Dermot Gerard Richard Walsh (Appellant/Claimant) v Andre Martin Misseldine (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LORD JUSTICE STUART-SMITH |
| Judgment Date | 29 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0229-2 |
| Date | 29 February 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CCRTI 99/0999/2 |
[2000] EWCA Civ J0229-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MILTON KEYNES COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Stuart-smith
Lord Justice Brooke
Case No: CCRTI 99/0999/2
Alexander Dawson (instructed by Morgan Cole of Reading for the Claimant)
James Bell (instructed by E L Murphy & Co of London for the Respondent)
This is an appeal by the claimant, Mr Dermot Walsh, from an order made by Judge Serota QC at the Milton Keynes County Court on 16th August 1999 whereby he extended time for appealing and allowed an appeal by the defendant, Mr Andrew Misseldine, from an order made by District Judge Rhodes in the same court on 26th April 1999 when he directed the reinstatement of the claimant's action following an order by the same district judge on 21st January 1999 declaring that the action had been automatically struck out pursuant to the provisions of CCR Order 17 Rule 11.
In fact the only matter listed for hearing before Judge Serota on 16th August 1999 was an appeal by the claimant against a further order made by District Judge Rhodes on 22nd June 1999 whereby he struck the claimant's action out again, by reason of what would have been described as "want of prosecution" under the former CCR regime. The court's order did not refer to the way the judge disposed of that appeal, since he had taken the view that the appropriate course for him to adopt was to concentrate his attention on a different issue, namely whether the district judge should properly have reinstated the action in April 1999. Unhappily, he did not have all the facts in front of him, and Mr Dawson, who appeared for the claimant, told both the judge and this court that he was taken by surprise by the way the judge had not only encouraged the defendant to seek permission to appeal out of time against the April 1999 order on his own initiative, but had then proceeded to give judgment on the appeal there and then although Mr Dawson had not come to court prepared to argue a reinstatement point. I will explain what happened in more detail later in this judgment.
For present purposes it is sufficient to say that we told the parties at the outset that we were of the opinion that the judge's order could not stand for that reason. With their consent we then decided that we would exercise our discretion afresh under the CPR on the issue that had been before District Judge Rhodes on 22nd June, rather than subject the parties to even more delay and expense in sending the matter back to a different circuit judge, with the possibility of a further appeal to this court. We also told the parties, and they did not dissent, that in view of the further evidence now available on the CCR Order 17 Rule 11 issue we saw no merit in adding to the jurisprudence on that unlamented rule. We refused to allow it to haunt us from its grave.
This appeal is important, therefore, because it gives this court the opportunity for the first time to exercise its own discretion on a strike-out application under CPR 3.4(2)(b). The district judge heard the application by the defendants on 22nd June 1999 after the CPR came into effect, and nobody suggested that it was not appropriate for this court to consider the matter wholly within the four corners of the CPR regime.
It is first necessary to set out the facts. They tell a deplorable story of the law's delay, more than 30 years after Lord Denning MR quoted from Hamlet's famous soliloquy in Allen v McAlpine [1968] 2 QB 229 at p 245C.
Mr Walsh was 30 years old when he was involved in a very serious road traffic accident in July 1989. He is now 41. At the time of his accident he was exceptionally fit. He had a job as general manager of a furniture retail business. His marriage had ended in divorce, and he had one dependent son. His principal recreation was middle distance running. He used to run every day, covering a total of about 70 miles each week.
Because his post-accident medical history was a complicated one, the defendant's insurers took steps during 1992 to bespeak his medical records from the period before his injury in 1989, and with one exception they were all before their chosen orthopaedic surgeon, Mr Edmund Shepherd, when he reported on 19th October 1992. These records showed that in June 1988, 13 months before his accident, Mr Walsh had woken up one morning after a day of very heavy training with tight hamstrings. His left hamstring eased up, but the right one did not ease up completely. The symptoms were very severe at first, but they later became intermittent. He saw his GP on 25th August 1988, who found pain on spinal flexion but no other problems. He was given a prescription. By 9th September 1988 he had made no real improvement, and physiotherapy was recommended. On 10th November 1988 he was still not improving. He was suffering pain at the base of his buttock and also behind his knees, mainly on the right. The GP referred Mr Walsh to a consultant. In his referral letter he mentioned that Mr Walsh had been seen for problems on his right knee in 1980, when the results of arthroscopy had been negative.
