England and Wales Court of Appeal (Civil Division) Decisions

Case No: B1/2000/2055

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

COMMERCIAL COURT (MORISON J)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday, 1st December 2000

LORD JUSTICE LATHAM:

1. This is an appeal from the Commercial Court which raises a point of practice under the transitional provisions of the Civil Procedure Rules (CPR) which has caused some difficulties. The provision in question is paragraph 19 of the Practice Direction to Part 51, referred to hereafter as CPR 51 PD-019. Sub-paragraph (1) of this paragraph reads:

"If any existing proceedings have not come before a judge, at a hearing or on paper, between 26th April 1999 and 25th April 2000, those proceedings shall be stayed."

2. The question is whether proceedings can be said to have come before a judge on paper if he has simply perused the file, or correspondence, or whether it refers to some more formal procedure, within the Rules.

3. The appellants are reinsurance companies. They claim damages from the respondents, who are insurance brokers, for misrepresentation and material non-disclosure allegedly causing them loss in relation to business in Argentina. The events of which the appellants complain occurred in or about April 1994. The writ and points of claim was served in January 1998. Pleadings and discovery followed thereafter, culminating in a request by the appellants for copies of documents, which were served by the respondents' solicitors under cover of a letter dated the 18th November 1998. No further step in the action was taken by the appellants until the events with which we are concerned in March and April 2000.

4. By letter dated the 9th March 2000, the appellants' solicitors wrote to the respondents' solicitors enclosing a draft application and a draft consent order. The letter made it clear that the appellants' solicitors were mindful of the provisions of CPR 51 PD-019, and were seeking to avoid an automatic stay pursuant to that paragraph. The draft application sought a case management conference under the CPR at the first available date; the draft consent order was in the same terms.

5. In a faxed letter of the 17th March 2000, the respondents' solicitors replied that they were surprised to receive the letter bearing in mind that the last correspondence had been in November 1998. It stated that the respondents did not agree to the proposed course of action and enclosed a note from the Admiralty and Commercial Court Registry which, we understand, was prepared in March 2000 in anticipation of the problems that were likely to arise as the deadline of the 25th April 2000 approached. The relevant parts of that note read as follows:

"The Registry is anxious to avoid a disorganised flurry of activity on the eve of the time limit which will risk the efficient conduct of the courts' business.

There may be a significant number of cases which are potentially exposed to the stay. It is suggested that the parties to all those cases vulnerable to the automatic stay but who believe a stay would be inappropriate shall write jointly to the court:

1. Setting out the brief history of the action.

2. Explaining why the proceedings have not come before a judge since April 1999.

3. How much progress towards carrying out the next stage has been achieved.

4. What proposals are suggested for the future conduct of the proceedings.

Such a letter will be treated as bringing the proceedings before the court. The court will either approve the proposals or order that there should be a CMC by a certain date (or make such other order as seems fit)."

6. The letter concluded as follows:

"As your clients are the Claimants in this action, we suggest that you prepare the first draft of a joint letter for our consideration. If it is not possible to agree the terms of a joint letter, it may be necessary for us to write separately to the court. We do, however reserve all our clients' rights in relation to your clients failure to take any steps in the proceedings since September 1998."

7. The appellants' solicitors did not reply until the 18th April 2000, when they sent by fax to the respondents' solicitors a draft proposed joint letter to the court setting out the history of the action, explaining that the period since November 1998 had been spent seeking evidence from Argentina, and proposing directions, including a case management conference for late June 2000.

8. By fax dated 19th April 2000, the respondents' solicitors made it clear that they were not prepared to put forward a joint letter and would be writing to the court inviting it to apply the provisions of CPR 51 PD-019.

9. On the 19th April 2000, the appellants' solicitors faxed to the court a letter enclosing the draft letter to which I have referred, making it clear that it was not agreed by the respondents, and concluding:

"As this is the last day before the Easter recess, we will be most grateful if you could place this letter and the attached draft before the judge with a request that either he makes directions in the terms proposed in the draft or, alternatively, direct that the claimants should take out a case management conference for the first available date in May."

