England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 96/7518/G

COURT OF APPEAL (CIVIL DIVISION) CCRTI 96/1294/G

ON APPEAL FROM THE COUNTY COURTS AT CCRTI 96/0119/G

ST HELENS, WARRINGTON and MANCHESTER CCRTI 96/1348/G

(MR RECORDER GARSIDE )

(HIS HONOUR JUDGE ELYSTAN MORGAN )

(MR RECORDER GRIME QC ) Royal Courts of Justice

The Strand

London

Monday 25 November 1996

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

LORD JUSTICE AULD

and

SIR BRIAN NEILL

B E T W E E N :

ROBERT PERRY Appellant/Plaintiff

- v -

KANG HO WONG Respondent/Defendant

A N D B E T W E E N :

GARY SAMPSON Respondent/Plaintiff

- v -

DAVID MOON Appellant/Defendant

A N D B E T W E E N :

JOHN WILLIAM JONES Appellant/Plaintiff

- v -

ROE SHOPFITTING LIMITED Respondent/Defendant

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(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

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J U D G M E N T

(As Approved by the Court )

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MR EDWIN GLASGOW QC and MR GRAHAM WELLS (instructed by Messrs J Keith

Park & Co, Merseyside) appeared on behalf of THE APPELLANT MR PERRY

MR EDWIN GLASGOW QC and MR PHILIP GRUNDY (instructed by Messrs Frank

Howard, Warrington, Cheshire) appeared on behalf of

THE RESPONDENT MR SAMPSON

MR EDWIN GLASGOW QC and MR SAM GRODZINSKI (instructed by Messrs

Pannone & Partners, Manchester) appeared on behalf of

THE APPELLANT MR JONES

MR DAVID STOCKDALE QC (instructed by Messrs Davies Wallis Foyster,

Manchester) appeared on behalf of THE RESPONDENT MR WONG

THE APPELLANT MR MOON

and THE RESPONDENT ROE SHOPFITTING LIMITED

THE LORD CHIEF JUSTICE: There are three appeals before the court, two by plaintiffs and one by a defendant. All three appeals concern the proper application and construction of Order 17, rule 11 of the County Court Rules where the plaintiff has failed to request a hearing date within the six-month period prescribed by Order 17 rule 11(3)(d), but has made such a request within the 15-month period prescribed by Order 17, rule 11(9).

The first of the appeals is an appeal by the plaintiff against a decision of Mr Recorder Grime QC in the Manchester County Court sitting at Bury on 20 October 1995 in Jones v Roe Shopfitting Ltd . The brief background facts are that, on 3 September 1991, the plaintiff suffered an accident in which he sustained personal injuries. On 18 November 1993 he issued proceedings in the Manchester County Court, claiming damages in excess of £5,000. On 20 January 1994 a defence was sent to the court. Accordingly, under the automatic timetable, pleadings closed 14 days thereafter by virtue of Order 17, rule 11(11), the period being calculated from delivery of the defence to the court office, as is made clear by Order 9, rule 2(6). On the day following the receipt of the defence in the court office Form N450 was sent to the parties, recording that the defence had been received. The position accordingly was that the six-month period prescribed by Order 17, rule 11(3)(d) expired on 3 August 1994, and the 15-month period in Order 17, rule 11(9) on 3 May 1995.

On 18 April 1995 the plaintiff's solicitors wrote a letter to the court, seeking a hearing date. That prompted the defendant to apply to have the case removed from the list. The plaintiff countered by seeking a declaration that the action had not been struck out or alternatively seeking, if it had, that it should be reinstated. Those applications came before Deputy District Judge Buckley on 28 July 1995. He made no order, save that the plaintiff should have his costs in any event. His ruling was that the plaintiff could submit a request for a hearing date within the 15-month period and that the plaintiff had accordingly applied in time. From that decision the defendant appealed and Mr Recorder Grime, on 20 October, allowed the appeal. The basis of his decision was that a request for a hearing date made outside the six-month period was of no effect unless a request had been made for an extension of time which, on the facts of this case, it had not. It is the correctness of that conclusion which is in issue on this appeal.

