NO: B2/2001/2703, B2/2001/2704
Neutral Citation Number: [2002] EWCA Civ 1378
IN THE HIGH COURT OF JUSTICE                 
QUEEN'S BENCH DIVISION                       
THE ADMINISTRATIVE COURT
  Cardiff Civil Justice
Centre

Thursday, 11th July 2002
B e f o r e:

LORD JUSTICE WARD

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MR WILLIAMS
(applicant)

-v-

GLYN OWEN & CO
(respondent)

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Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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The applicant appeared in person
The respondent did not appear and was not represented

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J U D G M E N T
Thursday, 11th July 2002
1.	LORD JUSTICE WARD: These are two applications, made in the course of the same litigation, to appeal orders that were made firstly in point of time by His Honour Judge Elystan Morgan in the Llangefni County Court on 14th March 2001, and the second against the order of Mr Recorder Howells in the same Court on 20th August 2001.
2.	The applicant was the claimant in an action against his solicitors, arising out of their professional negligence in the conduct of conveyancing business for which they were retained by the applicant. They were instructed to act for Mr Williams in his purchase of a farm, Pen y Coed. Part of that purchase was thought to have the attraction that coming with the farm were certain suckler cow premium quotas which are of value to any farmer. The farm appears to have been a hill farm and a custom -- I think it is probably a custom -- is that the incoming farmer is to purchase a number of sheep who instinctively know their place on the hill and that is a valuable instinct to have and it is worth £8 a sheep. So Mr Williams had to agree to purchase, it turned out to be 240 sheep, for the value of sheep as sheep, but for £8 a head extra as a so-called “hefting charge”.
3.	The purchase was at auction. The date for completion was 11th November 1993. Two “bombshells”, as Mr Williams properly calls them today, were dropped: the first on the 9th November, when he was told that there was in fact no cow quota at all running with the farm; and the second the following day to inform him that the vendor would not be completing because he had a problem with the bailiff occupying the farmhouse and he could not get rid of him.
4.	In the action for negligence, the judge found that the solicitors were negligent in failing to advise Mr Williams that an option available to him was to serve a notice on the vendor to complete. Mr Williams' case is that, had he been given that notice, he would have served such a notice. Either it would have resulted in his being given a completion within 14 days, which was soon enough for him fully to stock the farm and run it as a commercial enterprise, as he intended; or alternatively, if they failed to complete, he could have walked away from the transaction and bought another farm which was actually a better farm, coming with cow and sheep quotas and not having the burden of paying hefting charges. 
5.	The judge found negligence, but, as I understand his judgment, declined to award the claimant the damages which he seemed, if I correctly read the judgment, to have accepted might flow from it. There were the three main points of claim: the one is that in the events which had happened, namely that the vendor eventually served notice to complete on poor Mr Williams, he, Mr Williams, had to take on this farm without the quota (in other words, he had paid more for the property that he thought it was worth); secondly, he was obliged to pay hefting charges; and thirdly, he had lost about £11,000, a figure calculated by the joint accountancy expert and accepted to be “very plainly losses suffered by the claimants as a result I am told of his being unable to get possession until 21st January and thereby losing the lamb crop for the relevant year”.
6.	The reason given by the Recorder was that since the claimants -- and although I have referred only to Mr Williams, in fact other members of the family were parties -- had rights of action for misrepresentation and for other relief against the vendor and that the remedy should be pursued against the vendor, not against the negligent solicitor, it was his duty to mitigate his loss.
7.	It seems to me to be at least open to argument that the claimant could not reasonably be expected to engage in that litigation, which, or for part of which, there were perhaps difficulties. He had been advised that counsel considered there was not a clear, certain prospect of success against the vendor. It seems to me in those circumstances arguable that he was not under a duty to mitigate, as the Recorder found, and accordingly, there is a real prospect of success, as that has to be understood, for order CPR52 purposes, and I am disposed to grant permission to appeal.
8.	I will not at the moment grant permission to appeal the order made by His Honour Judge Elystan Morgan. This was an interlocutory order in the same case. In part, it involved an unsuccessful attempt by Mr Williams to appeal from the District Judge. There were apparently three issues before Judge Elystan Morgan. The claimants were successful on two, but failed on one. The judge held that they should get nothing by way of their costs for their two successes, but should pay one third of the defendant's cost in respect of the issue on which they were unsuccessful. The balance of the two thirds of the costs were costs in cause and have now been ordered to be paid as a result of the judgment of Mr Recorder Howells.
9.	I will not deal with that finally today, because if the appellant is successful in the main appeal, then perhaps those interlocutory orders go. I think the right course to do for the appeal against costs is to adjourn the application number 2703 -- that is to say, to adjourn the application for permission to appeal Judge Elystan Morgan's orders -- to be heard on notice to the defendant, with the appeal to follow if that application is successful.
10.	I will give directions that a day be allowed for this matter. It should be heard by three members of the Court of Appeal, one of whom should preferably be a Lord Justice with Chancery experience. A High Court Judge can be the third member of the Court. I will invite the Court of Appeal Office to consider allocating pro bono counsel to the claimants and to assist in the preparation of the necessary bundles. This I understand has caused considerable trouble already. It may be that they need to be looked at again to include, for example, the expert valuer's reports.