Huscroft v P & O Ferries Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Elias,Lord Justice Sedley |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1483 |
| Docket Number | Case No: B3/2009/2577 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2010 |
[2010] EWCA Civ 1483
His Honour Judge Bullimore
Before: Lord Justice Sedley
Lord Justice Moore-bick
and
Lord Justice Elias
Case No: B3/2009/2577
7SE07302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
Mr. Simon Myerson Q.C. and Mr. Andrew Crouch (instructed by L A Steel Solicitors) for the appellant
Mr. Matthew Boyle (instructed by Myton Law) for the respondent
Hearing dates: 16 th November 2010
Approved Judgment
Lord Justice Moore-Bick:
This is a second appeal by permission of Rimer L.J. against the order of District Judge Babbington made on 20 th February 2009 by which he ordered the appellant, Mr. Bryan Huscroft, to pay £5,000 into court as security for the respondent's costs by 17 th April 2009, in default of which his claim was to be struck out forthwith. By the same order the District Judge gave various directions for the trial of the action. They included giving Mr. Huscroft leave to file an addendum expert's report and further evidence relating to the issues of causation and quantum.
In these proceedings Mr. Huscroft is seeking to recover from his former employer, the respondent, P&O Ferries Ltd (“P&O”), damages for injury sustained in May 2005 while he was attempting to push a trolley up a ramp on to the vessel ‘Pride of Hull’. He says that the trolley became stuck and then toppled forward and struck him on the right shin.
The claim form was issued on 22 nd May 2007 but was not served until 18 th September, just before the four-month time limit expired. A defence was filed on 5 th November 2007 and on 6 th February 2008 the matter came before District Judge Babbington for a case management conference. At the case management conference directions were given for trial and a trial window was fixed of 8 th December 2008 to 9 th January 2009. Thereafter, on two occasions during 2008 the directions were amended and the matter came back before District Judge Babbington on 10 th September 2008 on a telephone hearing after another District Judge had declined to approve a third attempt to vary the directions by consent. He adjourned the case management conference to 13 th October, but at some point it must have become apparent that insufficient time had been allowed, because the date was vacated and both parties were ordered to submit a realistic estimate of the time needed for the hearing by 6 th November. On 7 th November 2008 Deputy District Judge Furniss extended the time for compliance to 14 th November. On 16 th December District Judge Babbington vacated the trial window and directed that the matter be considered at the resumed hearing of the case management conference which he fixed for 13 th February 2009.
As early as September 2008 P&O's solicitors had drafted and served an application notice supported by a witness statement seeking an order under CPR Part 3.1(3) and 3.1(5) that Mr. Huscroft “pay the sum of £20,000 into court as security for costs with conditions.” In the event, however, a second application notice in the same terms appears to have been filed on 5 th February which was supported by a witness statement made a day earlier. The application was made on the grounds that Mr. Huscroft's claim did not have a reasonable prospect of success, that he had failed to comply with orders of the court and did not have the financial resources to meet a judgment for costs in favour of their client. The witness statement supporting the application was made by a paralegal, Mr. Gordon Sewell, and included the following passages:
“Given the weakness of the claimant's case and the way in which he has conducted the proceedings we can only conclude that the claimant has continued pursuing his claim in this way because he sees himself as having nothing to lose if unsuccessful. We submit that the defendant should have security for costs to protect against this.
…
… the claimant's solicitor is conducting this case on a conditional fee agreement which does not include any liabilities in respect of ‘after the event’ insurance. After the hearing before District Judge Babbington on 13 th March Mr. Clarke [the claimant's solicitor] informed us that if our defence was successful we would be enforcing it against a man of straw.
… we suspect that [the claimant] has been using the income from his state benefits to pay for the disbursements and travel to and from the UK.”
One can see that the real complaint was that Mr. Huscroft did not have the means to satisfy a judgment for costs. The reference to his residence in Portugal was little more than a veiled suggestion that he might actively seek to avoid enforcement of a judgment against him.