The plaintiff's response to that ruling has been very helpfully summarised in a skeleton argument submitted by Mr Glasgow relating to these three appeals. He submits that a request for a hearing date made within the 15-month period is valid and effective without the need for a prior extension of the six-month period specified in rule 11(3)(d). He acknowledges the effect of earlier authorities on the automatic strike-out regime introduced by Order 17, rule 11 of the County Court Rules, but submits that it would be unfair and offensive if an action were automatically struck out where a party had done precisely what the rule itself provided, namely had made a request within the 15-month period in rule 11(9).

He draws attention to a series of cases decided since Rastin v British Steel Plc [1994] 1 WLR 732 and suggests that the clear effect of these decisions is that a request for a hearing date is effective and treated as timely if made within the 15-month period, even if made outside the six-month period. He places particular reliance upon Ashworth v McKay Foods Ltd [1996] 1 WLR 542. He also places reliance on Ferreira v The American Embassy Employees Association [1996] 1 WLR 536. He submits that the rules themselves support the submission which he makes, and draws attention to other County Court Rules which prescribe a specific penalty for failure to comply, drawing the contrast with this situation in which the only sanction applies on failure to request a hearing date within the 15-month period. He accordingly submits that a request made within the 15-month period is effective.

Mr Stockdale, on behalf of the defendant, has also summarised his arguments most helpfully and clearly in a skeleton argument which he has elaborated orally today. At the forefront of his argument he places reliance on the language of Order 17, rule 11(3)(d) which is, he submits, unambiguous and mandatory; it imposes a duty on a plaintiff to request the fixing of a hearing date within six months; and there is (he submits) nothing in the rules which relaxes that requirement or exonerates a plaintiff who fails to comply with it. He submits that if Order 17, rule 11(9) were to be construed as the plaintiff contends, the purpose of rule 11(3)(d) would in practice be utterly defeated. He submits that the proper approach is to construe the two rules together and to conclude that on failing to make a request for a hearing date within six months a plaintiff has to obtain the leave of the court to proceed if he wishes to take advantage of his right to apply for a hearing date before the expiry of 15 months. He goes on to submit that a failure to comply with the requirements of paragraph (3)(d) is an irregularity which, while not nullifying the proceedings, has to be cured. He draws our attention to the judgment of Cumming-Bruce LJ in Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513, where the learned Lord Justice said:

"In my view it is plain that on the ordinary language of Ord. 2, r.1 where there is a failure to comply with the rules, what has been done or left undone remains irregular until the court takes action either to kill the particular proceeding or to cure it, to adopt the language of Mr Lindsay. It is wrong to construe this rule as saying that something that is done which fails to comply with the rules is not to be treated as irregular until the opposite party successfully applies to the court to set the proceedings aside.

As I construe Ord. 2, r.1, from the moment a step in proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document remains irregular inter partes until the matter has been brought before the court and the court has decided in which way to exercise the jurisdiction conferred by Ord. 2, r.1(2)."

The defendant relies on the rest of that passage of Cumming-Bruce LJ's judgment, culminating in the paragraph at 520E where he said:

"It is not correct, where there has been this kind of irregularity, to hold that the party who fails to comply with the rules can in the absence of waiver rely upon the irregular step or document as regular until the court has exercised its power under Ord. 2, r.2 to kill or cure."

Mr Stockdale goes on to draw attention to a series of passages in a number of reported judgments on Order 17, rule 11 (most of those judgments having been given by myself). They are, as he rightly points out, passages in which the court draws attention to the necessity of taking seriously, and complying with, the requirement to apply for a hearing date within six months. Reliance is placed on those passages for obvious reasons, namely as showing that the court intends the six-month requirement to have teeth and not merely to be an exhortatory provision which can be ignored with impunity.

