Chappell v Cooper
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE ORMROD |
| Judgment Date | 06 July 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0706-6 |
| Date | 06 July 1979 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J0706-6
Lord Justice Roskill
Lord Justice Ormrod
Sir David Cairns
Mr. Piers Ashworth, Q. C. and Mr. S. Grime (instructed by Mr. W. R. Kirk, Manchester) appeared on behalf of the Appellant.
Mr. P. J. M. Kennedy, Q. C. And Mr. R. Thomas (Instructed by Messrs. Keeble Hawson Steele Carr & Co., Sheffield) appeared on behalf of the Respondent.
In The Supreme Court of Judicature
Court of Appeal - Civil Division
MR. MICHAEL TURNER, Q. C. and MR. CHRISTOPHER RAWLINS (instructed by Messrs. Bevan Hancock & Co., Bristol) appeared on behalf of the Plaintiff.
MR. WILLIAM CROWTHER (instructed by Messrs. Stanley Was brough & Co., Bristol) appeared on behalf of the Defendant.
We have before us one appeal, that is in Chappel -v- Cooper, which we gave leave to bring out of time last Monday. We have also before us an application for leave to appeal in Player -v- Bruguiere, That application, as we have already indicated, will be granted. Therefore we have in addition the appeal in Player -v- Bruguiere. Finally we have what is in form an ex parte application on behalf of Mrs. Player, the Plaintiff in the case I have just mentioned, for leave to extend the validity of the writ which was issued in the action in question as long ago as the 6th December, 1974 but which was not only not served within 12 months of that date but has never been served up to and including today, 6th July. So, that this application is being made some 4£ years after the date of the issue of the writ. We propose to give one judgment covering all the matters that have been argued, but in relation to that last application I should say that it has been argued inter partes.
The appeal in Chappell -v- Cooper is against a decision of Mr. Justice Bush given at Sheffield on 10th May of this year. The appeal in Player -v- Bruguiere is an appeal against a decision of Mr. Justice Park given at Bristol on the 9th May of this year. The application for leave to extend the validity of the writ came before Mr. Justice Kenneth Jones also at Bristol on the 20th June of this year, when that learned judge, for reasons which he has set out in a very careful judgment, refused the application, but gave leave to appeal to this Court.
The problems with which we are concerned arise out of the recent decision of the House of Lords in Walkley -v- Precision Forgings Ltd. [1979] 1 W. L. R. 606. That decision was given onMay 17th. Therefore it was given a few days after the decisions of Mr. Justice Park and Mr. Justice Bush, with which we are concerned, and "both those learned judges did not have the advantage of the speeches of their Lordships. But, of course, Mr. Justice Kenneth Jones' decision was after the date of their Lordships' decision.
The problems arise because of the views expressed by their Lordships, by which of course we are bound in this Court, as to the effect of Section 2A, B and of the Limitation Act, 1975. One of the problems is that seemingly their Lordships did not consider an earlier decision of this Court (The Master of the Rolls, Lord Justice Ormrod and Lord Justice Lane) in Firman -v-Ellis [1978] Q. B. 886, a decision given on the 6th February, 1978. We are told by Counsel who argued this case for the Appellant in the House of Lords, Mr. Piers Ash worth, Q. C., that Firman -v- Ellis was mentioned in the Appellant's printed case but that it was not referred to in any detail or indeed at all in argument before their Lordships for this reason; that the point upon which the Appellant succeeded in Walkley was (it was said) a point taken for the first time in she House of Lords, and that when their Lordships were told that the point had never been taken in Firman -v- Ellis they expressed no farther interest in nor required further reference to Firman -v- Ellis. Accordingly one point we have to consider is the extent to which (if at all) Firman -v- Ellis must still in certain respects be treated as good law.
It is easiest if I start with Walkley. In Walkley the House reversed a majority decision of this Court. The case was one where a writ had been issued by a plaintiff (who allegedthat he had contracted an industrial disease between 1966 and 1971) on the 7th October, 1971. That writ was served, but on the 6th December, 1976 a fresh writ was issued beginning a second action asserting the same cause of action as that asserted by the 1971 writ. The second writ and statement of claim were then served on the defendants, who entered a conditional appearance. They applied to the Master to strike out the second writ and to dismiss the action which that second writ instituted. The Master made the order sought, but the judge in chambers allowed the plaintiff's appeal and restored the second action on the plaintiff's undertaking to discontinue the first action. The majority of this Court dismissed the defendant's appeal on the ground that although the Court would have been entitled to dismiss the first action for want of prosecution the criteria which were relevant to the Court's decision were not the same as those under Section 2D of the 1975 Act, and that accordingly the plaintiff was entitled to have the question whether the second action should be allowed to proceed tested by reference to the criteria in that Act. The House reversed that decision, and it is, in view of some of the arguments of which we have had the advantage in this Court, necessary to see precisely upon what grounds their Lordships decided Walkley, for it has been strenuously argued by Mr. Kennedy for the Respondent in the first appeal and by Mr. Michael Turner for the Respondent in the second appeal, that Walkley is only a decision upon particular facts of that case, and is not a decision of general application. It is said that the present case can be distinguished because there was no question of striking out the first action, no question ofdiscontinuing the first action; here the first action was never pursued because the writ in question was never served.
Lord Wilberforce dealt with the main issue at page 609 and after setting out the relevant part of Section 2D said, "The provisions of Section 2A are those which require an action for personal injuries to be brought within three years. So subsection (l)(a) must be contemplating a case in which, because the three years have expired without an action being brought, Section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by Section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation. period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act." Lord Wilberforce then went on to deal with the other issue, namely whether the learned Judge's decision below was a correct exercise of his discretion.
Viscount Dilhorne dealt with the same issue at pages 613 and 614. At 613 his Lordship, after setting out the whole of Section 2D, said: "The effect, as I see it, of this section is that the ban imposed by section 2A remains unless and until the court in the exercise of its powers under this section directs that the provisions of Section 2A shall not apply and so remove the ban. The court can only so direct when it appears to the court equitable to do so, and in deciding that, the court must have regard to the degree to which the provisions of Section 2A prejudice the plaintiff. If they do not do so, the court can hardly regard it as equitable to allow the action to go on forit must be prejudicial to a defendant to allow an action to proceed if it is started after the three year period has elapsed."
At page 614 Viscount Dilhorne said, "In my opinion this appeal should be allowed for it cannot be said that it was the provisions of Section 2A (that is to say, the imposition of the three year period after which an action such as this cannot be proceeded with without the direction of the court) which prejudiced the respondent when within that period he brought an action for damages for the same personal injuries and in respect of the same cause of action as in his second action. He was prejudiced by his delay in proceeding with the first action and by his discontinuance of that action, and not by the provisions of Section 2A."
Lord Diplock dealt with this issue at pages 617, 618 and 619. At page 618 he said, "So the real question in the instant appeal is as to the application of Section 2D to the action started by the second writ". At page 619: "My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within Section 2D in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the Master and judge, cadit quaestio: he has not been prevented from starting his action by Section 2A or Section 2B at all, so the provisions of those sections cannot have caused him any...
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