Biguzzi v Rank Leisure Plc
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE BROOKE,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 26 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0726-23 |
| Docket Number | CCRTI 1999/0700/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 1999 |
[1999] EWCA Civ J0726-23
The Master of the Rolls
(Lord Woolf)
Lord Justice Brooke
Lord Justice Robert Walker
CCRTI 1999/0700/2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)
Royal Courts of Justice
Strand
London WC2A 2LL
MR S SHAW (Instructed by Messrs Bunkers, Hove, East Sussex, BN3 3JS) appeared on behalf of the Appellant
MR A CHAMBERS (Instructed by Messrs Andreas Serghis & Co, Hove, East Sussex, BN3 2TL) appeared on behalf of the Respondent
Monday 26 July 1999
This is an appeal by the defendant, Rank Leisure Plc, against the judgment of His Honour Judge Kennedy QC given on 17 May 1999. That judgment allowed the claimant's appeal against the order of Deputy District Judge Paul Radcliffe of 20 March 1999, the deputy district judge having struck out the claimant's statement of case. That decision was given before the new Civil Procedure Rules ("CPR") came into force on 26 April 1999. The Judge's decision was given after that date.
As Mr Shaw, who appeared on behalf of Rank Leisure, rightly submitted, this case involves questions of significance with regard to the CPR. In particular it deals with a case which straddles the period pre and post 26 April 1999 and so involves the transitional provisions to which I will refer. In addition, it raises the question as to the relevance of decisions of this court, and of the House of Lords given prior to the CPR coming into force on cases which are considered by the courts after the coming into force of the CPR.
As to the role of His Honour Judge Kennedy in relation to the decision of the deputy district judge, it is important to bear in mind that the position is still one where he has to rehear the issue determined by the deputy district judge. The matter is not dealt with in the same way as this court deals with the decision of the lower court. This court will only interfere if the issue involved is one of discretion if it can be shown that the judge has either misdirected himself in law or his decision is plainly wrong.
The Background
The proceedings go back to an injury which was caused to the claimant, Mr Biguzzi as long ago as the night of 20/21 November 1993. At that time he was employed by the defendants as a bar manager at a night club in Brighton. A fight broke out in the course of which Mr Biguzzi suffered some injuries, including what was described by Mr Hodge, the consultant oral and maxillofacial surgeon, as a severe injury to his mandible. There were other heads of damage put forward by the claimant in addition to his injuries and loss of earnings. Mr Biguzzi says that the defendants, in addition to failing to provide him with a safe place of work, caused him to cancel his insurance policy on the grounds that he would be satisfactorily covered by the defendant's own policy. Furthermore, the defendants were in breach of contract in not having a policy which provided him with the cover to which he was entitled under his contract.
The injury to Mr Biguzzi having occurred in November 1993, service of proceedings did not take place until almost two years later on 26 October 1995. The defendants responded promptly on 4 December 1995 when a defence and request for further and better particulars were delivered.
The automatic directions applied to the claim as from 19 December 1995. It was the claimant's case, and he had the prime responsibility of advancing his case, that there were breaches of the automatic directions on both sides. On 5 June 1996 the claimant's solicitors made a request for a date to be fixed for the hearing. At that time the defendants were not ready for the case to be heard. No doubt the claimant's solicitors notified the court that they were ready to proceed because if they had not done so, they could find themselves automatically struck out under the regime which then applied; obviously they did not want that to happen.
Shortly after the court was in receipt of that information, on 21 June 1996, the court gave notice to the parties that the case would be heard during August/September 1996 (nearly three years ago). On 7 July 1996 the court fixed the 12 —13 August 1996. On 19 July 1996 the claimant's solicitors wrote a lengthy letter pointing out various reasons why the case could not be heard on the date fixed by the court.
That letter clearly discloses that the case was not ready at that stage and, inevitably, the defendant's solicitors had no alternative but to adopt the course of agreeing to the case being taken out of the list.
As a result, on 9 August 1996 the matter came before His Honour Judge Lloyd. He made an order that, (1) the application to adjourn the trial should be granted; (2) that the matter having been set down for trial by the claimant's solicitors, it should be relisted on both solicitors filing at court a certificate of readiness with dates to avoid and a time estimate, that date to be not later than 19 March 1997; and, (3) that costs should be in the cause.
As Lord Justice Brooke pointed out in the course of argument, that type of order, which was regularly made in 1996 and thereafter, had the vice of removing any control which the court then had over the parties from the court and delivered it to the parties'. This is because it left the parties to come back to the court when they saw fit. Although there was a provision contained in the order that they should file at the court a certificate of readiness not later than 19 March 1997, in practice, because the court was not in a position to monitor the proceedings, it was not open to the court to bring the parties back if they did not comply with that part of the order.
In this case they did not comply with that part of the order. This resulted in there being no control over these proceedings until the court indicated that it would be heard by the court during February to May 1999. That was followed by the defendant's application to strike out, which resulted in the matter going before the deputy district judge.
The Appeal of the Deputy District Judge
The deputy district judge gave a careful and detailed judgment in which he examined the plaintiff's conduct. He considered the numerous judgments given by the courts on the question of delay subsequent to the decision of the House of Lords in Birkett v James [1978] AC 297. When he was considering the case, the district judge was focusing on the claimant's failure to prosecute the case in the way that he should rather than considering the conduct of both parties. However, having taken that approach, the deputy district judge came to the conclusion that this was not a case where the proceedings should be struck out for want of prosecution, although he could certainly have found that there was inordinate delay in these proceedings.
The district judge came to that conclusion because he could not find any reason for saying that there was any substantial risk of a fair trial not being able to be achieved and that there was no serious prejudice caused to the defendant by the delay which had occurred. However, the deputy district judge, basing himself on the authorities which were decided prior to the CPR coming into force, came to the conclusion that it was right to strike out the claimant's case on the basis that there was an abuse of process in that there had been a wholesale disregard of the rules. He pointed out that the claimant had not given discovery on time; that no trial bundles had been prepared; the case had not been set down for trial in accordance with the order of His Honour Judge Lloyd in March 1997; that the calculation of special damages had not been prepared; and, in his judgment, the cumulative effect of these matters was properly regarded as a wholesale abuse.
The appeal of the Judge
His Honour Judge Kennedy took a different view. He had clearly examined the events which had occurred in this case, from the point of view of the extent of the default on both sides. He came to the conclusion that both parties had been "ambling" forward towards trial and that there was a lack of a proper degree of expedition on the part of both parties. He indicated that, in relation to many of the matters, there was default on both sides. In doing so, it does not seem to me that he had lost sight of the fact that it is always for a claimant to prosecute his claim. The judge was, however, particularly concerned that part of the problem was due to the fact that the claimant was seeking to rely on psychiatric medical evidence. He took the view that the defendant was not being realistic in seeking to obtain discovery of medical notes relating to the claimant's psychiatric evidence (which the judge thought were probably now no longer obtainable).
The judge went on to indicate that he thought that the case could still be tried fairly. The case was one in which it was important that, so much delay having occurred, it should now be heard promptly. He thought that the best course for him to take was not to strike out the plaintiff's claim but to achieve the objective of having the case heard at the first convenient date.
It is with regard to the judge's approach to the previous authorities that Mr Shaw makes particular complaint in his helpful submissions to this court. He submits that, certainly in relation to a transitional case, the judge's approach was wrong. What the judge said in his judgment on this matter to which Mr Shaw takes objection, was:
"It is my firm belief that authorities decided under the old procedure should not be...
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