England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)

		Royal Courts of Justice Strand London, WC2
		14 October 2004

1. LORD JUSTICE WALLER: On 12th November 2003 the respondent to this appeal, whom I shall call Langtree, obtained judgment against the appellant, Mr Richardson, in the sum of £19,051, together with interest of £3,000. That was following a trial, and the essential issue at the trial was whether Mr Richardson was personally liable under one lease and as surety under another. It was Mr Richardson's contention that it was a company who should have been liable under the lease and not himself, and he was misled into signing in his personal name, and his case was that he was further misled into signing as a surety.
2. Mr Richardson applied for permission to appeal to this court on various grounds and Maurice Kay LJ was satisfied that there was no basis for granting permission to appeal in relation to the issue that arose at the trial. However, he was concerned about one aspect, which related to an order that had been made prior to the trial and related to the question of whether the trial should have taken place at all.
3. Mr Richardson's contention was, and is on this appeal, that an order had been made striking out the action if Langtree failed to comply with an order of the District Judge for standard disclosure. He says there was a failure to comply with that order and that the effect of the District Judge's order was that the action was struck out, and thus he says the matter should never have come on for trial. He further says that he raised that question on the first day of the trial on 12th November, seeking to persuade HHJ Taylor that the trial should not take place and presumably that judgment should be entered for him and not Langtree.
4. The question on the appeal is whether Mr Richardson can make good that contention. The relevant chronology is that an order was made on 31st July 2003, ordering both parties to do things by certain dates. It included an order that Mr Richardson should serve a defence, and that in default Langtree would be entitled to enter judgment. It ordered each party to give standard disclosure by 4 pm on 28th August 2003. It identified the time by which requests for inspection or copies should be made, and it identified the date for the simultaneous exchange of witness statements as 4 pm on 25th September 2003, and it dealt with listing questionnaires. It furthermore identified the period during which the case should be listed as being between 10th November and 28th November 2003.
5. Mr Richardson wrote a letter to the court on 3rd September in which he complained that Langtree had not given standard disclosure by the date that the District Judge had ordered. It seems that that letter was dealt with by the District Judge and, of his own motion, without both sides being present, and on simply reading that letter, he made an order dated 19th September 2003 that:

"Unless the claimant [that is Langtree] do by the 1 October 2003 comply with paragraph 2 of the Courts [sic] order of the 31 July 2003, then the claim will be struck out without further order."

6. I interject to say at this stage that so far as standard disclosure is concerned, that is dealt with by CPR 31. CPR 31.10 identifies the procedure for standard disclosure, and included in that procedure is a rule that the list must include a disclosure statement. That is 31.10(5). 31.10(6) says that:

"A disclosure statement is a statement made by the party disclosing the documents –

(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;

(b) certifying that he understands the duty to disclose documents; and

(c) certifying that to the best of his knowledge he has carried out that duty."

7. Langtree's solicitors in fact themselves complained to the court on 29th September that the defence did not contain a statement of truth, but the important letter is that dated the next day of 30th September, which was written to Mr Richardson, in which they enclosed the claimant's disclosure list, saying that "a signed copy will be served in due course". On 1st October Mr Richardson wrote to the court saying that he had received a copy of the list but complaining that the documents referred to in the list had not been enclosed. Then on 6th October the solicitors for Langtree sent to Mr Richardson a copy of the claimant's signed disclosure list. It seems that the court at this stage did not do anything by reference to Mr Richardson's letter of 1st October, but they did respond to the letter of 29th September from the claimant's solicitors complaining about Mr Richardson's defence, refusing to strike out the defence, and the order also records on that date that the action be listed in the trial window, taking into account any witness availability.
8. Thereafter it seems that there was a conversation between the solicitors for Langtree and Mr Richardson when once again, on 24th October, he was pressing for copies of the documents. He was not complaining that there had not been a statement within time. He was pressing for copies of the documents, but he was told by the solicitors that in fact if he wanted copies he would have to pay for the photocopies and that resulted in a letter from Mr Richardson to the solicitors of 23rd October in which he confirmed that conversation and asked for a price in relation to the full copying of:

"... all the documents which you intend to use against myself at the hearing for the above. Due to the shortness of time remaining to the hearing I would appreciate your response by return of post."

