England and Wales Court of Appeal (Civil Division) Decisions
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Bhatt v Chelsea & Westminster Healthcare NHS Trust [1998] EWCA Civ 1243 (20 July 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1243.html
Cite as:
[1998] EWCA Civ 1243
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IN
THE SUPREME COURT OF JUDICATURE
SLJ 98/6105 CMS1
COURT
OF APPEAL (CIVIL DIVISION
)
ON
APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S
BENCH DIVISION
Royal
Courts of Justice
Strand
London
WC2
Monday,
20th July 1998
B e f o r e :
LORD
JUSTICE PETER GIBSON
- - - - - - - -
RAY
BHATT
Plaintiff
- v -
CHELSEA
AND WESTMINSTER HEALTHCARE NHS TRUST
Defendant
- - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of Smith
Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
- - - - - - - -
MR.
J. HOLMES-MILNER
(instructed by The Sethi Partnership, Ruislip, Middlesex) appeared on behalf of
the Applicant/Plaintiff.
MR.
C. CROWN
(instructed by Messrs Radcliffes, Westminster) appeared on behalf of the
Respondent/Defendant.
- - - - - - - -
J
U D G M E N T
(
As
approved by the Court
)
- - - - - - - -
Crown Copyright
LORD
JUSTICE PETER GIBSON: This is an application by the plaintiff, Dr. Bhatt, for
an extension of time for appealing from the order of Sir Maurice Drake sitting
as a judge of the High Court. By his judgment, delivered on 16th October 1997,
the judge dismissed the plaintiff's appeal from the order of Master Trench on
25th July 1997. The Master had refused to strike out the plea of qualified
privilege in the defence of the defendant, Chelsea and Westminster Healthcare
NHS Trust. The judge gave the defendant leave to re-amend its already amended
defence. The judge gave leave to appeal on the basis that it was an
interesting and novel point to some extent.
The
order of the judge was not sealed until 8th January 1998, apparently through no
fault of the parties. Nevertheless, this application was not made until 15th
May and was not served on the defendant until some three weeks later.
The
case in which this application is brought is one for libel. The plaintiff is a
physician specialising in the treatment of neurological disorders in children
caused by a deficiency of Vitamin B12. He was for a time the joint director
of the Vitamin B12 unit in the Chelsea and Westminster Medical School in the
hospital of the same name. The defendant runs that hospital. The plaintiff
had an honorary contract with the hospital. The defendant became concerned that
the plaintiff was instrumental in providing information to the press, with the
intention of generating favourable publicity for the unit, thereby raising the
hopes and expectations of parents of children with neurological disorders. The
defendant decided to close the unit during January 1996. The defendant received
various inquiries from the press. It prepared press releases to give its
reasons for the closure. The plaintiff complains that three press releases
were libellous. He commenced this action on 8th October 1996. The defendant
pleaded in paragraph 7 of the defence qualified privilege in respect of the
press releases. The plaintiff applied to strike out that paragraph. The
master and the judge refused to do so, the judge holding that the releases were
the subject of that privilege if the facts could be made out. There then
followed the delay in perfecting the judge's order and in applying for an
extension of time in which to serve the notice of appeal.
The
plaintiff has sworn an affidavit in which he claims that the delay is not
inordinate in the circumstances which he there explains. He said that
immediately after the hearing on 16th October 1997, he instructed his former
solicitors, Messrs Peter Carter-Ruck & Partners ("Carter-Ruck"), to
prepare a notice of appeal. His chronology in fact shows that counsel also was
instructed at that time. He says that Carter-Ruck confirmed in the middle of
November that steps were being taken to prepare the notice of appeal. The next
event to which the plaintiff deposes is his absence from this country between
20th December 1997 and 16th January 1998. On his return he received a copy of
the sealed order of the judge from Carter-Ruck and a notice of change of
solicitors. Carter-Ruck were ceasing to act as his solicitors. He says that,
despite several attempts to obtain from Carter-Ruck a transcript of the judge's
judgment, his new solicitors, whom he obtained about the middle of February
1998, did not receive the transcript until 5th March. Counsel's opinion was
received on 23rd March. Counsel was instructed to draft the notice of appeal.
That was received on 23rd April. The plaintiff's solicitors then wrote to the
defendant's solicitors, seeking consent to filing the notice of appeal out of
time. That was refused on 29th April, and then on 15th May the plaintiff
himself took the application which is now before me to this court to file it.
The
plaintiff also deposes in his affidavit to his financial problems. A
bankruptcy petition was issued on 27th October 1997. A voluntary arrangement
was proposed and approved on 20th January 1998. I have been told by Mr.
Holmes-Milner, appearing for the plaintiff, that the supervisor under the
voluntary arrangement in effect controls all his expenditure, and that it is
his impecuniosity that is the key ingredient in the delay. The plaintiff also
deposes to other matters which have commanded his attention, such as the other
proceedings in which he has been involved, and also to the work which he has
been doing in connection with his speciality of treating children with
neurological disorders.
