England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT
(His Honour Judge Tibber)

		Royal Courts of Justice Strand London WC2 Thursday 18th October, 2001

1. LORD JUSTICE CHADWICK: This is an application to extend time for appealing against an order made on 19 October 1999 by His Honour Anthony Tibber (formerly Judge Tibber but sitting, following retirement, as a deputy Circuit Judge) at the Gloucester County Court in proceedings brought by the applicant, Mr Patel, against a defendant or defendants known as Panic Link.
2. The proceedings arose out of a road traffic accident on 5 November 1997 in which the defendant's vehicle was in collision with Mr Patel's vehicle and caused it damage. Liability has not been in issue. On 23 June 1998 it was ordered that the claimant recover damages to be assessed. The assessment of damages came before District Judge Ing in the Gloucester County Court on 2 September 1999. Both parties were represented. He held that Mr Patel was entitled to recover £465-odd - that being the cost of temporary repairs carried out to his vehicle - but that he was not entitled to any further sums in respect of further repairs or in respect of the cost of the replacement hire vehicle.
3. The reason given by the District Judge was that Mr Patel had entered into an agreement with a third party, Accident Management Services, which was unenforceable for reasons given by this Court (and subsequently affirmed by the House of Lords) in Dimond v Lovell [2000] 2 WLR 1121. Accident Management Services had met the costs of repair; the costs could not be recovered from Mr Patel; and so Mr Patel had suffered no loss.
4. Mr Patel, or (more accurately) Accident Management Services in the name of Mr Patel, appealed to the County Court. The appeal came before Judge Tibber on 19 October 1999. The judge upheld the order made by the District Judge and dismissed the appeal; but he purported to grant permission to appeal against his order. I use that phrase because the provisions of section 55(1) of the Access to Justice Act 1999 (which had come into force on 27 September 1999) appear to have been overlooked. As is now well-known, that section provides that where an appeal is made to a County Court in relation to any matter and on hearing the appeal the Court makes a decision in relation to that matter, no further appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that the appeal would raise some important point of principle or practice or that there is some other compelling reason why it should be entertained. It is only the Court of Appeal that can grant permission for a second appeal; and then only if the requirements of section 55(1) of the Access to Justice Act 1999 are satisfied.
5. In those circumstances, the permission granted by the judge below must be treated as of no effect.
6. The time for appealing against the order of 19 October 1999 expired on 16 November 1999. Notice of appeal was not served until 17 November 1999; that is to say, one day late. The Civil Appeals Office pointed out that application for an extension of time would be required. An application for extension of time was made on 22 November 1999. That application was granted by Master Hodgson on 6 January 2000. His order, which was made by consent on that day, extended time for filing and serving the Appellant's Notice to 10 days from that order; that is to say, until 17 January.
7. That was not done; and it is for that reason that the present application for an extension of time is required and is made. After some delay while the judgment of the House of Lords in Dimond v Lovell (which was delivered on 11 May 2000) was awaited, it was confirmed by the Civil Appeals Office in July 2000 that the appeal could not proceed unless notice of appeal and an appropriate fee were lodged with this Court. The applicant's solicitors did not respond to that requirement until 10 November 2000; that is to say, some four months after they had been reminded of the need to do so. No explanation for that period of delay is offered; save for the rather laconic comment in a witness statement made on 14 May 2001 by the applicant's solicitor, Mr Richardson, that:

"As a consequence of annual leave being taken around this time, this matter was left unattended until the Autumn."

8. The position is that another year has passed. We are now in the autumn of 2001. The applicant has not made use of the permission that he did get in January, some 18 months or more ago; has not yet obtained a further permission to appeal out of time; and has not yet asked for permission to appeal to this Court under section 55(1) of the 1999 Act and CPR 52.13. In those circumstances the indulgence which he seeks from the Court is not insignificant.
9. The basis upon which the application is put is that the appeal would raise an important point which needs to be determined in this Court because it is giving rise to difficulty and confusion in the County Court. The point can be put in this way: does the reasoning of the House of Lords in Dimond v Lovell preclude a claim for damages in respect of the physical injury to the vehicle itself, where traditionally it is said the measure of damage is the diminution in the value of the damaged vehicle? Although that is often, and conveniently, measured by the cost of repairing the damaged vehicle, to treat the claim as being a claim for the cost of repair is to overlook the fundamental principle that it is truly a claim for cost of diminution in the value of the vehicle. If so, it is said, then the fact that the injured party obtains a windfall by having the repairs made without cost to him under a credit repair agreement, such as to those entered into by Accident Management Services and other companies in this field, is neither here nor there: see Hunt v Severs [1994] 2 AC 350 and Jones v Stroud District Council [1986] 1 WLR 1141.
10. That point is plainly raised clearly in two recent decisions, the first a decision of Gray J in Burdiss v Lidsey [2001] 1 WLR 1751; and the second in a very full judgment of His Honour Judge Harris QC in Clark v Ardington Electrical Services, handed down on 14 September 2001. I am informed by Mr Adamson, who appears for the respondent - and there is no reason to doubt - that both those decisions are either already on appeal in this Court or will be the subject of applications for permission to appeal to this Court. In those circumstances, the issue, as it seems to me, is whether anything is going to be gained by giving permission to appeal in the present case and extending the time for the lodging of a notice of appeal, so that the same point can come before the Court in the present case also.
11. If the applicant in the present case had moved timeously, his appeal might already have been heard and decided by this Court. But, in the circumstances which I have described, he has not taken advantage of the extension of time that was given to him some 18 months ago. It seems to me that the respondent is entitled to say that it should not be put to the potential expense of facing an appeal which is now long out of time. The need to have a point of general importance decided at Court of Appeal level carries no weight in the present circumstances. It is clear that the point will come before this Court in any event in another appeal.
12. For those reasons, it seems to me that this is a case in which the delay is fatal. There is no good reason for granting the extension which is now sought.
13. Accordingly, I dismiss the application.
ORDER: Application for an extension of time refused with costs; costs assessed in the sum of £963.79. (Order not part of approved judgment)