Hawkins v Keppe Shaw (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE ASTILL,LORD JUSTICE WALLER |
| Judgment Date | 20 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1160 |
| Docket Number | Case No: A2/2000/3147 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2001 |
[2001] EWCA Civ 1160
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(PLYMOUTH REGISTRY) HHJ OVEREND
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Latham and
Mr Justice Astill
Case No: A2/2000/3147
Guy Mansfield QC and Toby Hooper QC (instructed by Messrs Trobridges of Plymouth for the Appellant)
Alan Jeffreys QC and Mr Duncan Macleod (instructed by Barlow Lyde & Gilbert of London for the Respondent)
In this appeal the late and unlamented provisions of Ord. 17 r. 11 of the former County Court Rules have risen from the grave to haunt the courts again. They arise in a solicitors negligence action in which a preliminary issue was tried as to whether or not the automatic directions provisions of Ord. 17 r. 11 had been ousted. HHJ Overend held that the procedures adopted in the original action brought on the appellants behalf by the respondent were incompatible with the automatic directions, and that accordingly the automatic strike out provision in Ord. 17 r. 11(9) did not apply.
On the 17 th March 1990 the appellant had been the pillion passenger on a motor cycle driven by a friend, Mark Ellis; the motorcycle collided with a car. Sadly Mark Ellis was killed. The claim was brought promptly on the 9 th October 1991 against the estate of Mark Ellis alone. On the 10 th December 1991, judgment in default of defence was entered against the estate as 1 st defendant, which was set aside by consent on the 24 th January 1992 when the 1 st defendant was given leave to file a defence and the appellant was given leave to add the driver of the car as 2 nd defendant and to amend the statement of claim appropriately. Third party proceedings claiming contribution, but also damages on behalf of his estate were then commenced by the 1 st defendant against the 2 nd defendant. On the 9 th March 1992 the court, of its own motion, issued a Form N233 which was expressed to be:
"Notice to Parties of day fixed for pre-trial review or for giving directions. Ord. 9 r.s 3(4) and (5): Ord. 13 r. 3: Ord. 17 r. 10."
The notice continued:
"The hearing will be informal and in private, its purpose is to:
(a) Make sure that all the parties and the court understand what the case is about:
(b) See if there is any possibility of settling the dispute, and if not, decide how it is going to be heard, how long the hearing will last:
(c) Decide what documents or other evidence is needed from both sides.
…….
If there is any particular order that you wish the court to make you must, if possible, apply for it at this hearing and give at least two days warning to the court and every other party. If you apply at a later date you may have to pay the costs of that application unless you can satisfy the court that it was necessary."
The notice fixed the hearing date for the 13 th April 1992. On that date, District Judge Child ordered:
"1. That the plaintiffs reply if served is to be filed by 14 days of today of today (sic)
2. Mutual discovery of lists between the plaintiff and Defendant and third party after close of pleadings.
3. Inspection 7 days thereafter.
4. Each party have leave to call one expert medical witness and one other expert witness whose reports should be disclosed to all parties not less than 28 days before trial.
5. The third party do attend the trial and take full part therein as the judge shall direct and be bound to the result."
On the 23 rd October 1992, the appellant applied for a trial of a preliminary issue, in effect asking for a split trial of the issues of liability and quantum, and on the 9 th November 1992 applied for an interim payment. On the 30 th November 1992, the 2 nd defendant indicated in a without prejudice letter that although they had not made a formal admission of liability at that stage liability would not be in issue as against the appellant. The application for a split trial was therefore withdrawn. On the 1 st December 1992, a consent order was made for the interim payment, and formally recorded the withdrawal of the appellant's application for a split trial. There were negotiations thereafter which led to a payment into court which was not accepted.