Rule 3.1(3) provides as follows:
“(3) When the court makes an order, it may –
(a) make it subject to conditions, including a condition to pay a sum of money into court; and
(b) specify the consequence of failure to comply with the order or condition.”
Rule 3.1(5), on which the defendant also sought to rely, provides as follows:
“The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.”
District Judge Babbington held that, since Mr. Huscroft had not failed to comply with any rule, practice direction or pre-action protocol, he could not act under rule 3.1(5). However, he was persuaded to make the order in the exercise of his powers under rule 3.1(3), but only in the amount of £5,000. The relevant parts of his order read as follows:
“1. The claimant do pay the sum of £5,000.00 into the Court Funds Office as security for costs by 4pm on 17 April 2009;
2. Should the claimant fail to pay the sum of £5,000.00 into the Court Funds Office by 17 April 2009, then the claimant's case shall be struck out forthwith.”
Mr. Huscroft appealed against that order and in support of his appeal sought to rely on evidence of his means that had not been put before the District Judge. On the hearing of the appeal His Honour Judge Bullimore, applying the principles laid down in the well-known case of Ladd v Marshall [1954] 1 W.L.R. 1489, refused to allow Mr. Huscroft to rely on that evidence on the grounds that it could and should have been adduced at the hearing below and proceeded to dismiss the appeal. Permission to make a second appeal was refused on paper by Sir Richard Buxton, but when the application for permission was renewed at an oral hearing Rimer L.J. granted it to a limited extent. He was concerned whether the rather general criticism of Mr. Huscroft's conduct of the litigation was sufficient to justify the exercise of the court's jurisdiction under rule 3.1(3) and gave permission in order to enable that question to be determined. He also gave Mr. Huscroft permission to argue that in any event the District Judge was wrong in the circumstances of this case to set the amount to be paid into court at £5,000.
Both District Judge Babbington and Judge Bullimore appear to have approached the matter on the basis that under rule 3.1(3) the court has the power when making an order of any kind to impose conditions on one or both parties, whether related to specific paragraphs of the order or not. That seems to follow from District Judge Babbington's observation that he was going to make various orders on that occasion because he was conducting a case management conference. Similarly, Judge Bullimore, in rejecting Mr. Crouch's argument that the condition ought to be attached to a specific provision of the order, appears to have accepted that it was sufficient that District Judge Babbington had made an order of some kind to entitle him to impose a requirement on Mr. Huscroft to pay money into court. However, Mr. Myerson Q.C. submitted on behalf of Mr. Huscroft that that involves a misunderstanding of rule 3.1(3), which allows the court to attach a condition to a specific order granting relief as the price of doing so. The purpose of such a condition, in his submission, is to control the future conduct of the proceedings, not to punish previous misconduct, although previous misconduct may well point up the need for the exercise of firmer control in the future which the imposition of a condition may provide.
In Olatawura v Abiloye [2002] EWCA Civ 998, [2003] 1 W.L.R. 275 the defendant had applied under Part 24 of the Civil Procedure Rules for summary judgment dismissing the claim. A “signpost” in the rules stated that rule 3.1(3) provides that the court may attach conditions when it makes an order and paragraphs 4 and 5 of the Practice Direction supplementing Part 24 referred to the power of the court to make a conditional order. The District Judge made no order on the application other than that the claimant give security for the defendant's costs, failing which the action was to be dismissed. Her reason for doing so was that, although she was not satisfied that the claimant had no real prospect of succeeding on the claim, she considered that his prospects of success were limited and that he had been conducting the litigation in an unreasonable manner and was likely to continue doing so. She was also concerned that the defendant would not be able to enforce a judgment for costs in his favour because the claimant was not permanently resident within the jurisdiction and concluded that an order for security was necessary to ensure that the case was dealt with proportionately as well as both expeditiously and fairly.
On a second appeal to this court Simon Brown L.J. (with whom Dyson L.J. agreed) pointed out that paragraphs 4 and 5 of the Practice Direction to Part 24 necessarily contemplate an order akin to an order for security for costs by virtue of the fact that...
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