England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(His Honour Judge Marshall Evans QC)

		Royal Courts of Justice Strand London WC2 Monday, 19th February 2001

1. LORD JUSTICE HENRY: I will ask Lady Justice Arden to give the first judgment.
2. LADY JUSTICE ARDEN:This is an appeal, with the permission of the judge, from the order of His Honour Judge Marshall Evans QC dated 5th September 2000, whereby the learned judge vacated the trial date for this action, which was fixed for 7th September 2000, and gave a number of directions, in particular further instructions to be given to the court-appointed single expert.
3. The form of the order is at page 18 of the bundle. It provides (so far as material):

"1.The Claimant do have leave to amend particulars of claim in accordance with the draft forthwith and service of the same be dispensed with.

2.The Defendants do have leave to re-amend defence if necessary by 19 September 2000.

3.The Claimant do have leave to file a reply to the re-amended defence if necessary by 2 October 2000.

4.The parties do have permission to reinstruct Graham L Bugbee of Brady Engineering Consultants Limited to deal with the issue of manual handling, the instructions to be agreed by 19 September 2000 and further joint engineers report to be filed by 17 October 2000. [Mr Bugbee] do have leave to explain his reasons for including in paragraph 7:17 that the more likely cause of the accident was that set out in paragraph 7:18; to express his opinion on the training appropriate to be given to the operator of a vehicle fitted with such a crane for load handling for both mechanical and health and safety requirements.

5.The trial fixed for the 7 September 2000 be vacated and the matter be relisted for a further directions hearing on 6 November 2000 at 10.50am. Estimated length of hearing 20 minutes. ...

7.Costs of application of and consequential upon adjournment and amendment be the Defendants in any event not to be enforced without leave of the court save by way of set off against any damages or costs awarded. ..."

4. I now turn to a brief summary of the relevant events in the course of these proceedings. The claimant's case is that the accident occurred on 6th October 1995. The defendants say that there is no objective evidence of the accident and that the entries in the accident book for the relevant period appear to be missing.
5. Proceedings were commenced on 1st October 1998. There were various procedural steps and then there was a date set for the exchange of witness statements in January 2000. The defendants served their witness statements then, but the claimant did not serve his witness statement until June 2000. The court, however, gave the claimant permission to use that witness statement nonetheless.
6. The witness statements of the defendants included a statement by Mr McKeever, who is not himself an expert, but who gave evidence to the effect that the accident could not have happened as described by the claimant for technical reasons. There was no application for expert evidence. Mr McDonald, for the claimant, has explained that this was due to an oversight on the part of his client. But in the listing questionnaire which was filed in January 2000 the claimant did state that directions for expert evidence were required. However, no steps were taken until August 2000, when, on the application of the claimant, District Judge Wright made an order for expert evidence to be filed by a date shortly thereafter - that is, within three weeks of the date set for the hearing of the action.
7. The expert signed his report on 24th August and it was delivered very shortly thereafter. The claimant saw the report and made an application to vacate the date of trial, for the reason, in short, that the expert did not support his case but suggested another possible case. On 5th September the application to vacate was heard by His Honour Judge Marshall Evans QC and he made the order which I have already read.
8. The facts concerning the accident and the evidence are, very shortly, these. The claimant is a heavy goods vehicle driver. He says that he suffered injury while unloading scaffolding from a hydraulic crane on the trailer of his lorry. He asserts that the crane was defective and that the arm of the crane fell down, dropping its load. The defendants' case is that the accident never happened; alternatively, that it could not have happened in the way the claimant asserts. The single joint expert basically agrees with the defendants, but suggests in his report that another possible cause of the accident was that the load shifted within the webbing slings in which it was held. This, however, was not the claimant's case prior to the amendment which was allowed by His Honour Judge Marshall Evans. Indeed, the witness statement of the claimant describes, at paragraph 19, how in the course of unloading he was pushing the load over the wooden blocks he had placed on the ground. Then he says:

"... I verily believe the HIAB loader lost power since the crane/arm fell down dropping the scaffolding boards."

9. So that contemplates that it was the crane which fell and that that was the cause of the accident.
10. However, there is other evidence. There is the evidence of the chiropractor whom Mr Holmes, the claimant, consulted on 6th October 1995. He records that:

"The Claimant stated that he was guiding some scaffolding boards when some of the boards dropped causing him to drop and lunge forward thereby severely hurting his lower back."

