England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTI 97/1342/G

IN THE COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE DAVIES )

Royal Courts of Justice

Strand

London W2A 2LL

Friday, 30th January 1998

B e f o r e

LORD JUSTICE HOBHOUSE

LORD JUSTICE BROOKE

SIR JOHN VINELOTT

CHRISTINE FIGGETT

Appellant

v.

DAVID CHARLES EDWIN DAVIS

Respondent

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 404 1424

Official Shorthand Writers to the Court)

MR MARTIN SPENCER (instructed by Messrs Nigel Walshe & Co, Driffield YO25 7PS) appeared on behalf of the Appellant/Plaintiff.

MISS MARY O'ROURKE (instructed by Messrs Hempsons, Manchester M2 3LF) appeared on behalf of the Respondent/Defendant.

J U D G M E N T

(As approved by the Court )

©Crown Copyright

LORD JUSTICE HOBHOUSE: I will ask Lord Justice Brooke to give the first judgment.

LORD JUSTICE BROOKE: This is an appeal by the plaintiff from a judgment of Her Honour Judge Davies in the Kingston-upon-Hull County Court on 16th July 1997, declaring that the plaintiff's action was struck out in accordance with the provisions of the County Court Rules, Order 17, rule 11, on 4th August 1996, and refusing to exercise her discretion to reinstate the action. Her decision not to reinstate the action is not challenged and the only issue on this appeal is whether the judge was right to declare that the action be automatically struck out.

The case raises a novel point, which was not expressly decided in the leading cases of Bannister v SGB plc [1997] 4 All ER 129 or Greig Middleton & Co Ltd v Denderowicz [1997] 4 All ER 181 or any of the earlier authorities on the rule.

In short, the question is if a district judge strikes out a defence in Form N9, as inadequately pleaded, do automatic directions start to run again if his order is silent on the subject?

This was a dental negligence action arising out of a course of dental treatment between October 1982 and February 1991. Particulars of claim were issued on 17th August 1993, and on 16th September 1993 Form N9 was returned to the court stating that a fully pleaded defence would follow as soon as possible. On 21st September 1993 automatic directions were issued in form N450. It was common ground that the trigger date based on the delivery of the Form N9 was 30th September 1993 and the guillotine date 30th December 1994.

There followed a lot of correspondence between the parties concerning general extensions of time for a fully pleaded defence, and before the guillotine date the plaintiff's solicitors wrote to the defendant's solicitors on 5th December 1994 in these terms:

"We enclose now by way of service sealed copy Notice of Application returnable on Wednesday 21st December 1994 at 12.30 pm.

Clearly, the timetable could not properly be expected to run at all until such time, if any, that there is filed a fully pleaded Defence and it may be that this is a case where such a Defence will be unnecessary. In the circumstances we presume that you will agree to our application. We merely apprehend that the District Judge may want to provide for some date for the filing of the fully pleaded Defence so that there is some certainty as to when the timetable should effectively begin to run. We would suggest that to concentrate our minds on the possibility of a settlement we specify that the fully pleaded Defence be filed within, say, two months and the timetable begin to run thereafter.

We can of course between ourselves, agree to extend that time for the filing of the fully pleaded Defence.

We might mention that we recently had a case before the District Judge in the Kingston upon Hull County Court where he directed inter alia that the form of 'holding defence' which you filed on 16th September 1993 is not a defence at all and consequently time should never begin to run under Order 17 Rule 11 until there is a fully pleaded Defence in any event."

The application which was before the court was an application by the plaintiffs for:

"... an Order that the time for the making of the request to fix a trial date herein be extended to such time as appears fit to this Honourable Court and that the timetable be altered accordingly.

The grounds on which this application are made are that with the Plaintiff's consent the Defendant has not yet filed a fully pleaded Defence because of the attempts made between the parties to reach a settlement."

On 20th December 1994 the defendant's solicitors replied quite briefly:

"We consent to your application returnable on 21 December. On the basis of our experience in other County Courts it is only necessary to seek an Order to extend the time for setting down by say 6 months and there is no requirement to set out a formal timetable with steps to setting down. We hope that this is of some assistance and return your duly endorsed application in any event."

On the following day the defendant was unrepresented. The solicitor for the plaintiff appeared before District Judge Hill, and he made an order not in the terms of the consent order put in front of him, but that:

"1. The defence dated 16 September 1993 be struck out as an inadequately pleaded defence.

2. The defendant do file and serve a fully pleaded defence within 2 months

3. Costs in cause."

He gave no manual directions as to the future timetable and he said nothing in the order about the possible applicability of automatic directions. The plaintiff by agreement extended the time for service of the defence to 21st April 1995, and on 19th April 1995 a defence was delivered. It contained a series of denials, admissions and non-admissions, and no complaint was made about the adequacy of this pleading until very much later.

There were continuing without prejudice discussions concerning the settlement of the action, and it is clear that the plaintiff was waiting for a prognosis from a consultant in dentistry.

