Collins v CPS Fuels Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE,MR JUSTICE BODEY,LORD JUSTICE JONATHAN PARKER |
| Judgment Date | 09 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1597 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2000/2979 |
| Date | 09 October 2001 |
[2001] EWCA Civ 1597
Lord Justice Judge
Lord Justice Jonathan Parker and
Mr Justice Bodey
B3/2000/2979
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE KEVIN BARNETT)
Royal Courts of Justice
Strand
London WC2
MR GUY MANSFIELD QC and MR KEVIN GRICE (instructed by Weightmans, Chester CH1 2NX) appeared on behalf of the Appellant
MR MARK TURNER QC and MR IAN WOOD (instructed by James Chapman & Co, Manchester M2 4NH) appeared on behalf of the Respondent
Tuesday, 9th October 2001
I shall ask Mr Justice Bodey to give the first judgment.
This is an appeal by the infant claimant, Donna Collins, born on 12th August 1990 (now aged 11), who sues by her father and litigation friend against an order of Judge Kevin Barnett sitting at Chester County Court, on 7th August 2000. By that order the learned judge struck out the claimant's claim against the defendant company commenced by her Particulars of Claim issued on 17th March 2000 ("the present proceedings"). He gave the claimant permission to appeal.
The reason for the present proceedings being struck out was that the claimant had already brought proceedings ("the original proceedings") against the same defendant in respect of the same road traffic accident, which proceedings had been struck out by the same judge on 22nd September 1999. That was as a result of delays and failures by the claimant, through her solicitors, in complying with time limits and court directions. The striking out of the present proceedings was thus on the basis that they were found to be an abuse of the court's process, pursuant to CPR Rule 3.4(2)(b).
The underlying event which has led to this litigation was a road traffic accident on 21st February 1994, when a vehicle driven by an employee of the defendant company ran into the claimant's father's car. At that time the claimant was three-and-a-half years old. The claimant, her father and mother were all injured in the accident, and brought the original proceedings against the defendant company for damages based on its responsibility for the negligence of its employee, the driver of its vehicle.
On 23rd March 1995, judgment in favour of all three claimants was entered against the defendant on liability. Subsequently the claims of the claimant's mother and father were settled by negotiation. The infant claimant had, however, suffered what was probably a skull fracture; and since her recovery was insufficiently advanced for her claim to be settled, the assessment of the quantum of her damages was adjourned generally on 21st September 1995.
On 19th July 1996 of its on motion the court directed that the claimant should provide a schedule of her special damages and a list of documents within 21 days, together with copies of her medical notes within 28 days. From that time onwards, there were many failures by the claimant (through her solicitors) to progress her case, as I shall summarise.
It is right to say that in affidavits the claimant's solicitors have sought to explain some of the specific failures on the basis, for example, of difficulties in getting hold of notes and records. It must also be said that the judge determined that the failures by the claimant's solicitors were not intentional, although he described them as "inexcusable".
The order of 19th July 1996 was not complied with except to the extent that on 23rd August 1996 there was late compliance with the part of the order requiring the service of the claimant's medical notes. As a result, the defendant applied to strike out the claim.
On 13th January 1997, two days before the return date of this strike out application, the claimant's solicitors served a list of documents and a schedule of special damages (this being five months out of time). In the result, on 15th January 1997 the court simply ordered the claimant to pay the defendant's costs of the strike-out application.
On 22nd September 1997, the defendant made an application for an order that the claimant should disclose her neuropsychological evidence. The return date was on or about 21st October 1997. However, about six days beforehand, the claimant's solicitors disclosed a neuropsychiatric report in fact dated 14th September 1997. On about six occasions between July 1998 and August 1999, the defendant requested details of the results of certain sub-test scores recorded in September 1997 by the claimant's psychologist, Dr Williams. These were eventually provided but only, as I say, after many requests.
On 5th July 1999 at a directions hearing, orders were made that the claimant should disclose her medical reports together with a schedule of special damage, and her school reports. On 12th August 1999 the time for compliance with this order expired, but it was not complied with.
On 19th August 1999 the first case management conference took place. It was taken by Judge Barnett. There had been no compliance with the order of 5th July 1999, and the claimant's solicitors failed to attend the appointment. As a result, a peremptory order was made to the effect that unless the claimant complied with the order of 5th July 1999 by 2nd September 1999 and attended the adjourned case management conference on 22nd September 1999, then her claim would be struck out.
On 22nd September 1999 when the second case management conference came on for hearing the claimant's solicitors again failed to attend. They had also still not complied with the orders of 5th July 1999. It was on that occasion that Judge Barnett struck out the claimant's claim.
The claimant's solicitors thereafter made an application to set aside the judgment and the order striking out the claimant's case. This was heard on 10th December 1999, again by Judge Barnett, at which time there had still not been full compliance with the order of 5th July 1999. In fact just a few days after that hearing various school reports were disclosed by the claimant's solicitors, four months out of time.
On 10th January 2000 Judge Barnett delivered his judgment refusing to set aside the strike out, and refusing permission to appeal to the Court of Appeal. In the course of his careful judgment, he said.
"It seems to me that it could not possibly be said that the sanction [striking out] was too draconian and was, in effect, disproportionate. The ability of the court to take control of and manage cases lies at the heart of the civil justice reforms and a Case Management Conference is an essential tool in the control and management of cases
If a party does not engage with the court in the case management process he must, in my judgment, expect a sanction and a sanction of significance and gravity. When there was no appearance at the adjourned Case Management Conference and no compliance with the order of 5th July 1999, in my judgment nothing could have been expected other than for the sanction to take effect."
Seven months later, in his judgment dated 7th August 2000 striking out the present proceedings, the learned judge had this to say by way of explanation for his earlier decision to strike out the original proceedings:
"The First Action was struck out for failure to comply with a peremptory order, which was itself made as a result of a number of failures to comply with earlier orders. I refused to grant relief from the strike-out action. (a) There had been a number of failures to comply with court orders, (b) there was a failure to engage with the case management process, and (c) although I did not conclude that the failures were intentional, I found that no good explanation had been given, and that the failures were inexcusable."
Reverting to the original proceedings, the judge refused permission to appeal his decision of 10th January 2000, and no application was made to the Court of Appeal on behalf of the claimant for permission to do so.
Instead, on 17th March 2000, the claimant's solicitors issued the present proceedings. This was followed almost immediately by the defendant's application to strike them out as being an abuse of the court process.
In his judgment dated 7th August 2000 (which ran to some 20 pages) Judge Barnett rehearsed the procedural history of the original proceedings, noting that the parties and the cause of action were identical in each set of proceedings. He set out the court's approach to such strike-out applications, correctly noting that in exercising any discretion under the Civil Procedure Rules the court must have regard to the "overriding objective". He then stated that objective in terms which are now well known and which it is unnecessary to repeat.
He went on to say:
"I make no apologies for stressing, firstly, that the CPR represent an entirely new procedural code, and secondly, that an important part of dealing with a case justly involves not only allotting to it an appropriate share of the court's resources, but doing so having regard to the fact that resources are limited and have to be allocated to other cases. Civil litigation is now in a new era. Cases are now managed by the court and parties can no longer expect to conduct litigation in a way and at a pace which is convenient to them and which takes no account of the wider public interest in securing the proper and efficient administration of civil justice to which expression is given in the overriding objective."
Judge Barnett then cited from two Court of Appeal cases from which he extracted the test which he...
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