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Dr. Lie v Dr. Mohile [2013] EWCA Civ. 1436

L and M are two doctors providing medical services under PMS Agreement with a PCT. Clause 2 (i) provides that the partnership shall subsist for the joint lives of the partners. M is the landlord of the surgery premises and it is a condition of the PMS Agreement that services shall be provided from the premises. M served a notice of dissolution, and a section 25 notice on L on the basis that L is a licensee and he objects to a new tenancy being granted under section 30 (g) of the Landlord and Tenant  Act 1954. Part 11. L applied for a new tenancy pursuant to section 26 of the Landlord and Tenant Act.The Judge at first instance held that a business tenancy exists,  but the tenancy is held by the Partnership. The Judge then went to hold that the partnership had been effectively dissolved pursuant to section 26 of the Partnership Act 1890. L appealed.

Held: Appeal Allowed.

Destination of Appeal

Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal.

An issue arose as to whether an appeal from the order of HHJ Walden-Smith lay to the High Court or to the Court of Appeal. It was suggested in correspondence by Dr Mohile’s solicitors with Dr Lie’s solicitors and with the court that as the claim had proceeded below as if it were allocated to the multi-track, it should be treated as if it had been so allocated, with an appeal lying to the Court of Appeal. At the hearing, our Solicitor Advocate, successfully argued that the correct principle is as stated in CPR 52.14. It is irrelevant that the claim had been conducted like a Part 7 claim. What the Defendant must show is that the appeal raises a point of principle and practice or there is a compelling reason. As the Defendant could not satisfy the tests under CPR 52.14, the application must fail.

Route of Appeal

Lie -v- Mohile [2014] EWHC 3709 (Ch) - Before Mr Justice David Richards.

Our in house Solicitor Advocate successfully argued that the correct route of Appeal in an action that commenced as a Part 8 Claim in the County Court notwithstanding that the complexity of the case and factual disputes meant that the case ought to have been allocated to the Part 7 Claim.

L and M are medical doctors in Partnership with a PMS Contract with NHS England.

L brought proceedings for repudiatory breach of the Partnership Contract and persistent or gross breach of the agreement.

The Court at first instance dismissed L claim for expulsion but dissolved the Partnership under section 35f.  L appealed. Permission was given.

M brought an application that the correct route of  appeal is the Court of Appeal as the matter should have proceeded as a Part 7 claim, and that the Circuit Judge should retrospectively assigned the claim to Part 7 claim.

L contended that the Judge had no such power and since the Judge had refused permission, it would not be opened to her to transfer the appeal to Court of Appeal. The correct provision is CPR 52.14.

Mr. Justice Richards agreed that it is not relevant that the matter ought to have proceeded as Part 7 claim. The simple fact, is that it was not allocated.

The correct provision is CPR 52.14.

Dr. Mohile's Solicitors accepted that the appeal raised no point of principle or there is some other compelling reason for the Court of Appeal to hear it.

Solicitor Advocate for Dr. Lie: Mr Ojo in house advocate

Litigation Partner: Dr. Ogunsanya

By Miss Ayo Agbesanwa Trainee Solicitor

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