[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown & Anor v Fenwick [2001] EWCA Civ 1146 (16 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1146.html Cite as: [2001] 47 EGCS 147, [2001] EWCA Civ 1146

[New search] [Printable RTF version] [Help]

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

		Royal Courts of Justice Strand London WC2 Monday 16th July, 2001

1. LADY JUSTICE HALE: This is the claimants' application for permission to appeal against an order of Owen J sitting in the Queen's Bench Division in Leeds on 15th March 2001. He dismissed their appeal from the order of His Honour Judge Bartfield made in their personal injury action.
2. The claimants are husband and wife. They own and run a restaurant business in Bridlington. The husband was seriously injured in a road traffic accident which the wife witnessed, and her case is that she suffered psychiatric injury as a result. The order made by His Honour Judge Bartfield effectively prevented them from serving a full schedule of losses particularising their loss of profits and/or diminution in the value of their business with resulting loss of pension, and making any claim for care costs and calling evidence in support of those losses.
3. The accident itself took place in October 1996. Proceedings were begun in December 1997. An amended statement of claim in January 1999 claimed for business loss. Liability was admitted in May 1999 and there was judgment by consent entered on 19th April 2000.
4. A request for an up-to-date schedule of special damage was first made by a letter from the defendant's solicitors on 7th March 2000. The claimants' solicitors replied that it was complicated because the claimants were trying to sell the business and they might need to instruct an accountant. There was correspondence through the summer. In summary the defendant's solicitors continued to press for such a schedule; the claimants' solicitors continued to say, in effect, "It is all very difficult and we are not yet ready to supply one."
5. There was a case management conference on 24th November 2000. The District Judge ordered the claimants to file a schedule of loss by 22nd December 2000. This was not an "unless" order. The District Judge also fixed a further case management conference for 1st February 2001. No trial date was yet set. One reason for that was that the defendant's solicitors were still compiling their own medical evidence.
6. The deadline of 22nd December was not met. The defendant's solicitors wrote on 2nd January 2001 warning that if the schedule was not received within seven days they would apply to strike out that part of the claim. A fuller schedule of loss was served on 11th January 2001, but the vital parts concerning the business, loss of pension and care costs were not filled in. On the same day the claimants applied for an extension of time in which to serve the schedule. They wanted until 29th June 2001 to do so.
7. That application came before His Honour Judge Bartfield at the case management conference on 1st February 2001. He refused an extension of time. He gave directions for the conduct of the remainder of the case, but once again no trial date was set.
8. The claimants appealed to Owen J. It was clear that in exercising his discretion His Honour Judge Bartfield had not systematically considered the circumstances relevant to relief from sanctions set out in the Civil Procedure Rules, Rule 3.9(1). The Court of Appeal in Bansal v Cheema, 2nd March 2000, and again in Keith v CPM Field Marketing Ltd, 11th July 2000, has stated that this should always be done. Accordingly, Owen J gave the claimants permission to appeal and considered the whole matter afresh in the light of the factors listed there.
9. As to (a), the administration of justice, he referred specifically to the expeditious conduct of litigation. As to (b), whether the application was made promptly, he concluded that it had not been. As to (c), whether the failure to comply was intentional, he concluded that it was. As to (d), whether there was a good explanation for the failure, he considered that there was none. As to (e), the extent to which the party in default has complied with other rules, practice directions, orders, and relevant pre-action protocols, et cetera, he stated that this was neutral because there was nothing to comply with during the period of the delay. As to (f), whether it was caused by the party or their legal representatives, he had no information. As to (g), whether the trial date or likely trial date could still be met, he did regard that as in the claimants' favour in that there was no trial date yet set. As to (h), the effect which failure had on each party, he did not make any specific finding as to any prejudice to the defendant arising from the failure. As to (i), the effect which granting relief would have on each party, clearly the failure to grant relief would have a very serious effect indeed for the claimants.
10. Nevertheless, he pointed out that there was no good reason for failing to instruct the necessary experts in the summer of 1999. Even if that had been not been done then, it should have been done as a matter of urgency once the defendant's solicitors begun to press for a completed schedule in March 2000. His conclusion was that:

"Parties to litigation and their advisers must understand that we are now living in a new era. Claims must be progressed with expedition. They cannot be allowed to drift as was unhappily so often the case in earlier days."

