Cockerill v Tambrands Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 21 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0521-22 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 1998 |
| Docket Number | Case No: CCRTI 97/1296/G |
[1998] EWCA Civ J0521-22
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM VARIOUS COUNTY COURTS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hirst
Lord Justice Morritt
and
Lord Justice Brooke
Case No: CCRTI 97/1296/G
and the two other appeals listed in the Schedule to this judgment
APPROVED Judgment
This is the judgment of the court.
1. Introductory
Last April and May a division of this court (Saville, Brooke and Waller LJJ) was given the task of determining over a seven-week period more than 100 appeals and applications concerned with different aspects of CCR Order 17 Rule 11. This troublesome rule had been causing difficulties to practitioners and judges up and down the country ever since it was first introduced in 1991. The editors of the All England Law Reports have now reported the whole of the two substantive judgments of a three-judge court which were given during the course of those seven weeks ( Bannister v SGB plc [1997] 4 All ER 129; Greig Middleton & Co Ltd v Denderowicz [1997] 4 All ER 181), complete with the appendix to the Bannister judgment which sets out the decisions in the 21 different cases determined on that occasion.
Copies of these judgments were immediately disseminated in hard copy and electronic form to every county court in England and Wales. The very welcome result of this exercise has been the virtual disappearance of Order 17 Rule 11 appeals from the business of this court. Since July 1997 a handful of further decisions have been given on different aspects of the rule not expressly covered in the Bannister judgment, and on 6-7 May we heard four more appeals or applications concerned with different aspects of the rule. One other case was compromised and another was well on the way to being compromised as soon as they were listed for hearing before us. Only one further Order 17 Rule 11 appeal, for which leave has been granted, is still awaiting determination by the court.
In the present judgment we are concerned with three of these cases, which raise new issues not covered in Bannister. The other appeal merely illustrated a practical application of the guidelines (for reinstatement and extensions of time for appealing) set out in Bannister and Greig Middleton, and has been the subject of a separate judgment. In the present judgment we will be referring to the paragraph numbering in the Bannister and Greig Middleton judgments without full citation.
The three cases we are now deciding are mainly concerned with issues arising from the guidelines relating to the ouster of automatic directions (see Bannister, paras 14.1-19.1). They deal, respectively, with the status of a defence delivered invalidly during a period when an action is stayed following the service of particulars of claim ( Jackson); with the effect of an application, in an action proceeding alongside others concerned with a similar issue, for a direction that the automatic directions regime should be replaced with manual directions ( Cockerill); and the effect of an application for a declaration that an action has been automatically struck out ( Prolaw). We also have to consider an argument that the rule stated in Bannister para 12.8(ii) for identifying applications which bear an implied request to fix a hearing date is not as rigid as it appears to be, and an argument that a defence delivered invalidly can be transformed, in the absence of redelivery or an order giving it validity, into a defence delivered validly by the operation of principles akin to estoppel. The facts of the individual cases and the results of those cases are set out in the appendix to the judgment.
2. Ouster: The general principles
In Bannister (paras 14.1-14.3) the court restated the principle that once the pleadings are deemed to be closed in an action to which Order 17 Rule 11 applies, automatic directions will apply unless they are ousted. It added, however, that it was clear that the automatic directions ceased to apply in two situations:
(i)if any new directions are repugnant to the concept contained in r11(3)(d), as where a manual direction orders listing for trial on the "joint" application of the parties;
(ii)if any new directions simply cannot co-exist with automatic directions, as where a manual direction orders that the action be listed for trial for hearing before a judge on a date to be fixed on application certifying readiness for hearing and subject to agreed time estimate.
