Miller v Garton Shires (a firm) [2006] EWCA Civ 1386

Case No B/3/2006/0091[2006] EWCA Civ 1386
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COUNTY COURT
His Honour Judge Bartfield
4LS056390
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 25 th October 2006
Before
LORD JUSTICE CHADWICKLADY JUSTICE HALLETTMR JUSTICE LINDSAY
Between
DAVID EDWARD MILLERApplicantGARTON SHIRES (a firm formerly known as GARTONS)RespondentISON HARRISON (a firm)Respondent(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Tim Hirst (instructed by Green Williamson) for ApplicantMr Glenn Campbell (instructed by Beachcroft LLP) for First RespondentMr Hugh Evans (instructed by Browne Jacobson LLP) for Second Respondent
[1]This application concerns a second appeal by the claimant in proceedings in which there has been a summary judgment dismissing the claimant’s claim. The background is this. On 26th September 1997 the claimant, Mr Miller, was driving a car, a Vauxhall Astra, along Low Road, Hunslet, Leeds. There was a collision between his car and another car, another Astra, driven by a Mr Brown. Both drivers were seriously injured; Mr Miller was so severely injured that the police thought that it could prove to have been a fatal accident. Fortunately, though, Mr Miller survived (but with no recollection at all of the event) and instructed solicitors, first Messrs Gartons (now the first defendant–respondent, Garton Shires) and secondly the second defendant–respondent, Messrs Ison Harrison. But no proceedings against Mr Brown were served within the appropriate period. Displeased at that, to put it no stronger, on 21st October 2004 Mr Miller issued proceedings in Leeds County Court against both firms of solicitors. He had, he said, lost an opportunity of recovering substantial damages from Mr Brown by reason of those firms’ respective professional negligence. Of course, if Mr Miller’s case against Mr Brown would in any event have led to no recovery then the opportunity lost (assuming one was) would have been valueless and there would, in turn, be no recovery against either firm of solicitors either in contract or in tort.[2]That response was amongst the several defences raised on behalf of the solicitors who, on 25th July 2005, moved before District Judge Spencer in the Leeds County Court (or were taken so to have moved before her) for a summary judgment dismissing Mr Miller’s claim.[3]The Learned District

Judge applied CPR 24.2 which provides:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial”
. The conjunctive “and” between (a) and (b) makes it plain that he who seeks the summary relief must attract a consideration by the court favourable to him on both limbs. The word “other” in (b) is inept as, read literally, it would suggest that the fact that a claimant has no real prospect of success or a defendant none of successfully defending would be a compelling reason “why the case or issue should be disposed of at a trial”. Plainly, that was not intended and the word “other” is to be given weight by reading the rule as if it said that notwithstanding the absence of real prospects of success, nevertheless there is some reason why the case should go to trial. (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and[4]It is throughout to be borne in mind that the Learned District Judge did not have before her a road traffic accident case. There never will be a hearing of Mr Miller’s road traffic accident case; that, indeed, is what he complains of. But the Learned District Judge did have to do the best she could, on the material before her, to assess whether there would have been any real chance of a successful outcome had there been timely road traffic proceedings by Mr Miller against Mr Brown and to assess the effect of that hypothetical outcome on the proceedings that were before her, proceedings for professional negligence.[5]The Learned District Judge dismissed Mr Miller’s claim against the solicitors. His claim against Mr Brown, she held, would have been worthless. Mr Miller appealed.[6]The appeal – the first appeal – came on before His Honour Judge Bartfield in the Leeds Court on 18th November 2005. He upheld the Learned District Judge. Mr Miller sought permission on paper to appeal Judge Bartfield’s decision and on 15th February 2006 Latham LJ refused permission. He said this:
“This is a second appeal. The decision was one which was open to both the District Judge and the Judge on the evidence before them. This appeal does not raise an important point of principle or practice nor is there any other compelling reason for the Court of Appeal to hear it.”
