Costellow v Somerset County Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STUART-SMITH,LORD JUSTICE SIMON BROWN |
| Judgment Date | 09 November 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1109-5 |
| Docket Number | 92/1087 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 1992 |
[1992] EWCA Civ J1109-5
The Master of The Rolls
(Sir Thomas Bingham)
Lord Justice Stuart-Smith
Lord Justice Simon Brown
92/1087
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR GERVASE SHELDON)
Royal Courts of Justice
MR D. P. O'BRIEN Q.C. and MR S. K. ARCHER (instructed by Messrs Clarke Willmott & Clarke, Taunton, Somerset) appeared for the Appellant (Plaintiff).
MR T. W. PRESTON Q.C. and MR H. J. DE LOTBINIERE (instructed by Messrs Porter Bartlett & Mayo) appeared for the Respondents (Defendants).
On 6th August 1991 Mr District Judge Turner, sitting in Taunton, struck out the plaintiff's action for failure to serve a statement of claim. That decision was affirmed on 11th November 1991 by Sir Gervase Sheldon, sitting as a deputy High Court judge in Exeter, who also refused an application by the plaintiff for an extension of time to serve a statement of claim. The plaintiff challenges the judge's decision with leave granted by the judge.
The facts giving rise to the appeal are of the simplest. The plaintiff says that on 15th September 1987 he slipped on loose gravel thrown on to a pavement in Taunton during road resurfacing works. He suffered personal injuries as a result. He consulted solicitors but no claim was intimated to the defendants until a letter before action dated 13th September 1990. A writ was issued against the defendants on the following day, just within the three year limitation period.
In October the defendants called for a statement of claim, although the writ had not been served, and the plaintiff's solicitors said they would serve one. But they did not do so. The writ was served on 11th January 1991, just within the four month period allowed for service.
The statement of claim became due on 2nd February 1991. The plaintiff's solicitors invited the defendants' solicitors on 11th February to agree to a moratorium in service of the statement of claim, but the defendants' solicitors refused to agree and spoke of applying to dismiss for want of prosecution. On 1st March 1991 the plaintiff's solicitors sought to explain their reasons for delay in serving the statement of claim, but the defendants' solicitors again threatened to apply for dismissal of the action. On 24th May 1991, no statement of claim having been served, the defendants duly issued a summons. In this they asked that the plaintiff's claim be dismissed for failure to comply with Order 18, rule 1 of the Rules of the Supreme Court by serving a statement of claim, and alternatively on the ground that no medical report or schedule of loss had been served in breach of Order 18, rule 12(4) (a), and alternatively for want of prosecution. When the summons was heard by the district judge he had no evidence before him other than an affidavit of the defendants exhibiting the correspondence. He made the order asked. The plaintiff's solicitors had by then, on 25th June 1991, tried to serve a statement of claim together with a medical report and schedule of special damage, which the defendant had refused to accept.
By the date of the appeal to the judge on 11th November 1991, there had been two changes. First, the plaintiff's solicitors had issued a summons seeking leave to serve the statement of claim out of time. Secondly, the plaintiff's solicitor had sworn an affidavit seeking to explain and excuse the delay. He advanced three reasons. Following the accident in September 1987 the plaintiff had suffered another accident and had instructed his solicitors to concentrate on that. There had been doubt as to the local authority responsible for the pavement where the original accident had occurred. And, most importantly, there had been difficulty in arranging an appointment for the medical examination of the plaintiff and obtaining a medical report.
On the appeal, the judge directed himself in accordance with a recent decision of the Court of Appeal in Price v. Dannimac Limited, 21st June 1990, Court of Appeal (Civil Division) Transcript No. 579 of 1990, reported in The Independent on 3rd August 1990, which I discuss below. With reference to that case he said, according to the approved note of his judgment:
"It is for the Plaintiff as applicant in that application [for an extension of time to serve the statement of claim] to satisfy the Court that time should be extended. The Plaintiff was very seriously in default and had to tender a good reason for the delay."