Mr Stockdale also places reliance on references by the court in previous cases to the desirability of the County Court itself taking control of the timetable so as to make sure that the case is expeditiously progressed. Mr Stockdale is not deterred in his submissions by reference to cases such as Ashworth v McKay Foods Ltd since he points out, quite correctly, that the present point was not raised or argued in those cases and was hence not the subject of specific adjudication. He draws analogies with procedures in the High Court and reminds us of practice directions given by the Senior Queen's Bench Master for ensuring expedition in High Court proceedings.

Those in summary are the competing submissions which the parties have made on the hearing of these appeals. It would seem to me important at the outset to recognise that Order 17, rule 11 of the County Court Rules does introduce a new and, as the court has held in the past, draconian regime with the obvious intention of attempting to eliminate the delays which have disfigured the conduct of litigation, particularly personal injury litigation, in the past. Given that this is a new and to some extent revolutionary regime, there is, in my opinion, limited value in earlier authorities arising in quite different contexts. It is furthermore clear, as I think, that the rules must be construed so as to give effect to the intention of the rule maker. Here the object is to induce greater urgency in the conduct of civil litigation. It seems to me important that the court should be very slow to erect interlocutory hazards or obstacles which would increase the expense and delay which parties would encounter in seeking to overcome or circumvent them, and which would serve no valuable procedural purpose.

It furthermore appears to me that the court has plainly, in earlier cases, assumed that a request for a hearing date, if made within the 15-month period, is sufficient to save a plaintiff from the sanction provided in Order 17, rule 11(9). In Ashworth v McKay Foods Ltd , at page 550A, I myself said:

"But we would not accept that in a case governed by Ord. 17, r.11 mere failure to comply with the rules, without more, could amount to an abuse of the process. That is in our view so because (1) a 15-month limit, applicable in virtually every case, has been applied to the possible period of delay; and (2) it cannot have been intended that the court should have repeatedly to investigate, in cases where there had been compliance with rule 11(3)(d) within the 15 month period, the reasons underlying earlier failure to comply with the time-limits for complying with automatic directions."

That passage was relied on as showing, as I think it does, first, that the court was prepared to accept that there could be compliance with rule 11(3)(d), even though it was not within the 6-month time limit or any extended period; and second, that the court was anxious to discountenance the process of reviewing, in every case where the 6-month deadline had been passed, the reasons why it had been passed.

It is undoubtedly correct, as Mr Stockdale pointed out, that the present point was not argued either in Ashworth or in other similar cases. Veterans of this litigation will be surprised to learn that any point capable of being argued has not been argued in the past. It would appear to me that if the court had thought there was any merit in this point it would have been likely to take it itself. I, for my part, think that the assumption which animated both counsel and the court on these occasions was correct and that the court did indeed assume (with justification) that a request made within 15 months sufficed, despite the fact that there had not been an application for an extension.

The wording of the rule itself in my judgment supports that approach. It is quite clear that the sanction applies to failure to make a request within the 15-month period. As pointed out in the course of argument, there is some infelicity in the language of paragraph (9) of rule 11, in that it refers to a request made pursuant to paragraph (3)(d) within 15 months when a request made pursuant to paragraph (3)(d) has to be made within six months. The reconciliation of that problem is, in my judgment, that the reference in paragraph (9) is to a request of the nature specified in paragraph (3)(d) and is not obviously to a request made within the six-month time limit. The rule, as I understand it, clearly envisages that a request may be made at any time up to the 15-month period. That does not in my judgment mean that Order 17, rule 11(3)(d) is without effect. In the first place it enables a defendant to make an appropriate application to the court for the fixing of a timetable with the consequent risk of a costs' penalty to the plaintiff or the plaintiff's advisers. More importantly (because perhaps more realistically), it enables the court to summon the parties and impose a procedural timetable upon them which, indeed, this court would expect increasingly to be done. Although it is entirely legitimate for counsel to rely on a number of dicta urging compliance with the duty in paragraph (3)(d) to apply to request a hearing date within the time limit -- and I do not in any way shrink from or qualify the statements for which I myself am responsible -- there is nevertheless nothing in those dicta to suggest that a request within 15 months, to be valid, must be preceded by an application for extension.