Latham LJ was plainly referring to the terms of CPR 52.13(2), to the terms of which I shall refer below.[7]Mr Miller renewed his application which came on for oral hearing before Ward LJ on 4th April 2006. Ward LJ, after observing that he was not at all sure how the claim against Garton Shires “ran” and that it would, if permission were given for it, be a “pretty hopeless” appeal, adjourned Mr Miller’s application for permission to be heard on notice to the respondents with an appeal to follow if permission were granted. So it is that we have before us Mr Hirst for the claimant-applicant, and Mr Campbell and Mr Evans for the respective firms of respondent-defendants.[8]Ward LJ made no express reference to the application before him being for permission for a second appeal, but that is inescapably what it is and, for that reason, when the application came before us, we elected to hear the application for permission first and separately so that we could examine whether the relatively stringent test appropriate to second appeals was passed. However, before I move on to that test I need to say something briefly about the jurisdiction conferred by CPR 24.2. I have not understood Mr Hirst to dispute any of the following summary of that jurisdiction. In Three Rivers District Council & Others v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1 – perhaps now to be seen as the high-water-mark of allowing cases to go forward - Lord Hope referred to the rule as a salutary power but one which had to be confined to its proper role. The court had to look to see what would happen were there to be a trial. Normally, parties are to be allowed to lead their evidence so that the trial judge can determine where the truth lies but, where the case being examined is so weak that it has no real prospect of success, then it should be stopped before great expense is laid out. The jurisdiction is not to be used to dispense with the need for a trial where there are indeed issues that should be investigated at trial. Hence there should be no “mini trial”; that would usurp the function of the trial judge and it would lead to conclusions being reached without cross-examination and on documents only. That would be an abuse of the power. But, even so, if the court can say with confidence on the material before it at the summary hearing that the factual basis asserted is entirely without substance then it may be just to use the power which CPR 24.2 confers - Three Rivers at para 95. Such a conclusion is more likely to be capable of being reached in a simple case but, I would add, the fact that the case could be described as simple cannot, of itself, suffice to lead to summary relief.[9]The inappropriateness of “mini trials” at the summary stage had even earlier been commented on in this court, in Swain v Hillman & Another in [2001] 1 All ER 91 CA where, at page 95, Lord Woolf MR said:
“Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. As [counsel] put it in his submissions, the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.”
[10]The books are replete with similar warnings and it suffices to refer to two recent decisions of this court. The first is Sharpe v Addison [2004] PNLR 23, 426, another case of a road traffic accident and alleged professional negligence but where road traffic proceedings had been begun but were later discontinued. At page 434 in a passage which Mr Hirst draws to our attention, Rix LJ said of

the judge below:

“I fear that in these circumstances, although the judge was aware of and sought to apply the correct principles, he was tempted, perhaps by the very fact that the case was presented to him as an entirely documentary exercise, to conduct a mini-trial on paper. But the trial, if it had taken place, would not have been conducted on paper. The taxi driver and his passenger would have been challenged along the lines indicated by counsel’s submissions and the possibilities adverted to in this judgment. Nowadays, under the CPR regime a defendant can apply to strike out a claim at its inception on the basis that it has no real prospect of success: see Part 24.2. The test of a worthless claim for loss of a chance purposes seems to me to be very similar to that modern test. If the question is asked in these terms, whether a case such as this would be struck out under CPR Part 24.2, it seems to me that it would not. To do so would have involved the court seeking to turn what is ultimately to be a trial on oral testimony into a paper exercise, something which modern authorities on CPR Part 24.2 repeatedly warn the courts against”
. An even more recent authority in this court is The Bolton Pharmaceutical 100 Limited v Doncaster Pharmaceuticals Group Ltd & Others [2006] EWCA Civ 661 in which on the 26th May 2006 Mummery LJ at paragraph 17 said:
“It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kinds of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before a judgment can be given (see Civil Procedure Vol 1 24.2.5). A mini-trial on the facts conducted under CPR Part 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice.”
[11]But none of these strictures, powerful as they are, amounts to saying that summary relief is only rarely to be available or is to be used only in exceptional circumstances or where the facts or the material facts are entirely free of dispute. In Swain supra Lord Woolf had said, with my emphasis:- “It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.[12]With that guidance in mind, I return to the road traffic accident. The road in question – Low Road, Hunslet, is kinked so that whether one is travelling north-west, towards the centre of Leeds or south-east, towards Stourton, there is a relatively sharp bend one way followed by one the other. To each driver, the first bend, as he would see it, was a left hand bend. Mr Miller’s car and Mr Brown’s, starting off going in different directions, collided head-on or nearly so. Necessarily, one or both cars had strayed into the wrong side. The report of PC Field (as she then was, now Inspector Field) who was on the scene some 9 minutes after the accident, reported that:
“The circumstances of this accident are somewhat vague. It is apparent that one of the vehicles has lost control whilst negotiating a left hand bend and collided with on-coming vehicle.”