10. This letter was copied to the respondents' solicitors, who in turn faxed a letter to the court confirming that they did not agree the draft joint letter and concluding:

"In the circumstances we would be grateful if you would ensure that a copy of this letter and the attached correspondence is provided to the judge who will be reviewing Hextall Erskine's request. As indicated in the correspondence, we would ask the court to apply the provisions of Part 51 imposing an automatic stay."

11. The correspondence was put before Morison J, who, on the 20th April 2000 endorsed on the fax cover sheet from the respondants' solicitor's letter to the court:

"Automatic stay to apply - claimants have not taken sufficient steps to progress a relatively stale claim."

12. The appellants have treated that endorsement as an order, and appeal to this court on two grounds. The first ground is that the proceedings had in fact come before a judge at a hearing on paper on the 20th April 2000, that is within the time limit, so that the automatic stay could not apply. The second ground, in the alternative, is that if the judge had jurisdiction to make the order pursuant to the provisions of the CPR, it was unjust in that the judge failed to give the parties an opportunity to submit evidence and argument and to consider all relevant matters necessary for the exercise of his discretion to order a stay of the proceedings.

13. The respondents, in a respondents notice, assert that the matter did not come before a judge within the meaning of CPR 51 PD-019 and that the proceedings are therefore automatically stayed. In the alternative, they assert that if the appellants' solicitors' letter of the 19th April 2000 amounted to an application to the court, there were no good grounds for lifting the stay. In the further alternative, they assert that the action should be stayed pursuant to CPR Part 3.1(2)(f) or Part 3.3, and seek to put before the court evidence to show that the action should be stayed on its merits.

14. Mr Adam on behalf of the appellants, has restricted his argument on the appeal to the question of whether or not the automatic stay under CPR 51 PD-019 applies. This is an issue of some general importance in view of the fact that, as we understand it, the Commercial Court had to consider a substantial number of cases in April which raised a similar problem. His submission, in a nut shell, is that the facts that I have related make it clear that in a literal sense, these proceedings came before Morison J on the 20th April 2000, on paper, and that that was all that was necessary to exclude the operation of the automatic stay. In his submission, the appropriate test is whether or not the proceedings were the subject of consideration by a judge. He submits that Morison J's endorsement makes it clear that he not only looked at the papers, but considered their contents, and came to a decision, in the exercise of his discretion, namely to allow the automatic provisions of CPR 51 PD-019 to apply.

15. He submits that this straight forward reading of the words of the paragraph is supported by the decision of David Steel J in In the matter of David Agmashenebezi in which judgment was given on the 5th May 2000, of which we have a transcript. In that case the claimants gave notice of intention to proceed on the 22nd February 2000, the last letters between the parties having been sent in December 1998. They then made application for a case management conference, and were given the first available date, namely the 5th May 2000. Because that was a date after the 25th April 2000, so that prima facie the automatic stay would apply, the claimants wrote to the court asking for "permission to continue the action" after the 25th April. The defendants wrote a letter in opposition. These letters were put before Timothy Walker J, who endorsed on one of the letters:

"Permission refused in the light of the contents of Richards Butlers "(the defendants' Solicitors)" letter dated 2nd March 2000."

16. Ince & Co., the claimants' solicitors then wrote to Timothy Walker J's clerk on the 13th March 2000 asking whether it would be possible for the judge to elaborate on his reasons. On the 16th March 2000 Timothy Walker J revoked his earlier decision in the following terms:

"I have now received a letter dated the 13th March from Inces in which they ask for a more detailed reasons for my order. The thrust of Richards Butlers's letter is crystal clear. This is a stale case, as is demonstrated by its action number, in which nothing much has happened since the previous notes of intention to proceed was given by Inces's as long ago as 1st October 1997. (I perhaps would add in parentheses that the earlier notice of intention to proceed was in fact given by the claimants former solicitors Messrs Clyde & Co.). It is thus on the face of it a paradigm case for the application of an automatic stay under 51-19 (if applicable). There was therefore no reason to grant any extension of time.

