England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Friday, 14th December 2001

1. LORD JUSTICE RIX: This is an application by Mr. Courtney for permission to appeal against the judgment of His Honour Judge Wilson given as long ago as 5th June 1995. That is some six and a half years ago. Mr. Courtney therefore also asks for an extension of time within which to bring this appeal. This is a second tier appeal because Judge Wilson's judgment was itself heard on appeal from the earlier judgment of Deputy District Judge Barnby, given on 4th April 1995. Because this is a second tier appeal, the law only permits me to give permission if there is an important point of principle or practice which would arise on the appeal, or if there is some other compelling reason to give permission. That limitation upon my powers, however, does not here concern me because, as I will explain, if Mr. Courtney were able to set up this appeal, he would be entitled, as I understand the law and the background to this litigation, to success on that appeal in the light of certain decisions of the Court of Appeal which followed his hearing before Judge Wilson. Therefore, the fact that this is a second tier appeal in itself is not of crucial importance. What is of importance is that this application comes six and a half years after the judgment from which it seeks permission to appeal.
2. With that introduction, I will set out as briefly as possible the basic bones of the chronology of this litigation which I accept has clearly been a great misfortune for Mr. Courtney.
3. Mr. Courtney was the victim of a road traffic accident on 23rd November 1990. When Mr. Murphy, the intended respondent to this application, drove into Mr. Courtney's car, Mr. Courtney was stationary. Sometime after that accident Mr. Courtney instructed Davies Arnold & Cooper as his original solicitors but there came a time, I think in June 1993, when he transferred his instructions to a firm called Hattons. On 16th November 1993, that is to say, only shortly before the expiry of time in respect of any claim arising out of his accident, Mr. Courtney commenced proceedings against Mr. Murphy. On 3rd December 1993 Mr. Murphy served a defence admitting liability but disputing everything else. He disputed Mr Courtney's alleged injuries, his loss and damage, and all matters of causation.
4. Under the regime for automatic directions under CCR O.17,r.11, what became known as the 15 month rule came into operation 14 days after the service of that defence and so was due to expire on 17th March 1995. In June 1994 there was a breakdown of Mr. Courtney's relationship with Hattons, not necessarily arising out of this litigation, but arising perhaps out of other litigation that Mr. Courtney was conducting at that time in his business affairs. Mr. Courtney transferred his instructions to a new firm of solicitors, Elliott & Co. I am not sure what happened there, but by 8th September 1994 Mr. Courtney informed Hattons that he had now instructed a new firm of solicitors called Lloyd & Co. Hattons claimed a lien over Mr. Courtney's papers and in the meantime remained on the record. On 21st April 1994 a consent order was drawn up in Mr. Courtney's claim against Mr. Murphy, under which, inter alia, a stay was imposed pending Mr. Courtney's consent to undergo medical examination and also his providing authority for his medical records to be examined. Although subsequently copies of his authority for that examination of his medical records were provided, Mr. Murphy's solicitors made it clear that they needed an original of that authority which, in the event, was never provided. As for Mr. Courtney's consent to medical examination, although he has informed me in his written submissions that he was willing to undergo a medical examination, I am not at all sure that he had formally consented to that, and as late as this year, counsel's opinion, provided in my papers for reasons which I will explain subsequently, indicate that it has not been established that his formal consent had ever been given. Be that as it may, under that order of 21st May 1994 Mr. Courtney's proceedings were stayed, and they remained stayed and were so understood to be stayed by both parties during the remainder of that claim's life.
5. On 23rd February 1995, following up a telephone call made on the previous day to the court offices, Hattons wrote to the court asking for an extension of time within which to apply for a trial date. The way in which the 15 month rule under O.17,r.11 worked was that if application for a trial date had not been made within the 15 months during which the automatic directions ran, then the claim in question suffered an automatic strike out. If that happened the claimant had to apply to reinstate the claim if it was going to survive.
6. With the 15 month date of 17th March 1995 coming up imminently, Hattons wrote to the court asking for an extension of time within which to apply for a trial date and they were given a hearing date of 4th April 1995, which of course was after the strike out date.
7. On 4th April 1995 the matter came before Deputy District Judge Barnby. He ruled against Mr. Courtney on two bases which subsequent decisions in the Court of Appeal indicated to have been ultimately wrong. First of all, he rejected a submission that the order for a stay of 21st April 1994 overrode the automatic directions in the 15 month rule. He rejected that submission and said that it was the automatic directions which overrode the stay provisions. Secondly, he was not prepared to regard the application to extend time as itself an application for a trial date made before the strike out date. Moreover, although I am not sure that on that day an application to reinstate was made to him, he did indicate, by reference to the discretionary principles discussed in Rastin v British Steel Plc [1994] 1 WLR 732, that he did not regard Mr. Courtney's merits for reinstatement as being good ones.
8. The application before Deputy District Judge Barnby was made while Hattons were still on the record and, although instructions had been transferred to Lloyd & Co., Hattons had, in their letter of 23rd February 1995 and in pushing forward the application of 4th April, continued to handle Mr. Courtney's litigation at that stage. Subsequently, on 25th April 1995 Lloyd & Co came formally on to the record in the place of Hattons. They were therefore the solicitors in the saddle when Mr. Courtney's appeal from the decision of the Deputy District Judge came before Judge Wilson on 5th June 1995. The same two points were argued before him by counsel, Mr. Bhose, but Mr. Courtney failed before the judge on both points. The judge, like the Deputy District Judge, considered that the automatic directions overrode the stay order and that the application to extend time did not itself amount to an application to fix a trial date before time ran out and the automatic stay came in. On that occasion an application to reinstate the struck out proceedings was made to the judge but he rejected that application.
9. In a note of the judgment made by a solicitor who was present [I also have a contemporaneous manuscript note of the hearing] this paragraph appears:

"On the application to reinstate the judge concluded that the plaintiff's solicitors' misconception of the effect of the stay was not a reasonable excuse for his failure to request a trial date in time and the plaintiff had failed lamentably to prosecute his action with reasonable diligence. Furthermore, the judge concluded, although it was no longer necessary to consider the question, that the plaintiff's delay in the action had prejudiced the defendant's insurers, in that they were still not in a position to value the plaintiff's claim properly and could not therefore protect themselves against an order for costs by making an appropriate payment into court."

10. It might be said about that, that if both parties considered that the action was stayed meanwhile, Mr. Courtney could argue on his behalf that the absence of preparations for trial during that period was not unexpected on the part of either party. On the other hand, the difficulty with that argument is that the only reason why the action did remain stayed after 21st April (of course it was not stayed before 21st April) was something which lay upon the side of Mr. Courtney. The only reason why it remained stayed was the absence of his consent to medical examination and of the required authority for the inspection of his medical records. So it was that on 5th June 1995 Mr. Courtney failed on every point before Judge Wilson.
11. It so happens that, almost contemporaneously with that decision, perhaps a few days later, a case was decided in the Court of Appeal called Ferreira v American Embassy Employees Association [1996] 1 WLR 536, which decided that an application to extend time for applying for a trial date, if made before the automatic strike out at the end of 15 months, should be regarded as an implied request to fix a trial date which, if made before the strike out date, prevented the automatic strike out taking effect, and that in such circumstances it did not matter that the application to extend time, involving the implied application to fix a trial date, was not heard until after the strike out date had occurred.
12. Lloyd & Co, then still acting for Mr. Courtney in this litigation, came to hear of the Ferreira case in September 1995. Quite properly, they considered, in the light of that, whether, even though time had expired in which Mr Courtney could seek permission to appeal from Judge Wilson to the Court of Appeal, nevertheless a further appeal should be attempted. They instructed Mr. Bhose, counsel before Judge Wilson, to advise on the prospects of a further appeal. He reported his advice to Mr. Courtney in an opinion dated 23rd November 1995. His advice was against any further appeal on the basis that there were no prospects of success on it, the essential reasoning of counsel being that he regarded Ferreira as having only a narrow effect and not being applicable in Mr. Courtney's case, where, at the time of applying to extend time, Mr. Courtney was not in a position to go to trial. Counsel therefore thought that the Ferreira case, with its implication of an application to fix a trial date, did not extend to a case where the applicant was not in a position to go to trial. Subsequent decisions were to show that Ferreira did not have a narrow effect but, since the Ferreira case was itself, when it emerged, a somewhat unexpected turn of events, it may be that its full ramifications at that time were not completely understood.
13. On 4th June 1996 Mr. Courtney instructed new solicitors, T.V. Edwards. Mr. Courtney has explained to me this afternoon how that came about. There was now concern on the part of both Hattons and Lloyd & Co as to whether they might be responsible in any claim for negligence that Mr. Courtney might bring against either of them. Lloyd & Co felt that in the circumstances it could not continue to act for Mr. Courtney. I quite understand how disappointed Mr. Courtney would have been on that occasion, as he has told me today, to lose the solicitors who had been acting for him for the last two years and to lose them of their own motion. By 6th August 1996 T.V. Edwards had advised Mr. Courtney that he had a good claim against Hattons in negligence and Mr. Courtney began to obtain evidence concerning his injuries from medical experts.
14. That was the state of matters when, in the following year, 1997, a series of cases concerning the automatic strike out jurisdiction began to come through the Court of Appeal. In the third of those cases, Greig Middleton v Denderowicz [1997] 4 All ER 181, Saville LJ, giving the judgment of the court, explained the situation, which was well known in the legal world as at that time, in paragraph 1.1 of his judgment. I will read part of that:

"This is the judgment of the court to which all three members of the court have contributed equally. We were invited to sit together for seven weeks after Easter this year in order to dispose of more than 100 appeals or applications for leave to appeal which had accumulated in connection with the operation of CCR O.17,r.11. At the end of the third week of this period we gave a composite judgment entitled Bannister v SGB plc [1997] 4 All ER 129, in which we restated the existing law and resolved a large number of outstanding issues when deciding 19 appeals and two applications of this kind. Copies of our judgment in Bannister were sent to all the parties in the outstanding appeals and applications, and as a result, a large number of them were resolved by agreement without the need for a court hearing. In order to dispose of the remainder we sat for the next three and a half weeks in a series of two-judge divisions of the court, mainly consisting of Brooke and Waller LJJ. On 22nd May we reconstituted ourselves as a three-judge division to hear the three remaining cases in our list. In one of these cases the appeal as against one of the defendants has now been resolved without any need for a formal judgment..."

15. He continued in paragraph 1.2:

"Two of them also raise an important new issue, following Bannister, in relation to cases where applicants are seeking to appeal out of time. This relates to the proper approach the court should adopt where such applications are lodged out of time because the law has now been authoritatively held to be different from what it was thought to be when the losing party originally decided not to appeal against a judgment. Brooke and Waller LJJ had already heard, but reserved judgment in, four other applications of this type. In this judgment of the full court we will therefore state the principles which should be followed, and we will then go on to apply them to the application we have decided as a three- judge court in which these issues arose."

