Morshead Mansions Ltd v PJD Langford & Ors

1. LORD JUSTICE JACOB: This is an renewed application for permission to appeal a decision of Mr Justice Crane given on 15 August 2003. Permission was refused on paper by Lord Justice Jonathan Parker.

2. The claim is against a firm of solicitors and the directors of the company. There is an existing claim in which negligence is alleged but there are difficulties with the Limitation Act as regards that claim.

3. The first of the two claims sought to be advanced concerns a breach of fiduciary duty. It is alleged that, in relation to a letter which had to be sent, the solicitors failed to give the correct advice as to who should send it. Under a particular contract it had to be sent from a particular party. It is alleged that shortly after the letter was sent they realised that they had made a mistake, failed to advise on who should send the letter and then deliberately concealed their blunder. If there was a fiduciary duty and deliberate concealment, the limitation problem can then be overcome.

4. I see no substance in that. The judge was prepared to accept that there was a fiduciary duty. I do too, but with considerable reservations. But in my judgment there is no significant material to suggest any course of deliberate concealment. Furthermore, I very much doubt that the solicitors were under any duty as to who should advise their client who should send the letter. The client knew who perfectly well. That was not a matter which required legal advice; it was so obvious. There is a detailed letter from the defendant's solicitors, Beachcrofts, dated 25 March 2004. Almost every point in that letter seems to me to have force sufficient to justify refusal of permission.

5. The second claim is said to be consistent with the solicitor advising certain directors of the company that they could form a subcommittee which could take a course different from that determined upon by the main board. That course, which consisted of pursuing only certain tenants for service charges, was adopted and the solicitor is therefore responsible having advised upon it. If the only evidence is that he advised that any subcommittee could be formed, there is no evidence it ever sat. Moreover, as Mr Justice Crane pointed out, there is a significant limitation defence to this claim. I do not think the claim has a real prospect of success.

6. Mr Monty suggested the judge applied the wrong test when he said it was not arguable, rather than whether it had a real prospect. In my view that was perhaps applying an even more stringent test in favour of the claimants. It does not matter whether there is any difference between the two or not. In my view there is no reasonable prospect of success. Order: Permission to appeal refused.