That note conspicuously does not say which driver had lost control, but PC Cuthbert, the police’s experienced accident investigator, who attended the site of the accident only some half an hour or so after it had occurred, made a detailed report, after examining the wreckage and the road surface, which concluded that it was Mr Miller’s green car, the car which had been travelling south-east, away from the City Centre, that had crossed the road into the opposing traffic lane and, in effect, that its excessive speed may have been a factor contributing to the accident. It was Mr Miller’s car, he reported, that had been travelling away from the City Centre in the south-east direction which had lost control and had crashed head-on to Mr Brown’s blue car which had been travelling north-west but which, by reason of the collision, had spun round and had come to rest on the pavement. PC Cuthbert also produced a detailed plan showing what had, in his view, been tyre and gouge marks on the road and on the pavement. Thus there was before the Learned District Judge independent and seemingly careful evidence from an expert that the accident was Mr Miller’s fault. Colour photographs were produced to her, taken, I apprehend, by or for PC Cuthbert, showing the blue car, Mr Brown’s, on the pavement. PC Cuthbert said:
“The tyre marks on the road surface indicating that as the green [Miller’s] Vauxhall Astra reached a point on the approximate apex of the bend, the vehicle travelled across the road into the opposing traffic lane, where its front offside collided with the front offside of the on-coming blue Vauxhall Astra motorcar. The impact between the two vehicles occurred in the City bound lane” [in other words, on Mr Brown’s side of the road]. A little later he said: “The tyre marks on the road surface created by the green Vauxhall Astra indicated that at the time the marks were made, the vehicle was commencing to yaw in an anti clockwise direction. Whilst there were no suitable marks from which the actual pre-impact speed could be determined, I consider that excessive speed, after attempting to negotiate this bend, may have been a contributory factor.”
[13]Plainly, therefore, there was a very strong case that Mr Miller, had he proceeded against Mr Brown in a timely way, would have failed. Indeed, there was other evidence tending towards the same conclusion, such as insurance communications between Mr Miller’s insurers and Mr Brown’s and there was some ground for a view that the police had elected not to proceed against Mr Miller for dangerous or careless driving only or at least partly because he had been gravely injured and it was thought at the time that he might never be well enough to drive again. That Mr Miller would have encountered massive difficulties had he sued Mr Brown was thus plain and, at least to the same degree, there were thus massive difficulties in Mr Miller proving in the course of the negligence proceedings that he would have been likely, but for the negligence, to have recovered from Mr Brown.[14]But the police evidence and that other evidence to the same effect was not the only evidence; there were, the drivers apart, two and only two eye witnesses, namely Catheryn Sandles and Sara Ramsey. There was no evidence from either driver before the District Judge or Judge Bartfield. Sara Ramsey’s witness statement merely concurred with Ms Sandles which said that she and her friend, Ms Ramsey, had been walking at night down Low Road, Stourton and:- “As we reach[ed] approximately the point where Balmoral Chase comes off Low Road we saw a car coming into Leeds down Low Road. A car, the colour of which I cannot recall but which was over the white line in the centre of the road cutting the corner and across into the opposite carriageway. It was clearly travelling at far higher than the speed limit….With this car well over the carriageway of the on coming traffic I heard the sound of braking, wheels locked and tyres screaming, no horns sounded. The vehicle which we had seen had hit head on another car coming out of Leeds. This car was thrown across the road towards the pavement where I and my friend were walking. It was travelling at a fairly high speed towards us and the footpath. In fact so fast that we needed to run and get behind an old horse drinking trough that is at the side of the road to get out of his way. The car hit the horse trough before coming to a halt. It had crossed the carriageway and footpath before coming to rest there. The other vehicle was on the road. There was no one else present or saw the incident. …. In my opinion it is impossible that the accident was caused by anything else other than the driver of the vehicle coming into Leeds being on the wrong side of the road cutting the corner and travelling too quickly for the conditions and above the speed limit. The driver of the vehicle coming out of Leeds had no opportunity to avoid the accident in any way”. The references to “this car”, “the car” and “the other vehicle” are hardly models of clarity, but the blame was, in that last passage, squarely put on the driver coming into Leeds, i.e. travelling north-west. That, of course, if PC Cuthbert was right, was Mr Brown. That these two eye witnesses had been consistent in their view was supported by the fact that Inspector Field’s notebook (she gave written evidence to the District Judge) included, as a comment upon her attendance on those two eye witnesses back in September 1997, that the offending vehicle was the vehicle which had landed on the pavement. It was Mr Brown’s blue car that had in fact ended up on the pavement.