Greig Middleton & Company Ltd v Denderowicz
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SAVILLE |
| Judgment Date | 04 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0704-6 |
| Docket Number | CCRTI 96/1365/G |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 1997 |
[1997] EWCA Civ J0704-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand
London WC2
Lord Justice Saville
Lord Justice Brooke
Lord Justice Waller
CCRTI 96/1365/G
Lta 96/7038/G
RE: Greig Middleton & Co v Denderowicz
The APPELLANT appeared in person
MARK JONES (Instructed by Messrs Simmonds Church & Smiles, London) appeared on behalf of the Respondent
RE: Olaleye-Oruene v London Guildhall University
WILLIAM PANTON (Instructed by Messrs Moss Beachley & Mullen, 37 Crawford Street, London, W1H 1HA) appeared on behalf of the Applicant
TOM LINDEN (Instructed by Messrs Ashurst Morris Crisp, London) appeared on behalf of the Respondent
RE: Cosshall v Hollis & Ors.
NICOLA SHANDON (Instructed by Messrs TG Baynes & Sons, Bexleyheath) appeared on behalf of the Applicant
MR SIMON BROWN (Instructed by Messrs BK Lewis, London, WC2A 1HP) appeared on behalf of the Respondents
RE: Kavia v Stavrinos
MR DAVID MAYALL (Instructed by Messrs Sasdev & Co. Walthamstow, London, E17 3AL) appeared on behalf of the Applicant
MR ANDREW RIGNEY (Instructed by Messrs Edwards Son & Noice, Ilford) appeared on behalf of the Respondent
RE: Anderson v Glyde
MR STEPHEN SNOWDON (Instructed by Messrs Tayntons, Gloucester) appeared on behalf of the Applicant
MR PAUL DOWNES (Instructed by Messrs Wansbroughs Willey Hargrave, Bristol) appeared on behalf of the Respondent
RE: Raven v Curry & anr.
MR CHARLES BOURNE (Instructed by Messrs FD Todman & Sons, Rayleigh) appeared on behalf of the Applicant
MR FRANCIS MACLEOD MATTHEWS (Instructed by Messrs Sheldons, Southend on Sea) appeared on behalf of the Respondents
RE: King v C H Financial Services
MR GEORGE ALLIOTT (Instructed by Argles & Court, Maidstone, ME15 6XU) appeared on behalf of the Applicant
MR CHRISTOPHER LUNDIE (Instructed by Reeve & Co., Maidstone) appeared on behalf of the Respondent
Introduction
This is the judgment of the court, to which all three members of the court have contributed equally. We were invited to sit together for seven weeks after Easter this year in order to dispose of more than 100 appeals or applications for leave to appeal which had accumulated in connection with the operation of Order 17 Rule 11 of the County Court Rules. At the end of the third week of this period we gave a composite judgment entitled (Bannister v SGB plcunreported, 25th April 1997: see, for a summary, The Times, 2nd May 1997) ("Bannister") in which we restated the existing law and resolved a large number of outstanding issues when deciding 19 appeals and 2 applications of this kind. Copies of our judgment in Bannister were sent to all the parties in the outstanding appeals and applications, and as a result a large number of them were resolved by agreement without the need for a court hearing. In order to dispose of the remainder we sat for the next 312 weeks in a series of two-judge divisions of the court, mainly consisting of Brooke and Waller LJJ. On 22nd May we reconstituted ourselves as a three-judge division to hear the three remaining cases in our list. In one of these cases the appeal as against one of the defendants has now been resolved without any need for a formal judgment, but because a novel point was suddenly being taken for the first time as against the other, we adjourned that part of the application in order to hear argument from both sides. Two of us (Brooke and Waller LJJ) have now heard argument inter partes in that case. This judgment contains our judgments on the two cases we have decided as a three-judge court, and some additional comments which are designed to take further forward the effort we undertook in our judgment in Bannister, in order to make it easier for judges and practitioners to operate this difficult rule.
