Case No: B3/2008/0187
Neutral Citation Number: [2008] EWCA Civ 492
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(HIS HONOUR JUSTICE THORN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 24th April 2008

Before:

LORD JUSTICE MOORE-BICK
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Between:

	CRAWLEY
	Respondent
/Claimant	
	- and -		
	
SEACOR MARINE (GUERNSEY) LIMITED	Appellant/
Defendant	

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(DAR Transcript of 
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Mr J Whitehead (instructed by Messrs Andrew Jackson) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lord Justice Moore-Bick:

1.	This is a renewed application by the defendant, Seacor Marine (Boston) Limited, for permission to appeal against an order made by His Honour Judge Thorn, QC, in the Kingston-upon-Hull County Court.  By his order the judge allowed an appeal against an order of Deputy District Judge Godfrey made on 13 August 2007 striking out the claim for failure to provide a schedule of damages with supporting documents pursuant to an order made by District Judge Weston on 4 April.  

2.	It will be apparent from what I have said that this is an application for permission to make a second appeal.  It is therefore necessary for the applicant to satisfy the court that the case raises an important point of principle or practice or that there is some other compelling reason for the court to hear it.

3.	The case concerns an injury which the respondent alleges he suffered to his foot in September 2003 while at work on board the applicant’s vessel ‘Putford Provider’ at Great Yarmouth.  Unfortunately, the prosecution of this claim has been dilatory in the extreme.  The claim form was not issued until 4 August 2006 and although particulars of claim were served on 18 September they contained an extraordinarily brief schedule of special damages which merely stated, in respect of loss of earnings, “To follow”.  Despite several requests, it proved impossible for the applicant to obtain details of the respondent’s claim under these heads and so an application was made to the court for an order to compel him to provide them.

4.	On 4 April District Judge Weston made an order that, unless the respondent filed full particulars of his loss with supporting documents by 4 May, the claim should be struck out.  I pause there to say that, in my view, that was an inappropriate exercise of the court’s jurisdiction to grant orders of this kind.  As I explained in my judgment in Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; [2007] 1 WLR 1864, such orders are self-executing, in the sense that the consequences of a failure to comply follow automatically without the need for any further application to the court.  Such orders should therefore be used sparingly and only after due consideration has been given to the consequences of a failure to comply in the context of the case before the court.  In the present case, a failure to serve a schedule of special damages should not, in my view, have led to the striking out of the claim as a whole, but, at most, the striking out of that part of it and the order should therefore have been limited accordingly.

5.	However that may be, the district judge’s order was sufficient to galvanise the respondent into action and on 24 April his solicitors served on the applicant and filed at the court a schedule of special damages setting out his claim for loss of earnings.  The schedule was supported by a number of copy documents. Two days later the applicant’s solicitors wrote to the respondent’s solicitors taking issue with various items in the schedule and threatening to make a further application to strike out the claim.  Having received no response, on 11 May they wrote to the court asking that the papers be put before District Judge Weston with a request that the claim as a whole be struck out under rule 3.4(2).  That application did not go quite as far as the previous order because it sought an order that the claim, or part of it, be struck out, which, in my view, is as far as the court would probably have been willing to go.  In any event, District Judge Weston directed that it would be necessary for a formal application to be made under Rule 23.  Accordingly, on 3 July the appellant issued an application seeking an order that the claim, or part of it, be struck out pursuant to rule 3.4(2), or that the summary judgment be entered in its favour pursuant to Rule 24.2, because the respondent had still not provided accurate financial information of a kind that would enable the value of the claim to be properly assessed. 

6.	I am inclined to think that at this point the applicant’s desire to dispose of the claim on a summary basis led it to lose sight of the basis on which it was asking the court to act. The respondent’s failure, if there had been one, to comply with the “unless” order made by District Judge Weston on 4 April would have resulted in the claim as a whole being struck out without the need for any further action, apart perhaps from the need to establish that that was indeed the case, which might appropriately be done on an application to enter judgment.  An application under Rule 3.4 or Rule 24, on the other hand, is of quite a different nature because it involves some degree of investigation of the merits.  Moreover, as I have already indicated, I find it difficult to see on what basis the court would have been justified in striking out, or giving judgment for the applicant on, the whole of the claim, including the claim for general damages, on the basis of complaints about the pleading or substance of the claim for special damages alone.  It may be that the claim for general damages is likely to be modest in this case, but nonetheless it seems to me that it would be difficult to justify striking out that part of the claim simply because of a failure on the part of the respondent to put forward a sustainable case in relation to his claim for special damages.