16. I read those passages to indicate the widespread and important litigation proceeding in the Court of Appeal at that time in relation to these matters arising out of the automatic strike out provision under O.17,r.11.
17. I go back a few months. The decision of Whithead v Avon County Council on 17th March 1997, and the important decision already mentioned in the citation I have made from Saville LJ in Greig Middleton of Bannister v SGP Plc of 25th April 1997, laid down the law in authoritative terms, covering, among many other points, both points of law upon which Mr Courtney had lost before the Deputy District Judge and Judge Wilson. They decided that a stay order did override the automatic stay provisions, the automatic directions and automatic strike out provisions of O.17,r.11, and they also confirmed that the judgment in Fereira, to the effect that an application to extend time involved an implicit application to apply for a trial date and thus avoided automatic strike out if that application was made in time, was a point of wide and not narrow principle: so that by the time, on 25th April 1997, when the Bannister decision was handed down, it had become clear, if not before, that the points argued on Mr. Courtney's behalf before the Deputy District Judge and Judge Wilson ought to have succeeded, as the Court of Appeal ultimately saw and stated the law, rather than to have failed.
18. In the third case, the Greig Middleton case, Saville LJ went on to lay down guidelines as to how applications to extend time to appeal, in the light of this new clarification of the law to the extent that it was new, should be dealt with. In particular, Saville LJ emphasised the following matters. He said that certain factors would strongly militate against the grant of an extension of time. The first was if there was any inexcusable delay in applying for an extension of time. He said at page 195D and following:

"The period for serving a notice of appeal in the ordinary way is 28 days. . . . There is no reason why every effort should not be made to lodge an application within that timescale once a relevant change in the law has been reported, and to notify the potential respondent as soon as it has been lodged. For example, an applicant will have to explain why he could not lodge the application without legal aid, and/or why, if it can be shown it was necessary to have legal aid before lodging the application, he could not obtain it for that purpose (even if the pursuit of the appeal was ultimately dependent on advice for which further legal aid was necessary) and why he did not tell the respondent what he had in mind at the earliest practicable moment."

19. Another important factor was prejudice to the respondent. I quote from Saville LJ's judgment at page 195H:

"There will be a strong presumption, which would not require any evidence unless the contrary is asserted, that the respondent or his insurers have conducted themselves on the basis that the litigation is over if they have received no notice of any intention to continue to pursue it for many months after the decision was made."

