COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(Mr Justice Owen)
B e f o r e :
LORD JUSTICE MAY and
LORD JUSTICE RIX
|(1) ALAN GOUNDRIL BROWN|
|(2) JEAN MARGARET BROWN|
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Mr H Elgot (instructed by Messrs Ivesons, Hull) appeared on behalf of the Respondent Defendant.
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"Owen J considered the history of the applicants' failure to particularise their business losses in detail and I can see no error in the way in which he considered the CPR 3.9 circumstances. I can see no real prospect of this court deciding that he exercised his discretion incorrectly. Technically, however, this is a second tier appeal which does not raise any important point of principle or practice and there is no other compelling reason for this court to hear it."
"2.The claimants are husband and wife. They own and run a restaurant business in Bridlington. The husband was seriously injured in a road traffic accident which the wife witnessed, and her case is that she suffered psychiatric injury as a result. The order made by His Honour Judge Bartfield effectively prevented them from serving a full schedule of losses particularising their loss of profits and/or diminution in the value of their business with resulting loss of pension, and making any claim for care costs and calling evidence in support of those losses.
3.The accident itself took place in October 1996. Proceedings were begun in December 1997. An amended statement of claim in January 1999 claimed for business loss. Liability was admitted in May 1999 and there was judgment by consent entered on 19th April 2000.
4.A request for an up-to-date schedule of special damage was first made by a letter from the defendant's solicitors on 7th March 2000. The claimants' solicitors replied that it was complicated because the claimants were trying to sell the business and they might need to instruct an accountant. There was correspondence through the summer. In summary the defendant's solicitors continued to press for such a schedule; the claimants' solicitors continued to say, in effect, `It is all very difficult and we are not yet ready to supply one.'
5.There was a case management conference on 24th November 2000. The District Judge ordered the claimants to file a schedule of loss by 22nd December 2000. This was not an `unless' order. The District Judge also fixed a further case management conference for 1st February 2001. No trial date was yet set. One reason for that was that the defendant's solicitors were still compiling their own medical evidence.
6.The deadline of 22nd December was not met. The defendant's solicitors wrote on 2nd January 2001 warning that if the schedule was not received within seven days they would apply to strike out that part of the claim. A fuller schedule of loss was served on 11th January 2001, but the vital parts concerning the business, loss of pension and care costs were not filled in. On the same day the claimants applied for an extension of time in which to serve the schedule. They wanted until 29th June 2001 to do so.
7.That application came before His Honour Judge Bartfield at the case management conference on 1st February 2001. He refused an extension of time. He gave directions for the conduct of the remainder of the case, but once again no trial date was set.
8.The claimants appealed to Owen J. It was clear that in exercising his discretion His Honour Judge Bartfield had not systematically considered the circumstances relevant to relief from sanctions set out in the Civil Procedure Rules, Rule 3.9(1). The Court of Appeal in Bansal v Cheema, 2nd March 2000, and again in Keith v CPM Field Marketing Ltd, 11th July 2000, has stated that this should always be done. Accordingly, Owen J gave the claimants permission to appeal and considered the whole matter afresh in the light of the factors listed there.
9.As to (a), the administration of justice, he referred specifically to the expeditious conduct of litigation. As to (b), whether the application was made promptly, he concluded that it had not been. As to (c), whether the failure to comply was intentional, he concluded that it was. As to (d), whether there was a good explanation for the failure, he considered that there was none. As to (e), the extent to which the party in default has complied with other rules, practice directions, orders, and relevant pre-action protocols, et cetera, he stated that this was neutral because there was nothing to comply with during the period of the delay, As to (f), whether it was caused by the party or their legal representatives, he had no information. As to (g), whether the trial date or likely trial date could still be met, he did regard that as in the claimants' favour in that there was no trial date yet set. As to (h), the effect which failure had on each party, he did not make any specific finding as to any prejudice to the defendant arising from the failure. As to (i), the effect which granting relief would have on each party, clearly the failure to grant relief would have a very serious effect indeed for the claimants.
10.Nevertheless, he pointed out that there was no good reason for failing to instruct the necessary experts in the summer of 1999. Even if that had not been done then, it should have been done as a matter of urgency once the defendant's solicitors began to press for a completed schedule in March 2000. His conclusion was that:
`Parties to litigation and their advisers must understand that we are now living in a new era. Claims must be progressed with expedition, They cannot be allowed to drift as was unhappily so often the case in earlier days.'"
"16.[Mr Ferm] therefore says that when all of those factors are weighed in the balance, bearing in mind the catastrophic (his word) effect upon the claimants' claim, the balance should clearly have come down in favour of granting the indulgence sought. He seeks to say that this is a matter of principle or practice of considerable importance, because there is very little authority on the effect of devastating orders such as this where a party has not previously been in breach, where there is no trial date set and no finding of prejudice to the defendant.
17.I have not found this an easy application to determine. I have considerable sympathy for the view expressed by Tuckey LJ when he refused permission on the papers, that there may be no real prospect of the Court of Appeal interfering with the exercise of the judge's discretion. Nevertheless, it does seem to me that the outcome in this particular case was so serious for the claimants that one would have been looking for more than this in terms of default and in terms of prejudice to the defendant before making an order which would be so destructive of an important aspect of their claim. There are not only case management and Civil Procedure Rules implications here, but even possibly Article 6 of the European Convention on Human Rights considerations which may be worthy of attention."
"(1)Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.
(2)The Court of appeal will not give permission unless it considers that -
(a)the appeal would raise an important point of principle or practice; or
(b)there is some other compelling reason for the Court of Appeal to hear it."
"Permission to appeal will only be given where -
(a)the court considers that the appeal would have a real prospect of success; ..."
"That is the broad background against which the failure to comply with the Order of the 24th of November must be viewed. It was for this reason that I went through the chronology of events in some detail. Furthermore, there was a failure to seek an extension of time before the expiry of the period given by the District Judge for compliance.
In weighing the factors which I have sought to identify I take account of the overriding objective of the CPR. The Rules are a new procedural code with the overriding objective of enabling the Court to deal with cases justly. Dealing with a case justly includes, so far as is practicable, `Ensuring that it is dealt with expeditiously and fairly.'
I have come to the firm conclusion, having taken full account of the serious consequences that will flow so far as the Claimants are concerned, that the application for an extension of time must be refused. Parties to litigation and their advisers must understand that we are now living in a new era. Claims must be progressed with expedition. They cannot be allowed to drift as was unhappily so often the case in earlier days."
"Under the CPR, although it was more important than before that parties did not disregard time limits, the court had alternative powers to striking out which could be exercised to make it clear that delays would not be tolerated. In many situations, those alternative powers would be the appropriate ones to adopt because they produced a more just result."
"... judges had to be trusted to exercise their wide discretions under the CPR fairly and justly in all the circumstances, while recognising their responsibilities to litigants in general not to allow the same defaults to occur as had occurred in the past."