Perotti v Collyer-Bristow (A Firm) [2004] EWCA Civ 639

[2004] EWCA Civ 639Case No A3/2003/0552A3/2003/0558, 0559, 0560, 0561, 0562, 1608, 1610
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Lindsay J
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 May 2004
Before
LORD JUSTICE BROOKEVice-President of the Court of Appeal (Civil Division)LORD JUSTICE MAURICE KAY
Between
ANGELO PEROTTIClaimant/COLLYER-BRISTOW (A Firm)Defendants/
The Appellant appeared in person. for in personThe Respondents were not present or represented.Hearing Hearing date : 16 th March 2004
JudgmentLord Justice Brooke :
[1]There are before the court no fewer than 14 applications by Mr Angelo Perotti arising out of or connected with an unsuccessful claim for damages for professional negligence against Messrs Collyer-Bristow, a firm of solicitors. The trial started on 21st October 2002 and continued until 29th November. On 21st January 2003 Lindsay J delivered a very long judgment. He refused permission to appeal, but he extended Mr Perotti’s time for appealing to 42 days, which ended on 4th March 2003. On 14th March Mr Perotti filed 11 applications for permission to appeal. One of them (0562) was against Lindsay J’s judgment and the other ten (0553-0561) were against rulings the judge made in the course of the trial between 22nd October and 4th November.[2]Much later, on 17th July 2003, Mr Perotti filed applications for permission to appeal against rulings made by the judge on 21st November 2002 (1608 and 1610). The final matter before us (0552A) is an application under CPR 52.16(6) to reconsider a decision by Master Venne on 3rd April 2003 whereby he refused to direct that transcripts of certain parts of the trial proceedings be prepared at public expense. Although most of these applications were made seriously out of time, Mr Perotti told us that he had experienced difficulty in persuading court staff to draw up many of the orders he was challenging, and that he could not persuade the staff at the Civil Appeals Office to accept his notices of appeal in their absence. In the circumstances we decided to consider all these proposed appeals on their merits rather than take up further time in inquiring into these matters.[3]It will not be possible to understand the issues on these applications unless I say something about the underlying litigation. It all arises out of Mr Perotti’s dissatisfaction with the way in which the estate of his uncle Lorenzo Perotti was administered. His uncle was born in England, spent his childhood in Italy, and then made his home in England between about 1920 and his death in April 1984. On 27th August 1976 he made a will in Italian by which he left his real estate in an Italian municipality to Angelo Perotti and his brother Peppino. His final will was made in English in August 1983, and he appointed a friend of his, Mr Impanni, his sole executor. Angelo Perotti, his brother Peppino and his sister Maria Abbate were each to receive one twelfth of his residuary estate. Mr Impanni originally granted a power of attorney to Mr Rudolph, a partner in the firm of London solicitors who prepared the will, to enable him to take out letters of administration in England with the English will annexed. At a time when the Italian land was thought to be worthless and no other property in Italy or elsewhere was known to him, Mr Rudolph swore the gross estate at just over £30,000 and the next estate at just under £20,000. Shortly afterwards two Swiss bank accounts were drawn to his attention which held about £700,000. Following Mr Rudolph’s death in August 1985 Mr Rudolph’s partner Mr Watson was appointed Lorenzo Perotti’s personal representative in England.[4]Unhappily, although most of the beneficiaries were content with the way in which the estate was being administered, Mr Angelo Perotti was not, and from January 1985 onwards until the time when he started administration proceedings in March 1991 he made his dissatisfaction very clear. As early as March 1985 he told Mr Rudolph that when solicitors were not patently corrupt, deceitful and fraudulent, they were downright incompetent, and when Mr Watson had nearly completed the administration of the estate five years later Mr Perotti charged him with being corrupt and fraudulent. The estate account, sent to him on 20th May 1991, revealed a gross estate of about £812,000 and a net estate of about £510,000. £291,500 had been paid to the income tax authorities by way of a back duty settlement (including a penalty) for tax on undeclared income, and over £195,000 had been paid in respect of inheritance tax and interest. The fees due to Mr Watson’s firm were shown as £32,500 plus VAT. On 20th June 1991 Mr Perotti’s brother Peppino died, and he was now entitled to two twelfths of the residuary estate. It is unnecessary for the purposes of this judgment to set out many of the details of the intervening history which Lindsay J set out clearly in his judgment.[5]Mr Perotti continued to complain that the estate should have included a liability owed by Mr Impanni to repay a 200 million lira loan (together with 17 years compound interest), a Rolls Royce, a lot of gold coins with a minimum value of £100,000, and other things. In September 1991 he contended that Mr Watson was not entitled to recover any fees at all because he had been a witness to the testator’s will.[6]In October 1991 Mr Watson suggested to the beneficiaries a way of distributing the estate on a consensual basis which would have given Mr Perotti rather more than his strict entitlement under the English will. However, when he wrote to Mr Perotti on 20th January 1992 inviting his agreement, Mr Perotti riposted three days later by telling Mr Watson that he would be starting administration proceedings, and that these would include allegations of fraud.[7]The writ, prepared by Mr Perotti as a litigant in person and issued on 17th March 2002, not only presaged an ordinary administration action but also contained in its general endorsement allegations that Mr Watson, Mr Impanni, and Mr and Mrs Abbate had attempted or conspired to defraud him in the course of the administration.[8]Between April 1984 and March 1992 Mr Perotti had consulted Messrs Collyer-Bristow on one occasion. On 10th December 1985 Mr Saner, a partner in the firm, gave him written advice under the green form scheme on the steps he might take to assert his rights in the administration. He told him that insulting solicitors and accusing them of incompetence was not the most practical way of getting justice done. He also advised him to apply for legal aid, and discouraged him from contemplating criminal proceedings. He then returned the papers to Mr Perotti, and Mr Perotti did not return to the firm until September 1992.[9]By this time the administration proceedings had run into serious difficulties. Mr Perotti had served a home-made statement of claim with the writ on 10th April 1992, and the three different firms of solicitors acting for Mr Watson, Mr Impanni, and Mr and Mrs Abbate respectively had each applied to strike out the action. Two orders were made requiring Mr Perotti to serve a statement of claim in compliance with the rules, but the time for compliance with those orders was extended until Mr Roger Kaye QC, sitting as a deputy high court judge, heard all the then current appeals and applications at a two-day hearing on 24th-25th November 1992. Mr Kaye held that the existing pleading did not comply with the rules and that there was nothing in Mr Perotti’s point that Mr Watson was not entitled to recover fees because he had witnessed the will. He made an order to the effect that the action would be struck out if a statement of claim complying with the rules was not served by 9th December 1992. He refused leave to appeal and made a number of orders for costs against Mr Perotti.