IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE
B e f o r e :
LADY JUSTICE HALE
LORD JUSTICE DYSON
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MR S HOWARTH appeared on behalf of the DEFENDANT/RESPONDENT
Crown Copyright ©
"5. The accident was caused by the negligence of the defendants, their servants and/or agents.
5.1. The defendants provided the claimant with shoes which were unsafe. Without prejudice to the generality of that allegation it is specifically allege that the shoes were unsafe in that:
(a) their heels were too high and too narrow;
(b) they were thin-soled and flimsy.
(c) they were ill-fitting and loose for the claimant.
5.2. They failed to provide her with safe and appropriate footwear.
5.3. They failed as aforesaid despite knowing that the trains upon which the claimant was required to work did jolt and move passengers from side to side and "off balance."
5.4. They failed until after the claimant's accident to (a) provide shoes with a lower heel and (b) provide employees with vouchers with which they themselves could obtain their shoes.
5.5. They failed properly or at all to make a suitable and sufficient assessment of the risks of the claimant's work and/or failed to take appropriate steps to reduce such risks.
5.6. In the circumstances, they failed to devise, institute and maintain a safe system and place of work for the claimant, thereby exposing her to an unnecessary and foreseeable of injury."
"the circumstances of the accident are not that the heel of one of our client's shoes snapped... but that the shoes were loose fitting and as such our client was unable to keep her balance."
"I had written to McLarens Toplis, on 23 March, telling them that I had not yet obtained medical evidence but nominating Mr J T Coull FRCS (an orthopaedic surgeon with a special interest in spinal injury) and asking for their confirmation that they had no objection to him being instructed. Unfortunately, there has not been any agreement as to an agreed orthopaedic expert and though I instructed Mr Coull to examine on 14 May he is not able to examine the claimant until 4 July. In consequence I will not obtain the medical report prior to 29 June and it will not be possible for me to effect service of all relevant documentation with the claim form. Mr Coull has however advised me that he should be able to produce his report within 14 days of the examination and in the circumstances I would hope to be in a position to serve all relevant documentation no later than 10 August."
"4. This delay in notifying the claim has caused prejudice to the defendant in that the defendant has been hampered in its efforts to investigate the claim. This is because the claimant's employer Cross Channel Catering Company Limited has effectively ceased to exist, the business being taken over by the present defendant.
5. To date, I instructed and believe that searches made on behalf of the defendant have failed to locate relevant documents such as accident reports. Further, personnel have moved on, such that I have been unable to date to track down any witness who might be able to give a statement relating to the claimant's allegations. My enquiries in this respect continue.
6. A greater obstacle to my investigations, however, is that only until now (3 and a half years after the accident) have I had sight of a properly pleaded particulars of claim explaining exactly how the claimant says her accident occurred and precisely why she says that the defendant is at fault. The particulars of claim and medical report of Mr Coull were received at my offices on 1 October 2001, though it is not clear whether these have been served on the defendant. Indeed it is worth noting that the claimant appears to have fundamentally changed her account in that she said first of all that she fell because the heel snapped off her shoe (the shoes being part of her uniform supplied by the defendant) and now says that this did not happen but that her shoes were loose fitting and this caused her to fall."
"15. Is this a proper case that this lady should have her extension or is this a case where the defendant should have the benefit of the doubt and the exercise of the court's discretion exercised against the claimant? The effect of denying the claimant's application would effectively mean that her claim would be at an end and that would be the end of her claim for damages.
16. I do not think this is a proper case to adopt the same viewpoint as one might in a case of want of prosecution. One must obviously look at the situation from both parties' point of view and I do not dismiss the points that are being made as to possible prejudice on the part of the defendant. But such prejudice I think may well have existed long before the solicitors were involved in this case, and therefore what was then the position probably still exists today. That should not prevent, in my judgment, a claimant being entitled to serve her particulars of claim if is proper to do.
17. I do believe it is proper to do so and I will extend the time. It would otherwise not be taking into account the overriding objective and one has to look at that from both points of view. But if at any stage in the future the defendant takes the view that this is a case for striking out for either want of prosecution or for some other reason, that is a matter entirely for them at that stage. But I think the claimant ought to be given an opportunity of serving her particulars of claim. We are not bound by the same restrictions as one is with the claim form, and therefore I will give permission for the particulars of claim to be served out of time or to extend the time."
"16. There is a certain ambiguity about this Practice Direction because at the time with which I am concerned the claimant was not relying on the evidence of a medical practitioner; she did not have any medical practitioner on whose evidence she could rely. Therefore, it seems to me, there was no objection to serving the particulars of claim without the report on a medical practitioner.