On 2nd November 1995 the plaintiff's solicitors delivered amended particulars of claim amending the particulars of negligence. They sent the defendant's solicitors an up-to-date expert's report and a second psychological report, warned that there would be an amendment to the schedule of special damages and asked them to confirm that they would consent to an amendment of the particulars of claim. The without prejudice correspondence continued. On 8th July 1996 an order was made granting leave to amend the particulars of claim, and on 6th September 1996 amended particulars of claim were served. The plaintiff's solicitors asked the defendant's solicitors whether the case was to proceed to trial or whether the defendant would settle the claim, but by this time if the automatic directions had started to run again even though no notice in Form N450 was ever sent out by the County Court after the fully pleaded defence was served and delivered on 9th April 1995, the guillotine date would have passed, and on 21st October 1996 the defendant's solicitors took the view that the claim had now been automatically struck out pursuant to Order 17, rule 11 and applied to the court for a direction to that effect.

On 24th February 1997 Deputy District Judge Wise dismissed the defendant's application. He gave directions for trial. He regarded the defence as still inadequately pleaded and made an unless order. The defendant appealed, and on 16th July 1997 Her Honour Judge Davies allowed his appeal. By this time the case of Bannister v SGB Plc [1997] 4 All ER 129 had been decided, which clarified the status of a defence in Form N9, but she interpreted District Judge Hill's order as meaning that his intention was to give the plaintiff the benefit of re-timetabling, and she said that this was clear from the correspondence passing between the parties before this application was made. She compared the situation with a situation mentioned in Bannister at paragraph 16.6, when a judgment in default of defence is set aside. She said that in those circumstances, since no defence has ever been delivered, automatic directions run once the first defence in an action is delivered. She therefore declared that the action was automatically struck out. She refused to reinstate it and, as I have said, the plaintiff makes no appeal against the second part of that order.

Mr Spencer on behalf of the plaintiff has referred us to paragraph 14.5 of the judgment in Bannister, which reads as follows:

"If a new order simply grants an extension of time for

for fulfilling one of the obligations referred to in r 11(3)(a), (b) or (c), that is not of itself going to disapply the automatic directions (including the obligation to request a hearing date with the draconian consequences for failure). However, if a direction of the court makes compliance impossible, or if an order of the court is simply inconsistent with the automatic directions continuing to apply, the approach of the Court of Appeal has not been to attempt to remould or suspend their implementation for a period of time, or something of that nature, but to declare that they do not apply. Where directions are given which might impinge on the automatic directions, it is preferable for the order to deal expressly with the operation of the automatic directions, so that people's minds can be concentrated on the question whether they are to be disapplied or not. This is a practice which we believe is now happening, and is greatly to be encouraged."

In fairness to District Judge Hill, the judgment in Bannister was not of course available to him in December 1994.

Mr Spencer submits that automatic directions were ousted by the order of 21st December 1994, and he referred us to paragraph 18 of Bannister, which shows that the effect of the ouster of automatic directions where no manual directions are given is to leave the action directionless. He submits that this was the true effect of the district judge's order in December 1994. He argued that the judge was wrong to operate on the assumption that in every case there must be a trigger date to which automatic directions apply, and that she was wrong to have difficulty in contemplating that a case might be left directionless. He submitted that the judge's remarks about the intention of the district judge on 21st December 1994 with the help of a reconstruction from the earlier correspondence was irrelevant. Whatever the district judge may have intended, Mr Spencer submitted that it is the effect in law of what he did that matters. He ousted the automatic directions and left the case directionless. There is no scope in the scheme of Order 17, rule 11, he said, for automatic directions to reappear after they have run for one period of time following the delivery of a defence, and it was necessary for the district judge to give manual directions in order to set out a timetable for the action. He reminded us in this context that if the district judge had done that, he could not have imposed an automatic strike out.

Miss O'Rourke, for her part, submitted that the district judge could have made a number of orders on 21st December 1994, but the effect of the order he made was that he struck out the defence in Form N9 as if it had never been a defence at all and that, as a matter of law, it should therefore be treated as if it had never existed so that the automatic directions, which it is common ground ran from the original trigger date of 30th September 1993, did not exist either. When we asked her for authority for this submission, she was unable to provide one, and she accepted that this was a most unusual situation, but she fell back on the argument that both the parties and the district judge all believed in December 1994 that this was the effect of the order the district judge had made.

In my judgment there is no scope within the scheme of Order 17, rule 11 for a district judge to create a situation where automatic directions which have once run should be automatically cancelled out by the effect of an order striking out a defence in Form N9 which had been served some months before, and in those circumstances there is no provision under the rule for the automatic directions to reappear.

It follows, therefore, although I have considerable sympathy with the judge, who was dealing with a quite novel point which had not been decided by this court in Bannister, the effect of the order of 21st December 1994 was to leave the action directionless, apart from the direction that a fully pleaded defence should be served within two months. It follows that the judge was wrong in declaring that the action had been automatically struck out and the appeal should be allowed. If my Lords agree with this judgment, it will be desirable for a further application for new directions for the action to be made to the district judge as soon as possible and that an effective timetable is then set out for the further progress of the action.

SIR JOHN VINELOTT: I agree.

MR JUSTICE HOBHOUSE: I also agree.

ORDER: Appeal allowed; it is declared that the plaintiff's claim has not been automatically struck out pursuant to the provisions of the County Court Rules, Order 17, rule 11; costs of the appeal and the hearing before Judge Davies be the appellant's in any event; it is directed that the matter be remitted to the district judge for further directions, but his order made on the previous occasion that the defendant pays the plaintiff's costs of and incidental to this application in any event to be taxed if not agreed, shall stand; legal aid taxation of plaintiff's costs in the courts below.

(Order not part of approved judgment)