11. In this application Mr Ferm recognises that he has a high mountain to climb. This is an appeal from a case management decision and the Court of Appeal is most reluctant to interfere with such decisions. Furthermore, it is a second-tier appeal. It cannot therefore proceed unless it raises an important point of principle or practice or there is some other compelling reason for it to be heard.
12. Mr Ferm's main point is that even if the exercise of going through the factors in Rule 3.9 is conducted meticulously (as was the case here), the court must nevertheless still stand back and ask itself whether the outcome can possibly be right; or as it might be put, in the words of Brooke LJ in Keith v CPM Field Marketing Ltd, "proportionate". In this case the outcome was particularly harsh and unjust.
13. He points out in the claimants' favour that they had never been in breach of any previous order, so that factor (e) ought to have been regarded as in their favour rather than neutral. No trial date was fixed, which was in their favour, but furthermore that was not only because of their conduct of the case but also because the defendant was not yet ready and a trial date had still not been fixed by the time of Owen J's decision. So in terms both of factor (g) and factor (a), the interests of the administration of justice, no other case is being held back or pushed sideways, and although cases do have to be got on quickly this is not one where this particular failure was necessarily going to increase the delay.
14. As far as other factors are concerned, Mr Ferm questions the judge's conclusion that the application was not made promptly. It was not made before the expiry of the order on 22nd December, but it was made on 11th January and realistically was unlikely to be heard before 1st February in any event, and 11th January was not long after the claimants' solicitors had been warned by the defendant's solicitors that this was the attitude they were going to take.
15. In terms of the reasons for the failure, Mr Ferm points out that this was a matter in which accounts were necessary, not only for the purpose of calculating what the loss would have been on the assumption that the business was not sold, but also for the purpose of valuing the business were it to be sold, which would be in mitigation of the losses that might otherwise have been incurred. He also points out that although the defendant was still without knowledge of the full extent of the claim - and I believe he would acknowledge that that was a serious matter - there was no finding by the judge that there was any prejudice to the defendant's interests by this failure to comply.
16. He therefore says that when all of those factors are weighed in the balance, bearing in mind the catastrophic (his word) effect upon the claimants' claim, the balance should clearly have come down in favour of granting the indulgence sought. He seeks to say that this is a matter of principle or practice of considerable importance, because there is very little authority on the effect of devastating orders such as this where a party has not previously been in breach, where there is no trial date set and no finding of prejudice to the defendant.
17. I have not found this an easy application to determine. I have considerable sympathy for the view expressed by Tuckey LJ when he refused permission on the papers, that there may be no real prospect of the Court of Appeal interfering with the exercise of the judge's discretion. Nevertheless, it does seem to me that the outcome in this particular case was so serious for the claimants that one would have been looking for more than this in terms of default and in terms of prejudice to the defendant before making an order which would be so destructive of an important aspect of their claim. There are not only case management and Civil Procedure Rules implications here, but even possibly Article 6 of the European Convention on Human Rights considerations which may be worthy of attention.
18. For those reasons I have decided to adjourn this application for an inter partes hearing with appeal to follow if permission is granted. I do that because it seems to me that the full court should have the opportunity of deciding whether this is indeed a case in which it would be appropriate to grant permission and identify the point of principle urged by Mr Ferm. I would not wish, by giving permission, to prejudge that issue. This is obviously the right way to do it.
19. Mr Ferm will understand that it is likely that in any event either his lay or his professional client will be ordered to pay all the costs of the application that they have made so far.
ORDER: Application for permission to appeal adjourned to the full court, to be heard inter partes with appeal to follow if permission granted. (Order not part of approved judgment)