Bailey v Warren
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,Lord Justice Ward |
| Judgment Date | 07 February 2006 |
| Neutral Citation | [2006] EWCA Civ 51,[2005] EWCA Civ 949 |
| Docket Number | Case No: B3/2005/0798/PTA+A AND B3/2005/0798(A) FC3,B3/2005/0798 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2006 |
[2005] EWCA Civ 949
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE HOLLAND)
Lord Justice Mummery
B3/2005/0798
MR A. ULLSTEIN AND MS S. HENNESSY (instructed by ALEXANDER HARRIS SOLICITORS) appeared on behalf of the Applicant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
This is a renewed application for permission to appeal. It is made by Mr Ullstein QC on behalf of the applicant. The decision which it is sought to appeal is that of Holland J on 12th November 2004 when he ruled that the applicant, Mr Donald Bailey, was not a patient within the meaning of the Mental Health Act 1983 and/or CPR 21 in November 2000 for the purposes of agreeing a 50/50 per cent apportionment of liability. That issue arose in proceedings which were begun on 27th April 2001 by Mr Bailey in respect of injuries suffered in a car accident when he, as a pedestrian, was run into by the defendant, Mr Matthew Warren, driving an Austin Metro on 3rd May 1998.
Holland J went on to hold consequentially that the compromise made in November 2000 as to the apportionment of liability was and remained a valid contract and he also went on, purporting to do so pursuant to CPR 21.3(4), to approve the judgment of the court given on 4th December 2001 which directed that the damages in the claim be determined. What is sought on the appeal is a declaration that the applicant was a patient within the meaning of the Mental Health Act 1983 and/or CPR 21 in November 2000 for the purposes of agreeing the apportionment of liability on a 50/50 basis and that the compromise of that issue in November 2000 is an invalid contract. Consequently an order is sought setting aside the judgment of 4th December 2001.
The matter was placed before Tuckey LJ as an application for permission to appeal on the papers and on 19th May 2005 he refused permission to appeal, saying that the judge had applied the test in White v Fell, approved by the Court of Appeal in Masterman-Lister v Brutton & Co, and his finding of fact that the claimant was not a patient in November 2000 is unassailable in this court. It was not inconsistent, he said, with the finding that the claimant was a patient from December 2001 because by that stage the question was whether he had the capacity to prosecute the complicated quantum issue and subsequent management of substantial funds. He said that the approach taken by Holland J was entirely justified and he went on to say in respect to ground 4 of the appeal that, in the light of his finding of fact, the only consequence of setting aside the judgment would be that the applicant would become engaged in an accord and satisfaction issue which he would inevitably lose. In those circumstances he said he could not fault the judge's decision to approve the judgment of 4th December 2001.
On this renewed application, Mr Ullstein has placed before the court a statement pursuant to paragraph 4.14(A) of the practice direction to part 52 of the CPR. Unfortunately I was not supplied by the Civil Appeals Office with this document before coming into court. I have caused enquiries to be made following Mr Ullstein informing me that this document was dated 6th June 2005 and had at about that date been lodged with the Civil Appeals Office. Enquiries with the Civil Appeals Office have failed to locate it there. In those circumstances I asked Mr Ullstein to take me through the detailed points made in this statement, particularly in respect of the reasons given in writing by Tuckey LJ for refusing permission. He has referred me to the decision of this court in Masterman-Lister and he has also referred me to detailed passages in the evidence. He has made legal submissions as to why I should grant permission to the appeal, the judge, he says, having reached a decision on the facts that was contrary to the weight of the evidence and, he says, also having taken the impermissible course of approving the judgment without having a recommendation from the applicant's litigation friend or advisers that the settlement on the 50/50 basis should be approved by the court. Mr Ullstein wishes to submit on the appeal that the retrospective approval, given on the alternative basis that, contrary to the judge's finding of fact, the applicant was a patient in November 2001, was contrary to the established practice which had not been altered by any changes made by the CPR.
I indicated to Mr Ullstein, having read through the remainder of the statement, that what I was proposing to do was to adjourn this application to the full court but not on the basis that any view formed by me about whether there is a real prospect of success—if I had, I would grant permission. I am doubtful, as Tuckey LJ was, whether there is a real prospect of success, but it does seem to me that there are issues raised in this case as to the decision reached by the judge about the applicant not being a mental patient at 2nd November 2000, and more particularly in relation to his retrospective approval of the December 2001 judgment, which ought to be considered. These are issues which ought to be considered at a hearing before the full court. So the course which I propose to take, which is not opposed by Mr Ullstein, is that I adjourn this application for permission, to be heard by a court of three Lords Justices; and there is to be listed for hearing at the same time the full appeal to follow the grant of permission to appeal if it is given. That will enable the court to decide at an inter partes hearing whether permission should be granted and, if so, what the outcome of the substantive appeal should be. That is the first direction I will make.
Following Mr Ullstein's suggestion, I also make directions in relation to skeleton arguments, that he puts in a consolidated skeleton argument which will take in the points of the original skeleton placed before Tuckey LJ and the additional points which have been made in the statement placed before me. That should be lodged within 14 days.
The question then arises of when the respondent should put in a skeleton argument. I would direct that the respondent puts in a skeleton argument by 1st September 2005 with liberty to apply for an extension of time should there be difficulties in complying with that deadline.
Mr Ullstein has asked if the matter be expedited on the basis that there is a trial on quantum, which is likely to come up next year. I do not think I should in the circumstances order expedition. What I can say is that my estimate, which Mr Ullstein agreed with, is that the appeal would occupy only one day and in those circumstances I would express the hope that the Civil Appeals Office could find a slot as soon as possible for the hearing of this matter, either during the long vacation, when a division of the Court of Appeal will be in continuous session and urgent cases can be slipped in, or early next time.
One final matter is that I am concerned, as everybody else must be, that the accident in this case occurred as long ago as 1998 and so it is seven years since Mr Bailey was injured. Liability has been agreed; the only remaining disputes are about apportionment and quantum. I would hope that there is still some possibility in this matter of a settlement so I will make a direction under page 2 of the permission form that I consider this matter suitable for ADR and direct that a draft letter be sent to the parties by the Civil Appeals Office. It may be an unduly optimistic hope that it is achieved but it is always worth a try.
Order: Matter to be adjourned, leaving application for permission to the full court with the appeal listed to follow if permission is given. Estimated period to be one day. Matter considered suitable for sending out the ADR letter. A fresh consolidated skeleton to be lodged within 14 days on behalf of the applicant. Respondent's skeleton to be supplied by 1st September with liberty to apply for extension if there are difficulties. Appeal to be heard as soon as possible. Costs of the application and costs of the appeal given.
[2006] EWCA Civ 51
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE HOLLAND
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lady Justice Arden Dbe and
Lady Justice Hallett Dbe
Case No: B3/2005/0798/PTA+A AND B3/2005/0798(A) FC3
C2004/0018
Augustus Ullstein QC & Shirley Hennessy (instructed by Alexander Harris Solicitors) for the Claimant
Howard Elgot & Roger Quickfall (instructed by Ricksons Solicitors) for the Respondent
Lady Justice Hallett:
INTRODUCTION:
This is a renewed application for permission to appeal rulings made by Holland J on 12 th November 2004 in relation to the Applicant's claim for damages for personal injury and consequential loss suffered as a result of a road traffic accident on 3rd May 1998. On that date the Applicant and a friend were crossing a road in Stockport when they were struck by a car driven by a Mr Matthew Warren. The Applicant suffered severe head injuries from which he made a good physical recovery to the extent that...
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