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Ritchie v McKee & Ors [2014] NIMaster 17 (28 November 2014)

Neutral Citation No. [2014] NIMaster 17	Ref:

Judgment: approved by the Court for handing down	Delivered:	28/11/2014
(subject to editorial corrections)

IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND

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QUEEN'S BENCH DIVISION

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BETWEEN:

Eddie Ritchie

Plaintiff;

And

Dr Henry McKee

Dr S. J. Kyle

Dr Deirdre Savage

David W. McComb

Defendants.

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Master Bell

Introduction

[1] These applications concern four separate actions by the plaintiff, Mr Ritchie, against four separate defendants. In each application he applies for an extension of time to comply with Unless Orders which were granted by me on 16 June 2014.

[2] Mr Ritchie appeared as a litigant in person. Mr Wilson of Tughans appeared on behalf of Dr McComb and Dr Savage. Mr Park, instructed by Carson McDowell, appeared on behalf of Dr McKee and Dr Kyle.

[3] Each of the four actions is a medical negligence action which forms part of a series of thirteen separate medical negligence actions (three of which have been already disposed of prior to any trial of the issues relating to the plaintiff's treatment) and which the plaintiff has brought against a variety of doctors in relation to medical treatment he received.

The Chronology of Each Action

[4] The chronology in each of the four actions differs somewhat from the others but in recent times there are significant similarities. An abbreviated chronology focussing on more recent events in respect of each action shows the following :

Ritchie v McComb :

(i) 30 November 2001 – Date of Cause of Action.

(ii) 26 November 2004 - Writ issued

(iii) 20 June 2013 – Plaintiff directed by Gillen J to exchange liability and causation reports before 22 November 2013.

(iv) 15 October 2013 – Time extended and the Plaintiff directed by Gillen J to exchange liability and causation reports before 20 January 2014.

(v) 16 June 2014 - Unless Order granted by Master Bell striking out Plaintiff's action unless he set the case down for hearing by 16 July 2014. (The order was complied with and the action was set down for trial on 16 July 2014.)

(vi) 16 June 2014 – Unless Order granted by Master Bell striking out Plaintiff's action unless he commissioned expert medical evidence by 11 August 2014 and served a letter confirming same by 30 September 2014.

(vii) 16 June 2014 – Unless Order granted by Master Bell striking out Plaintiff's action unless he complied with Gillen J's direction to exchange causation and liability reports by 30 September 2014.

(viii) 8 August 2014 – Extension of time granted by Master Bell, extending time for the commissioning of expert evidence until 26 September 2014 and for the service of a letter confirming same until 30 September 2014.

(ix) 23 September 2014 – Letter received from Plaintiff seeking a further extension of time for compliance with the Unless Orders of 16 June 2014.

Ritchie v Savage :

(i) 23 November 2001 – Date of Cause of Action.

(ii) 18 November 2004 - Writ issued

(iii) 20 June 2013 – Plaintiff directed by Gillen J to exchange liability and causation reports before 22 November 2013.

(iv) 15 October 2013 – Time extended and the Plaintiff directed by Gillen J to exchange liability and causation reports before 20 January 2014.

(ix) 23 September 2014 – Letter received from Plaintiff seeking a further extension of time for compliance with the Unless Orders of 16 June 2014.

Ritchie v Kyle :

(i) 5 November 2002 to 20 January 2003 – Treatment provided which is the subject of this action.

(ii) 3 November 2005 - Writ issued

(iii) 29 June 2006 – Unless Order granted by Master Wilson dismissing the Plaintiff's action unless he served a Statement of Claim by 30 September 2006.

(iv) 26 September 2006 – Plaintiff's Statement of Claim served.

(v) 20 June 2013 – Plaintiff directed by Gillen J to exchange liability and causation reports before 22 November 2013.

(vi) 15 October 2013 – Time extended and the Plaintiff directed by Gillen J to exchange liability and causation reports before 20 January 2014.

(vii) 16 June 2014 - Unless Order granted by Master Bell striking out Plaintiff's action unless he set the case down for hearing by 16 July 2014. (The order was complied with and the action was set down for trial on 16 July 2014.)

(viii) 16 June 2014 – Unless Order granted by Master Bell striking out Plaintiff's action unless he commissioned expert medical evidence by 11 August 2014 and served a letter confirming same by 30 September 2014.

(ix) 16 June 2014 – Unless Order granted by Master Bell striking out Plaintiff's action unless he complied with Gillen J's direction to exchange causation and liability reports by 30 September 2014.