17. If I am wrong about that, then there was certainly no reason why the claimant should not have served her particulars of claim and asked for an extension of time for the purpose of serving the medical report. But what the claimant did was serve nothing. She asked for a general extension but then only gave details in support of her application for extension about the difficulties of getting a medical report. There is not now, and there never has been, any explanation whatsoever for the claimant's failure to serve particulars of claim within the time allowed".
"With all respect to the district judge, it seems to me that there are two criticisms which can be made of the approach of his judgment. First, it is difficult, with respect to him, to see from his judgment, what the real reason for allowing the extension. Second, if he had been referred to a significant number of decisions emanating from the Court of Appeal starting with Bansal v Cheema March 2000, he might have thought it appropriate to judge the claimant's application in the light of a systematic analysis of the situation in accordance with rule 3.9 of the Civil Procedure Rules. In the circumstances it seems to me that I ought to exercise the discretion afresh."
"I look at Rule 3.9, which is to apply by analogy even though strictly no sanction has been imposed and it starts by saying that the court will consider all the circumstances. In the Supreme Court Practice, is a note:
"Thus when considering whether to grant relief to a defendant the Court is entitled to consider the merits of the defence.""
"Although I take, and give due weight to Mr Brown's point about the fact that statements of witnesses have not been disclosed, the way in which the claimant's case has been put so far on the facts, does not inspire a great deal of confidence in its prospects of success, particularly having regard to the fact that she waited two and a half years before instructing solicitors to pursue a claim for personal injuries."
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including --
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there was a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions and court orders and any relevant pre-action protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party;
(i) the effect which the granting of relief would have on each party."
"The point is that if the claimant does not comply with the rules and then asked the court's indulgence, these questions come into play. In my judgment, it would be right for me to follow the persuasive observations made by May LJ in Chapple v Williams and although the merits are not conclusive, the merits are a factor which, in my judgment, it is impossible to disregard. It is no answer to say: the defendants are no worse off than they would have been if the claimant had done everything properly on 1 March. The point is that she did not do everything on 1 March. The court's task is to balance all 3.9 factors and to produce a result which meets the demands of the overriding objective. The court is under an obligation to ensure, so far as possible, the parties are on an equal legal footing. I have already indicated, in my judgment to allow the case to proceed puts the defendants at an overall disadvantage, firstly, because of late notification of the claim, and secondly, because what the whole claim is about, namely the shoes are no longer in existence."
"It seems to me that the court is entitled to look at the overall period of delay. If there had been any explanation from the claimant as to the reasons for the delay until October 2000 before instructing solicitors one would have wanted to look at it and see what explanation was being put forward but none has. The other periods of delay identified have been explained, to some extent, by procedural misunderstandings and procedural mishaps of one kind or another, but the court cannot close its eyes in a flexible civil procedure system to the fact that this accident happened on 5th March 1998, and the claimant did not serve her particulars of claim, stating what she said had happened and what she was complaining about, against the defendants for until nearly three and a half years after the date of the accident. It seems to me that, this kind of delay, accompanied by a failure to comply with the rules is exactly the kind of mischief which the Civil Procedure Rules was designed to avoid among others."
Should the judge have exercised his discretion afresh?
"Every appeal will be limited to a review of the decision of the lower court unless (a) a practice direction makes a different provision for a particular category of appeal, or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing."
CPR 3.9 by analogy.
"Third, there is no compelling reason of policy why the court should interpret r 7.4(2) and r 7.6 in order to cover a situation to which, on their terms, they are not addressed. As Kay LJ has pointed out, there is a clear rationale for the provisions of r 7.6 in relation to the service of the claim form itself. There is no comparable rationale in relation to the service of particulars of claim, in circumstances in which the claim form has itself been served. There is no reason why that situation should not be left to be dealt with, as a matter of discretion, in the exercise of the powers conferred by r 3.1(2)(a), having regard to the overriding objective. Once the claim form itself has been served, the defendant will know that there is a claim against him; and he will be in a position to invoke the assistance of the court if particulars of claim are not forthcoming within due time."
"19. In very many cases a judge will be able to decide whether to extend or shorten a period of time for complying with a rule, practice or direction without undue difficulty after considering the matters set out in CPR52PD, para 5.2. In more complex cases, of which this is undoubtedly one, a more sophisticated approach will be required.
21. In my judgment, it is equally appropriate to have regard to the check-list in CPR r 3.9 when a court is considering an application for an extension of time for appealing in a case of any complexity. The reason for this is that the applicant has not complied with CPR r 52.4(2), and if the court is unwilling to grant him relief from his failure to comply through the extension of time he is seeking, the consequence will be that the order of the lower court will stand and he cannot appeal it. Even though this may not be a sanction expressly "imposed" by the rule, the consequence will be exactly the same as if it had been, and it would be far better for courts to follow the check-list for cases where sanctions are implied and not expressly imposed."
"may well have existed long before the solicitors were involved in this case and therefore what was then the position probably still exists today."
"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and reports may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant."