England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE KEVIN BARNETT)

		Royal Courts of Justice Strand London WC2 Tuesday, 9th October 2001

Tuesday, 9th October 2001

1. LORD JUSTICE JUDGE: I shall ask Mr Justice Bodey to give the first judgment.
2. MR JUSTICE BODEY: This is an appeal by the infant claimant, Donna Collins, born on 12th August 1990 (now aged 11), who sues by her father and litigation friend against an order of Judge Kevin Barnett sitting at Chester County Court, on 7th August 2000. By that order the learned judge struck out the claimant's claim against the defendant company commenced by her Particulars of Claim issued on 17th March 2000 ("the present proceedings"). He gave the claimant permission to appeal.
3. The reason for the present proceedings being struck out was that the claimant had already brought proceedings ("the original proceedings") against the same defendant in respect of the same road traffic accident, which proceedings had been struck out by the same judge on 22nd September 1999. That was as a result of delays and failures by the claimant, through her solicitors, in complying with time limits and court directions. The striking out of the present proceedings was thus on the basis that they were found to be an abuse of the court's process, pursuant to CPR Rule 3.4(2)(b).
4. The underlying event which has led to this litigation was a road traffic accident on 21st February 1994, when a vehicle driven by an employee of the defendant company ran into the claimant's father's car. At that time the claimant was three-and-a-half years old. The claimant, her father and mother were all injured in the accident, and brought the original proceedings against the defendant company for damages based on its responsibility for the negligence of its employee, the driver of its vehicle.
5. On 23rd March 1995, judgment in favour of all three claimants was entered against the defendant on liability. Subsequently the claims of the claimant's mother and father were settled by negotiation. The infant claimant had, however, suffered what was probably a skull fracture; and since her recovery was insufficiently advanced for her claim to be settled, the assessment of the quantum of her damages was adjourned generally on 21st September 1995.
6. On 19th July 1996 of its on motion the court directed that the claimant should provide a schedule of her special damages and a list of documents within 21 days, together with copies of her medical notes within 28 days. From that time onwards, there were many failures by the claimant (through her solicitors) to progress her case, as I shall summarise.
7. It is right to say that in affidavits the claimant's solicitors have sought to explain some of the specific failures on the basis, for example, of difficulties in getting hold of notes and records. It must also be said that the judge determined that the failures by the claimant's solicitors were not intentional, although he described them as "inexcusable".
8. The order of 19th July 1996 was not complied with except to the extent that on 23rd August 1996 there was late compliance with the part of the order requiring the service of the claimant's medical notes. As a result, the defendant applied to strike out the claim.
9. On 13th January 1997, two days before the return date of this strike out application, the claimant's solicitors served a list of documents and a schedule of special damages (this being five months out of time). In the result, on 15th January 1997 the court simply ordered the claimant to pay the defendant's costs of the strike-out application.
10. On 22nd September 1997, the defendant made an application for an order that the claimant should disclose her neuropsychological evidence. The return date was on or about 21st October 1997. However, about six days beforehand, the claimant's solicitors disclosed a neuropsychiatric report in fact dated 14th September 1997. On about six occasions between July 1998 and August 1999, the defendant requested details of the results of certain sub-test scores recorded in September 1997 by the claimant's psychologist, Dr Williams. These were eventually provided but only, as I say, after many requests.
11. On 5th July 1999 at a directions hearing, orders were made that the claimant should disclose her medical reports together with a schedule of special damage, and her school reports. On 12th August 1999 the time for compliance with this order expired, but it was not complied with.
12. On 19th August 1999 the first case management conference took place. It was taken by Judge Barnett. There had been no compliance with the order of 5th July 1999, and the claimant's solicitors failed to attend the appointment. As a result, a peremptory order was made to the effect that unless the claimant complied with the order of 5th July 1999 by 2nd September 1999 and attended the adjourned case management conference on 22nd September 1999, then her claim would be struck out.
13. On 22nd September 1999 when the second case management conference came on for hearing the claimant's solicitors again failed to attend. They had also still not complied with the orders of 5th July 1999. It was on that occasion that Judge Barnett struck out the claimant's claim.
14. The claimant's solicitors thereafter made an application to set aside the judgment and the order striking out the claimant's case. This was heard on 10th December 1999, again by Judge Barnett, at which time there had still not been full compliance with the order of 5th July 1999. In fact just a few days after that hearing various school reports were disclosed by the claimant's solicitors, four months out of time.
15. On 10th January 2000 Judge Barnett delivered his judgment refusing to set aside the strike out, and refusing permission to appeal to the Court of Appeal. In the course of his careful judgment, he said.

"It seems to me that it could not possibly be said that the sanction [striking out] was too draconian and was, in effect, disproportionate. The ability of the court to take control of and manage cases lies at the heart of the civil justice reforms and a Case Management Conference is an essential tool in the control and management of cases...

If a party does not engage with the court in the case management process he must, in my judgment, expect a sanction and a sanction of significance and gravity. ... When there was no appearance at the adjourned Case Management Conference and no compliance with the order of 5th July 1999, in my judgment nothing could have been expected other than for the sanction to take effect."

16. Seven months later, in his judgment dated 7th August 2000 striking out the present proceedings, the learned judge had this to say by way of explanation for his earlier decision to strike out the original proceedings:

"The First Action was struck out for failure to comply with a peremptory order, which was itself made as a result of a number of failures to comply with earlier orders. I refused to grant relief from the strike-out action. ... (a) There had been a number of failures to comply with court orders, (b) there was a failure to engage with the case management process, and (c) although I did not conclude that the failures were intentional, I found that no good explanation had been given, and that the failures were inexcusable."

17. Reverting to the original proceedings, the judge refused permission to appeal his decision of 10th January 2000, and no application was made to the Court of Appeal on behalf of the claimant for permission to do so.
18. Instead, on 17th March 2000, the claimant's solicitors issued the present proceedings. This was followed almost immediately by the defendant's application to strike them out as being an abuse of the court process.
19. In his judgment dated 7th August 2000 (which ran to some 20 pages) Judge Barnett rehearsed the procedural history of the original proceedings, noting that the parties and the cause of action were identical in each set of proceedings. He set out the court's approach to such strike-out applications, correctly noting that in exercising any discretion under the Civil Procedure Rules the court must have regard to the "overriding objective". He then stated that objective in terms which are now well known and which it is unnecessary to repeat.
20. He went on to say:

"I make no apologies for stressing, firstly, that the CPR represent an entirely new procedural code, and secondly, that an important part of dealing with a case justly involves not only allotting to it an appropriate share of the court's resources, but doing so having regard to the fact that resources are limited and have to be allocated to other cases. Civil litigation is now in a new era. Cases are now managed by the court and parties can no longer expect to conduct litigation in a way and at a pace which is convenient to them and which takes no account of the wider public interest in securing the proper and efficient administration of civil justice to which expression is given in the overriding objective."

21. Judge Barnett then cited from two Court of Appeal cases from which he extracted the test which he later set himself for determining whether or not he should grant the defendant's strike-out application regarding the present proceedings. The first of these was Securum Finance Ltd v Ashton [2001] Ch 291, in which Chadwick LJ said:

"The effect on other litigants of delay in the proceedings in which that delay has occurred is now a factor to which the court must have regard when considering whether to strike out those proceedings. But, equally, the fact that earlier proceedings have been struck out on the grounds of delay is a factor to which the court must have regard when considering whether to strike out fresh proceedings brought to enforce the same claim. The reason, as it seems to me, is that, when considering whether to allow the fresh proceedings to continue, the court must address the question whether that is an appropriate use of the court's resources having regard (i) to the fact that the claimant has already had a share of those resources in the first action and (ii) that his claim to a further share must be balanced against the demands of other litigants...

For my part, I think that the time has come for this Court to hold that the 'change of culture' which has taken place in the last three years - and, in particular, the advent of the Civil Procedure Rules - has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases. The position, now, is that the court must address the application to strike out the second action with the overriding objective of the CPR in mind - and must consider whether the claimant's wish to have a 'second bite of the cherry' outweighs the need to allot its own limited resources to other cases."

22. This change of approach regarding the striking out of proceedings within the limitation period had echoes of the judgment of the Court of Appeal in Walsh v Misseldine C.A. transcript 29th February 2000, where Brooke LJ referred to the "procedural revolution" which has taken place since the coming into force of the Civil Procedure Rules; and where Stuart Smith LJ went on to contrast the old law as regards striking out in such cases, with the new law and approach, imposing, as he noted, "a much lower threshold."
23. The second authority relied on by Judge Barnett in setting himself the test which he applied for his decision now under appeal, was that of the Court of Appeal in Arbuthnot Latham Bank Ltd v Trafalgar Holding Ltd [1998] 1 WLR 1426, where Lord Woolf MR (as he then was) giving the judgment of the court, said:

"In exercising its discretion as to whether to strike out the second action, [the] court should start with the assumption that if a party has had one action struck out for abuse of process, some special reason has to be identified to justify a second action being allowed to proceed."

24. Thus, the learned judge himself concluded:

"It is an abuse of the process for the Claimant to seek to litigate in the present action the same issues as were raised, but not adjudicated upon, in the First Action which was struck out as a result of inexcusable failures to comply with the rules and court orders.

In order to exercise my discretion so as not to strike out the present action, some special reason needs to be identified which, having regard to the overriding objective, would mean that it was just to allow the present action to proceed."

25. In my view that was entirely the right approach for the court to have adopted in deciding whether or not to accede to the defendant's strike-out application and to make the order now under appeal.
26. In the course of his judgment the learned judge considered all the factors which might have been regarded as (and which were submitted by the claimant to have been) "special reasons". He did so in an orderly, reasoned and detailed way.
27. He covered the possible prejudice to the claimant (a child, and clearly innocent of any blame) from having to consult new solicitors to sue her existing solicitors against whom he found she would have had a cast-iron case. He took into account the possibility that the latter may be aware of weaknesses in her case as to the quantification of her damages, which the defendant company and its lawyers would not be.
28. He considered and assumed that a fair trial would still be possible as against the defendant company, as indeed it clearly is (since (a) liability cannot now realistically be in issue, and (b) quantification of the claimant's claim is still not yet capable of being resolved until she is older). But he did not regard that consideration as sufficient to justify the present proceedings continuing, if other factors favouring a strike-out were stronger. He took into account the fact that a strike-out would grant a windfall to the originally negligent defendant, and also that it would lead to satellite litigation in any event, namely as against the claimant's existing solicitors.
29. He considered with care the arguments as to whether or not there would be any unreasonable wasting of past expenditure and/or any saving of future resources according to whether the claimant was to be left with her remedies against the original defendant or only with her remedies against her present solicitors. Having done so, he concluded that nothing in these points was sufficient to constitute a special reason.
30. Finally, he dealt with Article 6 of the European Convention on Human Rights, concluding that:

"... the right of access [to the court] is not absolute and may, in certain circumstance, be restricted provided that the limitation imposed pursues a legitimate aim and is proportionate... In my judgment, striking out proceedings as an abuse serves a number of legitimate aims, for example, (a) protecting defendants from claimants who do not properly pursue their claims, (b) protecting other litigants to have a legitimate expectation that limited and precious resources will be allocated to their cases, (c) promoting the effective administration of justice for the benefit of all..."

31. Having borne in mind that, if special reasons could be found making it just (having regard to the "overriding objective") to allow a case to proceed, then it would indeed be so allowed to proceed, the learned judge concluded that where such special reasons did not exist then a strike-out would be proportionate and would be neither arbitrary nor absolute, but rather a fair and proper exercise of judicial discretion.
32. It has to be stressed that the discretion which the rules require to be exercised on such an application as this is vested in the judge at first instance, and that the role of this court is limited to a reviewing role; that is, to determine whether, putting it simply, the judge went wrong (Hadmor Productions Ltd v Hamilton [1983] AC 191 per Lord Diplock at 220B to 220E; and Biguzzi v Rank Leisure PLC [1999] 1 WLR 1926 at 1934F per Lord Woolf MR, as he then was).
33. This approach is indeed contained and reiterated in the Civil Procedure Rules, Rule 52.11(3) to the effect that:

"The appeal court [as widely defined] will allow an appeal where the decision of the lower court was -

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

34. In Tanfern v Cameron-MacDonald [2000] 1 WLR 1311, Brooke LJ suggested that guidance in these respects might be gained from the speech of Lord Fraser in G v G [1985] 1 WLR 647 at 652, where the latter said:

"...the appellate court should only interfere when they consider that the judge of the first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible." [emphasis added].

35. Mr Mansfield in his attractive submission has suggested that the learned judge was plainly wrong in the exercise of his discretion, and that he went wrong because he looked at the individual points which might have been special reasons, instead of standing back and looking at the matter in the round.
36. With respect I cannot accept that submission. In my judgment the discretion exercised by Judge Barnett in striking out the present proceedings cannot be faulted. It was, I think, the right decision and, on any view, within the band of reasonable decisions on the facts of this case. It goes without saying that in any such applications there are competing factors and considerations pulling in different directions, which it is for the court at first instance to weigh up and evaluate in striking what is really a balance of fairness. As May LJ put it in Purdy v Cambran, C.A. transcript 17th December 1999:

"... under the new procedural code of the Civil Procedure Rules, the court takes into account all relevant circumstances and, in deciding what order to make, makes a broad judgment after considering available possibilities. There are no hard and fast theoretical circumstances in which the court will strike out a claim or decline to do so. The decision depends on the justice in all the circumstances of the individual case."

37. The judge, who was very familiar with this case having handled it on several occasions, carefully balanced all the competing arguments and interests, coming to the fairly unsurprising conclusion (given that the first proceedings had been struck out) not only that the present proceedings were an abuse, but also that they threw up no special or unusual circumstances justifying their being allowed to continue.
38. In paragraph 25 of his skeleton argument Mr Mark Turner QC, for the defendant, submitted:

"... this [appeal] is an invitation to re-exercise the Learned Judge's discretion. The amount of weight given to each competing factor is very much a matter for the Judge in charge of case management and should not lightly be interfered with. Where, as in this case, the Learned Judge has clearly set out a detailed rational analysis of the balancing factors, the Appellate Court should be slow to interfere. To do so would be to encourage future speculative attempts to revisit the case management decisions of Judges in day to day control of litigation."

