England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge McKenna
(sitting as a Judge of the High Court)
[2010] EWCA Civ 1551

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2011

Lord Justice Tomlinson:

1. These are the brief reasons of the Court for the Order made on Friday 28 January 2011. At the outset we would like to thank all parties for the most helpful and constructive spirit in which they approached the hearing, not pressing positions which had hitherto been adopted when it was apparent that those positions were unsustainable.
2. Paragraph 2 of the Order of His Honour Judge McKenna is apparently predicated upon the assumption that the claims of both Claimants against all five Defendants stood struck out. It is however unclear from his judgment whether he in fact made that assumption or came to that conclusion. If the judge did approach the matter in that way he was mistaken. So far as concerns the claims against the Second, Third, Fourth and Fifth Defendants these had never been struck out and there had never been an application that they should be struck out. MacDuff J on 19 May 2009 had ordered:-

"This action be stayed until 19 May 2010. If no application is made to lift or extend the stay before 19 April 2010 this claim should [be] struck out with effect from midday 19 May 2010."

However by necessary implication MacDuff J's order can only have related to claims against the First Defendant. MacDuff was seised only of (a) the Second Claimant's appeal against paragraph 4 of Master Eyre's Order of 7 November 2008 and (b) the adjourned application for permission to appeal of both the First Claimant and the Second Claimant against paragraphs 1, 2 and 3 of Master Eyre's Order striking out in part the First Claimant's claim against the First Defendant and striking out the whole of the Second Claimant's claim against the First Defendant. In any event Mr Speed made his application to extend the stay on 14 April 2010, i.e. five days before the deadline imposed by MacDuff J. There was thus no automatic strike-out.

3. Thus the position before Judge McKenna was simply that Mr Speed failed in his application to extend the stay. That did not result in the action or any part of it being struck out either as against the First Defendant or at all. There remained unresolved:-

i) The First Claimant's application for permission to appeal against the order of Master Eyre insofar as it struck out his claim against the First Defendant over and above that part which related to assault;

ii) The Second Claimant's application for permission to appeal against the order of Master Eyre striking out his claim against the First Defendant;

iii) The First and Second Claimants' claims against the Second, Third, Fourth and Fifth Defendants in respect of which no application of any sort had ever been made.

4. The Second and Fourth Defendants were not represented before Judge McKenna. The Third and Fifth Defendants were represented but were not properly concerned with the application before the judge, which was simply an application to extend the stay of the action as against the First Defendant. Accordingly the appropriate order to have made on that occasion would have been that the Second Claimant pay the costs of the First Defendant in respect of that application.
5. It is implicit in Master Eyre's Order allowing the First Claimant's claim against the First Defendant to proceed in respect of the alleged assaults that he regarded the Claim Form and Particulars of Claim as having been validly issued and served on the First Claimant's behalf. The First Claimant, who was born on 24 February 1990, was a minor when that was done in November 2007. Furthermore as at that date, November 2007, there remained outstanding Mr Speed's pending appeal from the refusal of Judge Seymour to substitute him for the mother as the First Claimant's Litigation Friend in the earlier separate action No. HQ04X03016, brought by five claimants against the Third and Fifth Defendants.
6. By the time the First Defendant's application to strike out came before Master Eyre on 6 and/or 7 November 2008 the First Claimant had achieved his majority. He was no longer a child. No finding had been made that he lacked capacity to conduct the proceedings. The First Defendant's application to strike out had not been served on the First Claimant and it is we think unlikely if not inconceivable that the First Claimant knew either of the existence of the proceedings or of the existence of the application to strike out. As Mr Norman for the First Defendant rightly recognised the status of Master Eyre's order striking out in part the First Claimant's claim against the First Defendant must be at best precarious. The First Claimant was apparently represented by the Second Claimant but he was no longer a child and he had not been declared to be a protected party. It will be for the Court of Protection to consider the First Claimant's capacity to conduct the proceedings and for any Litigation Friend appointed by that court to make any appropriate application in respect of the Order of Master Eyre.
7. It was very sensibly agreed that the Second Claimant's outstanding application for permission to appeal against the Order of Master Eyre insofar as it struck out his personal claims against the First Defendant should be adjourned pending clarification of the status of the First Claimant's claims after consideration thereof by the Court of Protection.
8. All parties represented before us, therefore all parties save for the First Claimant, expressed their willingness to consider mediation of the dispute. Details of the Court of Appeal Mediation Scheme are set out in Paragraph 14-25 (page 2778) of Civil Procedure Vol.2. We commend that scheme to the parties, which is available where there is the possibility, as here, of further court proceedings. Obviously the First Claimant could not without more be involved in such a mediation since he is currently unrepresented and his capacity remains unresolved. There is however no impediment at this stage to the other parties attempting a mediation of the Second Claimant's independent claims and participation in such proceedings by the First Claimant might in due course commend itself to either the Court of Protection or a Litigation Friend appointed on his behalf. The Civil Appeals Office will assist if asked to do so.