defence to counterclaim served by Mr Brent should be treated as an adequate provision of the further and better particulars sought. That response was dated 24th February 1998.

8.The judge dismissed all other applications made in the notice of 8th May 2000.

9.He ordered that the parties attend to fix a trial date for the trial of the action and trial of the counterclaim on liability only with an estimated time for hearing of three days.

10.He ordered costs in the case.

6. Paragraph 6 of the order of 26th May 2000, which is not the subject of this application for permission to appeal, required the claimants to file and serve witness statements of the evidence on which they intended to rely. That was to be done by 8th September 2000. On 6th September 2000, the claimants applied for an extension of time for the filing of witness statements. That was against the background that Mr Brent had served an appellant's notice challenging the orders made under paragraphs 1, 3 and 4. The application for the extension of time was considered by Master Leslie on paper on 12th September 2000. Without a hearing, he decided to extend time for the filing of witness statements by the claimants until 28 days after the Court of Appeal had heard and disposed of Mr Brent's application for permission to appeal and any appeal consequent upon permission, if granted. I should add, by way of explanation, that there was no order that Mr Brent should file and serve a witness statement because, as is clear from paragraph 7 of the order of 26th May 2000, his pleadings and further and better particulars of his pleadings were to stand as his witness statement.
7. On 10th October 2000 Mr Brent applied to Master Leslie, under the liberty given in the order of 12th September 2000, for an order setting aside the order of 12th September 2000, he asked, also, for his costs of the application of 6th September; and he asked that paragraphs 2, 5 and 6 of the order of 26th May 2000 (those being paragraphs which were not under appeal) should be enforced with appropriate unless orders. Paragraph 6 of the order of 26th May, as I have already indicated, required the claimants to serve witness statements; paragraph 2 required the claimants to give particulars of previous instructions alleged to have been given; and paragraph 5 required the claimants to make specific discovery in relation to certain documents.
8. That application was heard by Master Leslie on the 23rd November 2000. He dismissed the application under paragraph 1 - that is to say, he refused to set aside the order for extension of time which he had made on 12th September. He allowed the application under paragraph 2 so as to provide that paragraph 2 of the order of 12th September 2000 be varied to provide that the costs of the application of 6th September be costs in the appeal to the Court of Appeal against the order of 26th May 2000. That may produce practical difficulties if there is to be no appeal against that order. The Master transferred the claim to the Chancery Division on the basis that it was, in substance, a patent agent's negligence claim - that being the claim raised in the counterclaim - and he adjourned the application under paragraph 3 of the notice of 10th October 2000 - that is to say, the application for unless orders to enforce paragraphs 2, 5 and 6 of the order of the 26th May - to the Chancery Master who might be assigned to hear further applications in the proceedings which would then be pending in the Chancery Division.
9. Mr Brent's application for permission to appeal against the order made by His Honour Judge Tetlow on 26th May 2000 was considered on paper by Latham LJ. He took the view that the application should be adjourned to an oral hearing in order, as he put it, that "the applicant's complaints can be properly understood". That is the first of the applications for permission to appeal that are now before us. The second is an application for permission to appeal against the order made by Master Leslie on 23rd November 2000. That application which comes before this court as a result of a direction given by Latham LJ on 28th November. Latham LJ took the view, for obvious reasons, that it would be convenient if both applications for permission to appeal were heard together.
10. The grounds upon which Mr Brent seeks permission to appeal against the order of 26th May 2000 - and the grounds which he would seek to advance on an appeal were permission to appeal granted - are set out under section 7 of the appellant's notice dated 7th July 2000. Section 7 extends over 30 pages. It falls into three parts. Section 7.1 sets out the grounds upon which Mr Brent contends that permission to appeal should be granted. Section 7.2 sets out the grounds for the appeal itself, that is to say the basis upon which it is said that the orders under the paragraphs to which I have already referred (paragraphs 1, 3, 4, 8, 9 and 10 of the order of 26th May), should be set aside. And section 7.3 sets out grounds upon which Mr Brent asks the Court of Appeal to make certain additional orders not made below. Those grounds are elaborated in a document described as a witness statement, dated 31st October 2000, which is to be found at pages 363 to 372 of bundle A. That seeks to raise points under the Human Rights Act 1998. The matter is further elaborated in a document headed: "Defendant's skeleton note for the oral hearing on 29th January 2001", which was sent to the court under cover of a letter dated 25th January 2001 and which we have had the opportunity of considering before this hearing.