[10]During September 1992 Mr Perotti had been involved in correspondence with Mr Saner of Collyer-Bristow. This achieved nothing because Mr Perotti was unwilling to comply with Mr Saner’s demand that he should pay the firm £500 on account of fees before it would be willing to assist him. On 25th November 1992, when Mr Perotti’s plight was a great deal more serious, Mr Perotti telephoned Mr Saner again. There is an agreed transcript of the conversation, and Lindsay J in due course made a finding that Mr Perotti then agreed with Messrs Collyer-Bristow that (so long as Mr Perotti paid £500 on account of costs, as he did on 26th November when he delivered the papers) the firm were to have the general conduct and consideration of the administration proceedings and of related possible claims by Mr Perotti. This professional relationship was to continue until either the firm lawfully suspended or terminated it, or Mr Perotti lawfully terminated it, or the action was brought to an end by judgment or compromise. The judge rejected Mr Perotti’s contention that there was an entire contract. He said that it had long been accepted that administration actions were a class apart.[11]Although Messrs Collyer-Bristow acted for Mr Perotti until 14th April 1993, when their senior partner terminated the retainer, and they did not formally come off the record as acting for him until early in 1994, Mr Perotti’s principal complaints against them centred around their failure to ensure that two important issues (which I will call the “administration fees issue” and the “investment issue”) were included in the new statement of claim which was settled and served in time to meet Mr Kaye’s deadline of 9th December 1992. A lot of the time spent at the trial was devoted to an examination of what happened or did not happen in the 12 days between 26th November (when the papers were delivered) and 8th December (when the new statement of claim was served).[12]During this period Miss Ayling, a junior solicitor in the firm’s litigation department, had the conduct of the case. She started her consideration of the papers on Monday 30th November. The transcript of Mr Kaye’s judgment was available two days later, and by Thursday 3rd December she had prepared and sent instructions to junior counsel (Mr Frank Hinks) and arranged a conference to enable him to meet Mr Perotti on Friday 4th December.[13]The judge found that at this conference Mr Hinks advised that there was a good arguable case for a new personal representative to be appointed, although he thought Mr Perotti had not helped his case by the allegations of fraud he had made. He considered that Mr Watson’s draft estate accounts were defective. He advised that the writ as well as the statement of claim would have to be amended, and he said he would draft as strong a statement of claim as possible. The main claim would be for the replacement of Mr Watson and Mr Impanni from the conduct of the administration. He advised Mr Perotti to settle the case if he could because the costs of the litigation were out of proportion to what Mr Perotti might possibly gain from the proceedings.[14]The judge found that nothing was said at this conference about the administration fees issue or about the way in which the estate funds had been invested. Miss Ayling, who gave evidence at the trial, said that the tone of the conference had been unpleasant. Mr Perotti had been difficult and argumentative, and unusually she sent a note of gratitude to Mr Hinks after the conference for the way he had handled her client. She had earlier told the judge that she had thought to herself that this client was going to be big trouble when she walked with him from the firm’s offices in Bedford Row to Lincoln’s Inn. Mr Perotti had been vehement in his indignation about the fact that he would be obliged to pay substantial costs to the defendants whatever the outcome of the proceedings. The judge accepted Miss Ayling’s evidence.[15]By Tuesday 8th December Mr Hinks had prepared the draft amended writ and statement of claim. He sent them across to Miss Ayling accompanied by a short advice to the effect that Mr Perotti should be asked to check them carefully. Miss Ayling had three telephone conversations with Mr Perotti that day. The judge found that she told him that the statement of claim could always be amended later, and that the most important thing was to meet Mr Kaye’s deadline. She also told him that she did not think he would be able to have the costs orders made by Mr Kaye reversed.[16]The amended statement of claim was duly served on 8th December, when Messrs Collyer-Bristow formally came onto the court record. It made the claims Mr Hinks had referred to in conference. The contention that Mr Watson was not entitled to recover fees because he had witnessed the will found no place in the new pleading..[17]The remaining events during the retainer period can be described quite quickly. The defendants served their defences during this period. Although Miss Ayling was criticised at the trial by Mr Perotti for agreeing to extensions of time, the judge found that she considered that the court would have been bound to grant extensions in view of the length of time Mr Perotti had taken before he produced a viable statement of claim. The judge found that it was not at all unlikely that extensions would have been granted, and that in any event Mr Perotti had suffered no loss. On 23rd December Miss Ayling told Mr Perotti that she had ascertained that the first two defendants had already incurred costs of £31,000, and that serious consideration should now be given to the question whether he would recover anything at all at the end of the day. She sent him at the same time her firm’s standard letter about costs, which made reference to their complaint procedures.[18]On 4th January 1992 Mr Perotti wrote a letter of complaint to Mr Marsh, Miss Ayling’s supervisor, enclosing £1,000 towards his liability for the firm’s and counsel’s fees to date. He was really asking for clarification that the costs he had to pay the firm would all be recoverable in the action. On 14th January Mr Marsh disabused him. He told him in a long letter that he could not expect to recover more than 50-75% of what he had to pay Messrs Collyer-Bristow. The defendants had by now incurred costs of £43,000 between them, and on the present evidence it was very unlikely that Mr Perotti would receive anything from the proceedings. He said that the statement of claim could always be amended if more evidence came to light. He also made it clear that his firm was not willing to act for Mr Perotti on the understanding that all the costs he incurred would be recoverable if he won the action, and that it would not deal with outstanding matters while there was a complaint outstanding and the matter of costs was unresolved.