20. In the light of those cases, it is sad to say that Mr. Courtney is not in a position to help me at all as to why, at any rate by the autumn at latest of 1997, neither he nor his solicitors were apparently in a position to make an application to extend time in respect of an application to appeal from Judge Wilson's judgment. It appears that the strategy was to sue Hattons and/or possibly Lloyd & Co, and the possibility of resurrecting the litigation against Mr. Murphy seems to have been put completely to one side.
21. To continue the chronology, on 25th June 1998, a year after these legal events that I have been speaking of in 1997, Mr. Courtney transferred his instructions yet again to a firm called Hudson Freeman & Berg, and then, some 18 months later, on 10th December 1999, a long advice from counsel, in this case Mr. Randolph, advised on prospects against Hattons which were said to be far from certain. Then, nearly a year later, on 27th October 2000, Mr. Courtney transferred his instructions to a firm called Paul Roberts Solicitors. It was not until 14th March 2001 that he actually commenced proceedings against Hattons and Lloyd & Co by issuing proceedings but not as yet serving them. Before he served those proceedings, he received further advice from new counsel, Miss Ansell, in the form of an opinion dated 4th May 2001, which advised that he was almost bound to fail against those two firms of solicitors on the basis that, although the Deputy District Judge and then Judge Wilson had decided against Hatton & Co's original application and Lloyd & Co's appeal, the points those solicitors had taken were correct ones even if the courts at that time did not appreciate what subsequently came to be authoritatively stated by the Court of Appeal. Mr. Courtney was not satisfied with that opinion and therefore obtained a second opinion from other counsel, Mr. Williams, on 10th July 2001. That was to broadly similar effect. In the event, the solicitors were never served with the proceedings which had been issued and in respect of which service was required by at latest 30th July 2001.
22. At about the same time Mr. Murphy sued in fresh proceedings for his costs under a consent order which had been entered into on 21st July 1997, the effect of which was to postpone any application for those costs until Mr. Courtney had obtained an indemnity against those costs from or on behalf of Hattons. That consent order was entered into at a time when litigation against Hattons was being contemplated. Mr. Courtney now faces those new proceedings seeking to recover from him Mr. Murphy's costs from the original struck out proceedings. Mr. Courtney would no doubt regard that as adding insult to his injury.
23. Finally, it was only on 18th September of this year that Mr. Courtney, now acting as a litigant in person, issued his notice of appeal in respect of his action against Mr. Murphy. He seeks the extension of time and permission which I began my judgment by explaining.
24. As I explained at the beginning of the judgment, it appears that Mr. Courtney no longer has, and for some considerable time has no longer had, any difficulty in law on the merits of this appeal where this application is concerned, but has the gravest difficulties to overcome the need for an extension of time of more than six and a half years. For these purposes, of course, the court has to consider not only its natural sympathy for Mr. Courtney, who has been injured (there has never been any dispute about Mr. Murphy's liability in negligence for that, only a dispute as to quantum) but also has to bear in mind the other side of the coin, that is to say, any prejudice to Mr. Murphy over this long period of time during which the action has been struck out; and it also has to consider the natural concern of the law that if cases of this kind occur, where changes in the law may entitle a litigant to bring an appeal out of time and may transform what had seemed to be a hopeless appeal to what in the state of the new law looked to be a promising appeal, it is necessary that there be finality in litigation. It is therefore necessary under the principles expounded by Saville LJ in the Greig Middleton case for any such application to be brought forward with as little delay as possible.