I would not accept that the request for a hearing date after six months, and before the 15-month deadline, imports a retrospective application for an extension. The request for a hearing date must be made to the proper officer. Since the fixing of a hearing date is an act of a formal or administrative character which is not by statute the responsibility of the District Judge, the expression "proper officer" should be interpreted by virtue of Order 1, rule 3 of the County Court Rules to mean the Chief Clerk or any other officer of the court acting on his behalf. The proper officer so defined would not be a suitable person to whom to address an application calling for the exercise of discretion. The inference I draw is that if the plaintiff requests the proper officer to fix a hearing date after the expiry of the six-month period, but before the expiry of the 15-month period, the proper officer (i.e. the Chief Clerk or his surrogate) will fix the date. That is an automatic step not involving the exercise of discretion. It may be open to a defendant to apply to set aside that order on grounds that the plaintiff has been guilty of contumacious disregard of the rules, or bad faith, or ulterior motives capable of being regarded as an abuse of the process. That is a possibility left open by the court in Ashworth v McKay Foods at page 549H. Short of that the defendant has, in my judgment, no safeguard, save to take action earlier to procure compliance with the rules.

Lastly, I should add a word on Metroinvest Ansalt . That was, as is apparent from the report, a very strong case on the merits and the court was understandably anxious to ensure that an unmeritorious plaintiff was not entitled to accept a payment into court which a defendant would not have made if the plaintiff had given the discovery which it should have given at the right time. It is, however, clear that procedural irregularities vary greatly in significance and for my part I would question whether one rule is applicable to all such irregularities. That is the conclusion to which Sir Robert Megarry V-C came in Chapman v Chapman [1985] 1 WLR 599 at 605, and I would agree with it. In any event, it is in my judgment clear on the construction of this rule, which in effect establishes a code, that the rule laid down (if it is such) by Cumming-Bruce LJ cannot apply to non-compliance with Order 17, rule 11(3)(d). I would accordingly hold, on the construction of the rules and consistently with previous authority, that a request made for a hearing date to be fixed, if made after the expiry of the six-month period and before the expiry of the 15-months period, is validly made even though there has been no preceding request for an extension of the 6-month time limit. It follows that I would, for my part, agree with the decision of the Deputy District Judge and disagree with the decision of the Recorder, while hastening to acknowledge that he did not, when giving judgment, have the benefit of a number of cases decided in the Court of Appeal since October 1995.

I turn to the second of the three appeals, Perry v Wong . This is an appeal by the plaintiff against an order of Mr Recorder Garside QC given in the St Helens County Court, sitting in the Wigan Magistrates' Court, on 12 October 1995. In this case the plaintiff suffered a motor accident on 7 September 1990. A writ was issued in the High Court and a brief defence was served. On 20 September 1993 proceedings were transferred to the County Court and, for purposes of the automatic directions regime, the trigger date was 4 October 1993. That meant that the six-month time limit expired on 4 April 1994. On 13 September 1994 the plaintiff made a request for a hearing date and on 4 January 1995 the 15-month time limit expired.

The matter first came before Deputy District Judge Munro on 11 July 1995, when he ordered that the action should be struck out on the ground that a request for a hearing date was invalid if made outside the six-month period and without an application for an extension. There was an appeal to Mr Recorder Garside on 12 October 1995 and he dismissed the appeal. He held that a plaintiff must obtain an extension, even if he requested a hearing date within 15 months, but also held that the request for a hearing date imported or implied within it an application for an extension. That application, in his judgment, called for the application of the tests laid down in Rastin, and he concluded that the plaintiff could not show that the litigation had been conducted with at least reasonable diligence.

