Copeland v Smith and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE BROOKE,LORD JUSTICE BUXTON
Judgment Date13 October 1999
Judgment citation (vLex)[1999] EWCA Civ J1013-11
CourtCourt of Appeal (Civil Division)
Docket NumberCCRTI 1999/0623/B1
Date13 October 1999

[1999] EWCA Civ J1013-11

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE READING COUNTY COURT

(HIS HONOUR JUDGE KENNY)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Brooke

and

Lord Justice Buxton

CCRTI 1999/0623/B1

Stephen Anthony Copeland
Claimant/Respondent
and
Adrian Christopher Smith
First Defendant
Douglas Goodwin
Second Defendant/Appellant

Mr J Evans-Tovey (instructed By Messrs E Edwards Son & Noice, Ilford, Essex) Appeared On Behalf Of The Appellant Second Defendant.

Mr D Sanderson (instructed By Messrs Shoosmiths & Harrison, Reading, Berks) Appeared On Behalf Of The Respondent Claimant.

1

Wednesday, 13th October 1999

LORD JUSTICE BROOKE
2

I will invite Lord Justice Buxton to give the first judgment.

LORD JUSTICE BUXTON
3

The claimant in this case, Mr Stephen Anthony Copeland, had the misfortune to suffer a serious traffic accident as long ago as 24th September 1993. What appears to have occurred (and I do not think that this, at least in broad terms, is in issue) is that he was riding his motorcycle on the M3 motorway when he came off in a situation of heavy traffic and suffered serious injuries. He has indicated what he claims to have done on that occasion, but it is clear that he personally appears to have little recollection of what occurred. There were a number of other vehicles involved at the time and there appears to have been a fairly extensive series of collisions in and around Mr Copeland's accident. His case as originally put was against the first defendant only, Mr Smith, alleging that the vehicle that Mr Smith was driving had collided with Mr Copeland's body when it was lying in the road. That leaves open, of course, the question of how Mr Copeland's body came to be in that position.

4

It would appear that at a fairly early stage Mr Copeland instructed experienced solicitors, Messrs Shoosmiths and Harrison, to act on his behalf. They took the step of requesting from the chief constable of the relevant police force a copy of the accident report that he had caused to be drawn up. The document that the solicitors received on 14th January 1999 was apparently incomplete, in that at a much later date it came to their attention that it had had attached to it further and important material that was not contained within the report with which they were provided. I shall explain the importance of that detail shortly.

5

Proceedings were only commenced against the first defendant, Mr Smith. A substantial period of time later when the full police report came into the possession of the solicitors, it having been given to them by the solicitors of the first defendant, Mr Smith, they concluded from material contained within it that the second defendant, Mr Goodwin, was or may have been the person responsible for knocking the claimant off his bicycle. On 18th November 1998 (that is to say, significantly outside the primary limitation period) the claimant obtained an order from the district judge joining the second defendant to these proceedings.

6

The second defendant appealed against that order to the circuit judge, His Honour Judge Kenny, who delivered judgment on 31st March 1999 upholding the district judge's order. It is against Judge Kenny's order that this appeal is brought. The contention is, first, that Mr Copeland is fixed with the action or inaction of his solicitors, Messrs Shoosmiths; and secondly that Messrs Shoosmiths did not act reasonably and properly in reaction to the original police report and that if they had done so they would have appreciated, at least by some date such as March 1994 (that is to say, after a reasonable period of reflection on the report), that Mr Goodwin was or might have been a person involved in the accident and should at that time be joined; and therefore that the time limit for joinder ran from the date of that assumed or constructive knowledge in March 1994 and thus the joinder effected and upheld by the circuit judge in 1998 was out of time.

7

The first issue that was debated before His Honour Judge Kenny was whether, when construing the provisions as to knowledge in the Limitation Act 1980, a claimant is indeed fixed with the knowledge or the action or inaction of his solicitors. When the judge heard this matter on 31st March 1999 he was apparently told by the two professional advocates who made submissions before him on that occasion that there was no authority covering the point. The judge expressed understandable surprise that that was the case, but he was apparently assured that that was so. Construing the statute without the benefit of any authority, the judge concluded that the claimant was not fixed with responsibility for what his solicitors had done or had not done. It is now accepted that the judge was wrong in so concluding. He was wrong because the contrary has been decided by this court in Henderson v Temple Pier Ltd [1998] 1 WLR 1540. That case had been reported in part 36 of the Weekly Law Reports for 1998, some four and a half months before the hearing before Judge Kenny.

8

Although the matter does not arise for decision because it is now conceded, I cannot draw back from expressing my very great concern that the judge was permitted by those professional advocates to approach the matter as if it were free from authority when there was a recently reported case in this court directly on the point, which was reported not in some obscure quarter but in the official law reports. It is, of course, not only extremely discourteous to the judge not to inform him properly about the law, but it has also been extremely wasteful of time and money in this case, because not only did the judge have to deal with the matter, but it has also formed an issue in the appeal to this court. I have, I fear, to say that the advocates who appeared below did not discharge their duty properly to the court in that they apparently failed to be aware of the existence of that authority.

9

Before us, I may say, the authority is referred to and relied on, but the position is apparently still not appreciated by those who appear before us in this appeal (who, I emphasise, are not those who appeared in the court below) because we were referred to the case only in a Court of Appeal transcript —a transcript, I would add, that was said to be attached, but in fact was not, to the appellant's papers. It is not satisfactory to refer to a reported case by means of a Court of Appeal transcript. The purpose of cases being reported is, amongst other things, to assist the court and the advocates by means of listing the cases that have been referred to (as is the case even in part 1 of the weekly reports) and also by means of the very helpful headnotes that are provided. I trust that lapses of this sort will not occur again.

10

I now turn to the substance of the matter. The first question that the judge had to consider was whether the solicitors had acted reasonably in their reaction to the original police report, it being accepted by the appellant before us that the question is whether they had acted up to the standard to be expected of a reasonably competent solicitor.

11

The reason why all these difficulties had occurred was as follows. The police report appeared to be a full document. It had attached to it identification of a number of people who had been involved in the accident, including Mr Goodwin, and it gave an indication of the vehicle that he was driving. At the back of the report were listed the police officers who had been in attendance at the incident, including a Police Constable Bridger, who was described as the vehicle examiner, and a Police Constable Kinnear, who was described as the accident investigation officer....

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