These principles were then extended ( Bannister paras 14A.1-17.5) to situations in which it was not a direction given by the court, but an event (such as an interlocutory judgment) or an application for an order (such as the trial of a preliminary issue) which diverted the proceedings from the orderly progression to a full trial for which Order 17 Rule 11 was designed. After a further section (paras 18.1-18.3) of practical guidance on the consequences of ouster, the court made it clear (para 19.1) that one reason why it would, in its view, be unfair if automatic directions continued to apply, even though an application had been made for summary judgment or an order for the trial of a preliminary issue, was that appeals from any such orders might take matters well beyond the guillotine date. It distinguished such cases from cases in which appeals in other interlocutory matters, such as discovery, were pursued in an action to which the automatic directions would otherwise apply. Other litigants have now sought to capitalise on the extensions identified in Bannister, and the present appeals provide us with the opportunity to consider the possible extension of the ouster concept to situations not expressly covered by that judgment.
3 Ouster: Stays ( Bannister, para 15.1)
In Bannister, it was recalled at para 15.1 that a different division of the court had recently held that automatic directions were ousted if an order was made staying the action, even if it was likely that the stay would only be a temporary one ( Whitehead v Avon County Council (1997) Times, 17 March). The rationale underlying the ouster of automatic directions in such a case was that the stay of an action, pending the examination of the plaintiff by a psychiatrist, was inconsistent with the continuance of automatic directions.
In Whitehead automatic directions were already running at the time the stay of proceedings was ordered. In one of the present appeals we have been concerned with a different factual situation in which two adults and two children (P1-4) commenced an action for damages for personal injuries in a road traffic accident. The particulars of claim contained particulars of the special damage claimed by P2 (the father of one of the children), and P3 and P4 (the two children) were not pursuing any such claim. The court made an order to the effect that the action would be stayed unless a statement of special damage was delivered within 56 days. In due course, when no such statement was delivered within the time prescribed, the action was stayed. Three months later the defendants purported to deliver a defence, and shortly thereafter the court made an order declaring that its earlier order referred only to the claim brought by P1 (the mother of the other child). Five months afterwards P1 delivered a statement of special damage to the court office, and the stay was then expressly lifted. The action then proceeded, and we will consider a quite different issue which arose on this appeal in Section 6 below.
The effect of a stay of court proceedings has been explained by this court many times. See, for example, Lambert v Mainland Market Ltd [1977] 1 WLR 825 per Lawton LJ at p 834; and Rofa Sport v DHL Ltd [1989] 1 WLR 902 in which Neill LJ said at p 911:
"… the action following a stay remains technically in being. The action cannot proceed or resume its active life without an order of the court."
In Cashmore v Blue Circle Plumbing Fixtures Ltd (unreported, CAT 30th July 1996) this court held that time did not run for the purposes of CCR Order 9 Rule 10 during a period when the action was stayed pursuant to an order for a stay made under CCR Order 6 Rule 1(6) pending the filing of a medical report in support of a claim for damages for personal injuries.
By the time the appeal reached this court it was common ground that in an action where automatic directions have never been triggered at the time a stay is ordered, and where the lifting of the stay leads to the delivery of defences by all the defendants (or an order is made to the effect that invalid defences may stand as valid defences without redelivery), automatic directions will then run from the appropriate trigger date in the usual way. In Whitehead counsel for the plaintiffs did not seek to argue that an order directing a stay would in all circumstances displace automatic directions in an action in which they would otherwise run, and in his judgment Waller LJ expressly recognised that there might be cases in which automatic directions might not be ousted altogether simply because a stay had been granted. This is indeed the case, and the present appeal provides a good example of the kind of situation Waller LJ will have had in mind.
4. Application for an order disapplying automatic directions: an ouster situation?
One of the present appeals arises in an action which by its very nature, as seen by the plaintiff's solicitor, was unsuitable for the timetable prescribed by Order 17 Rule 11, because the pace at which it could be conducted was dictated by external events not...
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Hawkins v Keppe Shaw (A Firm)
...in order to restructure the action. 22 I confess to some unease as to this conclusion, logical though it may appear to be. And in Cockerill –v—Tambrans Ltd [1998] 1 WLR 1379, this court refused to extend the principle to an application made shortly before the guillotine date for an order th......
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