However I dealt with that without seeing evidence as to the steps in the action or hearing argument. I propose, therefore, to revoke my previous order made on the 6th March using the power given to me by CPR 3.17. The result will be the provisions of 51-19 will take their course unless Inces make an application to the contrary. Inces must take such steps that they think fit. I direct that any application by Inces to be made on 14 days notice is to be dealt with at the case management conference fixed for 5th May 2000. In the circumstances it should not be heard by me but by another judge.

This is in my judgment, a preferable and more proportionate course to my refusing the application for permission to appeal mentioned in Inces's recent letter and the Court of Appeal being troubled with this case."

17. On the 23rd March 2000 Ince and Co. wrote to the court seeking confirmation that the proceedings had come before the judge on paper, alternatively seeking permission to appeal. The matter was referred back to Timothy Walker J who, on the 5th April 2000, noted the papers as follows:

"Inces' application for permission to appeal in respect of the directions given by my note of 16th March is refused. Their original application for an extension assumes that 51-19 applied. They can put their case that it does not apply with an alternative application for an extension at the CMC on 5th May 2000."

18. As it happened, the court was then able to offer a date for a CMC on the 13th April 2000, but that was not convenient for the defendants and their counsel.

19. The matter therefore came before David Steel J at the hearing of the Case Management Conference on the 5th May 2000. The first question he had to decide was whether or not the proceedings had been automatically stayed. Referring to the occasions when Timothy Walker J first refused permission to exclude the automatic stay and then subsequently indicated that the matter should proceed to the case management conference, he said:

"It seems to me this is a very good example of an existing proceeding coming before a judge on paper before the 25th April."

20. He noted that the procedure was not in accordance with the note from Admiralty and Commercial Court Registry to which I have already referred But he considered that, by analogy, a party could bring the matter before a judge on paper by means of a letter in cases where the parties could not agree as to whether or not the automatic stay should apply.

21. If this approach is right, the curious result is that a party will have been able to avoid the consequences of CPR 51 PD-019 by the simple expedient of writing a letter to the court, and asking for its provisions to be disallowed provided always that the court puts the letter before a judge, and the judge is induced to make some response, even if the response is, as in the present case, to say that the provisions of CPR 51 PD-019 should continue to apply. That seems to me to emasculate the paragraph.

22. Miss Sabben-Clare on behalf of the respondents submits that proceedings "come before a judge .... on paper" for the purposes of the paragraph if they do so in accordance with the provisions of the CPR and that if a party wanted to ensure that the case came before a judge for the purposes of the paragraph, there had to be an application notice in accordance with CPR Part 23. I agree.

23. The context is all important. The Practice Direction to Part 51 are intended to make an orderly transition from the old Rules to the new CPR. The general scheme, as stated in paragraph 2 of the Practice Direction is to apply the previous rules to undefended cases, allowing them to progress to their disposal, but to apply the CPR to defended cases so far as is practicable. The process by which that was to be achieved was to allow cases commenced before the 26th April 1999 to progress in accordance with any orders or automatic directions applicable under the old Rules, but to apply CPR to any new step in the proceedings. Paragraph 15 is headed "First time before a Judge on or after the 26th April 1999" and sub-paragraph (1) provides:

"When proceedings come before a judge (whether at a hearing or on paper) for the first time on or after the 26th April 1999, he may direct how the CPR are to apply to the proceedings and may disapply certain provisions of the CPR. He may also give case management directions (which may include allocating the proceedings to a case management track)"

24. This indicates, to my mind, that the phrase "come before a judge ..... on paper" is intended to denote an occasion on which a judge considers exercising his powers in accordance with the CPR.

25. CPR 3.3(1) provides:

"Except where a Rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative."

In my judgment, this paragraph identifies the only ways in which the court can exercise its powers. As there are no Rules or enactments which provide for any other method in the present case, it follows that the judge could only be exercising his powers if he did so on an application or of his own initiative, in accordance with the CPR.