39. I agree, and for the above reasons, I would dismiss this appeal.
40. LORD JUSTICE JONATHAN PARKER: I agree that this appeal must be dismissed for the reasons My Lord has given.
41. The failures of the claimant's solicitors in the first action in not complying with the court's orders, and in particular with the "unless order" dated 19 August 1999, were of the grossest kind, such that the judge was, in my judgment, acting well within his powers in striking out her claim. Indeed, as my Lord has pointed out, there was no application for permission to appeal from that decision.
42. That being so, the claimant must, as Mr Mansfield QC has rightly accepted, show some good reason why she should be allowed to resurrect the claim in the form of a fresh action and, in effect, start again; otherwise the judge's order in the first action will have been rendered worse than futile in that its only practical effect would have been to set the clock back to the start of the litigation, a result which would, in my judgment, be plainly contrary to the overriding objective.
43. In my judgment the judge, in his careful and thorough judgment, was fully entitled to conclude that the claimant had failed to show any good reason why the second action should be regarded as anything other than a clear abuse of process, and that as such it should be struck out.
44. Indeed, like my Lord, I would say that the judge's conclusion in this respect was plainly right.
45. LORD JUSTICE JUDGE: I agree with both judgments.
46. Judge Barnett's conclusion that the second action should be struck out was reached at the end of an impressive and detailed analysis of the relevant specific features of this particular case. As he had made the original order to strike out the first action, and had refused to set that order aside, he had the advantage of familiarity with the case.
47. The judge directed himself by asking two questions: (a) "Is it an abuse of process for the claimant to seek to litigate in the present action the same issues which were raised, but not adjudicated upon, in the first action which was struck out?" (b) "If the answer to (a) is 'yes', should I, in the exercise of my discretion, nevertheless allow the action to proceed?" Having answered the first of those two questions "yes", he approached the exercise of his discretion in this way:

"In order to exercise my discretion so as not to strike out the present action, some special reason needs to be identified which, having regard to the overriding objective, would mean that it was just to allow the present action to proceed."

48. The learned judge was entitled to adopt the approach that he did. He subsequently gave permission to appeal to this court, indicating that the case might raise matters of general importance for which guidance from this court would provide assistance.
49. I should say a word or two about his reference to "some special reason". The use of these words is an attractive form of forensic shorthand which encapsulates the broad approach to the decision-making process to be adopted when an action has failed as a result of an abuse of process and the court is considering whether a second action relating to the same issues should be allowed to continue. The words come from authority binding on this court: Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426; but they are not words which derive from the statute, nor from the Civil Procedure Rules, and they should not be treated as if they had. Nor should they be employed as some form of ritual incantation. If the judge in this case had chosen to express the same principle by saying "very good reason", or "powerful" or "sufficient reason", he would not, in my judgment, have misdirected himself.
50. The answer to the questions which necessarily arise for answer is always fact-specific. In particular, semantic analysis of this or that factor, or any combination of factors, to see whether they should be regarded as "special", or "not quite special enough", or "good enough", or "not quite powerful enough", is unhelpful. Worse still if that method of analysis is thought to be lent what is only spurious weight by the citation of previous decisions reached by other courts in different cases, even if the citation is used merely by way of example or illustration.
51. In fairness to Mr Guy Mansfield QC, the implied criticism in those last few sentences is not directed at his form of advocacy in this appeal. But each member of the court - and I have little doubt leading counsel before us today - will be entirely familiar with it; so will High Court Judges, Circuit Judges and District Judges up and down the country.
52. Some will remember the impetus given to the exercise of the court's jurisdiction to strike cases out for want of prosecution by the decision of this court in Allan v McAlpine in 1968. The essential principles which governed the decision were clear and simple, yet subsequently they were very nearly buried under the weight of the citation of authority including latterly, with the advantage of modern technology, of unreported decisions of this court. That was an area of practice which, like the area which we are now considering, pre-eminently involved a fact-specific exercise of the court's discretion. The best guidance we can give is to underline that if a similar process were to overtake the Civil Justice Reforms, we, the judiciary, and the legal profession, should have failed them.
53. Judicial responsibility for energetic case management is now a well understood principle of civil justice; and I should like to emphasise as strongly as I may in agreement with both my Lords, that when a judge has exercised that responsibility, particularly when he has done so in a case with which he is familiar, with the obvious care shown by Judge Barnett in this case, this court can only interfere with his decision if it is plainly wrong or unsustainable in the very limited circumstances and on the basis of well-known principles found in Hardmor Productions Limited v Hamilton [1983] AC 191, and Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926, and a whole raft of other cases.
(Appeal dismissed with costs; costs summarily assessed at £12,500, subject to liberty to apply).