High Court refuses solicitor’s application to have plaintiffs’ claim against him for negligence and breach of contract dismissed for being frivolous and vexatious and bound to fail, on the grounds that the plaintiffs’ have pleaded a manifestly stateable claim which cannot be said to be bound to fail.
Application to strike out plaintiff’s proceedings on the grounds that they disclosed no cause of action, are frivolous and vexatious and an abuse of process – plaintiffs are litigants in person - high threshold – constitutional right of access to the courts – jurisdiction should be used sparingly and only in the clearest of cases - deficiencies and inadequacies in the plaintiffs’ pleading – did not obtain a peer report before issuing proceedings – core of the Plaintiff’s claim was simple – wanted to buy a retail premises – sought advice from an accountant - funding was offered by the Bank of Scotland on a straightforward mortgage repayment basis - accountant advised them to use a different repayment structure available from ACC Bank – repayment structure involved paying interest on the sum borrowed, monthly to the first defendant, and investing in a Friends First endowment-type policy, the benefit of which was to be assigned to the first defendant - investment type policy – value fell - no assurance or guarantee that on maturity it would be sufficient to discharge the capital sum due to ACC Bank – plaintiffs argue that they were not advised of this – plaintiffs retained a solicitor – plaintiffs claim that the solicitor is that he was negligent and in breach of contract in failing to advise them of the nature and volatility of the investment and of the risk that on maturity it would not be sufficient to discharge their debt to ACC Bank and its general unsuitability for their goals - whether or not there was a breach of a duty of care is a matter for the court of trial to decide – whether any loss arises from such a breach is a matter for the trial judge - stateable claim arises on the facts alleged and that the said claim is not one which could be said to be bound to fail.