11. His Honour Judge Tetlow's approach to the applications before him appears from the reasons which he gave in a note dated 24th June 2000 when refusing permission to appeal to this court. It is clear that his principal concern was to advance the matter so that it was ready for trial. In that context it may be assumed that he had in mind the overriding objective set out at CPR 1.1; in particular, the need to deal with the case in a way which was proportionate to the amount of money involved and the financial position of each party, to ensure that it was dealt with expeditiously and fairly, and to allot to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases. Further, it may be assumed that the judge had in mind that it was the duty of the court to manage cases actively in order to further the overriding objective: see CPR 1.4 and CPR 3.1. He will also, no doubt, have appreciated that CPR 1.3 requires the parties to help the court further the overriding objective.
12. The judge gave no formal judgment. We have been provided with a transcript of the proceedings before him. That suffers from the defect that parts of the interchange between the judge and the parties have not been transcribed because the recording was inaudible; due, perhaps, to some technical problem with the recording apparatus used. But it is possible to see that the way in which the judge dealt with the matter was, in effect, to rule on the points that he was deciding as the hearing went along.
13. I turn, therefore, to the paragraphs of the order against which permission to appeal is sought.
14. First, the judge's order that the amended statement of claim be deemed properly constituted and served. The grounds of Mr Brent's application that the amended statement of claim be struck out as irregularly issued and served are set out in the detailed application notice which appears in bundle A at pages 264 to 266. It is said, in effect, that the amended statement of claim has a typed "issue" date of July 1996, a copy stamp with the Court Seal Stamp showing 22 August 1996, which is in about three months before the relevant Hearing on 18th November 1996, and that it does not include any signature as required under RSC and or an equivalent statement of truth as required under CPR 22.1. It is said that the writ was not served within the time specified. It is said that the amended statement of claim was not attached to the sealed order nor initialled by the District Judge. Further, that although the claimants' solicitor acted as if there were a duly served and validly amended writ, the claimants' solicitors failed to answer proper and valid questions about it. The judge, having taken notice of those objections, clearly took the view that they were irregularities which could, and should, be cured; and that the important matter was not to argue about those technicalities but to allow the claim to proceed to a trial, there being no doubt, at least on the amended statement of claim, what it was that the claimants were claiming. They were claiming £4,400 for work done. To my mind there is no real prospect that the Court of Appeal would interfere with the judge's decision on that point.
15. Paragraph 3 of the order required Mr Brent to provide particulars of the amended defence and counterclaim which Deputy District Judge Jones had ordered on 8th June 1999. An attempt to appeal against that paragraph of the order is, as it seems to me, an attempt to appeal to the Court of Appeal against a decision of a judge of the High Court hearing an appeal against the order of the Deputy District Judge made on 8th June 1999. In other words, any appeal against paragraph 3 would be a second-tier appeal. This court will not entertain a second-tier appeal - indeed cannot entertain a second-tier appeal - unless satisfied that it raises some important point of principle or practice or that there is some other compelling reason why it should be heard in this court - see section 55 of the Access to Justice Act 1998. An appeal against this order that the defendant provide particulars of his pleadings in these circumstances comes nowhere near satisfying that test.
16. Paragraph 4 of the order directs that the request for further and better particulars of the reply and defence to counterclaim are to be treated as having been properly answered by the further and better particulars served on 24th February 1998. Again, there is no material upon which the court could come to the conclusion that the judge erred in principle in taking that view. It is essentially a matter which ought to be left to the judge at first instance and ought not to be made the subject of an appeal to this court. I can see no real prospect that the Court of Appeal would interfere with the decision under paragraph 4.
17. Paragraph 8 is the paragraph which dismisses all other applications; and to that I shall return in a moment.
18. Paragraph 9 required the parties to attend for the purpose of fixing a trial date. That has, I think, become superseded by the later order transferring the matter to the Chancery Division. In any event, it has been overtaken by events. It seems to me that it is unnecessary for this court to interfere with that part of the order. It can be left to the Chancery Division to decide when a trial date should be fixed.
19. Paragraph 10 made costs in the case. The proper order for costs was pre-eminently in the discretion of the judge hearing the application; and given that Mr Brent failed on a substantial number of points but succeeded on others, it seems to me impossible for this court to reach a conclusion that costs in the case reflects a wrong approach in principle to the matter. I can see no real prospect of success on an appeal against that part of the order.
20. I return, therefore, to paragraph 8, the order which dismissed all other applications made in the notice of 8th May.
21. As I have indicated, the notice of 8th May contained 49 paragraphs, each seeking a different form of relief. Those that are left are, I think, adequately identified in part 7.3 of the appellant's notice of 7th July. It is that part of the notice which seeks further orders from this court. I can refer to them briefly.
