Finnegan v Parkside Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,LORD JUSTICE MANTELL |
| Judgment Date | 20 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1120-5 |
| Docket Number | QBENI 97/0192/E |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 1997 |
[1997] EWCA Civ J1120-5
Lord Justice Hirst
Lord Justice Mantell
QBENI 97/0192/E
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE TAYLOR
(Sitting as a Deputy High Court Judge)
Royal Courts of Justice
The Strand
London WC2
MR RB MAWREY QC and MR M TWOMEY (Instructed by Zelin & Zelin, London W2 1DY) appeared on behalf of the Appellant
MISS F NEALE (Instructed by Beachcroft Stanleys, London EC4A 1BN) appeared on behalf of the Respondent
Thursday 20th November, 1997
Introduction
This appeal raises yet again the question as to what is the principle underlying the exercise of the court's discretion when an extension of time is sought under Order 3 rule 5.
The plaintiff, Mrs. Linda Finnegan, is claiming damages for personal injuries against the defendant The Parkside Health Authority. The claim arises out of her treatment at the defendant's hospital in February 1989, when she underwent an operation for dilation and curettage, and her claim is based on allegations of negligence by the defendants' servants or agents at the hospital following that operation. The letter before action was sent on 6 January 1992 and the writ issued on 26 February 1992, i.e. only two days prior to the expiry of the limitation period. The Statement of Claim was served on 1 March, and the Defence on 21 April; they were followed by further somewhat desultory interlocutory steps culminating on 13 January 1994 when a supplementary list of documents was served by the plaintiff's solicitors.
Thereafter the case went completely to sleep until 16 February 1996 when the plaintiff's solicitors served a notice of intention to proceed, to which the defendants responded with an application to strike out the claim for want of prosecution, which was heard by Master Prebble on 12 July 1996. 62 days later on 12 September 1996 the plaintiff served notice of appeal 57 days late. She then applied for leave to appeal out of time, and this application was heard and dismissed by His Honour Judge Taylor sitting as a Deputy High Court Judge in the Queen's Bench Division on 14 October 1996. It is against this refusal that the plaintiff now appeals with the leave of the full court.
There was before the judge an affidavit sworn by Mr. Patel, a member of the plaintiff's solicitor's firm, which gave some rather lame excuses for what had happened in August and the first part of September, but gave no explanation whatsoever as to why the Notice of Appeal had not been served within the five day time limit, or indeed for anything that had gone wrong prior to the end of July.
The judge considered three Court of Appeal authorities, namely Costellow v. Somerset County Council [1993] 1 AER 952, Revici v. Prentice Hall [1969] 1 WLR 157 and Savill v. Southend Health Authority [1995] 1 WLR 1254, to all of which I shall shortly refer in detail. He concluded that while in Costellow stress was laid on the importance of prejudice, he felt bound to follow the different approach adopted in Revici and Savill; and that consequently, in the absence of any explanation of the delay during the crucial period, there was no material before the court on which it could exercise its discretion in the plaintiff's favour, so that any question of prejudice, even if minimal or non-existent, was immaterial.
The two questions before the court are whether there is a conflict between the two lines of authority, and if so, which line we should follow.
The Authorities.
Order 3 rule 5 provides as follows:-
"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.
(3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.
(4) In this rule references to the Court shall be construed as including reference to the Court of Appeal, a single judge of that Court and the registrar of civil appeals."
In Costellow the plaintiff was seeking an extension of time for the service of his writ, claiming damages for personal injuries, which had been issued just within the three year limitation period but not served until after the expiry of the four month period allowed for service.
In the leading judgment with which Stuart-Smith and Simon Brown LJJ agreed Sir Thomas Bingham MR as he then was, stated as follows:-
"We are told that there is some uncertainty among practitioners and judges as to the appropriate practice in situations such as this. It is plainly desirable that we should give such guidance as we can.
As so often happens, this problem arises at the intersection of two principles, each in itself salutary. The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. This principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit: Ord 19,r.1, Ord 24, r.16(1), Ord 25, r.1(4) and (5), Ord 28,r.10(1) and Ord 34, r.2(2) are examples. This principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution.
The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is reflected in the general discretion to extend time conferred by Ord 3,r.5, a discretion to be exercised in accordance with the requirements of justice in the particular case. It is a principle also reflected in the liberal approach generally adopted in relation to the amendment of pleadings.
Neither of these principles is absolute. If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff's default had caused prejudice to the defendant. But the court's practice has been to treat the existence of such prejudice as a crucial, and often a decisive, matter. If the second principle were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice. This would circumscribe the very general discretion conferred by Ord 3, r.5, and would indeed involve a substantial rewriting of the rule.
The resolution of problems such as the present cannot in my view be governed by a single universally rule of thumb. A rigid, mechanistic approach is inappropriate. Where, as here, the defendant seeks to dismiss and the plaintiff seeks an extension of time, there can be no general rule that the plaintiff's application should be heard first, with dismissal of his action as an inevitable consequence if he fails to show a good reason for his procedural default. In the great mass of cases, it is appropriate for the court to hear both summonses together, since, in considering what justice requires, the court is concerned to do justice to both parties, the plaintiff as well as the defendant, and the case is best viewed in the round. In the present case, there was before the district judge no application by the plaintiff for extension, although there was before the judge. It is in my view of little or no significance whether the plaintiff makes such an application or not: if he does not, the court considering the defendant's application to dismiss will inevitably consider the plaintiff's position and, if the court refuses to dismiss, it has power to grant the plaintiff any necessary extension whether separate application is made or not.
Cases involving procedural abuse (such as Hytrac Conveyors Ltd. v. Conveyors International Ltd. [1982] 3 All ER 415, [1983] 1 WLR 44) or questionable tactics (such as Revici v. Prentice H all Inc. [1969] 1 All ER 772, [1969] 1 WLR 157) may call for special treatment. So, of course, will cases of contumelious and intentional default and cases where a default is repeated or persisted in after a peremptory order. But in the ordinary way, and in the absence of special circumstances, a court will not exercise its inherent jurisdiction to dismiss a plaintiff's action for want of prosecution unless the delay complained of after the issue of proceedings has caused at least a real risk or prejudice to the defendant. A similar approach should govern applications made under Ords 19, 24, 25, 28 and 34. The approach to applications under Ord 3, r.5 should not in most cases be very different. Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall assessment of what justice requires, to deny the plaintiff an extension (where the denial will stifle his action) because of a procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensated by an award of costs. In short, an...
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