[19]Although Mr Perotti signed the costs letter and settled the firm’s outstanding account on 25th January, he also wrote a letter generally refuting what Mr Marsh had written. He did not withdraw his complaint. On 5th February the firm told him that they could not continue to represent him unless he was prepared to accept their advice and confirm unequivocally that his complaint was no longer outstanding. On 12th February Mr Perotti wrote to the firm’s senior partner seeking clarification of the position. On 17th March 1993 the senior partner repeated the advice which, as the judge found, Miss Ayling had already given Mr Perotti on the costs issues. He said that having no discretion in the way Mr Perotti’s case was run, and having to refer to him and explain to him every minor aspect of the case was very time-consuming and costly. He suggested that Mr Perotti might wish to instruct a firm in which he had more confidence. On 25th March Mr Perotti wrote back. He said that the letter of 17th March had contained indecipherable waffle, and he inquired whether Messrs Collyer-Bristow had unilaterally terminated their instructions. By a reply dated 14th April the senior partner formally terminated the retainer. He said that the firm had no confidence that Mr Perotti was willing to accept their advice, and that this situation was unlikely to improve. It would be much better if he were to find another firm to act for him.[20]Although Mr Perotti consulted two other firms of solicitors before the end of 1993, he was acting in person by the time the administration action came for trial before Rimer J in early 1997. By this time Mr Perotti had raised a more meritorious point about Mr Watson’s fees as administrator (namely that there was no charging clause in the will), and Mr Watson had initiated quite separate proceedings (known as the representation proceedings) in May 1996, which eventually culminated in a finding that he was entitled to recover £30,000 by way of fees, together with VAT, in respect of his professional services to the estate.[21]In his judgment Lindsay J described the effect of Rimer J’s judgment in the administration action. Although he had found in favour of Mr Perotti on some issues and had been critical of certain aspects of the administration, he rejected his contentions that Mr and Mrs Abbate had stolen property from the testator’s flat or that they had been involved in a conspiracy with Mr Impanni. While Mr Watson’s conduct of the administration had been defective in some respects, none of the other beneficiaries wished to see him removed, and the Public Trustee was unwilling to act. Furthermore, Mr Perotti had not suggested any alternative institution or individual who might act.[22]Rimer J said that Mr Watson’s integrity and honesty were not in question. He therefore decided not to replace him as administrator. Although Mr Perotti had won on some issues, he ordered him to pay 80% of Mr Watson’s costs of the action. At a later hearing in April 1998 the same judge directed that Mr Watson was entitled to an indemnity from the estate for 75% of his costs (which were in excess of £300,000). Since the undistributed estate was then worth £175,000-£200,000, it was swallowed up by this order for costs, and Mr Perotti gained nothing at all from the proceedings.[23]The writ in the present action was issued against Messrs Collyer-Bristow and Mr Hinks on 18th September 1998. It referred to instructions given by Mr Perotti on 25th November 1992 and contained a claim for damages for negligence in respect of the period between late November 1992 and about April 1993. The particulars of claim were served on 11th December 1998. Although they contained a number of allegations of negligence, the judge identified the administration fees issue and the investment issue as raising the main matters of which Mr Perotti made complaint. These issues were expressed in these terms:
“Failing to advise and plead that administrators cannot charge for their services to the estate in the absence of a charging clause in the will, there being none.” “Failing to advise and/or plead for an inquiry to establish the loss to the estate owing to the manner the estate funds were managed (ie the whole allegedly invested in bank money market deposit accounts with fixed interest and none in equities) and claiming damage/compensation.”
[24]On 16th April 1999 Master Moncaster dismissed an application by Messrs Collyer-Bristow to the effect that the action should be struck out against them, and in June 2000 Neuberger J dismissed their appeal against this decision. In his judgment in the action Lindsay J said that Neuberger J had not had the opportunity, as he had had, to study the full correspondence and all the papers in the case. Neuberger J had thought that when he learned of the administration fees issue in June 1996 Mr Watson had stood down as administrator. He had also believed that Messrs Collyer-Bristow had retained all the papers between early September and 26th November 1992 and had had the opportunity to consider them at leisure. Finally, he had been told, although there was no evidence for this, that Mr Hinks had been in a great hurry. Although he said that the firm might successfully base their defence at the trial on their reliance on counsel, he said that it could not be said that there was no realistic prospect that this defence might fail.[25]Mr Hinks, on the other hand, succeeded in his much later application for an order striking the action out against him. Lloyd J said that it was highly doubtful that even if the investment issue had been raised, it would have given rise to a viable claim. In any event there was not even the beginnings of a claim made out by Mr Perotti that it was a breach of Mr Hinks’s duty to think of, work out the facts for, and plead a case based on the authority on which Mr Perotti relied. (This was the decision of this court in Nestle v National Westminster Bank plc [1993] 1 WLR 1260, which had come to Mr Perotti’s attention in 1997). Nothing in Mr Perotti’s long pleading against Mr Hinks offered him the slightest chance of success.[26]On 11th October 2002 the Court of Appeal (Potter and Carnwath LJJ) dismissed Mr Perotti’s appeal. On the administration fees point Carnwath LJ said that quite plainly Mr Perotti had suffered no loss, because as soon as the point was raised Mr Watson had accepted that in the absence of a charging clause he could not recover any fees from the estate. He had had to institute separate proceedings for that purpose. Carnwath LJ added that the crucial point on the appeal related to the way in which the matter had come before Mr Hinks in December 1992. It was then necessary to get the case back on track to avoid it being struck out completely. There would have been plenty of time afterwards, if the matter had come back to Mr Hinks, when he could have considered what, if any, other claims Mr Perotti might advance.[27]Two months earlier, on 8th August 2002, Master Moncaster had ordered that the trial of the action against Messrs Collyer-Bristow should be limited to issues of liability. He ordered standard disclosure to be made by 14th August and witness statements to be exchanged by 6th September. Mr Perotti complied with neither of these orders. When the trial started on 21st October, Mr Perotti immediately applied for an adjournment so that he might receive legal representation. He also applied for a direction that such representation should be afforded to him. His written application of that date has been attached as an appendix to virtually all the notices of appeal that are before us.[28]The judge’s careful decision on this application is the first of the 12 rulings he made during the course of the trial which Mr Perotti now seeks to challenge. They can be summarised briefly as follows: 0552 22nd October 2002 The judge refused to adjourn the trial to allow Mr Perotti to be legally represented, and refused permission to appeal. 