[15]However, upon a careful examination of the written evidence before her taken as a whole the District Judge was confident that it had been Mr Miller that had been at fault. The claimant had earlier asked for an adjournment to obtain his own expert evidence from an accident reconstruction expert. It had not been said that no report had been obtained but – a telling detail – he had not produced a report. Mr Hirst, who appeared before the Learned District Judge and before Judge Bartfield just as he had before us, trying to square the conflicting versions, had advanced an hypothesis that Mr Miller (whose pleaded case, supported by a conventional statement of truth, was that he had been proceeding out of Leeds) seeing Mr Brown, out of control, coming towards him on Mr Miller’s original side of the road, had swerved onto Mr Brown’s side of the road to avoid him. Given that Mr Miller’s expert’s accident report was not produced, the Learned District Judge continued:
“I do draw from that the inference that the interesting hypothesis that Mr Hirst put forward is wholly unsubstantiated by that road accident report and I am not at all sure what value I can give to Mr Hirst’s interesting theory”
. Turning to Ms Sandles’ evidence, the District

Judge continued:

“If that evidence were accepted by the court then [PC Cuthbert’s] drawings are wrong, PC [Cuthbert’s] observations at the scene are wrong, PC [Cuthbert’s] assessments and conclusions are wrong. The physical evidence is all in error. Also wrong is a decision of the police to consider prosecuting Mr Miller for dangerous driving, later withdrawn because of his injuries, and a decision by Mr Miller’s insurance company to pay out Mr Brown without proceedings being issued and, for what it is worth, Mr Brown’s own report to his insurers, saying that he was proceeding on the correct side of the road when a car came across the road and drove into him.”
Later the District Judge continued: “The court is always able to disbelieve witnesses without in any way suggesting that they are lying but pointing to the fact that there is overwhelming other evidence which means that they must be mistaken and their mistake can readily be explained by the crisis situation which they are looking back upon, and this is one of those cases. The physical evidence is overwhelming in my view. Combined with the assessment of the police and the CPS, combined with the assessment of Mr Miller’s own insurance company that the accident was caused entirely by Mr Miller and that Mr Brown was the innocent party”.[16]The District Judge’s conclusion was as follows:- “This is a case where in my view the evidence is so clear that no testing of live witnesses is needed and I am prepared, contrary to Mr Hirst’s suggestion that I would perhaps not be prepared to be, as he put it, bold and come to that conclusion”. Everything, she said, pointed to the accident being caused by Mr Miller driving out of Leeds too fast on the wrong side of the road, colliding with Mr Brown with the ensuing tragic and traumatic consequences. In turn, therefore, she held that she was not able to say that Mr Miller’s claims against the solicitors had had a real prospect of success. What, if anything, Mr Miller had lost, was valueless and, in turn, there could be no claim of any value against the two firms of solicitors.[17]On the first appeal HHJ Bartfield recorded, à propos the District Judge’s assessment of the evidence:
“Nobody suggests that she distorted the evidence or left relevant portions of it out. At paragraphs 1 to 7 she sets out all the relevant evidence that had been obtained in the case and was placed before her, and it needs no repetition from me”
. It had not been suggested that fresh evidence in Mr Miller’s favour could still be or could have been gathered. Mr Miller, as I have mentioned, had no recollection of the events at all and Mr Brown was hardly likely to give evidence that would assist Mr Miller. There is, it is fair to say, a confusing reference in Judge Bartfield’s judgment – paragraph 11 – but he held there was a clear failure of the claimant to have established a real prospect of succeeding on his claim. He endorsed the Learned District Judge’s conclusion to that effect. There was, he held, no basis for impugning the District Judge’s decision which he described as an admirable judgment and one that was extremely well reasoned.[18]That is the background against which it falls to this court to consider whether CPR 52.13(2) is satisfied. There one finds as follows as to second appeals:
“The Court of Appeal will not give permission unless it considers that – (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it.”