9. It is of significance that those conversations and that letter from Mr Richardson are contemplating that the trial is going to take place on 12th November, which was within the trial window indicated by the court, and indeed he is pressing Langtree's solicitors to produce whatever they should produce in good time because of the shortness of time between 23rd October and 12th November.
10. Now, as far as one can tell, very little else took place after that letter, save that Langtree's solicitors served copies of certain witness statements. One was served on 23rd October 2003, that is to say the same date as that letter -- that is from Mr Duckett -- and another from Mr Peters on 6th November, those witness statements not being served in accordance with the original order which had required the exchange by 25th September. It is right to record that Mr Richardson had served his witness statement and that of Mr Singer by 24th September.
11. It was in those circumstances that the matter came on before HHJ Taylor on 12th November. We have no precise record of what occurred on that day, but it seems to be common ground that Mr Richardson drew the judge's attention to the non-compliance by Langtree with the order of 19th September. There was clearly debate as to whether the effect of that order was that the action had been struck out. The inference must be that Mr Richardson was seeking to have judgment entered in his favour on the basis that the action had been struck out, and Langtree were resisting that application and saying that it was not right to strike the action out and the action should continue. The action did continue. We have no transcript of any ruling by the judge, but it is clear that he did not accede to Mr Richardson's application and it was on that basis that the trial went ahead.
12. So far as Maurice Kay LJ was concerned, what gave him cause for anxiety was the proper construction of CPR 3.5(1) and (2). Before us a further point arose in relation to time of service and whether service was late. What Mr Richardson suggested was that since the order provided for the service of the list of documents by 1st October, since he only received whatever he received by way of the list on 1st October, that was a breach of the order. I for my part am somewhat doubtful as to whether that point was a good one, having regard to the provisions of CPR 2.9, but on any view if that were the only point it seems to me that no-one can doubt that the judge would not have confirmed a strike-out by reference to that point alone.
13. That is not a point which was addressed by Mr Richardson, so far as I can tell, when seeking permission to appeal from Maurice Kay LJ. As I say, what troubled Maurice Kay LJ was the proper construction of CPR 3.5. CPR 3.5(1) states:

"(1) This rule applies where –

(a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and

(b) the party against whom the order was made does not comply with it.

(2) A party may obtain judgment with costs by filing a request for judgment if –

(a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case ..."

14. It then deals with another aspect which does not need to concern us. The problem of construction on CPR 3.5 comes really to this. Firstly, fundamentally, is the order made in this case a form of order to which 3.5(1)(a) applies? The argument is, and Mr Richardson takes this point, that since the order of 19th September was an order that the claim should be struck out without further order, it is not simply an order which includes a term that the statement of case of a party should be struck out. It is more than that: it is the actual order striking it out.
15. The other point which concerned Maurice Kay LJ was this. He suggested as a possibility that CPR 3.5 only applied if a party was seeking to obtain a judgment with costs. Therefore (he suggested) if Mr Richardson was not a seeking to obtain a judgment with costs then CPR 3.5 would not apply.
16. I have to say, for my part, I am doubtful whether either of those points are good ones but, as it seems to me, having regard to the view I have formed in any event of what happened on 12th November, there is no necessity to express a final view. The point may be of great significance and one really would have needed argument on a much fuller basis than we have had before expressing a final view.
17. On 12th November the position was clearly this. Either Mr Richardson was making an application under CPR 3.5 to enter judgment, having regard to the order that he had previously obtained on 19th September, or he was in reliance of the order on 19th September, which ordered the strike-out, seeking leave to enter judgment against Langtree so that the trial did not proceed against him. In the same way, Langtree were seeking to resist any such order being made and were doing that on the basis that they should not suffer the sanction which had been imposed on them by virtue of the 19th September order.
18. In that latter regard, it does not appear that much attention was paid to the checklist under CPR 3.9(1), which identifies the various matters which a court should take into account, and which suggests that an application for relief must be supported by evidence. But it seems that the judge, having regard to what had happened in the intervening period from 1st October through to 12th November, took a clear view that, whatever else, it would not be right to confirm any order striking out the action.
19. What one has to remember is that by the time that the trial came on, first of all Mr Richardson had never gone back to the court in order to prevent the processes continuing. He had insisted that he had an entitlement to have the documents. He allowed Langtree on that basis to incur the costs of preparing for trial and coming to the trial and, so far as any breach to which Mr Richardson could point, there could be no prejudice to him at all in that a list had been served on 1st October. He was entitled to get copies of the documents if he was prepared to pay the photocopying charges, and the fact that the disclosure statement only arrived on 6th October did him no harm at all. Indeed, as I have already emphasised, it was not a matter about which he complained.
20. So whichever is the proper construction of CPR 3.5, and whatever the circumstances which could be identified as being matters about which Mr Richardson might have complained to the judge when he was exercising his discretion, the truth is that there was no way in which the judge could have exercised his discretion on the morning of 12th November other than in the way he did. It is clear that any judge, faced with the actual circumstances that existed, would not have entered judgment for Mr Richardson and would not have suggested that Langtree should not be allowed to pursue their claim. He would have allowed the trial to go on as it did, and in those circumstances this appeal must be dismissed.
21. SIR CHARLES MANTELL: I agree.

Order: appeal dismissed.