That decision therefore raises the question: if a request for a hearing date is made after the six-month period, but before the expiry of the 15-month period, is the application for an extension imported within such a request to be judged according to the principles laid down in Rastin? The plaintiff's answer to that question is that the Rastin principles apply only in the situation to which they were directed, namely that in which an action had been automatically struck out under Order 17, rule 11(9). For the defendant, Mr Stockdale accepts that the strict Rastin tests are inappropriate and invites the court to apply ordinary principles applied to any application for an extension of time, and he does not suggest that the court should formulate a third test to be applied in this unusual situation.

As is apparent from the judgment already given in the first of the three appeals, this is a question which does not arise. It is, I hope, plain from what I have already said that the premise of the question is not established, because a request for a hearing date made between the sixth and the fifteenth month does not import or imply a retrospective application for an extension of time. Accordingly, in my judgment the Recorder was wrong. The appeal should be allowed and the plaintiff's action permitted to proceed.

The third of the three appeals, Sampson v Moon , raises a similar question. In this case the plaintiff was involved in a road traffic accident on 1 November 1990. Proceedings were issued on 20 October 1993. A defence was served and pleadings closed on 3 December 1993, from which date the timetable began. That meant that the six-month period expired on 3 June 1994 and shortly thereafter, on 24 August 1994, the plaintiff's solicitor wrote to the court requesting a hearing date. That was a number of months before the expiry of the 15-month period on 3 March 1995. When that period expired, however, the defendant contended that the action had been struck out automatically under Order 17, rule 11(9), and District Judge Dawson agreed with that submission. The plaintiff appealed to His Honour Judge Elystan Morgan, and he allowed the appeal, taking the view that a request for a hearing date had been duly made within the 15-month period, and that there was no need for a preceding application for an extension of time. He gave leave to appeal against his decision, but it will be apparent that in my judgment the judge was right and that the appeal should accordingly be dismissed. I would so hold.

LORD JUSTICE AULD: I agree.

SIR BRIAN NEILL: I also agree and I would only add this. Order 17, rule 11(9) provides as follows:

"If no request is made pursuant to paragraph (3)(d) within 15 months of the day on which pleadings are deemed to be closed (or within 9 months after the expiry of any period fixed by the court for making such a request), the action shall be automatically struck out."

It is argued on behalf of the defendants that after six months have elapsed from the date when the pleadings are deemed to be closed (the trigger date), a plaintiff is required to obtain an extension of time from the court before applying to the proper officer to fix a date for the hearing. The phrase "the trigger date" is taken from the judgment of Sir Thomas Bingham MR in Williams v Globe Coaches [1996] 1 WLR 553 at 556C.

If an extension of time is not obtained, it is said, no valid request can be made after the six months have elapsed and the guillotine will fall at the end of 15 months, notwithstanding that an application to fix a date is made in the period between 6 and 15 months from the trigger date.

If this argument were right, however, it would mean that whereas, if the court fixes the primary period for making a request a plaintiff has, in accordance with the terms of paragraph 9, a further period of nine months after the expiry of any period fixed by the court before the guillotine falls, there is no comparable period of reprieve if the primary period is fixed by rule 11 (3)(d). I cannot imagine that the draftsfman of the Rules intended to make such a distinction. Reading paragraphs (3)(d) and (9) together in the context of this code, and for the reasons given by my Lord, I am satisfied that even though the primary period fixed by paragraph 3(d) is exceeded the action is not to be automatically struck out provided a request to fix a date for hearing is made within 15 months from the trigger date.

Order: Appeals allowed in Jones v Roe Shopfitting Ltd and Perry v Wong with costs; appeal dismissed in Sampson v Moon , appellant to pay respondent's costs. Leave to appeal refused.

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