That provision has comparatively recently been considered by this court in Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 CA, a decision of Tuckey and Dyson LJJ. Dyson LJ, giving the judgment of the court, said:
“….. it is important to have in mind what Brooke LJ said in Tanfern Limited v Cameron-MacDonald [Practice Note] [2000] 1 WLR 1311 at paras 41-46. It is only in an "exceptional" case that a second appeal may be sanctioned. The general rule is that the decision of the appeal court on the first appeal will be the final decision. It is no longer possible to pursue a second appeal merely because the appeal is properly arguable or has a real prospect of success. The principle embodied in CPR 52.13 (2) reflects the need for certainty, reasonable expense and proportionality. In our judgment, it is clear that the reference in CPR 52.13(2)(a) to "an important point of principle or practice" is to an important point of principle or practice that has not yet been established. The distinction must be maintained between (a) establishing and (b) applying an established principle or practice correctly. Where an appeal raises an important point of principle or practice that has not yet been determined, then it satisfies CPR 52.13(2)(a). But where the issue sought to be raised on the proposed appeal concerns the correct application of a principle or practice whose meaning and scope has already been determined by a higher court, then it does not satisfy CPR 52.13(2)(a). We cannot accept the submission of [counsel] that the question whether an established point of principle or practice has been properly applied in an individual case itself raises an important point of principle or practice. Were the position to be otherwise, the door would be open to second appeals in all cases which concern the application of an important principle or practice. That is clearly not what was intended.”
The judgment then turned to the question of “some other compelling reason” and gives guidance from which it can be seen at para 23, page 2077, that the guidance given had been approved by Lord Phillips MR and Brooke LJ, then Vice President of the Court of Appeal (Civil Division).[19]At this point of the argument it is quite irrelevant for members of this court to speculate, separately or together, upon how he or she would have responded to the case put to the Learned District Judge. Rather this court has first to determine whether, against the history which I have set out, some important point of principle or practice is being sought to be established within that first limb, 52.13(2)(a), as explained in Uphill. It cannot suffice to suppose some principle or practice and allege that it or an important point in relation to it is being sought to be established unless it is a principle or practice which the courts might adopt or endorse, a question which can here be fully discussed and decided independently of the facts of the individual case. What, then, is the important point which the claimant here is seeking to establish? Mr Hirst struggled to describe something that might pass the 52.13(2)(a) test. He suggested that, in relation to summary dismissal cases, there was public interest in any eye witness’s written account of an accident being taken to oral examination where it conflicted or might conflict with the view that the court was disposed to take on its evaluation of the paper evidence as a whole. It was wrong, he said, that a witness should be slighted by having his or her evidence disbelieved without he or she having had the opportunity of having it tested and being found correct. There was a public interest, he urged, in having ambiguities in evidence clarified. But there was no question of the eye witnesses’ evidence being disbelieved on any ground that might reasonably lower them in their own or other people’s estimation; rather it was that in the dark and in circumstances quite likely to have been alarming (a wrecked car speeding out of control and, as it seemed, towards them) they made a mistake in distinguishing between two similar cars, as to the colour of which respectively they could not speak.[20]For my part, I could not see how the various principles or practices which Mr Hirst sought to establish could be framed in any way that would stop short of saying that, in the context of summary judgments, the court’s distaste for “mini trials” invariably precludes a summary judgment dismissing a claimant’s claim wherever there was witness statement evidence which, untested, tends to support the claim. For my part, I could not conclude there is any such principle or practice. Firstly, it would have been easy enough to provide, had it been intended, that summary judgment was to be permitted only where there was no evidence at all that tended against its grant. Secondly, no authority has been drawn to our attention that elevates the impropriety of a mini trial at the summary stage into a principle or practice such that any evaluation of a conflict of evidence discernible on the available paper evidence amounts to a mini trial and is, without more, on that score such as to deny summary relief. Thirdly, were there to be such a principle or practice the salutary jurisdiction of CPR 24.2 would come close to being repealed. CPR 24.2 cases would be reduced all too often to a minute examination of whether there was indeed any or any material conflict on paper and the temptation for one side or another to create one would all too frequently be yielded to. Court time and money would be wasted, false hopes and anxieties prolonged, and the will of the legislature, see Tanfern supra at paras 44-46, would lie unachieved; second appeals would be very far from rare.