26. Applications are governed by Part 23, and require an application notice, which is, in general, to be served on any other party affected by the application. Many applications will then proceed to an inter party hearing; but by CPR 23.8, an application may be dealt with without a hearing by agreement, or if the court does not consider that a hearing would be appropriate. This gives effect to the provisions of CPR 1.4(2)(j) which encourage the court to deal with cases without the parties needing to attend. An occasion when the court considers an application under CPR 23.8 will clearly be an occasion upon which "the proceedings come before a judge ....... on paper".

27. CPR 3.3 itself defines the way in which the court may act of its own iniative. It must either follow the procedure laid down in CPR 3.3(2) and, if appropriate (3), or if it proposes to make an order of its own initiative without hearing the parties or giving them an opportunity to make representations, it must make an order which contains a statement of the right of the party to make such an application under CPR 3.3(5) to set aside, vary or stay such an order.

28. In my judgment, it follows that the mere writing of a letter to the court, even if it is brought to the judge's attention and he responds to it, does not mean that the proceedings have "come before the court .... on paper". To that extent, I disagree with David Steel J. Such a letter does not constitute a notice of application; and unless what the judge thereafter does can properly be construed as an exercise of his powers under CPR Part 3.3, I do not consider that any consideration he gives to the letter constitutes an occasion on which the proceedings have come before him as envisaged in CPR 51 PD-019. In the present case, the judge's comment on the fax cover could not by any stretch of the imagination be considered an exercise of his powers pursuant to CPR Part 3.3. Not only was it not in the appropriate form to justify that conclusion, but the judge's endorsement was clearly intended to indicate that he was taking no step in relation to the proceedings, which would have to continue as if no application had been made which could preclude the operation of the time bar.

29. It may be that there will be cases in which a judge has been induced by correspondence to make what appear on their face to be orders in the exercise of the judges' power under CPR Part 3.3 . The question in each case will be whether or not it can properly be said that any order or direction that the judge has given was intended to further the proceedings in the sense envisaged in CPR 51 PD-015 to which I have referred above. This will give proper expression to the purpose of CPR Part 51, in particular the clear intention that cases which had not been gathered into the CPR fold by the 25th April 2000 should be stayed, and that consideration should only be given as to whether or not it would be appropriate to allow them to continue on a formal application to lift the stay.

30. In the present case I would therefore dismiss the appeal on the basis that the claim is stayed pursuant to CPR 51 PD-019. If the appellants wish to continue with their claim they must make the appropriate application to the Commercial Court.

LORD JUSTICE CHADWICK:

31. The Civil Procedure Rules came into force on 26 April 1999. Transitional provisions, regulating the extent to which the new rules were to apply to proceedings issued before that date ("existing proceedings"), were set out in a Practice Direction made under CPR 51. The general principle was that where any new step was to be taken in any existing proceedings it should be taken under the CPR. In particular: (i) any application to the court made on or after 26 April 1999 was required to be made under CPR Part 23 - see paragraph 14 of the Practice Direction; and (ii) when proceedings came before a judge (whether at a hearing or on paper) for the first time on or after 26 April 1999, the CPR were to apply from then on, unless he directed otherwise - see paragraph 15 of the Practice Direction. One consequence of that provision was that the court could be expected, then and thereafter, to take the opportunity to exercise the powers of case management upon which the new rules are founded

32. It seems plain that the transitional provisions were framed in the expectation that, where existing proceedings were "live", the proceedings would be likely (in most types of case) to come before a judge within one year of the date upon which the new rules came into force - that is to say, no later than 25 April 2000. But, in order to sweep up proceedings which had died or become stagnant, paragraph 19 of the Practice Direction provided for an automatic stay. The paragraph is in these terms:

"(1) If any existing proceedings have not come before a judge, at a hearing or on paper, between 26 April 1999 and 25 April 2000, those proceedings shall be stayed.

(2) Any party to those proceedings may apply for the stay to be lifted.

(3) Proceedings of the following types shall not be stayed as a result of this provision:

(a) where the case has been given a fixed trial date which is after 25 April 2000, personal injury cases where there is no issue on liability but the proceedings have been adjourned by court order to determine the prognosis,

(b) where the court is dealing with the continuing administration of an estate or a trust or a receivership.