(x) 8 August 2014 – Extension of time granted by Master Bell, extending time for the commissioning of expert evidence until 26 September 2014 and for the service of a letter confirming same until 30 September 2014.

(xi) 23 September 2014 – Letter received from Plaintiff seeking a further extension of time for compliance with the Unless Orders of 16 June 2014.

Ritchie v McKee :

(i) January 2002 – Treatment provided which is the subject of this action.

(ii) 12 January 2005 - Writ issued

(iii) 29 June 2006 – Unless Order granted by Master Wilson dismissing the plaintiff's action unless he served a Statement of Claim by 30 September 2006.

(iv) 28 September 2006 – Plaintiff's Statement of Claim served.

(v) 20 June 2013 – Plaintiff directed by Gillen J to exchange liability and causation reports before 22 November 2013.

(vi) 15 October 2013 – Time extended and the Plaintiff directed by Gillen J to exchange liability and causation reports before 20 January 2014.

(xi) 23 September 2014 – Letter received from Plaintiff seeking a further extension of time for compliance with the Unless Orders of 16 June 2014.

[5] In summary therefore the plaintiff was subject to Unless Orders made on 16 June 2014. He complied with the Unless Order to set the four actions down for trial. He then sought additional time to comply with the remaining Unless Orders requiring him to commission expert evidence, confirm that he had commissioned expert evidence, and exchange expert evidence on causation and liability. As a result, he was granted an extension of time. In this application he now seeks a further extension of time.

Unless Orders – The Law

[6] In respect of the applicable law to the application, Mr Ritchie had no submissions to make.

[7] Amongst the decisions referred to in their lists of authorities, there were several which Mr Wilson and Mr Park specifically referred to at the hearing. In his submissions Mr Wilson made the point that an important principle was that any extension of time for compliance with an Unless Order was a matter for my discretion. He referred me to the decision in Samuels v Linzi Dresses Ltd [1981] 1 QB 115 where Lord Roskill stated :

"To say that there is jurisdiction to extend the time where an "unless" order has been made and not complied with is not to suggest - let this be absolutely plain - that relief should be automatically granted to parties who have failed to comply with the orders of the court or otherwise than upon stringent terms either as to payment of costs or as to bringing money into court or the like. Orders as to time, and in particular as to the time for delivery of pleadings and particulars are made not to be ignored but to be complied with. In the present case, long before the problem caused by the Christmas holidays last year arose, there had been serious delay in complying with various orders, and the defendants were at mercy when they came before Judge Hawser. They had not done that which they ought to have done. They were not, save perhaps at the very last moment, deserving of any sympathy. But at the last moment they had made a real effort to comply with the order and they were perhaps unlucky that their efforts did not meet with success.

In my judgment, therefore, the law today is that a court has power to extend the time where an "unless" order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not."

[8] In terms of the general principles to be applied to Unless Orders, Mr Wilson referred me to the decision of Smith v Nixon [2013] NIMaster 14 where Master McCorry summarised the law on the subject. Master McCorry, having reviewed the various authorities, stated :

"I remain of the view that that the most helpful approach to cases of non-compliance with unless orders is that demonstrated in the guidelines set out by the Court of Appeal in Hytec Information Systems Limited v Coventry City Council [1997] 1 WLR 1666. In that case the plaintiff sought further and better particulars of the defendant's counterclaim, and the defendant failing to comply with the request and a series of orders of the court that it should do so, the court directed that unless the replies were provided by a specified date the defendant's pleadings would be struck out. Some particulars were provided but the plaintiff was not satisfied as to their adequacy and moved to strike out the defendant's pleadings. Counsel for the defendant, taking the view that the pleadings were adequate, did not attend the hearing and instead sent her pupil to adjourn the application, an unfortunate practice not entirely unknown in this jurisdiction. The court refused to adjourn and held that the particulars served were inadequate and that the defendant had deliberately flouted the court's order and accordingly the pleadings should be struck out. A subsequent application by the defendant to extend time to serve particulars was refused. Dismissing the defendant's appeal the Court of Appeal (per Ward LJ, Lord Woolf MR and Auld LJ assenting) held that each case had to be considered on its own facts but that the underlying approach might be encapsulated by the following:

"1. An unless order was an order of last resort, not made unless there was a history of failure to comply with other orders. It was the party's last chance to put its case in order.

2. Because it was the last chance, a failure to comply would ordinarily result in the sanction being imposed.

3. The sanction was a necessary forensic weapon which the broader interests of the administration of justice required to be deployed unless the most compelling arguments were advanced to exonerate the failure.

4. It seemed axiomatic that if a party intentionally flouted the order he could expect no mercy.

5. A sufficient exoneration would almost invariably require that he satisfied the court that something beyond his control had caused the failure.