[21]The second appeal for which permission is here being sought would, in my view, involve only the application of established principles or practices. The question on the first appeal was whether, on the facts presented to her, the Learned District Judge, adopting a permissible approach, could conclude, without oral evidence but with sufficient confidence, that the factual basis as to the accident as asserted by Mr Miller was so lacking in substance as to render his claim against the solicitors no better than fanciful. Judge Bartfield held that she could and I do not regard Mr Hirst’s criticism of his judgment as raising any important point of principle of practice as that phrase has been interpreted in Uphill.[22]Turning to the other limb of 52.13(2) – “there is some other compelling reason for the Court of Appeal to hear it” – I could see that there could be a compelling reason if a severely injured man, injured in a car accident that was not at all his fault, was left without remedy against the solicitors who had been instructed to recover compensation for him but who had failed to act adequately or in time. But that, of course, supposes the very thing that here was not to be seen. If, instead, one dilutes the supposition such that he who is left without remedy is someone who was himself responsible for the accident on a balanced view of the evidence (including expert independent evidence of uncontested objective features, here, tyre marks and gouges in the road), then nothing about the gravity of the injuries or the solicitors’ failure to proceed leads to a “compelling” reason to let the matter go further. It cannot possibly be argued that the conclusion reached by the District Judge or on the first appeal was so manifestly perverse, wrong or unfair, procedurally or otherwise, that its faults cried out for there being yet further litigation. Even if the District Judge’s or Judge Bartfield’s decision involved the procedural irregularity which Mr Hirst asserts (namely that, each, despite protestations to the contrary, impermissibly embarked upon a “mini trial”) I cannot see that that, of itself, would confer upon Mr Miller the very high prospects of success which Uphill at paragraphs 23 and 24 stipulates as a necessary (but not necessarily sufficient) requirement if a second appeal is to be permitted. The only example which the Court of Appeal gives in Uphill of “some other compelling reason” sufficing even where there is less than a high prospect of success is of an extreme case such as where the judge had not even permitted the appellant to present his or her case. In such a case – see paragraph 24 of Uphill – to deny an appellant a second appeal would in effect have denied him a right of appeal altogether. Nothing such or of any such a degree of impropriety could be said in this case.[23]Another factor to which the Court of Appeal in Uphill – see paragraph 24(2) - paid regard is a consideration of the applicant’s own responsibility for his failure at the earlier stages. If, as Mr Hirst suggested, the eye witnesses’ accounts, in Mr Miller’s favour, would have been less dubious had the ambiguities in them been removed then it was fault on the claimant’s side that further witness statements dealing with those ambiguities were not produced. Equally, even if one supposed (against the District Judge’s reasonable inference that the claimant had obtained independent expert advice as to the causes of the accident but had found it unhelpful) that expert evidence in Mr Miller’s favour could have been adduced then, again, the failure to adduce it so as to counter PC Cuthbert’s evidence could only be a fault on the claimant’s side. In my view, this second limb of CPR 52.13(2) – namely limb (b) – is not satisfied either.[24]Accordingly, for my part, permission to appeal would not be appropriate and Mr Miller’s application should thus fail on the very threshold.[25]I agree.[26]This application for permission to appeal has been listed for hearing on notice, with the appeal to follow if permission were granted. In those circumstances we allowed counsel for the applicant to deploy the full argument that he sought to advance on the appeal. But it has been important to keep in mind that this would be a second appeal, to which section 55(1) of the Access to Justice Act 1999 applies. This Court has no power to grant permission to appeal – and so no power to hear the appeal, as such – unless the requirements of CPR 52.13(2) are met. The Court must be satisfied that the appeal would raise some important point of principle or practice; or that there is some other compelling reason for the Court of Appeal to hear it.[27]I agree that those requirements are not met in the present case. The principles which the District Judge needed to have in mind, and to apply, on the applications for summary judgment against the claimant which were before her are not in doubt. First, she needed to ask herself whether the claimant had any real prospect of establishing – in these proceedings against his former solicitors – that he had lost anything of substance by reason of his inability (as a result of alleged breach of duty by those solicitors) to pursue his claim against the other driver, Mr Brown. In practice that required her to decide whether the claim against Mr Brown (if the opportunity to pursue it had not been lost) would have had any real prospect of success. It would not have been sufficient for her to decide that, on the balance of probabilities, that claim would not have succeeded. It was enough to found the claim against the solicitors in the present action that the claimant lost the chance of pursuing a claim against Mr Brown which could not be dismissed as worthless. As Lord Justice Rix pointed out in the passage in his judgment in Sharpe v Addison [2003] EWCA Civ 1189 [27];[2004] PNLR 23, 426, 434 to which Mr Justice Lindsay has referred, the question for the District Judge in the present proceedings was very similar to that which would have arisen if the claimant had commenced proceedings against Mr Brown in time and Mr Brown had sought summary judgment under CPR 24.2 in those proceedings.