Gardner v Southwark London Borough Council (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MILLETT,LORD JUSTICE HENRY,Order |
| Judgment Date | 19 April 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0419-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 1994 |
| Docket Number | CCRTF 93/1694/F |
[1994] EWCA Civ J0419-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(Mr. Recorder Kennett-Brown)
Before: Lord Justice Henry and Lord Justice Millett
CCRTF 93/1694/F
MR. A. SMITH (instructed by Messrs. Gordon Doctors & Walton, London SE17) appeared on behalf of the Plaintiff.
MR. V. LEVENE (instructed by Messrs. Greenwoods, London WC1B) appeared on behalf of the Defendants.
Tuesday 19th April 1994.
This is an appeal by the plaintiff, Mr. Gardner, from an order of Mr. Recorder Kennett-Brown given on 29th October 1993 by which he dismissed
Mr. Gardner's application to reinstate his claim for damages for personal injury after it had been automatically struck out by the operation of the County Court Rules Ord 17
r. 11(9). Ord 17 r. 11 of the County Courts Rules provides for the giving of automatic directions in certain categories of case. When the pleadings are deemed to be closed, which is fourteen days after the delivery of a defence, or twenty-eight days after the delivery of a counterclaim, directions as to discovery and other matters automatically take effect. Under Ord 17 r 11(3)(d) the plaintiff has six months from the date on which the pleadings are deemed to be closed in which to apply to the court to fix a date for the hearing. If the plaintiff fails to do so within fifteen months then Ord 17 r 11(9) provides that the action is to be automatically struck out.
In Rastin v British Steel this court held that the County Court has jurisdiction under County Court Rules
Ord 13(4) retrospectively to extend the time for requesting a hearing date even after the action has been automatically struck out under Ord 17 r 11(9) and thereby to reinstate the action. In that case the Court of Appeal gave directions as to the principles upon which the court should exercise this new jurisdiction. It recognised that delay is the enemy of justice; that Ord. 17 r 11(9) is only the latest in a long series of measures aimed at curing delay and promoting the expeditious trial of cases; that the duty to request the fixing of a hearing date is laid squarely upon the plaintiff with no correspondent duty upon a defendant; that the time limits of six months and fifteen months are generous; and that the court should not lightly deprive Ord 17 r 11(9) of its intended draconian effect. The court held that it was incumbent upon a plaintiff seeking a retrospective extension of time to make out a case for the exercise of the discretion in his favour and that such an application should not be treated as the obverse of an application to dismiss for want of prosecution. In particular, the court indicated that it would not readily extend the application of the rules laid down in the cases on dismissal for want of prosecution. It pointed out, for example, that it would be strange to concentrate on the prejudice to the defendant, when the whole object of the new rule is to ensure the diligent prosecution of the case by the plaintiff. By a parity of reasoning, in my judgment, the mere fact that the limitation period has not expired, so that the plaintiff can issue fresh proceedings, should not be a factor to induce the court to reinstate the action in the same way that it normally precludes the court for dismissing an action for want of prosecution. That approach would largely stultify the beneficial effects of the new rule and deprive it of all content in the great majority of cases.
In Rastin v British Steel the Court of Appeal laid down that a retrospective application to extend time should not succeed unless the plaintiff and his advisors could show that, save in the failure to apply to the court for a hearing date, they had prosecuted the plaintiff's case with at least reasonable diligence; and that if the plaintiff could demonstrate that an extension of time for the requisite period, if sought prospectively, would in all probability have been granted, that would help him, and the more technical his failure the more readily it would be excused. But if, and only if, the plaintiff could show a good ground for reinstating the action should the court consider the interests of justice, the position of the parties, and the balance of hardship in a more general way.
The present case was a simple and straightforward claim for damages for personal injuries sustained by the plaintiff on 20th April 1991. He claims that he stumbled over a pile of builder's rubble which had been left outside the communal entrance to the block of flats where he lived. The first defendants are the owners of the block of flats and the second defendants are the building contractors who left the pile of rubble in place. Liability is denied by both defendants. They do not admit that this is how the plaintiff came by his injuries. They claim that he was drunk and fell out of a taxi. If, however, he did fall over the rubble then they say, in suitably legal language, that he should have looked where he was going.
The accident occurred on 20th April 1991. Particulars of claim were lodged with the court on 16th October 1991 and were served on 7th November 1991. The first defendants served a defence on 22nd November 1991 and the second defendant a defence on 2nd December 1991. Pleadings were deemed to be closed on 16th December 1991. The six month period prescribed by Ord 17 r 11(3)(d) expired on 16th June 1992. No request was made to fix a hearing date and the action was automatically struck out on 16th March...
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