(c) applications relating to funds in court."

Sub-paragraph (3) is illustrative of the purpose of the provision. The automatic stay is not to apply where there is some good reason why no step has been taken in the existing proceedings during the period of one year from the coming into force of the new rules. But, in other cases, the effect of the provision is to require a party who wishes to continue the proceedings to apply for the stay to be removed. That application will provide an opportunity for the court to consider whether the proceedings (which, prima facie, have been allowed to stagnate) should be permitted to continue; and, if so, upon what terms.

33. It is to be noted that the phrase - "If any existing proceedings have not come before a judge, at a hearing or on paper, . . ." - in paragraph 19 of the Practice Direction echoes that in paragraph 15 - "When proceedings come before a judge (whether at a hearing or on paper) . . ." The phrase must, as it seems to me, be read in the context provided by paragraph 14:

"(1) Any application to the court made on or after 26 April 1999 must be made in accordance with CPR Part 23 (General rules about applications for court orders).

Any other relevant CPR will apply to the substance of the application unless this practice direction provides otherwise."

34. CPR Part 23 requires that an application is to be made by the filing of an application notice, unless that is dispensed with either by a rule or practice direction or by the court - see CPR 23.3. The circumstances in which the court may deal with an application without a hearing are set out in CPR 23.8:

" The court may deal with an application without a hearing if -

(a) the parties agree as to the terms of the order sought;

(b) the parties agree that the court should dispose of the application without a hearing; or

(c) the court does not consider that a hearing would be appropriate."

35. Where the court is proposing to deal with the application without a hearing under CPR 23.8(c) it must proceed as if it were proposing to make an order on its own initiative - see paragraph 11.2 of the "Practice Direction - Applications" made as a supplement to CPR Part 23. That introduces the requirements of CPR 3.3 - which apply where a court proposes to exercise its powers of its own initiative. A court which makes an order of its own initiative without hearing the parties or giving them an opportunity to make representations must give a party affected by the order an opportunity to have it set aside, varied or stayed; and the order must contain a statement of the right to make an application for that purpose - see CPR 3.3(4) and (5).

36. With these provisions in mind, it seems to me clear that the alternatives contemplated by the reference in paragraph 19 of the Practice Direction made under CPR Part 51 to existing proceedings not having come before a judge "at a hearing or on paper" are (i) an application in the proceedings, made under CPR Part 23, which comes before the judge at an oral hearing and (ii) an application which is dealt with without a hearing pursuant to the power conferred by CPR 23.8. There is no difficulty in the court dealing with an application without a hearing - that is to say, "on paper"- where the parties agree as to the terms of the order sought. That is a case to which CPR 23.8(a) applies. Nor is there any difficulty where the parties agree that the application should be disposed of without a hearing. That is a case to which CPR 23.8(b) applies. But where there is no agreement, the court cannot deal with the matter on paper unless (i) it considers that a hearing would not be appropriate - see CPR 23.8(c) - and (ii) it treats itself as making the order on its own initiative and observes the safeguards which are introduced by CPR 3.3(5) for the protection of the affected party who has not been heard. In my view it was not the intention of those who made the Practice Direction under CPR Part 51 that existing proceedings should be treated as coming before a judge "on paper" - in the context either of paragraph 15 or of paragraph 19 of that Practice Direction - by some informal process to which the new rules had no application.

37. In or about March 2000, the Admiralty and Commercial Court Registry, conscious that a belated recognition of the impending effect of paragraph 19 of the Practice Direction made under CPR 51 would be likely to spur parties into what it described as "a disorganised flurry of activity on the eve of the time limit which will risk the efficient conduct of the court's business" issued a memorandum suggesting that the parties in cases vulnerable to the automatic stay who believed that a stay would be inappropriate should write jointly to the court setting out, inter alia, what proposals they had for the future conduct of the proceedings. The memorandum concluded:

"Such a letter will be treated a bringing the proceedings before the court. The court will either approve the proposals or order that there should be a CMC by a certain date (or make such other order as seems fit)."