For
the defendant, Mr. Woolhouse, the defendant's solicitor, has deposed to the
reasons why the defendant opposes the application. He points out that the
application was not served on the defendant until it accompanied a letter of
5th June of this year, that before the order was sealed the plaintiff had 11
weeks to prepare a notice of appeal, and that the difficulties which the
plaintiff has experienced over his change of solicitors and in obtaining
documents from Carter-Ruck have nothing to do with the defendant. He points to
the financial disadvantage to the defendant, a National Health Service Trust,
of being involved in proceedings against an admittedly impecunious litigant who
has already lost in front of the master and the judge.
The
points in issue in this case have been well argued by Mr. Holmes-Milner and by
Mr. Crown for the defendant. The provisions of the Rules of the Supreme Court
relevant to this application are clear. By O.59,r.4(1) every notice of appeal
must be served not later than four weeks after the date on which the judgment
or order of the court below was sealed or otherwise perfected. By O.59,r.15(1)
the court below has power to extend time for serving notice of appeal under
r.4, provided that the application is made before the expiration of the
four-week period. However, by O.3,r.5 the court may, on such terms as it
thinks just, by order extend the period within which a person is required by
the rules to do any act in the proceedings.
The
four factors which are normally taken into account by this court in exercising
its discretion are (1) the length of the delay; (2) the reasons for the delay;
(3) the chances of the appeal succeeding if time for appeal is extended; (4)
the prejudice to the respondent if time is extended (see
C.M.
Van stillevoldt B.V. v E.L. Carriers Inc
[1983] 1 WLR 207). That was a case relating to an extension of time for
setting down an appeal, but the principles referred to by Griffiths LJ in that
case are regularly followed on applications to extend time. They are not
necessarily the only matters to which the court should have regard when
considering an application such as that before me today. All relevant
circumstances must be taken into account, and Mr. Holmes-Milner has suggested
that there are other matters which are relevant. He points out that there is
no plea of justification in the defence. If the paragraph relating to
qualified privilege is struck out, he says that it could be determinative of
the case. He says that the point in issue is of some importance. He accepts
that it is right for this court, in accordance with the guidelines laid down by
this court in
Arbuthnot
Latham Bank Ltd and Others v Trafalgar Holdings Ltd
[1998] 2 All ER 181, to have regard to the effect of delay on other litigants and to
the importance for the administration of justice that time limits should be
observed, but he submits that in this case that should not be a determinative
factor because this is the first time that the plaintiff has been guilty of a
delay and the effect on other litigants and on the administration of justice is
not great. I shall consider the various points in turn, though I do so against
the background of a good deal of authority as to the approach of the court in
relation to matters where there has been a failure to comply with time limits
in the rules.
My
attention has been drawn by Mr. Crown to what was said by Griffiths LJ in the
Stillevoldt
case at page 212, as to the importance for litigants to adhere to the timetable
provided by the rules, that being, in the words of Griffiths LJ, essential to
the orderly conduct of business in the Court of Appeal. The Lord Justice
warned the profession that the attitude of the court to previous lax practices
was hardening in order to ensure, for the benefit of all litigants, that the
business of the Court of Appeal is conducted in an expeditious and orderly
manner. My attention was also drawn to the guidelines laid down in
Mortgage
Corporation v Sandoes
(Times
Law Reports, December 27th, 1996). Millett L.J., in expressing those
guidelines, said that he did so with the approval of the Master of the Rolls
and the Vice Chancellor. Ten guidelines were set out as guidance on the
future approach which litigants could expect the court to adopt to the failure
to adhere to time limits contained in the rules or directions of the court. Of
those I will read four:
"1.
Time requirements laid down by the rules and directions given by the court were
not merely targets to be attempted; they were rules to be observed.
2.
At the same time the overriding principle was that justice must be done.
3.
Litigants were entitled to have their cases resolved with reasonable
expedition. The non-compliance with time limits could cause prejudice to one or
more of the parties to the litigation.
10.
In considering whether to grant an extension of time to a party who was in
default, the court would look at all the circumstances of the case including
the considerations identified above."
Mr.
Crown also referred to
Finnegan
v Parkside Health Authority
[1998] 1 WLR 411. In that case this court had said that the judge in the court
below had erred by simply looking at the delay in that case, which was
considerable, together with the absence of an explanation. Among the matters
which any court had to take into account were matters such as the prejudice to
the respondent on an application for an extension of time. Mr. Crown relied in
particular on what was said in the
Arbuthnot
Latham Bank
case. Lord Woolf MR, delivering the judgment of the court which included
Waller and Robert Walker L.JJ., at page 191 said:
"It
is therefore in the interests of litigants as a whole, that the court's time is
not unnecessarily absorbed in dealing with the satellite litigation which
non-compliance with the timetables laid down in the rules creates.... From now
on it is going to be a consideration of increasing significance. Litigants
and their legal advisers, must therefore recognise that any delay which occurs
from now on will be assessed not only from the point of view of the prejudice
caused to the particular litigant whose case it is, but also in relation to the
effect it can have on other litigants who are wishing to have their cases heard
and the prejudice which is caused to the due administration of civil justice.