No further steps were taken until the autumn of 1994. New solicitors had by then been instructed on the appellant's behalf. They took the view that the action had been struck out as a result of the application of Ord. 17 r. 11(9), even though no formal notification had been given by the court. An application was therefore made to the court to reinstate the action which was heard by District Judge Crosse on the 28 th October 1994. From the notes of the hearing which have been made available to us, it would appear that the parties agreed that the action had been struck out pursuant to this rule in July 1993. After hearing full argument, the District Judge refused the appellants application to reinstate the action and ordered that the money which had been paid into court should be paid out to the defendants together with interest.
In these proceedings, the appellant submits that the concession made on his behalf at that hearing was correct and that, although the date upon which the action was struck out was not properly computed, which was immaterial for the purposes of the present action, he was deprived by reason of the respondents negligence of his opportunity to pursue his claim. The respondent argues that the procedural orders made in 1992 ousted the automatic directions provisions of the County Court Rules. The issue is said to be important in the present action because the present action is based simply upon a failure to comply with the automatic directions. If automatic directions were ousted, then different considerations as to the particulars of negligence and the date upon which the action accrued would arise; and any amendments to plead the case in a different way could be precluded by the provisions of the Limitation Act.
In his judgment, the judge concluded that the automatic directions regime had been ousted for three reasons. First, he concluded that the order made by District Judge Child on the 13 th April 1992 was an order which included directions relating to the 3 rd party proceedings, which are proceedings expressly excluded from the provisions of Ord. 17 r. 11. Secondly, he considered that the order in relation to experts reports was incompatible with the automatic directions regime. Thirdly, he concluded that the application for a split trial on the 23 rd October 1992 itself ousted the automatic directions regime. Accordingly, he held that the original action had not been automatically struck out pursuant to the provisions of Order 17 Rule 11(9).
It is a very unhappy consequence of the way this litigation has progressed that the appellant, who clearly had a cast iron case for substantial damages for the personal injuries which he sustained in the road traffic accident in 1990 is still waiting for his money. It is ironical that the cause of the delay since 1994 arises because of the uncertainties caused by the ill thought out provisions of Ord. 17 r. 11 which were intended to cut down delays in litigation, particularly personal injury litigation. One thing, however, is clear. The rules were intended to ensure that solicitors progressed actions on behalf of their clients expeditiously. This action was prima facie an action to which the automatic directions applied. The respondents delay created the risk that, in the uncertainties that undoubtedly then existed as to the way the rule operated, the appellant's claim would be caught by the automatic strike out provisions, or would be struck out in any event on ordinary principles. That risk materialised. In these circumstances, it may seem surprising that the court is being asked to deal with a preliminary issue. The appellant had also made application to the court for leave to amend the claim in the event that the court concluded that the action had not been struck out. For reasons which are unclear, the judge ordered that the preliminary issue be determined before the application to amend.
Whatever uncertainties there may have been about the scope and application of Ord. 17 r. (11) at the time of the original action, this court provided guidance in a judgment reported as Bannister –v—SGB plc and Others [1998] 1 WLR 1123 and [1997] 4 All ER 129. In those proceedings the court chose 19 appeals and 2 applications out of more than 100 appeals and applications which were pending before the Court of Appeal. The judgment of the court sought to cover as many of the problems which had arisen in practice as it could. One of the problems was to determine in what circumstances the automatic directions in Ord. 17 r. 11 (3) would be ousted. The rule itself only provided, on its face, a limited, and to some extent confusing, answer to the question. Rule 2 provides:
"In an action to which this rule applies:
(a) Except where a pre-trial review is ordered pursuant to a direction given under paragraph 4(a) the foregoing provisions of this order shall not apply and directions shall take affect automatically in accordance with the following paragraphs of this rule.
(b) Where the court gives directions with regard to any matter arising in the course of proceedings, directions taking effect automatically under this rule shall have affect subject to any directions given by the court."
Rule 11 (4) provides:
"Nothing in paragraph (3) [the automatic directions] shall:
(a) Prevent the court from giving, of its own motion on the...
To continue reading
Request your trial