[28]Second, the District Judge needed to have in mind that it was no part of her function to conduct what has been described as a “mini-trial” on the basis of the witness statements which were before her. It was not for her to hold that she preferred the untested evidence of one witness to the untested evidence of another. She could not properly reject the evidence put forward in a witness statement unless she was satisfied that, taken with other evidence which was incontrovertible, that evidence was manifestly unreliable. If the evidence on either side needed to be tested by cross-examination, the proceedings should go to trial so that the witnesses could be cross-examined.[29]Third, she needed to ask herself whether, notwithstanding that she might reach the conclusion that the claimant had no real prospect of succeeding in his claim against the solicitors, there was, nevertheless, some compelling reason why the proceedings should go to trial.[30]It is clear from the full and careful judgment which the District Judge delivered on 25 July 2005 that she did, indeed, have each of those points well in mind. It is, I think, enough to refer to the following passages in that judgment. First, at paragraph 8, she said this:
“8. . . . I am not having a mini trial, nor later will there be a trial as such, there will simply be an assessment of prospects. And although I will be delving into the minutiae of the evidence, it is simply to arrive at an assessment of prospects rather than to decide whose fault the original accident was.”
Second, after referring to the witness statements of the two eye witnesses, she observed:
“20 If that evidence were accepted by the court, then PC Cuthbertson’s drawings are wrong, PC Cuthbertson’s observations at the scene are wrong, PC Cuthbertson’s assessments and conclusions are wrong. The physical evidence is all in error. . . .”
And she went on:
“24 . . . In my view everything points to the accident being caused by Mr Miller driving out of Leeds too fast on the wrong side of the road, colliding with Mr Brown and the ensuing tragic and traumatic consequences. In my view there is only a negligible chance that Miss Sandles would be taken as other than mistaken in view of the overwhelming nature of the other evidence I have been through.”
She said, in terms, at paragraph 28 of her judgment, that this was a case where “the evidence is so clear that no testing of live witnesses is needed”.[31]The District Judge addressed the argument that there was, nevertheless, a compelling reason why the case should go to trial at paragraphs 26 and 27. She said this:
“26 I was also invited to say that irrespective of that [her conclusion that the claim had no real prospect of success] there were other compelling issues why this case should go to trial and those compelling issues are fairness, access to justice, the fact that other authorities have also behaved badly – for example the CPS losing the file – and that the claimant could not recall anything and therefore he needed a trial in order to establish what had happened. I am fully aware of the court’s obligations for access to justice and I am fully aware of the need for fairness and proportionality and all the other matters contained in rule 1 of the overriding objective. 27. Fairness applies to both sides and, whilst my heart goes out to Mr Miller and his family, this is not a matter of emotion, this is a matter of law. The failings of the solicitors, the failings of the CPS, the need for Mr Miller to have a chance to hear Mr Brown speak and the witnesses speak and to try and understand what happened I understand. But they do not, in my view, in law amount to a legally compelling reason why the case or issue should go to a full trial, although I fully understand that they have a lot of emotional appeal.”
[32]She might have added that a trial of the case against the solicitors would not, necessarily, establish what had happened on the evening of 26 September 1997, when the claimant’s vehicle was in collision with that driven by Mr Brown. In particular, there was no reason to think that Mr Brown would be willing to provide a witness statement to either side; or that either side would call Mr Brown without knowing what he would say.[33]It is said that, although the District Judge had the relevant principles in mind, she erred in the application of those principles to the facts in this case. That submission failed on appeal to the County Court Judge. It is not a submission which can be made on an application for permission to appeal to which CPR 52.13(2) applies, unless it can be said that the both the decisions were perverse or otherwise so plainly wrong that justice requires this Court to intervene – see the observations of Lord Justice Dyson, delivering the judgment of this Court in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, [18], [24]; [2005] 1 WLR 2070, 2076, 2077. This is not such a case. For my part, I would have been prepared to hold (had it been necessary to do so) that the District Judge was entitled to reach the conclusions which she did: at the least, it cannot be said that she was plainly wrong.[34]For those reasons I would dismiss the application for permission to appeal.