6. The judge would exercise his judicial discretion whether to excuse the failure in the circumstances of each case on its own merits, at the core of which was service to justice.

7. The interests of justice required that justice should be shown to the injured party for procedural inefficiencies causing the twin scourges of delay and wasted costs. The public administration of justice to contain those blights also weighted heavily. Any injustice to the defaulting party, though never to be ignored came a long way behind the other two."

[9] Mr Park agreed with Mr Wilson as to the applicable law and offered two further authorities. Firstly, he referred me to Hughes v Hughes [1990] NI 295 where Lord Carswell emphasised that the party seeking the extension of time must put before the court some material to serve as a foundation for the court's exercise of its discretion :

"In Whistler v Hancock (1878) 3 QBD 83 it was held that once a party had failed to comply with an "unless" order such as that made by Master Wilson in the present case, the action was defunct, and the court had no jurisdiction to make an order after that expiry of that time extending time in favour of the party in default. This decision stood as authority for just over 100 years, although much criticised and frequently distinguished, until overruled by the Court of Appeal in Samuels v Linzi Dresses Limited [1981] QB 115, [1980] 1 All ER 803. The Court of Appeal there held that a court has power to extend the time where an "unless" order has been made but not been complied with, but warned that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. In the subsequent case of Smith v Secretary of State for the Environment, The Times 6th July 1987 May LJ warned that Order 3, rule 5 should not be considered to be an easy escape route for those who do not conduct their affairs and those of their clients with all necessary expedition.

It is therefore a matter of discretion for the court to decide whether to extend the time, applying the ordinary principles which it should follow in the case of applications of extension of time. These principles have been considered in some detail in this jurisdiction in Davis v Northern Ireland Carriers [1979] NI 19 and Coyle v Secretary of State [1986] 11 NIJB 71; [1987] 8 NIJB 59. In each of those cases the court gave detailed consideration to the factors which it ought to take into account in determining how to exercise its discretion in any given case. Before one can start to do so, however, it appears that the party seeking the extension must put before the court some material to serve as a foundation for the court's exercise of its discretion. As Lord Guest said, giving the opinion of the Judicial Committee of the Privy Council in Ratnam v Cumarasamy [1964] 3 All ER 933, 935, [1965] 1 WLR 8:

'The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.' "

[10] Mr Park also referred me to Arbuthnot Latham Bank Limited v Trafalgar Holdings [1998] 1 WLR 1426 where Lord Woolf said :

"Whereas hitherto it may have been arguable that for a party on its own initiative to in effect "warehouse" proceedings until it is convenient to pursue them does not constitute an abuse of process. When hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes."

[11] I agree that these are the appropriate principles to apply in these applications.

Consideration

General Context

[12] I start by observing that each application by Mr Ritchie must be viewed in the context of what has happened previously in that particular action and care must be taken to ensure that any defects which he may have demonstrated in respect of his managing of one action are not visited upon his litigation in respect of a different defendant.

Previous Breaches of Rules and Orders

[13] Mr Wilson argued that one of the factors which I ought to take into account in the exercise of my discretion was the significant delays which Mr Ritchie had been responsible for in respect of the actions. He also argued that I should take into account previous breaches of court orders and Rules by Mr Ritchie :

[14] In respect of the McComb action there were the following breaches :

(i) Breach of Gillen J's direction to set the action down by 7 October 2013

(ii) Breach of Gillen J's direction to exchange liability and causation evidence by 22 November 2013

(iii) Breach of Gillen J's direction to exchange quantum evidence by 22 November 2013

(iv) Breach of Gillen J's direction to set action down for trial by 20 December 2013

(v) Breach of Gillen J's direction to exchange liability and causation evidence by 20 January 2014

(vi) Breach of Gillen J's direction to exchange quantum evidence by 20 January 2014

[15] In respect of the Savage action there were the following breaches :

(i) Breach of Order 18 Rule 1 by failure to serve a Statement of Claim within the prescribed time limit, which failure resulted in an Unless Order being granted by Master Wilson on 7 April 2006.

(ii) Breach of Gillen J's direction to set the action down by 7 October 2013

(iii) Breach of Gillen J's direction to exchange liability and causation evidence by 22 November 2013

(iv) Breach of Gillen J's direction to exchange quantum evidence by 22 November 2013

(v) Breach of Gillen J's direction to set action down for trial by 20 December 2013

(vi) Breach of Gillen J's direction to exchange liability and causation evidence by 20 January 2014

(vii) Breach of Gillen J's direction to exchange quantum evidence by 20 January 2014

[16] Mr Wilson submitted therefore that Mr Ritchie's case management had fallen well short of what it ought to have been. Although not specifically enumerated by Mr Park, Mr Ritchie was responsible for similar breaches of court directions in both the McKee and Kyle actions.