0553 24th October 2002 The judge refused to adjourn the trial on the grounds that Mr Perotti wished to appeal against his order of 21st October. 0554 25th October 2002 The judge directed Mr Perotti to attend the defendants’ offices with a number of documents so that they could be disclosed and photocopied. 0555 29th October 2002 The judge refused permission to appeal against his order on 25th October and refused to adjourn the trial for the purposes of an appeal. 0556 29th October 2002 The judge refused to allow Mr Perotti to amend his statement of case to include allegations relating to events in 1985 and September 1992 and refused permission to appeal. 0557 30th October 2002 The judge refused to allow Mr Perotti to issue witness summonses against Mr Saner, Mr Marsh and Miss Ayling (two of whom were scheduled to give evidence for the defence in any event) for the purpose of cross-examining them. He also refused permission to appeal. 0558 31st October 2002 The judge refused to adjourn the trial to enable Mr Perotti to obtain legal representation and to allow him to instruct his former counsel without the intervention of solicitors. He also refused permission to appeal. 0559 31st October 2002 The judge refused to adjourn the trial to enable Mr Perotti to seek permission to appeal against the order he had just made. He also refused permission to appeal. 0560 31st October 2002 The judge refused an application by Mr Perotti that he should recuse himself, and that another judge should conduct the trial at another time. He also refused permission to appeal. 0561 4th November 2002 The judge refused an application by Mr Perotti for a variety of orders, including a direction that he should recuse himself, a direction that the defendants should swear an affidavit about their insurance arrangements, and a direction that another action should be joined to the present action. He also refused permission to appeal, and refused to adjourn the trial while Mr Perotti sought to appeal. 1608 21st November 2002 The judge refused an application by Mr Perotti for orders that various witnesses should be ordered to attend the trial, namely an accountant expert witness; Mr Watson (the defendant in the administration proceedings); his former counsel (to give evidence about the law and to assist Mr Perotti;) an expert on Italian law; and a tax inspector. 1610 21st November 2002 The judge refused to allow Mr Perotti to amend his statement of case to add allegations of negligence against the defendants arising out of their advice concerning the Italian will and a loan. The judge refused to adjourn the trial to allow Mr Perotti to be legally represented, and refused permission to appeal. The judge refused to adjourn the trial on the grounds that Mr Perotti wished to appeal against his order of 21st October. The judge directed Mr Perotti to attend the defendants’ offices with a number of documents so that they could be disclosed and photocopied. The judge refused permission to appeal against his order on 25th October and refused to adjourn the trial for the purposes of an appeal. The judge refused to allow Mr Perotti to amend his statement of case to include allegations relating to events in 1985 and September 1992 and refused permission to appeal. The judge refused to allow Mr Perotti to issue witness summonses against Mr Saner, Mr Marsh and Miss Ayling (two of whom were scheduled to give evidence for the defence in any event) for the purpose of cross-examining them. He also refused permission to appeal. The judge refused to adjourn the trial to enable Mr Perotti to obtain legal representation and to allow him to instruct his former counsel without the intervention of solicitors. He also refused permission to appeal. The judge refused to adjourn the trial to enable Mr Perotti to seek permission to appeal against the order he had just made. He also refused permission to appeal. The judge refused an application by Mr Perotti that he should recuse himself, and that another judge should conduct the trial at another time. He also refused permission to appeal. The judge refused an application by Mr Perotti for a variety of orders, including a direction that he should recuse himself, a direction that the defendants should swear an affidavit about their insurance arrangements, and a direction that another action should be joined to the present action. He also refused permission to appeal, and refused to adjourn the trial while Mr Perotti sought to appeal. The judge refused an application by Mr Perotti for orders that various witnesses should be ordered to attend the trial, namely an accountant expert witness; Mr Watson (the defendant in the administration proceedings); his former counsel (to give evidence about the law and to assist Mr Perotti;) an expert on Italian law; and a tax inspector. The judge refused to allow Mr Perotti to amend his statement of case to add allegations of negligence against the defendants arising out of their advice concerning the Italian will and a loan.[29]With the court’s papers are not only transcripts of the judge’s rulings on these applications, but also a transcript of his very long judgment in which he addressed the issues he had to decide in painstaking detail. The trial itself had taken an unusual course in that after Mr Perotti had given some oral evidence, he discovered a tape-recording of his telephone conversation with Mr Saner on 25th November 1992. After an agreed transcript of this conversation had been prepared, Mr Perotti told the judge that he did not wish to give any further evidence and that he did not wish to be cross-examined. In the end a formula was arrived at, by agreement, to the effect that Mr Perotti should be treated as having given no oral evidence at all. The judge said that he would allow this course to be followed on the basis that whenever Mr Perotti wished him to draw an adverse inference from the documentary material before him, the force of that adverse inference might be discounted by reason of the fact he had not proffered himself for cross-examination.[30]The judge devoted great care to his consideration of the two main issues. On the administration fees issue he said that Mr Perotti’s arguments were hopeless, because if Mr Perotti had raised the issue in the administration action it was not improbable that Mr Watson would have pursued the matter in other proceedings (as he did), and there was no reason to see why the outcome would have been more advantageous to Mr Perotti if the issue had been raised when Mr Hinks resettled the pleadings.[31]On the investment issue, which he analysed at length, he said that he had received no evidence about the contemporary investment practices of competent legal or lay personal representatives, or of stockbrokers during the relevant period. Although he had been shown evidence that investment in equities was more profitable than investment in interest-bearing deposits between 1985 and 1997, it would be impossible to form any judgment on an appropriate investment policy for this estate without knowing very much more about the facts. And even if Mr Perotti might have succeeded on this issue in the administration action, this was still a long way of showing that Messrs Collyer-Bristow were negligent because it had not been raised during the short time they were acting for him. The matter could always have been raised later, if so advised. Mr Perotti had already incurred substantial irrecoverable costs, so that the wisdom of raising any new point would have to be carefully weighed. In any event the firm was entitled to rely on the advice of the competent junior counsel they had instructed.[32]During the course of his judgment the judge made careful rulings, adverse to Mr Perotti, on 14 further allegations of negligence he made. I will return to Mr Perotti’s grounds for appealing this judgment (0562) in paragraph 38 below.[33]On 3rd April 2003 Master Venne directed that any application by Mr Perotti for a transcript other than that which was already being provided at public expense would be dealt with by the court at the hearing of the application for permission to appeal. On 8th May 2003 Mr Perotti asked that this direction should be reconsidered. He wished to be provided at public expense with the transcripts of the evidence of the defendants’ two witnesses and the whole of the proceedings on the last day of the trial. He said that he relied heavily on the contents of that evidence for providing his full and proper grounds of appeal from the judge’s order.[34]In my judgment Master Venne’s order (0552A) was correct. The court has to balance the interests of litigants against the interests of taxpayers. It is for the litigant (and particularly a litigant who like Mr Perotti has attended the whole of a trial and received a written copy of the judgment) to identify in his notice of appeal the grounds on which he says that the judge’s order was wrong. If the court considers that the appeal has a real prospect of success on one or more of those grounds, it will then determine what further transcripts, if any, may be required for the full hearing. But it would be wasteful of public resources for the court to bespeak further transcripts before it is satisfied about the viability of the appeal. I would therefore dismiss this application.[35]I turn back now to the 12 appeals against orders Lindsay J made during the course of the hearing. It would be possible to dispose of them all quite briefly by saying that they all relate to issues that typically arise in the course of an action which has not been properly prepared. In every case in which we have a transcript or note of the judgment the judge addressed the issues he had to determine with great care and clarity. All his decisions fell well within the ambit of the wide discretion given him as the trial judge. In deference to Mr Perotti, however, I will refer to each of them in slightly more detail.[0552]22nd October 2002 On the day before the trial started, Mr Perotti gave notice that he would be seeking an adjournment in order to enable him to seek legal representation. In a long judgment the judge carefully rehearsed the arguments on each side before dismissing the application. This decision fell well within the wide ambit of his discretion, and even if Mr Perotti thinks that the judge should have given more weight to the arguments he had been adducing, there are no grounds on which this court could interfere with the judge’s decision.[0553]24th October 2002 The judge adjourned Mr Perotti’s application to adjourn the trial so as to enable him to appeal to the Court of Appeal against order 0552 on the basis that the transcript of his judgment on 22nd October was not yet available for the Court of Appeal to consider. There are no possible grounds for challenging the reasonableness of this decision. 0554 25th October 2002 This was an order that Mr Perotti should take to the defendants’ offices and disclose the pleadings, orders, witness statements, lists of documents and documents supplied in the course of inspection in what was described as the fourth action, together with the re-amended statement of claim and the re-amended defences in what was described as the first or main action. We have not been supplied with any transcript or note of any judgment the judge may have given. In the course of his judgment in relation to orders 0555 and 0556 four days later the judge explained that Mr Perotti had made no disclosure by list, and he had made order 0554 when it seemed to him that some documents which were likely to be of real materiality in the action had not been disclosed. Mr Perotti complied with this order and given that he was in default in not serving a list of documents before the trial (when any claim he might have made for legal professional privilege could have been dealt with in an orderly way), there are no grounds at all for interfering retrospectively with this order. 0555 29th October 2002 Mr Perotti complained to the judge that legal professional privilege attached to some of the documents he had been ordered to hand over, and he wished to be able to go to the Court of Appeal to seek leave to appeal against order 0554. The judge said that he had no doubt that he would be able to put out of his mind any document which transpired to be truly the subject of legal professional privilege. He instanced in this context a note of a conference between Mr Perotti and other lawyers he was now suing which had been annexed to one of the pleadings he had disclosed. He made it clear that he would proceed with the trial on this basis and refused an adjournment. Again, this order fell within the wide ambit of the judge’s discretion, and there would be no possible grounds for interfering with it now. 0556 29th October 2002 The principal ground on which the judge refused to permit Mr Perotti to amend his claim in order to allege negligence against the defendants arising out of his dealings with Mr Saner in September 1992 (see para 10 above) was because there was no realistic prospect of Mr Perotti being able to prove a retainer in September 1992 (see transcript of 29th October judgment, p 11). The judge said that if he had not formed that view he would have been disposed to grant the amendment (transcript, p 13). The judge refused to allow an amendment to include a claim relating to Mr Saner’s advice in December 1985 on a number of different grounds (see transcript, pp 15-18). It is unnecessary to recite these grounds, because the judge was clearly entitled, in the exercise of his discretion, to refuse to permit an amendment a week into the trial which would have opened up questions as to what had been said between Mr Saner and Mr Perotti all those years ago and what Mr Perotti did after taking Mr Saner’s advice. Mr Perotti argued that the judge had misdirected himself in his approach to limitation issues because a cause of action in negligence is not complete until damage is suffered as a result of the negligence, but there were many other solid grounds on which the judge refused to permit these very late amendments, and there are no grounds at all for interfering with his decision. 0557 30th October 2002 The judge refused to allow Mr Perotti to issue summonses against Mr Marsh, Mr Saner and Miss Ayling because he did not wish to adopt what they had previously said but to challenge it. He considered that he had no jurisdiction to allow a witness summons to be issued for the purpose of cross-examination only. This approach was clearly right. This court adopted a similar approach in McPhilemy v Times Newspapers Ltd (No 2) [2000] 1 WLR 1732 when it refused to allow the claimant to put in evidence a witness statement served by the defendant for the sole purpose of inviting the jury to conclude that that statement was knowingly fabricated. 