Cropper v Chief Constable of South Yorkshire Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE RUSSELL |
| Judgment Date | 08 December 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1208-10 |
| Docket Number | 88/1068 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 1988 |
[1988] EWCA Civ J1208-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
SHEFFIELD DISTRICT REGISTRY
QUEEN'S BENCH DIVISION
MR. JUSTICE OWEN.
Royal Courts of Justice
Lord Justice Ralph Gibson
and
Lord Justice Russell
88/1068
and
MR. H. TOMLINSON (instructed by Messrs. A.V. Hammond & Co., Bradford) appeared on behalf of the Appellants (Defendants).
MR. D. NOLAN (instructed by Messrs Irwin Mitchell, Sheffield) appeared on behalf of the Respondent (Plaintiff).
This is an interlocutory appeal by the defendants from the order made by Owen J. on 2nd June 1988 by which he upheld the order of Mr. District Registrar Peters directing that this action be tried by a judge and jury. The defendants contend that the action should be tried by a judge alone. The appeal is brought with the leave of Owen J. The plaintiff is Mr. David William Cropper. The defendants are the Chief Constable of the South Yorkshire Police Force and P.C. Silkstone, an officer of that force.
The nature of the action is as follows. On 23rd May 1985 at about 10.30 p.m. the plaintiff was arrested and placed in a police van outside a night-club in Sheffield. He was taken to a police station and charged with being drunk and disorderly contrary to section 91 of the Criminal Justice Act 1967. He was detained for seven hours. On 14th October 1985 the charge against the plaintiff was heard and dismissed in Sheffield Magistrates' Court. By writ of 10th April 1987 and statement of claim of 14th April 1987 the plaintiff claimed damages against the defendants for assault and wrongful arrest, for false imprisonment, and for malicious prosecution. He claims exemplary damages. The defence of the defendants dated 8th June 1987 alleged that the plaintiff was lawfully arrested; that in the arrest no more force was used than was reasonably necessary; and that the prosecution was brought with reasonable cause. Particulars of the facts relied upon by the defendants were served on 19th August 1987 in which allegations were made as to the conduct of the plaintiff which is said to have justified the arrest and the manner of the arrest was described.
On 3rd September 1987 on the summons for directions a consent order was made by the Registrar. The order included directions for lists of documents, inspection and medical reports, and for the trial to be at Sheffield, judge alone, listing category B, estimated length of trial one day, and to be set down within 42 days.
On 6th May 1988 the plaintiff applied by summons pursuant to R.S.C. Order 33, rule 4(1) for an order that the direction as to mode of trial be varied so as to provide for trial with a jury. On 18th May 1988 the Registrar made the order applied for. On 21st June 1988 the Registrar directed that the estimated length of the hearing was two days, instead of one day, and confirmed that the hearing with a jury be held at Sheffield.
On 2nd June 1988 Owen J. heard the defendants' appeal and dismissed it. The contentions made for the defendants by Mr. Nolan before the judge were substantially the same as those addressed by him to this court. In summary it was contended that (i) upon the true construction of section 69 of the Supreme Court Act 1981 the Registrar had no power to vary the consent order made on 3rd September 1987; and (ii) if he had such power the Registrar and the judge were wrong in exercising their discretion in favour of ordering trial with a jury.
The questions raised by this appeal depend upon the proper construction of section 69 of the 1981 Act and of certain provisions in the Rules of the Supreme Court. It is necessary to set out the terms of the section and of the rules. Section 69 says
"(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue—
(a) a charge of fraud against that party; or
(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or
(c) any question or issue of a kind prescribed for the purposes of this paragraph,
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall tobe tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
The meaning of the words underlined has been much disputed in argument in this case.
R.S.C. Order 33 deals with place and mode of trial. By rule 4:
"(1) In every action begun by writ, an order made on the summons for directions shall determine the place and mode of the trial; and any such order may be varied by a subsequent order of the Court made at or before the trial."
The time for the purposes of section 69(2) was prescribed by rule 5 of Order 33:
"(1) The provisions of rule 4(1) and (2) are, as respects any action to be tried in the Queen's Bench Division and as respects any question of fact arising in such an action, subject to the provisions of section 69 of the Act, but an application for trial with a jury under that section (the time for making which is, under that section, to be limited by rules of court) must be made before the place and mode of the trial is fixed under rule 4."
Before dealing with the question of construction of section 69(3) it is necessary to consider the provisions dealing with the time when or by which an application under section 69(1) must be made. It was common ground before the learned judge, and in argument in this court, that, once the place and mode of the trial has been "fixed", within the meaning of that phrase in rule 5 of Order 33, it is then too late for an application to be made under section 69(1). Before the judge it was argued for the defendants that the place and mode of trial had been "fixed" on 3rd September 1987 when the consent order for trial by judge alone was made. For the plaintiff, however, it was contended that, because Order 33, rule 4(1) provides that any order which has "determined" the place and mode of trial may be varied by a subsequent order made before the trial or even "at the trial", the place and mode of trial cannot be regarded as having been "fixed" by the making of the consent order, and therefore the plaintiffs could still make application under section 69(1) and claim that the trial be by jury under those mandatory provisions because there is no requirement of prolonged examination of documents etc. in this case. The judge held that, on this matter, the defendants were right; and that the mode of trial, for the purposes of section 69(2) and Order 33, rule 5, had been "fixed" by the order of 3rd September 1987. He considered that the distinction between the registrar "determining" the mode of trial under Order 33, rule 4(1) and "fixing" the mode of trial under Order 33, rule 5, for which the plaintiff contended, was unrealistic. In this court the plaintiff has not repeated that argument which was made to the judge but has conceded that the mode of trial was fixed for the purposes of section 69(2) and Order 33, rule 5 by the order of 3rd September 1987. In my judgment Owen J. was right and the plaintiff's concession was properly made.
But that does not dispose of this matter of the time for making an application under section 69(1). The plaintiff has argued, and we are told that he argued the point before the learned judge as well, although there is no reference to it in the judgment, that the "time before trial", not later than which an application under section 69(1) "must be made", is capable of extension under Order 3, rule 5 which provides:
"5(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period."
The defendant has submitted that the terms of Order 3, rule 5 do not permit extension of time in this case and, if they do, extension should not be granted.
By section 151(1) of the 1981 Act the word "prescribed" in section 69(2)...
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