Court of Appeal success for Giles Maynard-Connor and Carly Sandbach

January 15, 2021

Giles Maynard-Connor leading Carly Sandbach instructed by Lupton Fawcett LLP have secured an important victory in a complex professional negligence action, which has significant and wide ranging implications for future claims.

Acting for the Appellant in TERRY ALLSOP v BANNER JONES LTD (T/A BANNER JONES SOLICITORS) AND COHEN [2021] EWCA Civ 7, Giles and Carly successfully overturned a High Court order striking out substantial claims brought by their client against his former Solicitors and Counsel in the context of an ongoing professional negligence action arising from the legal advisers’ handling of the Appellant’s high value matrimonial proceedings.

In striking out the subject claims the Judge at first instance had acceded to applications brought by the Respondents on the basis that the Appellant was said to be making an abusive collateral attack on the judgment of the Family Court. In this respect, the Judge applied the well known test laid down in Phosphate Sewage Co Ltd v Molleson (1879) 4 App. Cas. 801, which allows re-litigation of a point only where there is new evidence which entirely changes the aspect of a case. Historically the test has been applied where a civil action is brought subsequent to a previous criminal prosecution, and (albeit with some doubts expressed) in some cases involving successive civil claims.

In allowing the bulk of the appeal, the Court of Appeal agreed with the arguments advanced on behalf of the Appellant that the Judge had erred in applying the Phosphate Sewage test, and it held that the subject claims did not constitute an abuse of process on collateral attack grounds.

In doing so the Court of Appeal has made an important clarification in this area of the law, which is likely to impact significantly on future professional negligence cases, and potentially other civil claims.

The Court of Appeal further found that the Judge had been wrong to find that claims were insufficiently meritorious.

The case continues.