7.	The impression one gets from reading the notes of the proceedings before Deputy District Judge Godfrey is that the application was argued on a broad basis, but it is clear that in the end he struck out the whole of the claim on the grounds that the respondent had failed to comply with the order of District Judge Weston.  The Deputy District Judge held that it was implicit in that order that the schedule would be accurate and fully supported by the documents that were to be served with it and that, in the light of the inconsistencies which it contained and other criticisms of it which had been made by the applicant, the respondent had failed to comply with it.  

8.	The respondent appealed to Judge Thorn and the matter came before him on 4 January 2008.  On that occasion he held that the respondent had complied with the order of District Judge Weston by filing a schedule of loss, even though the case which it disclosed might be open to challenge, and that Deputy District Judge Godfrey had therefore been wrong to strike out the claim.  The grounds of appeal in this case are that Judge Thorn was wrong to hold that the schedule of damages filed by the respondent was sufficient to comply with the “unless” order made by District Judge Weston.  The basis for that is said to be that the order required service of a schedule and supporting documents which not only disclosed the case which the respondent wished to make at trial, but was sufficient to demonstrate that there were reasonable grounds for making it, whereas in fact the schedule was incomplete, erroneous and inaccurate.   

9.	It seems to me that the threshold question in this case, if not the only question of any real significance, is one of the construction of District Judge Weston’s order.  Was the respondent obliged to serve a schedule containing the case that he chose to put forward, supported by the documentation on which he intended to rely, or was he bound not merely to state his case, but to state his case in a way that demonstrated that it was plausible and had a reasonable prospect of success? Mr Whitehead submitted that this case raises an important question of principle in relation to the test that is to be applied by the court when deciding what a party must do to comply with an “unless” order of this kind, but I am afraid I do not agree.  Each order of the court must be construed by reference to its own terms and the context in which it was made.  I do not think it is possible to lay down any general principle that the court must follow when deciding what such orders require by way of compliance.

10.	  In my view, therefore, this case does not raise an important point of principle or practice, whether the judge was right or wrong in the view that he took of the meaning of the order in question; nor can I see any other compelling reason for this court to hear a second appeal.  This is not, for example, a case in which the merits are so strong that it would be a denial of justice for the court to refuse to consider the applicant’s appeal.  Despite the requirement for statements of case to be supported by a statement of truth, a schedule of damages remains, in my view, essentially a statement of what the claimant alleges and what he will seek to prove at trial; and even though the order requires him to support it by documents, that ordinarily requires him to put forward the documents on which he chooses to rely in support of his case.  Whether that case will succeed at trial is another matter.  If the other party considers that the case, as pleaded, discloses no arguable cause of action or is bound to fail, then he is entitled to challenge it on an application under Rule 3 or Rule 24, but that is a different matter.  

11.	Quite apart from that, however, I think the construction that Judge Thorn placed on the order in this case was right.  The respondent had to put forward, with reasonable particularity, the case he intended to pursue at trial and to support it with the documents on which he intended to rely.  In my view, on a fair reading of an order made by District Judge Weston that is all he was required to do.  It was for the respondent to decide what his case should be.  The fact that it might, or might not, fail at trial was neither here not there.

12.	It follows that in my view, for the purposes of deciding whether the respondent had complied with the order of District Judge Weston, it was, as Judge Thorn held, unnecessary and inappropriate for Deputy District Judge Godfrey to enter into consideration of the merits of the claim.  Unless the schedule and the documents together were so woefully inadequate as to fail to amount in substance to a statement of case in any real sense, it could not be said that the respondent had failed to comply with the order.  That was not this case.  For all these reasons I am satisfied that permission to appeal should be refused.  

Order:  Application refused