England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Rougier)

		Royal Courts of Justice Strand London WC2 Wednesday, 23rd May 2001

1. LORD JUSTICE POTTER: This application relates to the striking out of the claimants' claim by an order of Master Ungley dated 6th December 2000 which the claimants appealed to Rougier J. He upheld the Master's decision and the claim remains struck out as a result.
2. It is a second tier appeal and therefore subject to the criteria mentioned in paragraph 2.19 of the Practice Direction, Court of Appeal Civil Division, at [1999] 1 WLR 1036. That Practice Direction has recently been the subject of some elaboration in the Practice Note handed down in the course of judgment in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, 1319G, in which the court observed that the decision of the first appeal court is now to be given primacy unless the Court of Appeal itself considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for it to hear this second appeal. It is of interest to note that that sentence picks up the phraseology of paragraph 2.19 of the Practice Direction earlier referred to, save that it adds a gloss by inserting the adjective "important" before the words "point of principle". I take that, for the purposes of this application at least, as meaning no more than a significant point of principle or practice which may affect a number of other cases or otherwise be important for disposal. I would not read it as intended to mean more than that.
3. When the matter came before me on the papers I indicated that permission was refused because rule 52.3 was not satisfied, which was a reference to those criteria which I have already quoted. I said:

"There is no obvious error or omission of any substance in the decision at either level. While the judge exercised the overall delay in coming to his decision as to whether or not there could be a fair trial, the period of culpable delay since September 1997 was well over 2 years during which memories (such as they were) would further deteriorate. The point on the CPR (para 7 of the skeleton) has little force prior to any order of the court for the CPR to be applied to the proceedings, the application for which inspired the strike out application. The judge did not deal in terms with various of the points made in the skeleton but I am not prepared to assume he did not consider them."

4. The point made in paragraph 7 of the skeleton, to which I referred, was the submission that by virtue of CPR 1.1(2)(d) and 1.3, from April 1999 it was incumbent on both parties to ensure that the case was dealt with expeditiously. It was submitted that the defendant was equally to blame for not restoring the summons for directions, the delay in which constituted the principal delay complained of in the case.
5. At that time I made the assumption that the considerations generally governing matters of strike out prior to the coming into effect of the CPR would continue to be applicable. In this respect Stuart Smith LJ observed in Walsh v Misseldine, Court of Appeal, 29th February 2000, a report of which is available in CCH New Law and an extract from which is quoted in the skeleton:

"But some of the considerations which were relevant before are obviously relevant now. For example the length of, explanation for and responsibility for the delay; whether the defendant has suffered prejudice as a result and if so whether it can be compensated for by some other order relating to costs or interest or it is so serious that it would be unjust to the defendant to require the case to be tried. Moreover the delay may be such that it is no longer possible to have a fair trial."

6. Mr. Charlton has succeeded in persuading me upon this application that he can show, on the basis of the facts in this case and the arguments he has raised, that there is a point of principle involved in the arguments that he will seek to make before the court. He acknowledges that there were decisions under the old law, if I can so describe the practice adopted before the coming into effect of the CPR, relating to the extent to which the court should have regard to and speculate on a witness's memory, the position having been reached where, in effect, the court generally took what might be called judicial notice of the fact that memories fade progressively over a continuing period of delay. He submits that, in the light of the application of the CPR, that question falls for reconsideration, in particular in relation to the effect which it should have upon the judge's determination of the claim. No longer, submits Mr. Charlton, is it simply a matter of establishing prejudice by a formula of that kind, but that there is now a situation which places more to the fore the question of the 'balance of prejudice' between the parties. He submits, and it seems to me that there is some force in this, that that was not the test applied by Rougier J in the course of his considerations, he effectively dealing with the matter simply on the basis of the old law. Mr. Charlton submits that the facts of this case raise, in a neat and acute form, the balance of prejudice test and the prominence which it should be given, bearing in mind the particular facts and the extent to which the real issues had been pared down as between the parties by the time the appeal came before Rougier J.
7. In those circumstances, after some hesitation, I have decided that permission to appeal should be granted.
Order: Application for permission to appeal granted; costs reserved.