Ashworth v McKay Foods Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 10 November 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1110-4 |
| Docket Number | CCRT1 95/0525/G |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1995 |
[1995] EWCA Civ J1110-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION
ON APPEAL FROM BATH COUNTY COURT
(His Honour Judge Batterbury TD DL) (Appeal)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Henry Lord Justice Thorpe
CCRT1 95/0525/G
MR. T OTTY (Instructed by Messrs. Wansbroughs Willey Hargrave, Bristol) appeared on behalf of the Appellants
MR. N HAMILTON QC & MR. H HORTON & MR. D BASU (Instructed by Messrs. Farnfield & Nicholls, Wiltshire) appeared on behalf of the Respondent
Friday 10 November 1995
THE MASTER OF THE ROLLSThis appeal raises two further questions, both of great practical importance, on the operation of Order 17, rule 11, of the County Court Rules. The questions are these:
1.If a plaintiff fails to comply with the automatic directions set out in Order 17, rule 11 (3), and the court has given no further or different directions, but the plaintiff has requested the proper officer to fix a day for the hearing within 15 months of the day on which pleadings were deemed to have closed, may such request be struck out or set aside as an abuse of the process of the court and, if so, in what circumstances ?
2.What is the effect, if any, of a practice adopted by some courts of ordering a pre-trial review upon receipt of a request to fix a hearing day in certain classes of case ?
These questions were not raised in Rastin v British Steel PLC [1994] 1 WLR 732 and the cases which followed it. In those cases the plaintiff had not requested a hearing day within the 15 month period prescribed by Order 17 rule 11(9) and the actions had, by virtue of that provision, been automatically struck out. The court had to decide whether an action so struck out could be reinstated and if so in which circumstances. It is unnecessary to recite the effect of those decisions, but they are relevant to the present appeal because they make plain the object of this rule, in particular the object of enabling the court to control the timetable of the action if the plaintiff for any reason seeks to delay the trial of the action. Automatic striking out after 15 months was described ( Rastin, at page 739 H) as the sanction for such delay.
It is not suggested, in the present case, that the action was automatically struck out under Order 17, rule 11 (9). It is accepted that a request to fix a hearing day, adequate in form to satisfy rules 11(9) and 11 (3)(d), was made before expiry of the 15 month period. So no question of reinstatement arises. The distinguishing feature of this case in that the plaintiff did make a request for a hearing day within the 15 month period, but without complying with the preceding automatic directions by which she was bound and at a time when she was not ready for trial.
The facts
The plaintiff worked in the defendants' factory. On 22 January 1991 she suffered an accident at work. On 1 September 1993 she began proceedings in the Trowbridge County Court. A defence was filed on 22 October 1993. The action was one to which, unless the court otherwise ordered, automatic directions applied by virtue of Order 17 rule 11 (1) of the County Court Rules. On 25 October 1993 the court issued form N450 (see page 2014 of the County Court Practice 1995). This reminded the parties of the timetable by which they were bound.
Under that timetable, pleadings were deemed to be closed on 8 November 1993 (see Order 17 rule 11 (11) of the Rules).
Order 17 rule 11 (3)(a) required that the parties should give discovery of documents within 28 days of 8 November 1993, namely by 6 December 1993 . This was not done by either party.
The plaintiff had not, as Order 6 rule 1 (5)(b) of the Rules required, filed a statement of the special damage claimed with her particulars of claim. On 5 January 1994, the plaintiff's solicitors wrote to the defendants' solicitors asking for a schedule of the plaintiff's earnings for the 26 weeks preceding the accident. The defendants' solicitors supplied the details relating to 13 weeks (said by them to be sufficient) on 6 January 1994. But the plaintiff's solicitors did not at that stage file a statement of the special damage claimed.
On 17 January 1994 the period allowed by Order 17 rule 11(3)(b) for disclosing expert evidence and the written statements of proposed witnesses expired. Neither party disclosed any expert's reports or any witness statements. Neither party was thereafter entitled to adduce evidence without the leave of the court: Order 20 rule 12 A (10).
By Order 17 rule 11(3)(d), the plaintiff was obliged to request a day for the hearing within 6 months of the date on which the timetable began to operate, that is by 8 May 1994. The plaintiff made no such request.
Preparations for trial proceeded. In July 1994 the plaintiff attended to be medically examined by the defendants' medical expert. In November 1994 the plaintiff's solicitors requested further details of her earnings, which were supplied on 12 December. In November 1994 the plaintiff amended her particulars of claim.
Then, on 21 December 1994, the plaintiff's solicitors wrote to the Chief Clerk as the proper officer of the Trowbridge County Court. The letter read in material part as follows:
"In accordance with the automatic directions and on behalf of the Plaintiff we request that this case be set down for hearing with a time estimate of 7 hours and we enclose a fee of £50 in payment of the court fee.
We understand that it is your normal practice to convene a pre-trial review prior to the trial and we, therefore, look forward to receiving a hearing date before circuit judge in due course".
The County Court responded to that invitation by sending a notice to both parties on 19 January 1995 specifying the place and time of a pre-trial review to be heard by Judge Batterbury. The notice continued:
"This action has been listed before the judge for a pre-trial review because the time estimated for the trial is 5 hours or over. This appointment should be attended by the solicitor having the conduct of the application (or by counsel who is to be briefed at the trial). It is essential that where possible all parties are present so that advice can be given and their instructions sought. In many cases much time has passed between the issue of the application and the request for trial and the parties will be anxious to reach finality. Many cases settle on the day of the hearing. This is wasteful of the parties' resources and increases the delay in hearing those cases which are tried.
The judge will conduct a real pre-trial review, will have read the pleadings and consider, in the parties' presence, what issues remain to be decided and whether any further admissions should be made to limit the issues.
The cost of late settlement is potentially heavy. Not only is there the rise in inter partes awards, but in the case of the legally aided the Law Society charge."
This notice was issued by the Bath County Court and it is common ground that it was at the time the practice of that court to list actions for pre-trial review where there was a time estimate for trial of more than 5 hours.
The defendants did not at the time raise any objection to the request for a hearing date, nor to the notice of pre-trial review. On 8 February 1995 the 15 month period for requesting a trial day under Order 17 rule 11 (9) expired. On the following day, 9 February 1995, the plaintiff's solicitors served a list of documents and also a schedule of special damage. As already pointed out, these were both due many months earlier.
On 15 February 1995 the defendants' solicitors issued an application that the plaintiff's application to set the action down for trial made by letter dated 21 December 1994 should be set aside for non-compliance with Order 17 rule 11 and under the inherent jurisdiction of the court for abuse of process, and for a declaration that the plaintiff's action had been struck out. This application came before the judge on the day fixed for the pre-trial review.
Order 17
Order 17 is entitled "pre-trial review". Rules 1–10 inclusive of the Order govern the conduct of a pre-trial review in any action in which such a review is held. Rule 3 requires each party, so far as practicable, to apply on the pre-trial review for any particular direction that party may desire and to file and give to every other party notice of his intention to apply for that direction.
Order 17 rule 11 (2) makes clear that rules 1—10 of Order 17 do not apply, and automatic directions do apply, to any action (such as the present) not excepted by rule 11(1), unless a pre-trial review is ordered pursuant to any direction given under rule 11 (4) (a) and directions are then given superseding, varying or in some way displacing the prescribed automatic directions.
The main automatic directions, most of which have already been referred to, are set out in Order 17 rule 11 (3). Rule 11 (4) provides:
"Nothing in paragraph (3) shall -
(a) prevent the court from giving, of its own motion or on the application of any party, such further or different directions or orders as may in the circumstances be appropriate (including an order that a pre-trial review be held or fixing a date for the hearing or dismissing the proceedings or striking out any claim made therein); ….
and rule 3 shall apply where an application is made under this paragraph as it applies to applications made on a pre-trial review."
Order 17 rule 11 (8) provides:
"Where the...
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