B3/2001/0745
Neutral Citation Number: [2001] EWCA Civ 1481
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(Mr Justice Owen)
Royal Courts of Justice
	Strand
	London WC2

	Thursday, 4th October 2001
B e f o r e :

LORD JUSTICE WARD
LORD JUSTICE MAY and
LORD JUSTICE RIX

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(1)  ALAN GOUNDRIL BROWN
(2)  JEAN MARGARET BROWN
Claimants/Appellants

-v-

GRAHAM FENWICK
Defendant/Respondent

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Computer Aided Transcript of the Palantype Notes of
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Mr R Ferm (instructed by Messrs Graham and Rosen, Hull) appeared on behalf of the Appellant Claimants.

Mr H Elgot (instructed by Messrs Ivesons, Hull) appeared on behalf of the Respondent Defendant.

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J U D G M E N T
1.	LORD JUSTICE WARD:I will ask Lord Justice May to give the first judgment. 
2.	LORD JUSTICE MAY: This is a renewed application made by Mr Ferm on behalf of the claimants, Alan and Jean Brown, for permission to appeal against a decision and order of Mr Justice Owen made on 15th March 2001 in the court at Leeds. The application initially came before Lord Justice Tuckey on paper and he refused it. In doing so, he said: 
“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.” 
3.	The applicants renewed their application orally. The application was heard by Lady Justice Hale, who adjourned the application to be heard by a three-judge court on notice, directing that if the application succeeded the appeal should follow immediately. Her succinct judgment on that occasion is the best place to turn for the details of the facts underlying this application. She said: 
“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.'“
4.	Pausing there, I would just embellish that by observing that in his judgment Mr Justice Owen went in some detail through the correspondence to which Lady Justice Hale referred during the year 2000 in which the defendant's solicitors were seeking the particulars from the claimants' solicitors. To my mind it justifies a conclusion that these particulars should have been progressed, if not from January 1999 when an amended claim was filed, at any rate, as Mr Justice Owen said, from the summer of 1999, and that the claimants' solicitors were left in no doubt that the defendant's view throughout 2000 was that these particulars needed to be supplied. 
5.	Lady Justice Hale then, in paragraphs 11 to 15 of her judgment, considered the submissions which Mr Ferm made to her, the substance of which he has repeated before this court and to which I will return in a moment. She then said: 
“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.”
6.	For those reasons Lady Justice Hale adjourned the application for today's hearing. 
7.	The provisions about second appeals originate from section 55 of the Access to Justice Act 1999, which is in substance repeated in rule 52.13 of the Civil Procedure Rules. That provides as follows: 
“(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.”
8.	It is also to be observed, as is well known, that for first appeals, but, as I apprehend, also for second appeals, rule 52.3(6) provides that: 
“Permission to appeal will only be given where -
(a)the court considers that the appeal would have a real prospect of success; ...” 
9.	Lord Justice Tuckey plainly thought that it would not, in addition to deciding that the proposed appeal would not meet the requirements of rule 52.13. 
10.	Mr Ferm, in submissions to us, has faced squarely what I regard as the difficulty and, indeed, the stumbling block upon this application: that is to say, to identify the important point of principle or practice upon which this application rests or, if necessary, to persuade us that there is some other compelling reason for the Court of Appeal to hear the appeal. In substance, he says that this is his important point of principle or practice. He reminds us that in this case liability has been admitted and judgment for damages to be assessed has been entered. He reminds us that the failure to comply with the order of 24th November 2000 was the first and only breach of a court order by the claimants in the case. He reminds us that no trial date had been set right up to the time when Mr Justice Owen made his decision. It was still a case at case management stage, so that a timetable could be set which would permit catching up and having the trial in good order. He reminds us that the judge did not find that the defendant had suffered prejudice by virtue of the claimants' failure to produce these particulars in accordance with the order. He reminds us also that this was not in its terms an “unless” order. Against that background he says that, although the judge systematically went through the list of considerations in rule 3.9(1), what he failed to do was to stand back and address the question of proportionality, asking himself whether the order that he proposed to make was indeed in all the circumstances proportional; and, if this be an additional point, that he failed to do what was indicated should be done in Biguzzi v Rank Leisure Plc [1999] 4 All ER 934, which was to consider explicitly the other possibilities that might be available to deal with the default that was complained of and to deal with the application for an extension of time. These, submits Mr Ferm, are important points of principle which stand as failures in the judge's judgment and they therefore are sufficient to bring the case within rule 52.13(2)(a). 
11.	There was discussion between the court and counsel as to whether the provision of that rule, which says that the Court of Appeal will not give permission unless it considers that an appeal would raise an important point of principle or practice, applies to a new and undecided point of principle or practice or whether it is sufficient to indicate successfully that a judge has failed to adopt or apply an important point of principle or practice. The point arises because, as Mr Ferm accepts, the points upon which he relies - the need to address the question of proportionality, standing back while doing so, and the need to consider alternative powers - are well known as being requirements in this area of practice. 
12.	I do not think it is necessary in this appeal to reach any conclusion as to the extent and meaning of rule 52.13(2)(a) because, even if it were the case that the rule is capable of applying if the judge fails to apply an important point of principle or practice, I do not think that that failure is properly made out in relation to Mr Justice Owen's judgment in this case. I say that for these reasons. Towards the end of his judgement (on p.13), the judge says: 
“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.”
13.	In that passage it is true that the judge does not use the word “proportionality”, but he does in terms refer to the overriding objective of enabling the court to deal with cases justly and he does in substance, in my judgment, address the main question of proportionality in this case, that being that an order which refused an extension of time was an order which would have, as the judge said, serious consequences flowing so far as the claimants are concerned. In those circumstances it does not seem to me correct to say that the judge did not stand back and address the question of proportionality. 