On the instant case, he said:
"I am conscious of the fact that greater delay occurred in the 3 years and the delay since then has been relatively minor. I approach the matter on the basis that in order to extend time, the Plaintiff has to satisfy me there is good reason for the delay. I have read the affidavit by [the plaintiff's solicitor] and I am not persuaded there was good reason."
This last conclusion of the judge is not challenged. The plaintiff accepts there was no good reason for delay in serving the statement of claim. If the medical report and schedule of special damage were not ready, application could have been made to the court under Order 18, rule 12(1B)
In conclusion, the judge held that he should exercise his discretion to extend time, as under Order 6, rule 8, only if the plaintiff showed a good reason for his delay:
"That is the principle which should apply in the present instance although the rules are not identical. I am not persuaded to grant leave. That is the end of the matter. Dismissal is a formality. I would in any event have taken the view that I would have complied with the application of the Defendant and would have dismissed the action and upheld the decision of District Judge Turner."
In Price v. Dannimac Limited a personal injuries plaintiff delayed in issuing her writ and delayed in serving it. There was then a delay of some 22 months in serving a statement of claim. The plaintiff sought an extension of time to serve it. The defendant applied to dismiss for want of prosecution. When the matter reached a deputy judge on appeal he directed himself:
"If the Defendants are unable to persuade me that this action should be dismissed for want of prosecution then there is no reason to refuse the leave which the Plaintiff seeks. Such a conclusion of fact on that issue would make this an appropriate case to go forward to trial."
Commenting on this direction, Fox L.J. said:
"That may have the effect of reversing the burden of proof in relation to the application for extension of time. It is for the plaintiff as applicant in that application to satisfy the court that time should be extended. If the plaintiff fails to discharge that burden, then the action is defunct. It can go no further. Striking out would follow as a formality. If the application to extend time failed, there would be no action to go to trial. The result is that the decision on either application may have the practical effect of deciding the whole matter. If, however, the application to dismiss the action for want of prosecution fails, the plaintiff still has to persuade the court that it is a proper case to extend time for delivery of the statement of claim.
The position here is that the plaintiff is very seriously in default. She was no less than 22 months out of time in serving the statement of claim. In order to justify an extension of time she must tender a good reason for the delay.
It is evident that in the present case the learned judge based himself in particular on that last sentence.
Later in his judgment Fox L.J. said:
"This is a case of very serious delay amounting almost to two years before the statement of claim was attempted to be served. In my view, the evidence comes nowhere near justifying that delay. The evidence is thin in the extreme. One is given little or no information at all as to what was actually done, what enquiries were made and when they were made to enable the claim to be proceeded with. The result, in my view, is that the evidence is quite inadequate to explain the delay and does not justify an order extending time under Order 3, rule 5. I would, therefore, dismiss the application to extend time. That is really enough to dispose of the case but for completeness let me consider the application to dismiss for want of prosecution."
He went on to hold that the plaintiff's delay had been prejudicial to the defendant and that the action should be dismissed for want of prosecution. Johnson J., the other member of the court, took the same view on both points.
Price v. Dannimac Limited is relied on by the editors of the current edition of the White Book (at paragraph 19/1/4) as authority for this proposition:
"When the court is faced with an application by the plaintiff for an extension of time in which to serve a statement of claim under 0. 3, r.5 and 0.18, r.l, and a cross-application by the defendant to dismiss the action for want of prosecution under 0.19, r.l, it should consider the plaintiff's application first, since it is for the plaintiff to satisfy the court that time should be extended, and, if he fails to discharge that burden, the cross-application becomes a mere formality."
On the hearing of this appeal our attention was drawn (as that of the judge below was not) to a decision of the Court of Appeal given on 22nd May 1991, Erskine Communications Limited v.Worthington, Court of appeal (Civil Division) Transcript No. 725 of 1991, The Times Law Reports, 8th July 1991. The facts and procedural history of that case were very different from those of Price v. Dannimac Limited and...
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