Lack of Expert Evidence

[17] Mr Wilson submitted that it was a matter of quite substantial concern that Mr Ritchie had no expert evidence at this stage. Mr Wilson reminded me that, at a Queen's Bench Master's review as far back as 25 November 2010, I had asked Mr Ritchie whether he had at that stage obtained expert evidence. And when Mr Ritchie had replied that he had not done so, I explained to Mr Ritchie that obtaining expert medical evidence was generally considered essential in order to litigate a medical negligence action. In addition, Mr Wilson submitted that at the Senior Queen's Bench Judge's review on 20 June 2013 Gillen J had warned Mr Ritchie that if he was not in a position to exchange expert evidence his case was at risk of being struck out. Mr Wilson submitted that his clients had been put to not unsubstantial expense in actions where, even though a decade had passed since the issuing of the Writs, the plaintiff had still not obtained the fundamental evidence which was necessary if he was to have any hope of being successful. Despite being directed by Gillen J to get such evidence, he failed to do so. He was then given another chance by Gillen J to obtain such evidence and he failed to do so. The defendants then sought the Unless Orders which were granted. The plaintiff had then failed to comply with those orders and had sought further time from the court for compliance. Yet he has still not complied.

[18] In "Clinical Negligence" (3^rd Edition, 200) by Powers and Harris paragraph 14.2 states :

"In a clinical negligence action the evidence of the medical experts upon whom reliance is placed at trial is fundamental to each party's case. If the case of the claimant has been properly pleaded upon the basis of sound and corroborated medical opinions delivered and justified in the early preparation of the case, the defendant should be able to see clearly the case that he has to meet."

In "Medical Negligence" (3^rd Edition, 2003) by Jones paragraph 10-157 states:

"In the context of medical negligence litigation expert evidence on both liability and causation will normally be crucial to the outcome of the case."

[19] The plaintiff confirmed in his oral submissions to me that he did not obtain expert medical evidence prior to deciding whether to launch his legal actions, or in drafting his pleadings, and has not done so in preparation for trial. Indeed he confirmed he has not yet written to or emailed any independent medical expert seeking to employ their services in his litigation. Mr Ritchie informed me that he had no computer or computer skills and does not use email. Mr Park submitted that this provided him with no excuse in that all public libraries now have computer facilities, free internet access and staff assistance for the non-computer-literate. He could therefore have used this means to research an appropriate medical expert and request him or her to act as a witness in his litigation.

[20] Mr Park submitted that the complete failure over the last twelve years to attempt to obtain expert evidence to assist a court reach a conclusion that he has suffered medical negligence, or even his failure to do so since being warned by me in 2010 that such expert evidence was a fundamental component of medical negligence litigation, made him wonder whether, in the words of Lord Woolf in Arbuthnot Latham Bank Limited v Trafalgar Holdings the litigation was not designed "for other purposes", namely for the purpose of "causing annoyance and harassment" of the doctors whom Mr Ritchie considers have wronged him. While I can see that there may be some strength in the point, it is not necessary for me to decide whether this is true for the purposes of these applications.

[21] Any proper case management by a party of medical negligence litigation involves the obtaining of expert medical evidence. Mr Ritchie has been given chance after chance to obtain such evidence. He has failed to do so.

The Burden of Other Litigation

[22] Mr Ritchie's principal submission may be summarised simply. He argued that he was too occupied with his other legal proceedings to attend to the Unless Orders which are the subject of these four applications.

[23] Mr Ritchie's two letters to the court dated 14 November 2014 purport to set out a range of matters which he was involved in concerning his other litigation and which prevented him from attending to compliance with the Unless Orders. Once these are examined, however, any substance that might be in this argument vanishes like an early morning mist. Many of the matters he refers to in his letters are matters such as :

"Dr McComb's Certificate of Readiness form not signed by Eddie Ritchie until the 10^th day of September."

In my view such references do not provide a basis for me exercising my discretion to extend time. Other reasons included on his list include several telephone calls he has made.