Mr Walsh then saw a consultant in rheumatology, who duly reported on 18th January 1989. He recorded Mr Walsh's symptoms, and mentioned the fact that he had no back pain. He said he was still running almost every day, but usually no more than ten miles at a time. The consultant had been unable to find any abnormality on examination.
There was only one matter in Mr Walsh's medical history about which Mr Shepherd could not be definitive. Mr Walsh had told him that he had a constant pain in his lower back, and that he remembered that he had begun to have physiotherapy for his back from a physiotherapist called Sue Gunter a few weeks after his injury. Mr Shepherd observed that the hospital notes did not refer to back pain until January 1990, six months after the accident, and that the only letter he had seen from Sue Gunter, written in June 1992, recorded that she had treated him in June 1991. It mentioned nothing earlier. Mr Shepherd said that if her records showed that Mr Walsh's recollection was correct, he would conclude that his lower back was strained on 5th July 1989, and that his subsequent back symptoms had largely been attributable to the accident.
Once Mr Walsh's solicitors received Mr Shepherd's report in March 1993, they checked this point with Ms Gunter. She said that she had first seen Mr Walsh on 23rd June 1989, when he was complaining of hamstring pain following track running sessions. He was at that stage running 55 miles a week. He returned to her on 10th August 1989 after his accident, complaining of lower back and neck pain. In her opinion his accident was very pertinent to his present problems. Mr Walsh's solicitors conveyed this information, reproduced in a report by their own orthopaedic surgeon Mr Nixon, to the defendant's insurers on 10th December 1993.
In a more efficient and co-operative era this one uncertainty would have been cleared up to everyone's satisfaction by the end of 1992, since Mr Shepherd saw Mr Walsh in July of that year, but at all events by the end of 1993 there were no longer any live issues between the parties as to Mr Walsh's pre-accident history or as to the injuries caused by his accident. Apart from his hamstring problem, which did not prevent him running 55 miles a week, he was a very fit 30-year-old man who enjoyed his middle-distance running.
There was never any issue as to liability for the accident. Mr Walsh was cycling along a major road at about 20 mph when Mr Misseldine drove out of a side road on his left. He pulled out immediately in front of Mr Walsh, giving him no time to brake. The front wheel of Mr Walsh's bicycle ran into the front offside wheel of Mr Misseldine's car, which had by this time stopped. Mr Walsh was thrown forward off his bicycle and landed with a belly-flop on the bonnet of the car. He then slid across the whole width of the bonnet and landed heavily on the road on the top of his head. He was wearing a polystyrene crash helmet at the time, and was not knocked out. Mr Misseldine was subsequently convicted at the local magistrates' court for driving without due care and attention.
Mr Walsh was detained in his local hospital for ten days. During that time he had an open reduction of the outer table of his frontal sinus under general anaesthetic. He remained under the care of the hospital as an out-patient after his discharge. He first instructed Mr Haworth, who is a partner in Messrs Wilkins, a firm of solicitors practising in Aylesbury, before the end of July 1989, and Mr Haworth seems to have worked diligently for his client over the next four years or so, collecting together the medical evidence in relation to a quite complicated set of injuries.
It is not necessary for the purposes of this judgment to describe Mr Walsh's injuries in any very great detail. Because he had landed on his face, reports had to be obtained from a consultant ENT surgeon, a consultant plastic surgeon and a consultant ophthalmologist. These were all disclosed to the defendants' insurers during 1991, and nobody has ever suggested that in relation to the injuries or disabilities which these reports record there was any need for further inquiries for the purpose of assessing the value of those parts of his claim. In the event, two further ophthalmic reports were commissioned because Mr Walsh had a continuing problem with double vision, but although a locum...
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