11. In addition, the claimant was interviewed by the expert, Mr Bugbee. Mr Bugbee records that the claimant said that he suffered back injury:

"... when a vehicle crane suddenly and without warning lost power, causing the load of the crane to descend in an uncontrolled manner."

12. It is not entirely clear what was being recorded by the expert, but one possibility is that the claimant was informing him about the dropping of the load rather than the dropping of the crane arm. As I have said, the judge allowed an amendment which involved the insertion into the claimant's statement of case of a sentence to cover the claimant's possible hypothesis.
13. Before turning to that, I will first read what the expert says in the relevant paragraph of his report. At paragraph 7.18 he said:

"At the material time the Claimant was manually manoeuvring a load by rotating one end of a bundle of scaffolding boards, which were supported by two `webbing' lifting slings. At the material time the Claimant tells me he had both hands on the upper surface of one of the upper scaffolding boards within the bundle, as a result of which he would probably be applying a small downward force and a larger sideways force upon one end of the load as he rotated the load. The scaffolding boards were not banded or otherwise secured one to another other than by the two `webbing' lifting slings I understand, and it is therefore possible in my opinion that the load itself suddenly `shifted' within the slings."

14. In consequence of that report the claimant sought leave and obtained from the judge permission to amend his statement of case to insert this sentence:

"Further and in the alternative the scaffolding boards were not banded or otherwise secured one to another other than by two webbing lifting slings, the load itself suddenly shifted within the slings causing the load to drop."

15. It is common ground that the judge had to apply the overriding objective in the Civil Procedure Rules. This would be a convenient point for me to read the appropriate part of CPR Part 1, paragraph 1.1:

"(1)These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2)Dealing with a case justly includes, so far as is practicable -

(a)ensuring that the parties are on an equal footing;

(b)saving expense;

(c)dealing with the case in ways which are proportionate -

(i)to the amount of money involved;

(ii)to the importance of the case;

(iii)to the complexity of the issues; and

(iv)to the financial position of each party;

(d)ensuring that it is dealt with expeditiously and fairly; and

(e)allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

16. I will now go to the judge's judgment. As I see it, the judge was applying the overriding objective. He comments first on the absence of evidence (in terms of paragraph 17 of the expert's report) in the claimant's own witness statement, but he goes on:

"Nevertheless, as the engineer instructed jointly on the direction of the court was asked to answer questions provided by the court, and says in effect that he thinks he is being asked the wrong questions, it seems to me that in this case it is appropriate to allow the claimant to endeavour to investigate the alternative case postulated, but I have to say no more than postulated by the engineer. Where that leaves him and what his relationship with the Legal Aid authorities or the Legal Services Commission, as it now is, will be after these steps have been taken is a matter that no doubt will be considered. It is unfortunate that it is so close, but I am in the circumstances going to vacate the trial from 7th and 8th September 2000.

I think it is very difficult for the court to deal with a case when the engineer effectively instructed by the court tells the court he is considering it on the wrong basis. Whether that means there is any basis at all on which the claimant can succeed is, of course, another matter entirely. In those circumstances, it looks to me as if the proposed directions next to the application to vacate make sense. Presumably, as there are amended particulars of claim on this, they can go in the court file. A fortnight from today, yes.

The one thing that seems to me is likely to be highly contentious is paragraph 6 of the proposal, that there be no order for costs."

17. As I said, he did indeed make an order for costs, as included in the order which I read out. So the judge formed the view that the appropriate course was to vacate the trial. As I understand it, by the word "appropriate" he meant that that was the fair course to take.
18. I should add that at the end of his judgment, when dealing with permission to appeal, the learned judge said:

"Appeal has prospect of success and other compelling reason, tension between CPR emphasis on maintaining trial date and interests of justice in assuring trial on true and fair basis if appropriate orders as to costs interest etc possible. I do consider it should be referred to the Court of Appeal. As a point of practice and procedure of significant importance."

19. Then he added:

"I am going to say pre-CPR approach consistently adopted by appeal courts to allow adjournments, amendments obtaining further evidence and the like if disadvantage to other party could be compensated by appropriate orders so the case could be dealt with fully on a true basis. The tension between the competing interests is a constantly arising problem in case management."