[24] Mr Ritchie submitted that during the period under examination he had had to attend seven court hearings and that preparation for these was very time consuming. He did not specify what particular hearings he was referring to. However I am aware that Mr Ritchie appeared before me on two occasions during this period. One of these was a Queen's Bench Masters Review. My recollection was that the review took five minutes and that, in the light of a decision by the Court of Appeal in respect of service of a Writ in one of his other actions, he simply agreed that a further two of his actions where service of the Writ was similarly flawed should also be struck out as long as no order of costs was made against him. The second of his appearances before me was during the Summons Court when he and two legal representatives sought permission to take the papers for the current application to the Master's Office so that they could agree a date for this hearing. Little preparation was necessary for either appearance. Mr Wilson submitted that a third of the appearances was in respect of four appeals before Stephens J on 7 November 2014 in respect of costs orders I had made against Mr Ritchie when making the Unless Orders on 16 June 2014. According to ICOS the four appeals lasted a total of 55 minutes. Mr Wilson submitted that the duty of Mr Ritchie as the appellant had been to prepare and serve a book of appeal on the court. Mr Ritchie did not do so and, in order to assist the court, the defendants prepared the book of appeal.

[25] Mr Park submitted that it was insufficient for any plaintiff to submit that he could not attend to a piece of litigation because he was focussing on other litigation which had commenced. He suggested that would leave defendants caught in a Kafkaesque trap where they could not move unmerited litigation to a closure. All a plaintiff had to do was commence a sufficiently large number of actions to mount such an argument.

[26] Undoubtedly, however, preparing for a number of the court hearings and taking some of the procedural steps which he had to take in order to progress his litigation will have required time, concentration and effort. I have also taken into account that Mr Ritchie is not a young man and he is not legally qualified. However, having considered each of the items referred to in Mr Ritchie's two letters, I do not consider that the matters he was involved in were sufficiently onerous as to prevent him from having made enquiries in respect of expert medical evidence and from seeking to comply with the Unless Orders in each of the cases.

Mr Ritchie's Health

[27] Mr Ritchie also submitted that a factor in his non-compliance with the Unless Orders had been that he had had two outpatient appointments at the Ulster Hospital on 20 August 2014 and on 24 September 2014. I do not consider that two outpatient appointments is a sufficient reason to extend time. Further, Mr Ritchie also raised in a broader way the issue of his ill health having been a factor with his non-compliance. He said that he had a number of medical certificates which demonstrated that he had been ill. However, when I asked him what was the date of the most recent medical certificate, he informed me that it was dated 6 February 2014. As this pre-dated the making of the Unless Orders, I have therefore concluded that ill-health is not a factor which I should take into account in this application.

The Amount of Latitude to be Given to Personal Litigants

[28] If this case was one in which all the parties were professionally represented, I would not, taking all the relevant factors into consideration, grant the plaintiff a further extension of time to comply with the Unless Orders. Should I do so because the plaintiff is a personal litigant and he requires greater latitude than a professionally assisted party ? In consideration of this issue, I must first recognise that this plaintiff is now an experienced personal litigant. His litigation has been running for a decade. Over these years he has appeared before both Queen's Bench Masters in the context of the Summons Court, Masters' Reviews and contested summonses; before a variety of High Court Judges in Queen's Bench Reviews, a judicial review and appeals; and before the Court of Appeal on more than one occasion. He is not unaware of the effect of Unless Orders, as his first experience of them dates back to 2006 when Master Wilson granted an Unless Order striking out his action against Dr Kyle unless he served a Statement of Claim.

[29] In Magill v Independent Clinic and Others [2010] NICA 33 Girvan LJ, in giving the judgment of the court, explained the court's attitude to the argument that personal litigants :

"Mrs Magill also emphasised that as a personal litigant she was at a disadvantage compared to litigants professionally represented and the submission appeared to suggest that that fact should in some way ease her task in seeking an extension or resisting an order for security. On her own case she did take advice about a potential appeal but irrespective of that fact, a personal litigant cannot have an unfair advantage against represented parties by seeking to rely on inexperience or a lack of proper appreciation of what the law requires. The application of legal principles poses a duty on the court to examine cases objectively without fear or favour to any party, represented or unrepresented. While courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the court from in any way distorting the rules or the requirements of due process because one party is unrepresented."

While Mr Ritchie may therefore be given a little latitude because he is a personal litigant, this must not be done in such a way as to distort rules or the requirements of due process. In respect of the issue of whether he should now be given a second extension of time, I conclude, in the light of the warnings he has been given by both myself and Gillen J and the extensions of time he has already been given by both of us, that any further extension of time would distort the requirements of due process.

Conclusion

[30] Taking into account all the matters set out in this judgment, both as individual factors, and in terms of their combined effect, I conclude that there is no basis on which I should further extend time for the plaintiff to comply with the Unless Orders made on 16 June 2014 in any of the four actions. I shall now hear the parties as to costs in respect of the applications.