0558 31st October 2002 Mr Perotti was now seeking an adjournment of the trial in order to enable him to consult, without the intervention of a solicitor, a member of the Bar who had previously given Mr Perotti advice which he had respected in relation to a different matter. He wished to seek advice in order to ascertain whether or not he had a case. The judge was shown a letter which made it clear that Mr Perotti had been refused legal aid in connection with these proceedings in June 1999. He refused an adjournment on the basis that even if he had any power to give a direction requiring a member of the Bar to advise Mr Perotti without the intervention of a solicitor, taking this step would either lead to very substantial delay (if counsel considered that there might be some realistic prospect of success) or be of no practical advantage at all if counsel were able to advise quickly that there was no truly viable cause of action with some realistic prospect of success. There are no possible grounds for challenging this decision, which fell well within the ambit of the judge’s discretion. 0559 31st October 2002 We have not been furnished with any note or transcript of the judge’s reasons for refusing to adjourn the trial in order to enable Mr Perotti to challenge order 0558 in the Court of Appeal. This order was well within his discretion, and there are no possible grounds for interfering retrospectively with this decision. 0560 31st October 2002 Mr Perotti applied for the trial to be aborted and started again before some other judge on the sole ground that Lindsay J had now made a number of rulings favourable to the defendant. He asserted that Rimer J had taken such a course on a previous occasion. When Lindsay J inquired into that matter he ascertained that it related to a decision by Rimer J, who had conducted the long trial of the administration action in 1997 (see paras 21 and 22 above) recusing himself at Mr Perotti’s request at an earlier stage of the present action because he knew Mr Hinks, the second defendant, although he did not know him very well. Lindsay J considered that this recusal threw no light on the course he should adopt, and he found no reason whatsoever to recuse himself. This decision was clearly right, and there are no possible grounds for interfering with it. 0561 4th November 2002 On Monday 4th November Mr Perotti greeted the judge with a seven-page document which he described as a witness statement. I have already summarised (in para 28 above) the effect of the judge’s directions in response to this statement. They were all well within the judge’s discretion to make, and there are no grounds for interfering with his decisions. No hearing of the action took place on 12th November or between 14th and 21st November on account of Mr Perotti’s indisposition. The hearing resumed on 21st November and ended on 29th November, when the judge reserved judgment. 1608 21st November 2002 I have already summarised (in para 28 above) the effect of the judge’s directions on 21st November. Put briefly:(i) the judge refused to allow Mr Periotti to call an expert witness at this late stage of the trial because he had not identified the witness or indicated what he might say, and because case management directions had been made well in advance of the trial and the provision of such a witness had not been contemplated then;(ii) the judge refused to order Mr Watson to attend so that Mr Perotti could cross-examine him for the same reasons he had given for order 0557;(iii) the judge refused to order a barrister to attend the trial to give evidence about the law because it would be inappropriate for a barrister to act in such a capacity;(iv) the judge refused to allow an expert to give evidence on Italian law, because the matter of the Italian will and loan was not adequately pleaded as part of Mr Perotti’s case against Messrs Collyer-Bristow so that such evidence was not relevant;(v) no recorded reasons are given for the judge’s refusal to require a tax inspector to attend the trial, but Mr Perotti has submitted no grounds for challenging this decision. All these orders were, in my judgment, well within the ambit of the judge’s discretion, particularly at such a late stage of the trial, and there are no viable grounds for interfering with them. 1610 21st November 2002 At an earlier stage of the trial Mr Perotti had told the judge he did not wish to amend his case against Messrs Collyer-Bristow to include allegations of negligence concerning advice in relation to the Italian will and loan. Quite apart from the consideration that this amendment represented a new claim stemming from facts not substantially similar to the issues in the present action (see CPR 17.4(2)) the judge refused the amendment on the basis that the trial had been going on for a long time, the amendment was being sought extremely late, its introduction might well lead to prejudice to the defendants which could not be compensated in costs, and the amendment was being put on a substantially different footing from the case argued before Rimer J in the administration action. There is absolutely no prospect of a successful challenge to this obviously correct decision.[36]Before I move on to consider Mr Perotti’s challenge to the judge’s substantive judgment, there are some observations I need to make about these 12 appeals. They are all totally devoid of merit. They were all made long after the hearing ended on 29th November 2002. Ten of them were filed on 14th March 2003 and the other two on 17th July 2003. No proper grounds of appeal were included in the relevant notices of appeal. Mr Perotti merely included in each notice of appeal a five-page statement exploring why he was unable to provide full and proper grounds of appeal until he was furnished with the assistance of lawyers and a copy of the original six-page statement which he had placed before Lindsay J in support of the application he made for an adjournment on the first day of the trial. On 6th October Chadwick LJ, in a judgment with which Carnwath LJ agreed, refused to direct that Mr Perotti should be provided with legal representation (on the grounds that the court had no power to make such a direction). He also said that there was nothing in any of Mr Perotti’s applications which required the provision of legal representation in connection with the application for permission to appeal.[37]Notwithstanding this order, Mr Perotti did not formulate any grounds of appeal in connection with any of the judge’s directions during the trial until he attended the hearing before us, when he produced a number of written representations about certain of the matters of which he made complaint. Although there was therefore in almost every case a serious breach of para 3.2 of the practice direction to CPR Part 52 (“the grounds of appeal should set out clearly the reasons why [CPR] 52.11(3)(a) or (b) is said to apply”), the court has not been provided with the resources to police the activities of a litigant like Mr Perotti. This is the only reason why all these unmeritorious applications, which must have cost the taxpayer (or other fee-paying litigants) an enormous amount of money to process (Mr Perotti being exempt from any requirement to pay any court fees because of his impecuniosity) have come before a court of two judges and taken so long to hear and dispose of.