Jackson v Slater Harrison & Company Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE OTTON,LORD JUSTICE WAITE |
| Judgment Date | 20 December 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1220-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1995 |
| Docket Number | LTA 95/6105/G |
[1995] EWCA Civ J1220-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(His Honour Judge Fawcus)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Waite Lord Justice Otton
LTA 95/6105/G
MR. C BLOOM QC & MR. P GRUNDY (Instructed by Messrs. Lace Mawer, Manchester) appeared on behalf of the Applicant
MR. B HYTNER QC & MR. J ROWLEY (Instructed Messrs. Betesh Partnership Manchester) appeared on behalf of the Respondent
Wednesday 20 December 1995
THE MASTER OF THE ROLLSI will ask Lord Justice Otton to give the first judgment.
This is a defendant's appeal by leave of the Court against the order of his Honour Judge Fawcus given in the Manchester County Court, which determined that the Plaintiff's action should not be automatically struck out and that if it had been the learned judge indicated that he would grant an extension of time and, in effect, reinstate the action.
The background can be briefly stated. The Plaintiff suffered an accident in the course of his employment on 9 August 1989 when it is alleged that he was lifting a heavy weight. He thereby suffered personal injuries. The following day he consulted solicitors who, with commendable and unusual promptitude, sent off a letter before action. There then followed extended correspondence between the solicitors and on 30 January 1992 the application was made for Legal Aid. On 13 July 1992 the action was commenced by the service of particulars of claim; on 6 August 1992 a defence denying liability was filed, a copy was sent to the Plaintiff's solicitors and a form N450 was despatched from the Court. Thus on 20 August 1992 pleadings closed. On 20 November 1993 the action was automatically struck out. A few days later the Defendants made a payment into Court of £2,500. There then ensued further correspondence and it may be that neither side at that stage was aware that the new regime had come into operation and that the action had, in fact, been struck out by operation of law.
It is significant that it was only on 20 September 1994 (ten months to the day after it had automatically been struck out) that the Plaintiff made an application to reinstate the action. District Judge Griffiths on 27 November refused application. On 2 May 1995 the Plaintiff appealed before His Honour Judge Fawcus who held, first, that as there had been no delivery of defence within Order 17 rule 11 and Order 9 rule 2, the timetable under the automatic directions provisions had never begun to operate. More significantly, he then examined the merits of the case and the conduct of the action on both sides, and ordered reinstatement of the action. The manner in which he approached this task can be gleaned from the following passages in his judgment. At page 6 he said:
"Pleadings are expressed to be closed on the 3rd September, although there is an outstanding request for further and better particulars by the Defendants which their Solicitors agreed to postpone until after inspection. Inspection finally takes place on the 2nd December 1992 and the Plaintiff's engineer's report is received on the 18th January 1993, which is almost exactly two years after inspection was first requested.
In my judgment that summary displays reasonable, if not perfect, diligence on the part of the Plaintiff's solicitors up to that stage. The delay has all been due to the Defendant's failure to accommodate an inspection -whether for good or bad reason matters not."
Later at page 7 he said this:
"The learned District Judge, in his judgment, criticised the Plaintiff's Solicitors for not pestering the Legal Aid Board, in particular for waiting four months before writing a reminder. There was, as appears from his judgment, apparently some problem over more papers the Board required to see: that was not mentioned in the hearing before me. Be that as it may, I consider the criticism, although in the best of all possible worlds justifiable, to be a little harsh in the context of the problems in this case and, in my judgment, it does not amount to a 'significant failure to conduct the case with expedition.'"
Finally, at page 10, having considered a dictum of Simon Brown LJ in the case of Hoskins, he went on to say about the ten months delay:
"I consider this to be a finely balanced case, but I consider it just falls on the side of being accepted as an excusable failure.
The Balance of Justice. That brings the Plaintiff to his final hurdle. The limitation period has, of course, expired: the Plaintiff would therefore be left to his remedy against his Solicitors; that will involve a further delay in him receiving any compensation to which he is able to prove he is entitled….
I do not regard the Defendants, therefore, as being significant prejudiced —nor did I understand Mr. Grundy as pressing this point very hard. I should add, as Mr. Rowley pointed out, that the Defendants were on notice of a claim and the nature of it at the very earliest opportunity to enable them to make full and contemporaneous investigations into it."
The Appellant has been represented by Mr. Charles Bloom QC, assisted by Mr. Grundy, who has prepared a comprehensive skeleton argument. The initial submission is that the judge was wrong, on the construction of the rules, in concluding that the action had not been automatically struck out. Mr. Hytner, for the Plaintiff, takes the bull by the horns and accepts that on the construction issue he cannot pursue the arguments that he had earlier advanced before this court, and that the appeal must be allowed on that basis. That is clearly right for the reasons which have already been explained in earlier cases. Suffice it to say that the judge was mistaken in his construction of Order 9 rule 2 (6) and (7) and their application within the context of Order 17 rule 11. Thus the date from which the automatic directions was to run was from the delivery of the defence and triggering the timetable which I have already outlined.
The second ground is more fundamental and complex. Mr. Bloom submits that the judge was wrong in law in that he adopted the approach which was appropriate for an application for dismissal for want of prosecution rather than by the timetables laid down by the regime under Order 17 rule 11 of the County Court rules. Secondly, he submits that the Plaintiff was not able to show, save in his failure to comply with Order 17 rule 11(3)(b) and (4), that he had prosecuted his case with at least reasonable diligence. Finally, he submits that the judge was wrong when he found that the failure to comply with the rules was excusable when there was no explanation or excuse given other than oversight on the part of the solicitor leading to a ten month delay before the application to reinstate.
On behalf of the Respondent Mr. Ben Hytner QC, submits that in this case there was no error in principle on the part of the judge and that the...
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