22. The first order sought is that the amended statement of claim be struck out; and there are a series of applications ancillary to that, dealing with the costs that have been incurred as a result. I am not persuaded that there is any substantial ground upon which the statement of claim in its amended form could be struck out as disclosing no cause of action or as introducing proceedings which would be bound to fail. I have referred already to the technical matters which the judge dealt with. I can see nothing of substance which could add to those.
23. Secondly, Mr Brent seeks to strike out the amended reply and defence to counterclaim. That application, again, is not supported by any material which suggests that the reply and defence to counterclaim does not raise issues which can properly be tried.
24. Then there are applications to set aside a number of orders made below. They can be listed: first, the order made by District Judge Leslie on 18th November 1996; secondly, an order made by Deputy District Judge Jones at a hearing on 26th February 1998; thirdly, oral orders made by District Judge Jones at the hearing on the 8th June 1999 when, amongst other things, he ordered further and better particulars; and, fourthly, orders made by District Judge Cole on 20th April 1998.
25. Judge Tetlow's approach to those matters was plain enough. He took the view that the task before him was to ensure, in accordance with the overriding objective, that the matter proceeded expeditiously and fairly towards trial having regard to the need for proportionality exemplified by the matters referred to in CPR 1.1.2. He clearly thought that it would serve no useful purpose "to rake over the coals", as he put it, of past procedural skirmishes. The important thing was to get this case into a position in which it could be tried. More than enough time and money had already been expended without much progress towards that end.
26. In my view, that was a matter which lay within the discretion of the judge; and I can see no real prospect that this court would think it right to interfere with the manner in which he dealt with it. The question is not whether this court would have made different orders. The question is whether this court would be persuaded that the judge erred in approaching the matter in the way that he did. I am satisfied that there is no real prospect of that.
27. Then it is sought to set aside orders of Master Prebble, made on 12th April; to require the claimants to verify documents by statements of truth; and a series of other ancillary matters which are more suited to be dealt with before the Master in the Chancery Division. He can make such orders as he thinks necessary for the purpose of achieving the overriding objective in the light of the position which this litigation has reached.
28. For those reasons, I would refuse permission to appeal against the order made by Judge Tetlow on 26th May.
29. I turn, therefore, to the order made by Master Leslie on 23rd November 2000. He dismissed the application under paragraph 1 of the application notice of 10th October. That was the application to set aside the orders extending time which he had made on 12th September. Plainly, he extended time because he thought there was no purpose in requiring the claimants to comply with those orders until the result of the application for permission to appeal was known. Once the result of the application for permission to appeal is known, then the refusal to set aside the order of 12th September becomes of academic interest. But, to my mind, it was plainly within the discretion of the Master to take the view that the sensible course was to allow the application for permission to appeal to be heard and disposed of before putting the parties to any further expense.
30. Paragraph 2 of the order of 23rd November 2000 varied the order for costs made on the 12th September. It is not at all clear to me what costs Mr Brent would have incurred in relation to an application made on 6th September and heard on 12th September without attendance by the parties; but the Master varied the order made on 12th September to provide for the costs to be costs in the appeal. I can see no basis upon which the Court of Appeal would entertain an appeal simply for the purpose of interfering with an order that costs be costs in the appeal.
31. Then it sought to set aside paragraph 5 of the order of 23rd November by which Mr Brent was ordered to pay one half of the claimants' costs of that hearing. The balance was adjourned to the hearing of paragraph 3 of the application notice. Paragraph 3 of the application notice was sent to the Chancery Division in accordance with the direction made in paragraph 3 of the order.
32. I can see no basis upon which there is any real prospect of the Court of Appeal thinking it appropriate to interfere with the order made by Master Leslie on 23rd November. For those reasons I would refuse permission to appeal against that order also.
33. LORD JUSTICE KEENE: I agree, and I would add only a few comments of my own.
34. One of the matters advanced in support of these applications is an assertion that the judge dealing with this case on 26th May 2000 indicated that the applicant would not get justice before him. If that assertion were right, it would disclose, of course, a truly remarkable situation. It is the case that His Honour Judge Tetlow did, at one point in the course of the proceedings, say that the applicant would get justice at the trial. However, when that comment is put into its context, there was no possible inference to be derived from it that Mr Brent would not get justice at that interlocutory hearing. All that the judge was doing was emphasising the need to get this case, which had been started some six years earlier, on for trial.
35. I can see nothing in this point, or indeed in any of the other points raised, which hold out any real prospect of success if these appeals were allowed to proceed. I too would dismiss these applications.
36. LORD JUSTICE CHADWICK: The two applications before us are accordingly refused.
Order: Applications dismissed. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)