[38]I turn finally to the proposed appeal against the substantive judgment. There are 11 pages of grounds of appeal. The last six pages contain a copy of the written representations Mr Perotti made on the first day of the trial. The first three paragraphs and paragraph 6 of the grounds are concerned with Mr Perotti’s requests for an order that he be provided with legal representation and for the transcripts to which I referred in para 33 above. I have held that there is no merit in his application for transcripts, and his application to be provided with legal representation was dismissed by this court on 6th October 2003 after a hearing in which it received the assistance of an advocate to the court. In paragraph 38 of his judgment, with which Carnwath LJ agreed, Chadwick LJ said he was concerned only with the need for legal representation in the context of his forthcoming applications for permission to appeal, not only in the matters now before us but on a number of other matters which were then pending.[39]What Mr Perotti described as “some basic grounds/reasons/etc why this appeal should be allowed, etc and inter alia” took up less than a page. He made ten complaints, all with the utmost generality. He referred to issues under the European Convention on Human Rights, to conflicting authorities, to contradictory findings, to points of practice and procedure of significant importance and so on, but he gave no details of any of these complaints, so that the reader was given no idea of how the judge was supposed to have gone wrong.[40]CPR 52.2 prescribes that all parties to an appeal must comply with the relevant practice direction. Paragraph 3.2 of the Practice Direction states that the grounds of appeal should set out clearly the reasons why rule 52.11(3)(a) or (b) is said to apply. The notice of appeal against the judge’s substantive judgment does not set out clearly why the judge was wrong or why his decision was unjust because of a serious procedural or other irregularity in the proceedings. It does not refer to a single one of the judge’s findings (and, as I have said in paragraphs 30-32 above, he made findings on 16 different allegations of negligence) and is very seriously defective in this respect.[41]On the hearing of the appeal Mr Perotti produced for the first time two documents which identified matters in the judgment which he sought to challenge. We decided it would be fair to hear him on these points, although they were being raised for the first time a year after the notice of appeal was filed. I will now refer to the main points he raised, and make my comments on them. I have considered all of them, even if I do not mention them all in this judgment.[42]The first document, whose contents Mr Perotti developed in oral argument before us, was headed “Hinks was not properly instructed”. It covers ground which the judge covered very thoroughly in the findings of fact he made in his judgment, without addressing the difficulty that any appeal court would face because the judge had plenty of opportunity to appraise both Mr Perotti and Miss Ayling before making his findings. Mr Perotti seeks to minimise the plight in which he found himself at the end of November 1992. Orders for costs had then been made against him in favour of three different defendants which would bite severely into any sums he might recover in the administration action, and Mr Kaye had made an “unless” order against him, requiring him to serve a viable statement of claim by 9th December. While it is true that Mr Kaye left open the possibility of an application to a master for an extension of that period, such an application would have left Mr Perotti liable to pay still more by way of irrecoverable costs to the three defendants, and there was always a risk that his application might have been refused and the action brought to an end because no statement of claim had been served within the time allowed by Mr Kaye. There were no viable grounds for holding that the defendants were negligent in not seeking an extension of time or in not seeking to appeal Mr Kaye’s order, which was fully within his discretion to make.[43]I have read with care Mr Perotti’s written submissions on this point and considered the points he made to us orally. He does not seem to realise that the judge was bound to make his findings on the evidence he received at the trial, and that it is pointless to rely on comments made by other judges or masters or even by the Court of Appeal when they were considering less full evidence than the evidence before Lindsay J, or different evidence. In my judgment Lindsay J directed himself correctly on the law and the facts, and I consider that there is no real prospect of this court interfering with the findings he made in paragraphs 48-62 of his judgment or the succinct conclusions he reached in paragraphs 162-168.[44]There is an illuminating passage in paragraph 62 of Lindsay J’s judgment in which he correctly describes the nature of an administration action, and the way in which amendment and development of a beneficiary’s complaints in the course of proceedings is more readily available than in other classes of litigation. This passage provides a complete answer to Mr Perotti’s complaint that the lawyers he instructed on 26th November ought to have been able to think of and include every single possible argument against the administrator during the short time that was available to them to save his action from being struck out altogether. Mr Perotti does not address the judge’s unassailable finding (at para 62) to the effect that Miss Ayling’s remark that it would always be possible to amend the statement of claim later was in broad terms well justified.[45]This takes me to the other matter on which we received detailed written submissions from Mr Perotti on the day of the hearing. The judge heard Miss Ayling and Mr Marsh give evidence and saw and heard a lot of Mr Perotti, although his evidence as such was formally withdrawn. In paragraphs 137 to 145 of his judgment the judge held that there were three reasons which justified the defendants terminating their retainer.[46]The first was that Mr Perotti had made a formal complaint against the firm, and after Mr Perotti had referred to the contents of the senior partner’s letter as “indecipherable waffle” a conflict of interest had plainly emerged between solicitor and client such that the solicitor was drawn from doing his best for his client to protecting his own position. The judge was entitled, in my judgment, to hold (at para 91) that the firm reasonably read Mr Perotti’s comment as signalling the parting of the ways, and to dismiss Mr Perotti’s efforts to water down the effect of what he said.[47]The second reason was that a serious breakdown in confidence between solicitor and client had occurred. The judge set out the evidence in summary form in paras 141-143, and said he accepted the evidence Mr Marsh and Miss Ayling had given to him. I need quote only one passage:
“In oral evidence [Miss Ayling] spoke of matters being impossible when her advice, although understood by Mr Perotti, was persistently questioned. She gave her advice on costs as an example: Mr Perotti would not accept that costs already incurred by him by way of orders against him were irrecoverable and was vehement on that point. Even minor matters such as extensions of time to defendants for the time for their defences had become matters of heat or contention. It got to the stage, she said, that acting for Mr Perotti was just like being cross examined by him, by which Miss Ayling meant that it was, without cause for this on her part, a deeply unpleasant experience. I accept her evidence.”