25. Mr. Courtney has submitted to me on paper and in person that in a case like this - where the defendant has admitted liability from the first, where it is only a question of quantum, where he has at all times been acting under a misapprehension or under an understanding that his action was stayed rather than caught by the automatic strike out provisions, and where since that time he has been guided by the view of counsel, such as Mr. Bhose, as to his opportunities to appeal, and so, it would seem, has not been advised of any new circumstances that may have arisen in 1997 as a result of the new judgment of the Court of Appeal at that time, in circumstances where he prays in aid his own injury and misfortune and the fact that the respondent is in reality an insurance company who is well able to make reserves against outstanding claims - that the special circumstances, which are necessary for a long extension of time for the purposes of bringing an appeal out of time, do exist in his case. He submits also, by reference to Article 6 of the European Convention on Human Rights, that he has been deprived by the strike out provisions of the opportunity of trial and that he continues to be so deprived even when the law has been settled in his favour.
26. I take into account all those submissions. Nevertheless, the sad facts are that this period of six and a half years is completely inexplicable, at any rate so far as the last four plus years are concerned since the trio of cases in 1997. I have no understanding at all as to what was going on in those years other than that Mr Courtney and his lawyers were, in a rather dilatory way, it has to be said, looking to the solicitors to provide Mr. Courtney with compensation for his loss. I have to bear in mind his alleged loss. I have to bear in mind that there is what Saville LJ called the strong presumption of prejudice on the part of the defendant who, for this long period of time, must have regarded the case against him as being settled business. It goes further than that. If one considers that position against the general background of the case against Mr. Murphy, a case in which proceedings were begun at the end of the limitation period and were pursued in a rather dilatory way, so that at the time of the automatic strike out itself in March 1995 there had been delay from the previous April 1994 in respect of the matter of formal consent for medical inspection and the provision of formal authority to inspect medical records, the background is one in which Mr. Courtney is in no position at all to say that the court ought to place the possible prejudice to him from the loss of his claim higher in the scales than the probable prejudice to the defendant who, so many years after the accident, would have to resort again to litigation if time were extended in Mr. Courtney's favour.
27. As for Article 6 of the European Convention on Human Rights and the right to a fair trial, that article allows the courts to regulate their proceedings with principles, such I have discussed in this judgment, to ensure that litigation is pursued in a timeous way and so that defendants are not prejudiced by too much delay and so that there should be finality in litigation. I am afraid that article 6 does not assist Mr. Courtney either. For all these reasons, much as I sympathize with Mr Courtney's predicament, I am unable to extend time in his favour. For those reasons this application must fail.
Order: Applications refused.