20. The appellants have made a number of submissions. They point out, first, that the application to adduce expert evidence was made very late in the day. That meant that the report was only received at the end of August; and so if there was any consequential application, there had to be an application to vacate the trial. Secondly, the appellants say that the judge's order does not put the defendants on an equal footing. The accident occurred five years ago and they are in difficulties now in investigating what then happened. Thirdly, the appellants submit that the adjournment will increase expense. Fourthly, they submit that the order was not proportionate. There is only a small sum involved in this action because the claim is for less than £50,000. In addition, the claimant is legally aided. Fifthly, the appellants submit that the judge's order does not result in the expeditious or fair disposal of this case. Sixthly, they say that there is not an appropriate share of the court's resources being allocated to this case as a result of the judge's order.
21. There are a number of strong points that can be made in favour of the appellants' case. First, the claimant has not as yet filed a supplemental witness statement dealing with the matters which are relevant to the postulate in paragraph 7.18 of the expert's report. Secondly, the expert's report is, as the judge recognised, only postulating an alternative theory as a possible theory. It does not say that this is what must have happened or did happen. Thirdly, the claimant applied very late for expert evidence, as I have explained, and this claim is for an accident which happened many years ago.
22. On the other hand, there are number of points which also can be made in favour of the way the judge dealt with the matter. First, the delay may not cause any significant prejudice to the appellants. They could have investigated the facts surrounding this accident at a much earlier point in time. Indeed, one might properly expect them to have done so. That would lead to the conclusion that there is really no greater prejudice as a result of the order than there would have been if the order had not been made. Secondly - and this is, it seems to me a relatively strong point - there is medical evidence which is consistent with the claimant's case. Indeed, the experts agree that the claimant injured his back in an accident at work on 6th October 1995. Thirdly, there is the evidence that the claimant gave to the expert at interview and there is the evidence of the chiropractor, to both of which I have referred. There is also the point that the defence never pleaded the technical failure which the defendants rely on, as we have seen from the witness statement of Mr McKeever, and they never themselves put in any expert evidence to support that case.
23. So there are a number of points that can be made either way. I would add that Mr McDonald, for the respondent to this appeal, has accepted that an order should be made for a supplemental witness statement so as to cure the deficiency in the claimant's position and that this should be done before any further instructions are given to the expert.
24. I now come to my conclusions. In my judgment the starting point is to remember that the judge was exercising a discretion and was making a case management decision. The defendants, therefore, have to show that the judge erred in principle, not simply that he could have reached some other decision. As I see it, the judge correctly applied the overriding objective, as he was bound to do, and he concluded that it was fair that the claimant should have the opportunity to instruct the expert on further matters, as set out in his order. The judge was aware of all the circumstances which I have related, including of course that the claimant appears to have suffered an injury at work for which there is no proper explanation. In those circumstances it seems to me that the learned judge carried out a balancing exercise and that his decision is not such that this court can interfere.