14.	As to the other limb of Mr Ferm's submission, that is to say that he did not address the alternative powers to that of refusing the extension of time, again I am not persuaded that that submission is a proper criticism of this judgment. Earlier in the judgment (on p.9), as the judge was about to go through all the factors in rule 3.9, starting with (1)(a), he referred to quite an extended passage from the headnote to Biguzzi. That headnote contains the following elements. First: 
“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.”
15.	The passage also refers to the fact that, when considering whether a result is just, the court is not confined now to considering only the relevant positions of the parties but, rather, it had to take into account the effect of what had happened on the administration of justice generally. The judge also, incidentally - and this is rather more relevant to this application than to the judge's decision - refers to the summary of that part of Biguzzi where the Master of the Rolls (as he then was), Lord Woolf, said that: 
“... 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.”
16.	Mr Ferm tells us, as was obvious, that although initially the application was for an extension of time to 29th June, by the time this application got before the judge Mr Ferm himself had realised that that was quite an unreasonable and impossible target to reach and he had reduced the application so that it was one for either 35 or 42 days' extension and subject to an “unless” order. So the very application which the judge was considering was one for an extension of time of that order, subject to an unless order. In circumstances where the judge has explicitly quoted the passage in Biguzzi referring to the court having alternative powers and the fact that in many situations those alternative powers would be appropriate to achieve a just result, it seems to me that the submission is not made out that Mr Justice Owen on this occasion did not give proper consideration to the alternative possibilities before he reached the decision that he did. 
17.	Accordingly, in my judgment, as a matter of examination of this judgment, Mr Ferm does not make out his submission that the appeal would raise an important point of principle or practice, whatever the precise extent of the ambit of rule 52.13(2)(a). For that reason I do not consider that this appeal measures up to that which second appeals need for permission to be granted and I would refuse permission. 
18.	I would also, if it were necessary to do so, refuse permission on the more orthodox basis (if that is the right expression) that this appeal in my judgment would have no real prospect of success. I can take this matter quite shortly because it is a subsidiary and second reason. Mr Ferm has very helpfully, in paragraph 8 of his written skeleton, made detailed points as to the exercise by the judge of his discretion upon the facts of this case and as to the judge's conclusions in relation to each of the subparagraphs of the matters contained in rule 3.9(1), which he systematically went through. I do not think it is necessary to go through these in detail, but I have done so for my own benefit. My overall conclusion as to these submissions of Mr Firm was that, yes, there were a few points where it might be said that the judge was perhaps slightly hard on the claimants, but at the same time in my view the judge was as a matter of detail entitled to reach the conclusions which he did, to which Lady Justice Hale referred in the passage which I have quoted. In particular, in my view the judge was entitled to conclude that the claimants should have instructed an accountant or other expert in early 1999. In fact, they were unable to provide the relevant particulars two years later and it seems to me that that fact alone is a very powerful one, providing a solid basis for the judge's discretionary decision. 
19.	It is of course true that one judge might reach one decision and another judge might reach another decision in the exercise of the discretion. But in this case, whatever view I personally might have taken if I had been the judge hearing this appeal, it seems to me quite impossible to say that Mr Justice Owen's exercise of his discretion could be characterised as wrong. For that reason I consider that this appeal would have no real prospect of success and, as did Lord Justice Tuckey, I would refuse permission for that reason also. 
20.	There is perhaps one further point that could be added and that is this. The claimants had failed to provide particulars over a very long period. They had been ordered to do so within a fixed period by the district judge in November 2000, and they had failed to do so. The defendant's solicitors gave them what in effect amounted to an ultimatum at the end of December or the very early days of January 2001, the ultimatum being that if they failed to provide the particulars an application would be made against them. In effect, that application was made when the claimants themselves applied for an extension of time. They asked eventually for 35 or 42 days in which to produce the particulars. Admittedly they did not get the order, but we are told today that some particulars, not apparently including details of loss of pension, have recently been provided. I do not for my part think that this would have affected my decision, but the claimants would have been in a stronger position today had they proffered the particulars (as I understand they did not) within the time period for which they were asking before the judges who had previously heard this matter. 
21.	For these reasons I would refuse the application for permission. 
22.	LORD JUSTICE RIX: I gratefully adopt Lord Justice May's account of the facts and submissions and agree with the substance of his reasons for refusing permission to appeal. 
23.	I would merely add that, if, within a short period of some four or some such weeks of Mr Justice Owen's judgment, the applicants had provided the missing details of special damage, I would for myself have been prepared to be more impressed by the submission that there was an important point of principle or practice in the significance or otherwise of the judge's failure to address explicitly the possible merits of alternative sanctions, in the light of the applicants' request for a short extension of some such period and in circumstances where there was no prejudice to the respondent, where no trial date had been set and where a trial had to take place in any event. In circumstances, however, where the missing particulars of special damage have only come forward within the very recent past, so that respondent's counsel was able to say that he had only seen them for the first time today, I agree that in any event this application does not have realistic prospects of success. 
24.	LORD JUSTICE WARD:Quite how securely the door to the Court of Appeal should be shut by narrowly confining CPR 52.13(2)(a) to new points of principle or practice, and precisely what the interrelationship is between (2)(a) and (2)(b), are matters which may need to be subject to further and fuller argument if this Court is to be able to correct plain injustices. But it is not necessary for us to resolve them today, for the reasons given by Lord Justice May. 
25.	I agree, therefore, that this application should be dismissed. 
Order: application for permission to appeal dismissed; costs to be paid in the sum of £5,485.06, not to be enforced without the permission of the district judge.