These last three cases were selected for special treatment because they raised points on which we were able to reconsider certain obiter dicta contained in our judgment in Bannister. The present judgment affords us the opportunity of correcting or clarifying those points. Two of them also raise an important new issue, following Bannister, in relation to cases where applicants are seeking to appeal out of time. This relates to the proper approach the court should adopt where such applications are lodged out of time because the law has now been authoritatively held to be different from what it was thought to be when the losing party originally decided not to appeal against a judgment. Brooke and Waller LJJ had already heard, but reserved judgment in, four other applications of this type. In this judgment of the full court we will therefore state the principles which should be followed, and we will then go on to apply them to the application we have decided as a three-judge court in which these issues arose. We are also adding as annexes to this judgment the reserved judgments of Brooke and Waller LJJ which they are now delivering in the four other cases to which we have referred, and also their judgment in the case which was adjourned on 22nd May for an inter partes hearing.
We authorised two versions of our judgment in Bannister to be published, one in hard copy transcript form and one on the Internet. Because the page numbering of these two versions differed and because those who downloaded the judgment from the Internet are likely to have different paging systems, we have inserted paragraph numbering into the main text of the original judgment (as opposed to its Schedules). In the Schedule to the present judgment we explain the paragraph numbering we have now adopted. It also seemed to us that it would be very much more convenient if we were to incorporate into the original text of our judgment the corrections and clarifications we have mentioned, and we have directed that it is this revised version of our judgment in Bannister, as clarified and corrected, which should appear in any official law report. We have also directed that the text of the judgment which currently appears on FELIX, the judges' electronic communications system, and on the Internet on the website of the Lord Chancellor's Department should be replaced by this revised version, and copies of this revised version should be sent to court administrators for distribution to judges as before. In addition, this judgment should itself be distributed on FELIX and the Internet, and to court administrators for distribution to judges.
We also believed that it would be helpful to practitioners if we were to include in our present judgment a summary of the new points decided by two-judge divisions of this court during the four weeks which followed our judgment in Bannister. Most of the cases they heard raised no new points of general interest, but a few of them did, and we are including a summary of these in the final part of this judgment.
We have accordingly designed the present judgment along the following lines. In Sections 2–5 we will clarify or correct some of the things we said in our judgment in Bannister. In Section 6 we will give our judgment in the case of Greig Middleton v Denderowicz. In Section 7 we will state the general principles this court will apply when it considers an application to extend the time for appealing in cases arising under Order 17 Rule 11 where there has been an authoritatively stated change in the law since the date of the judgment now under challenge. In Section 8 we will apply those principles to the case of Olaleye-Oruene v London Guildhall University. In Section 9 we will summarise the new points that have been decided by two-judge divisions of the court since Bannister. Finally, in an annex to this judgment we set out the reserved judgments of Brooke and Waller LJJ in the outstanding cases of Cosshall v Harris, Kavia v Stavrinos, Anderson v Glyde and Raven v Curry, and their reserved judgment in King v C H Financial Services.
Corrections/Clarifications: (i) Date for Delivery to the Court Office and Computations of Time clarified
The words "14 days" should be omitted from the first line of paragraph 4.1 in our judgment in Bannister.
Because of uncertainties which have been expressed to us, we wish to expand paragraph 5.2 of our judgment in Bannister by deleting the last six lines of that paragraph and substituting the following text:
"…by the general law which is to be found in Section 7 of the Interpretation Act, read together with the Practice Direction (QBD: Postal Service) [1985] 1 WLR 489 which provides:
'To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:
(a) in the case of first class mail, on the second working day after posting; (b) in the case of second class mail, on the fourth working day after posting.
'Working days' are Monday to Friday excluding any Bank Holiday.'
5.2A This Practice Direction applies to the county court by virtue of Section 76 of the County Courts Act 1984. This rule means, of course, that there can be no question of delivery of a defence being deemed to have been effected on a Saturday or Sunday, or on a Bank Holiday, and in any event the proper officer would not be present to receive the document (see Order 2 Rule 5(1)) when the court office is closed. The court should adopt the actual date when the defence is delivered to the court office by post when this date is known (for example from a date stamp which shows the date of receipt), since this will represent "proof to the...
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