25. The judge was bound to consider whether or not the order which he was proposing resulted in dealing with this case justly. When he went through the specific matters which that concept includes, he would no doubt have had regard to the fact that the defendants had their own expert; and that expenditure was unavoidable if there was an adjournment, but that to some extent could be alleviated by the order for costs which he made. Inevitably the adjournment would mean that the case could not be dealt with on the fixed date, but the delay that would be involved in the steps which he contemplated was not a comparatively long one. Indeed, I suspect, when considering the court's resources, that the judge took the view that the application to vacate the date itself took a relatively short time, and he anticipated that if the expert's evidence was not in the claimant's favour then the claimant and his legal advisers would indeed have to consider his position, so that that might save valuable court resources in the long run.
26. As I see it, the appellants real complaint is that the judge gave more weight to the factors in favour of the claimant than those in favour of the defendants. That was the result of the balancing exercise which the judge had to do. As I see it, the appellants have not succeeded in showing that there was an error in principle and this court cannot say that the judge was wrong.
27. I should observe that the judge considered that there was a conflict between the position as it was before the Civil Procedure Rules and the position under the new Rules. He considered that there was a "tension". As I see it, one has to remember that the Rules are a new procedural code which has to be construed in its own right, without reference back to prior practice, unless there is some compelling reason for looking at the prior practice. So the function of the judge in this situation is to look at the overriding objective and to consider how the case can be dealt with justly in the light of the circumstances placed before the court.
28. An authority has been cited in this court, namely Mortgage Corporation Ltd v Sandoes [1996] TLR 751. I have not found that authority of great assistance in this matter because it is primarily concerned with the proper approach of the court to the question of adjournment where there has been a default by the party applying in complying with directions of the court. Clearly in this case there has been no relevant failure to comply with directions. There has, however, been delay by the claimant, but I do not understand that there was any timetable requiring him to apply by a particular date. There was also an absence of action by the defendants in applying for expert evidence.
29. In all the circumstances, in my judgment this court should dismiss the appeal.
30. There is one rider I would add. It seems to me important that the claimant' evidence should be completed, if there is to be any more evidence, before the expert is given fresh instructions. However, as I understand it, the claimant will consent to an order for the delivery of a witness statement within a short period of time. If the claimant wishes to put in any further evidence, I would hope that seven days will be sufficient, and that his original witness statement and any supplemental witness statement would stand as his evidence-in-chief, so there will be no further evidence-in-chief without the leave of the trial judge. That will simply leave the matter of the timetable in the judge's order. I trust that counsel can agree appropriate extensions to the dates there mentioned, but I hope that they will not be longer than is absolutely necessary to ensure that this matter is heard as soon as practical.
31. LORD JUSTICE BUXTON:I agree that this appeal should be dismissed. This was a case management decision, very much one to be taken by the judge who is seised of the conduct of the case and is aware of its history. This court will only interfere in a case where the judge has gone plainly wrong or has ignored a relevant direction given to him by the Rules. Nothing even remotely arguable of that nature occurred in this case.
32. I do, however, wish to add a few words of my own to my Lady's reasons, with which I agree, upon the issue raised not so much in the judge's judgment but in his account of his reasons for giving permission to appeal to this court: first, as to the correct approach by courts to applications of this nature; and secondly, as to the general significance of the new Civil Procedure Rules.
33. My Lady has already drawn attention to the passage in which the judge indicated his reasons for giving permission. There is another passage at page 3 to which I would venture to draw attention. It is only right to say that this passage is not part of a considered judgment, but is an interlocutory observation by the judge in the course of argument. It reads as follows:

"... one of these days the Court of Appeal is going to have to face up to the fundamental question, which was whether we go back to what used to be the position, namely that if having a trial of the true issues between the parties on the proper evidence required leave to amend and adjournments and the like, it should always be given providing that the other party could be properly compensated in costs, or by interest provision, or the like. It seems to me, without having considered the authorities in the detail that would be necessary, that there are authorities in the Court of Appeal and in the House of Lords which say that as a general principle, and the question is to what extent have those authorities been modified by the statute that introduced the Civil Procedure Rules and authorised the Civil Procedure Rules and incorporated, of course, in them the overriding objective, which says that the overriding objective is to do justice, but then sets out a series of considerations from which you can always pick one or two which point in the direction which the party wants to point."

34. That passage seems to indicate that the judge felt (as he said more fully in the second part of the passage already read by my Lady) that there was a potential tension between the pre-Civil Procedure Rules attitude to adjournments and the practice that might be followed under the Rules. Secondly, the judge also expressed some difficulty about what he saw as a tension between the emphasis in the Rules on maintaining the trial date and other aspects of the interests of justice in achieving a fair trial.
35. It is quite clear to me that this would not in any event have been the case in which to make a definitive ruling on either of those points, if such ruling was indeed required. This case was distinctly unusual. It was unusual for two reasons at least. The first is that, as its history demonstrates, it is a case to which the Civil Procedure Rules came late in the day. Because of that, and for other reasons, there was no effective management of this case until a case management conference was arranged (we were told, at the instance of counsel for the claimant) in July 2000 - that is to say, when the case had already been in the hands of the court for more than two years. That is the sort of delay that used to occur under the old arrangements. It is the sort of delay that the Civil Procedure Rules are designed to avoid. However, rightly or wrongly, the history of the case is not one into which the particular regime of the Civil Procedure Rules fits very easily.
36. The second unusual feature - indeed, oddity - of this matter is that the case that the claimant now wishes to put, and which the judge thought that he ought to have liberty to put, is not a case that was thought up (if I may use that expression without any derogatory implication) by the claimant himself or his advisers, nor is it one that was advanced by an expert instructed on his behalf. It was, as the judge said, a case (or at least a possibility) that had been ventilated, in the light of the facts as he found them or saw them to be, by the court-appointed expert. That in itself, it seems to me, takes the case out of the ordinary run of case management decisions, because the judge said that it would be an unusual and unsatisfactory state of affairs to go forward to trial in circumstances where the sole expert witness, jointly instructed by both parties, was giving a possible explanation of the accident which was different from the one that, on the pleadings, had to be tried. That reason alone, as I say, made this case unusual.
37. All that said, however, I have to say, with respect, that I find some difficulty in the judge's reasons for thinking that the matter raised general questions that required the attention of this court. As to the two problems that he thought to exist after the introduction of the Civil Procedure Rules, the first being the supposed tension between the previous attitude to adjournments and that which would be appropriate under the Rules, I entirely agree with my Lady that, with the introduction of the Civil Procedure Rules, it is not appropriate to go back to the attitude to case management, or lack of case management, that was adopted before the Civil Procedure Rules were introduced. Whether the attitude of the courts ever went quite as far as expressed by the judge in the passage from page 3 of his judgment that I have read might be a matter for debate. But what I am quite clear about is that an objective of the Civil Procedure Rules, and the assumption of the statute that introduced them, was that in future the court was going to play a much more extensive role in the management of cases. It is simply not good enough now to say that it is sufficient to grant an adjournment or sufficient to interrupt a process already on hand because the matter can be compensated in costs or by interest or the like. Quite often the matter cannot be compensated fairly in costs. It was suggested to us that this was a case in point. But whether or not that is so, such an attitude, in my view, is quite inconsistent at least with CPR Part 1, paragraph 1.1(2)(e), which is concerned with allocating to cases an appropriate part of the court's resources. One of the themes of the Woolf report, which has gone forward into the Civil Procedure Rules, is that the proper management of the court's timetable and resources is just as important as the possibility of compensating the parties should that timetable be disrupted.
38. Secondly, within the framework of the Civil Procedure Rules themselves the judge seemed to think that there was a potential tension between, on the one hound, the need to maintain trial dates and, on the other hand, the need to deal with cases justly. In looking at CPR Part 1, paragraph 1.1, it is perhaps important to note that 1.1(1) says that the overriding objective is to enable the court to deal with cases justly; but then in 1.1(2) it explains that just dealing with a case includes not only matters such as the parties being on an equal footing but also, much more directly, management questions such as saving expense, dealing with the case in a proportionate way and ensuring that it is dealt with expeditiously. In making a decision under the overriding objective the court has to balance all those considerations that are set out under that heading without giving one of them undue weight. It is essentially, as I have said, a matter for the judge's management, and it would be wrong for this court to give, or judges to seek, any direction suggesting that one or other of those criteria was more or less important.
39. That is particularly the case with regard to the possibility of adjournments. In a case that is properly managed (which this case was not) there is clear guidance given as to the appropriateness of permitting an adjournment. That guidance is given in the practice direction annexed to CPR Part 29 dealing with multi-track cases. Paragraph 7 of that direction deals with failure to comply with case management directions. That direction gives very firm guidance indeed that it is only going to be in the most exceptional case where there has been failure to comply with CPR directions that it will be permitted to allow that failure to be rectified by way of adjourning the trial. That direction does not apply to this case because, as I have said, there was no effective management of this case at all under the Civil Procedure Rules and therefore the basis of the application of the practice direction does not apply.
40. Secondly, as I have already said, this case is distinctly unusual. But as time goes on, and as the majority and eventually all of the cases that come forward for management will have been dealt with under the Civil Procedure Rules for the whole of their life, the potential attraction of using adjournment as a solution will need to be looked at very carefully in the light of that practice direction. The dilemma in which the judge and the parties found themselves in this case will hopefully progressively disappear as the Civil Procedure Rules take hold of the whole of the court's work and the whole of a case from start to finish.
41. That said, however, in the particular circumstances of this case the judge was plainly entitled to take the view that he did against this history, and for that reason I would not grant the appeal against his judgment.
42. LORD JUSTICE HENRY:I agree with both judgments and there is nothing that I wish to add.
Order:appeal dismissed with costs.