The existing rules do contain time limits which are designed to achieve the
disposal of litigation within a reasonable time scale. Those rules should be
observed."
Although
that was said in relation to an application for the dismissal of an action for
want of prosecution, it is clear that the Master of the Rolls was giving
general guidance when the court was faced with an application resulting out of
a failure to observe time limits prescribed by the rules.
With
all that guidance in mind, I turn to the particulars factors in this case.
First, the length of the delay. Mr. Holmes-Milner realistically accepted that
the delay was serious. To my mind, that was sensible on his part. It is plain
that the four-week time limit has been greatly exceeded, and that is made worse
by the fact that the plaintiff had 11 weeks between the judgment being
delivered and the perfection of the order. From the judgment to this
application being made, seven months have elapsed. From the sealing of the
order to 15th May, four months and seven days have elapsed.
Second,
the reasons for the delay. Despite the plaintiff's best efforts to excuse the
delay, in my judgment, he has not been able to explain satisfactorily the full
extent of the delay. He had instructed Carter-Ruck, as well as counsel, to
prepare a notice of appeal the day that judgment was given. Having been told
in mid-November by Carter-Ruck that that was in hand, he appears to have done
nothing about checking up on the production of a draft notice of appeal before
he went abroad more than a month later. Time of course only starts to run with
the sealing of the order, but there is really little explanation as to why it
took from 16th January, when the plaintiff returned from India and found that
Carter-Ruck were no longer acting for him, to mid-February, to obtain other
solicitors. He had been involved in litigation. He was therefore not
inexperienced. He should have been aware that the courts do have strict time
limits, but yet the time for lodging a notice of appeal was allowed to expire.
True, there was some delay which may not have been attributable to the
plaintiff or his present solicitors in obtaining a transcript of the judgment,
but that had been received on 5th March, and yet it took until 23rd April
before a draft application was obtained from counsel, and yet further delay of
3 weeks before that application was presented to the court. In my judgment,
therefore, the delay is not excusable. I say that, notwithstanding the fact
that plainly the plaintiff had his problems and distractions, the problems
being largely financial, but, nevertheless, if he wanted to pursue the appeal,
he really should have done more and done it more speedily. The judgment is
only nine pages long. It was a comparatively simple matter, one would have
thought, in the light of that judgment which rehearses the arguments, to
prepare a notice of appeal and to lodge it. The financial difficulties under
which he labours and the distraction of the other proceedings have nothing to
do with the defendant or the libel case with which I am concerned.
The
third factor, however, is in the plaintiff's favour. On the merits the judge
himself thought that the appeal was worthy of going ahead. It has not been
argued that that was wrong. Also, the fourth factor, prejudice to the
defendant, is favourable to him, given that the prejudice which is relevant is
the prejudice caused by the delay. The defendant has not been able to point to
any such prejudice resulting directly from the delay.
In
addition to those four factors, I have taken into account other matters,
including the points mentioned by Mr. Holmes-Milner, that if the defence is
struck out that could be determinative of the case. However, as against that
can be set the fact that, if the appeal is not allowed to go ahead, it will not
prevent the plaintiff from arguing at the trial that the defence of qualified
privilege is inapplicable. To my mind, it is an important point that this will
not mean that the plaintiff's case is struck out or the action brought to an
end. There will be another day on which he can fight the issue. Moreover, he
has had two bites of the cherry, in the form of the unsuccessful applications
before the master and the unsuccessful appeal before the judge. But, to my
mind, what tips the scales against the plaintiff in favour of not extending
time is the factor now brought out clearly by the
Arbuthnot
case. There is a new attitude to delay in the courts. It is important that the
courts should generally insist on adherence to the rules because of the effect
of delay on other litigants anxious to have their cases heard. Satellite
litigation, such as this, is not to be encouraged. That is not to say that the
interests of justice should ever be overlooked, and I recognise that the
absence of prejudice to the respondent may in many cases be determinative of
the application. But in this case the plaintiff is able to seek to establish
at the trial that the defence of qualified privilege is inapplicable, and if
there is an unsuccessful outcome at the trial he has the chance to come to this
court on appeal. In my judgment, therefore, the factors in the plaintiff's
favour do not outweigh those against extending time.
For
these reasons it seems to me that the appropriate course, despite Mr.
Holmes-Milner's attractive arguments, is to dismiss this application.
Order:
Application refused with costs.