[48]The judge found that either of these reasons, taken separately, would have justified the defendants terminating their retainer. He also found that a natural break in the proceedings had occurred (in that the defendants had by now saved the administration action), at which it was appropriate for them to withdraw.[49]I have considered carefully the reasons Mr Perotti has given for challenging the judge’s findings. He is faced with the insuperable difficulty, in my judgment, that he chose to withdraw his oral evidence and to decline to submit himself to cross-examination, and that the judge accepted the oral evidence of the defendants’ two witnesses. It is therefore of no value to him to make assertions of fact to this court which he could have made in oral evidence to the court below. The judge was fully entitled, as a matter of law, to hold that the solicitors were entitled to terminate their retainer for good reason, and to hold on the facts that there were two very good reasons entitling them to do so. Mr Perotti took us through the January-April correspondence, which the judge had analysed with care, and in my judgment there is no prospect of the judge’s findings being set aside on appeal.[50]Mr Perotti also sought to persuade us that if stronger points had been included in the statement of claim during the short period when the defendants were acting for him, Mr Watson would probably have capitulated so that the trial before Rimer J, and its financially disastrous outcome, would not have taken place. In this context he invited us to consider some “without prejudice” correspondence and a notice of payment into court in the administration action. The insuperable difficulty which Mr Perotti faces in this regard is that this court has upheld Lloyd J’s decision striking out his action against Mr Hinks and Lindsay J has dismissed on very solid grounds his allegations of negligence against the defendants in connection with the events leading up to the service of the re-settled statement of claim.[51]I derived no benefit from the citations Mr Perotti made to us from the Law Society’s 1999 Guide to the Professional Conduct of Solicitors. The judge determined with great care the issues of negligence it was his duty to try, and a case cannot be prolonged at the appeal stage by making additional complaints about what the solicitors might or might not have done.[52]In addition to considering these points, I have read the judge’s long judgment with great care, in order to see if there are any other grounds for reasonable complaint about any part of the judgment. I have come unhesitatingly to the conclusion that there were not. The judge was perfectly entitled to reach the conclusions he did on the material that was before him. This application for permission to appeal is totally devoid of merit. It is therefore dismissed.[53]I would for these reasons dismiss all these applications. They are all totally devoid of merit.[54]To-day the court has dismissed 14 applications by Mr Perotti as being totally devoid of merit. On 26th February 2004 Chadwick LJ dismissed 11 further applications by Mr Perotti on the same grounds. It has been drawn to the court’s attention that, putting on one side certain pending matters, since 1997 Mr Perotti has made 80 different applications to the court in different matters, of which two have been allowed, 75 refused, and three have been disposed of by different orders. 40 of these applications were made in 2002 and 2003. In relation to the 82 applications, Mr Perotti has paid the appropriate court fee seven times. On one occasion he received a remission of the fee, and on the other 74 occasions he was exempted from paying a fee, so that the entire cost of processing his applications has fallen on the taxpayer (or on other fee-paying litigants).[55]It appears that on three occasions, in November 1997 and in March and July 1999, High Court judges made civil restraint orders (formerly known as Grepe v Loam orders) against him. On 10th April 2003 Neuberger J made an extended civil restraint order (formerly known as an Ebert order). On 26th February 2004 Chadwick LJ refused permission to appeal against Neuberger J’s order. He set out passages from Neuberger J’s judgment in his own judgment ([2004] EWCA Civ 269 at [15] – [17]) and I need not repeat them here. It is sufficient to say that Neuberger J considered that in his experience of litigants in person, which was not insignificant, Mr Perotti was second to none in terms of his persistence, and in terms of the aggressiveness, rudeness and unreasonableness with which he conducted his applications. He said that this was as plain a case for making an extended Grepe v Loam order as he had ever seen. Chadwick LJ said that there were ample grounds on which Neuberger J could have properly reached the conclusion that an extended restraint order was required in this case.[56]At the end of his judgment given on 26th February Chadwick LJ expressed concern about the risk of a stream of applications by Mr Perotti coming to this court after a High Court judge had made an order refusing him permission to issue an application or to start an action under the powers given to him by the extended civil restraint order. He observed that it was plain that Mr Perotti’s reaction to any decision which was made against him was automatically to serve a notice of appeal without, it seemed, giving any proper thought to the question whether the appeal had any proper basis in fact or in law. He said that the time had come, as it seemed to him, to consider whether the extended civil restraint order should be varied so as to provide that a decision of the judge of the High Court should be final and not subject to any further appeal unless the judge himself gave permission to appeal.[57]In addition to this warning the Civil Appeals Office, at my direction, had notified Mr Perotti on 23rd February that at this hearing the court might wish to consider whether to make any further order restraining his litigious activities in the Court of Appeal, and if so in what terms this order should be made.[58]The outcome of the present applications has shown without any doubt that unless more effectively restrained Mr Perotti will continue to abuse the processes of this court and to waste its resources on applications that are totally without merit. It has confirmed Chadwick LJ’s view that Mr Perotti files these applications without giving any proper thought to whether the appeal has any proper basis in fact or in law. The judgment of this court in Bhamjee v Forsdick (No 2) has illuminated the range of powers a superior court now possesses in order to protect its process from abuse, and the reasons why these powers are needed. During the course of his submissions to us Mr Perotti told us that he wanted his damages and compensation, and that it was “no skin off his nose” who he got the damages from. He also told us that he wanted the decision to strike out his action against Mr Hinks re-opened under the Taylor v Lawrence jurisdiction. He has already filed with the Court of Appeal notices of appeal in other matters where lower courts have struck out other actions of his that relate to the same saga.[59]When we hand this judgment down, we will permit Mr Perotti 30 minutes in which to make submissions to us as to why we should not give the following directions.[60]First, a direction that the extended civil restraint order made by Neuberger J should be varied in two ways. It should now include this paragraph:
“If the claimant wishes to apply for such permission then such application for permission must be made without notice (save as provided at (3) above) in writing to Mr Justice Rimer or to such other judge of the High Court as may be nominated by the Vice-Chancellor from time to time, and will be disposed of on paper. That judge’s decision will be final and will not be subject to any appeal unless the judge himself gives permission to appeal.”
A new paragraph 8 to the order (following the guidance given by this court in Bhamjee v Forsdick (No 2)) should also be added in these terms:
“This order will be effective until …th May 2006 and will then expire (unless renewed in the meantime).”
[61]Secondly, because the range of Mr Perotti’s persistent and vexatious litigation now goes much wider than litigation against the persons protected by the extended civil restraint order (namely Mr Watson, his firm Mackrell Turner Garrett, and/or any partner, former partner, employee, or former employee of such firm or his, or their present or former legal representative), a direction that any other application to this court by Mr Perotti in any matter not embraced by the terms of the extended civil restraint order should, for the next two years, be considered only by a judge of this court on paper (unless that judge considers that an oral hearing would be appropriate). This decision on paper would be final and not subject to any reconsideration at a hearing, so that CPR 52.4(4) should not apply in Mr Perotti’s case. This direction would embrace consideration of the remaining notices of appeal which are still awaiting a decision whether to grant permission to appeal. The reason for making such a direction would be that the nuisance posed by Mr Perotti’s litigious activities is now so extreme that the court would be entitled to take this unusual step to protect its own processes and the interests of other litigants.[62]Thirdly, a direction that the Civil Appeals Office should send all relevant papers to the Attorney-General so that he may consider whether it is appropriate to seek an order against Mr Perotti under section 42 of the Supreme Court Act 1981.[63]Finally, a direction that the stay on the sale of Mr Perotti’s property at 43A Ridgemount Gardens, which was continued in effect by Chadwick LJ on 26th February 2004, should now be lifted.[64]Because this judgment contains matters of general importance it is released from the normal prohibition on citation of judgments of this type.

Lord Justice Maurice Kay:

[65]I entirely agree.

Cited in 5 later judgments