38. There are three features of that memorandum to which I would draw attention. First, the letter to the court is to be a joint letter from parties who believe that a stay would be inappropriate - so, plainly, the court could treat the letter as an application under CPR 23.8(b). Secondly, if the proposals for the future conduct of the proceedings were joint proposals (as they might be expected to be), the court could treat the letter as an application under CPR 23.8(a). Thirdly, the letter would be treated as "bringing the proceedings before the court" so that the court could make an order either approving the proposals, directing a case management conference, or otherwise. Whatever the order made by the court, there could be no question, thereafter, of an automatic stay under provisions in paragraph 19 of the Practice Direction.

39. We have been shown a practice note issued by the Chancery Division which is in the same terms as that issued by the Admiralty and Commercial Court Registry. We have been shown, also, letters of guidance sent out in advance of the 25 April 2000 deadline by the Vice-Chancellor and by the Senior Master in the Queen's Bench Division. I do not think it necessary to comment on those letters - they have no application to the present case - save to say that each contemplates that, on an application for directions made by any party before 25 April 2000, the court might chose to give directions, without a hearing, which were inconsistent with the operation of the automatic stay. But, if it did so on an application which was not agreed - that is to say, on an application which did not fall within either of paragraphs (a) or (b) of CPR 23.8 - the court would, as it seems to me, have to give any other party who was affected the opportunity to set aside those directions. That is a safeguard under the rules which cannot be abrogated by the issue of a letter of guidance. In practice I doubt whether the procedure contemplated by the letters of guidance could provide assistance in a case in which there was a serious dispute whether the proceedings should be permitted to continue at all. But, as I have said, those letters have no application in the present case.

40. In the present case the appellant, were unable to proceed in the manner contemplated by the Admiralty and Commercial Court Registry memorandum. That is because the respondents were unwilling to join in a joint letter to the court. The application could not be treated as made under CPR 23.8(a) or (b). The effect is that the appellants are unable to rely on the memorandum in support of a contention that its own letter was sufficient to bring the proceedings before the judge "at a hearing or on paper".

41. I accept, of course, that it would be open to a judge to treat a letter from one party only as bringing proceedings before him "on paper". An application notice is not essential; the court may dispense with a formal notice - see CPR 23.3(2)(b). The court can deal with an application without a hearing, even in the absence of consent - see CPR 23.8(c) - provided it affords to any party affected by the order the opportunity to apply to set the order aside - see paragraph 11.2 of the Practice Direction made under CPR Part 23 and CPR 3.3(4) and (5). But, as it seems to me, the question whether or not to treat a letter from one party only as bringing the proceedings before him "on paper" is one for the judge to decide. The proceedings cannot be forced before him "on paper" by one party writing a letter which the judge, as a matter of administration, thinks it proper to read in order to acquaint himself with its contents.

42. If and so far as Mr Justice Steel held otherwise in In re Agmashenebezi (unreported, 5 May 2000), I think he was wrong to do so. But I think that the true analysis of that case is that, on 16 March 2000, Mr Justice Timothy Walker had dealt with the applicants' letter in a way which indicated that he had chosen to treat the proceedings as before him.

43. In the present case I am satisfied that the judge did not treat the appellants' letter as effective to bring the proceedings before him "on paper". The annotation which he made - "Automatic stay to apply" - is inconsistent with a decision to treat the proceedings as before him. If the proceedings were before him, the automatic stay could not apply thereafter. The judge, if he wished to impose a stay in proceedings which were before him, would have to do so on his own initiative and by a discrete order. He could not, by order, impose an automatic stay. The annotation is consistent only with a decision to refuse to treat the proceedings as before him.

44. For those reasons, and for the reasons given by Lord Justice Latham, I agree that this appeal must be dismissed. The proceedings are stayed pursuant to paragraph 19 of the Practice Direction made under CPR Part 51. It is open to the appellant to apply for the automatic stay to be lifted; but that is an application which should be made to the Commercial Court. It would be wrong in principle for this court to entertain that application as an adjunct to this appeal.

ORDER: Appeal dismissed. Appellant to pay necessary costs of this appeal, to be assessed if not agreed.