James Dorman v Clinton Devon Farms Partnership
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pushpinder Saini |
| Judgment Date | 07 November 2019 |
| Neutral Citation | [2019] EWHC 2988 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2019-000222 AND QA-2019-000269 |
| Date | 07 November 2019 |
[2019] EWHC 2988 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE COUNTY
COURT AT EXETER (HHJ GORE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Pushpinder Saini
Case No: QA-2019-000222 AND QA-2019-000269
and
and
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Peter Cowan (instructed by DWF Liverpool) for the Appellant
Julian Horne (instructed by Gilbert Stephens LLP) for the Respondents
Hearing date: 30 October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is divided into 9 sections as follows:
I. Overview: paras. [1–8]
I. Overview
The Appellant (the Defendant below) appeals against two orders (“the Orders”) made by His Honour Judge Allan Gore QC (“the Judge”) sitting in the County Court at Exeter on 23 May 2019 (“the First Order”) and 25 July 2019 (“the Second Order”).
Permission to appeal against the Orders was granted by Garnham J on 16 July 2019 and 30 September 2019, respectively, with a direction that the appeals be heard together. I will call these appeals “the First Appeal” and “the Second Appeal”.
Garnham J made some further important directions and observations on granting permission to appeal on each occasion. I return to these below when I address the nature of the allegations made by the Appellant against the Judge, particularly in the Second Appeal which raises the issue of recusal.
In very broad outline, the Orders were made by the Judge in two related claims which arose out of a fatal accident at a farm in Devon on 19 May 2014. The two appeals are directly related. The First Appeal is against certain procedural unless orders, indemnity costs orders, and directions for attendance before the Judge of the senior case handler (from the Appellant's firm) dealing with the matter. These were case management orders which the Judge, as he was entitled to do, made of his own motion.
The Second Appeal challenges the Judge's refusal to recuse himself from further involvement in the claims on grounds of apparent bias. The recusal application was based on the Appellant's concerns regarding the Judge's decisions and conduct in the proceedings leading to the orders challenged in the First Appeal.
I should record an important point at the outset. Proactive case management is expected of judges. One must guard against too readily characterising a judge's conduct of case management hearings as indicating apparent bias. Being robust is not to be equated with apparent bias, and merely deciding certain procedural matters against a party cannot properly (in and of itself) suggest an appearance of bias or actual bias. Proactive case management will often leave one party (and sometimes both parties) unhappy with the outcome. That may particularly be the case where a judge considers parties have agreed a series of directions which the judge decides do not reflect responsible case management. These matters are of relevance to the two appeals.
In the appeal the Appellant was represented by Counsel before me but the Respondents (the Claimants below) did not attend the appeals. They did however submit helpful written arguments settled by single Counsel acting for each of them. In short, the Respondents accept that the First Order was wrongly made and do not seek to defend it. As to the Second Order, they essentially take a neutral position, as they did before the Judge below.
I should record that even though there was no oral or written opposition to the appeals, Counsel for the Appellant, in accordance with his professional obligations, was scrupulously fair in the argument before me in directing my attention to material (particularly references in the transcript of the hearing at which the First Order was made) which could support and justify the Orders, and which might undermine the Appellant's arguments on appeal. He made his submissions with moderation and respect.
II. The Facts and Procedural Chronology
Given the nature of the issues in the appeals, I will need to set out the facts and procedural chronology in some detail.
On 19 May 2014, there was an accident on the Appellant's farm estate (Clinton Devon Farm) near Sidmouth in Devon. An employee, Kevin Dorman, was driving a tractor pulling a 4-wheel trailer loaded with silage. As he descended the slope of a field, the tractor and trailer went off at a bank on the edge of the field and crashed into the lane below. This resulted in fatal injuries to Kevin Dorman. The aftermath of the accident was witnessed by a fellow employee, Andrew Turton, who went to the aid of Kevin Dorman.
The first claim (Case D83 YJ127, below) was brought by Mr. Dorman's parents as his estate's administrators, and by his surviving partner (I will refer to this as “the Dorman Action”). The second claim (Case D79YJ288, below) was brought against the Appellant by Mr. Turton, who pleads that he sought to rescue Mr. Dorman but found, in what must have been a distressing sight, that he had been crushed to death. Mr. Turton claims damages for post-traumatic stress disorder and personal injury losses (I will refer to this as “the Turton Action”).
As appears from the more detailed chronology I set out below, the two claims did not come before the Judge for directions until 23 May 2019 (some 5 years after the accident) as a result of two main factors: the passage of time before the Claimants issued proceedings, and then the need to delay the proceedings by way of stay because of criminal proceedings arising out of the accident.
The criminal proceedings were for gross negligence manslaughter and health and safety offences. They were brought by the Health and Safety Executive and CPS against the Appellant and a further individual. The Crown Court trial concluded on 11 February 2019 with an acquittal on all charges, save one count where I understand the jury failed to reach a verdict. The prosecution was given 7 days to consider its position and indicated that it would not pursue the matter. There was in due course an acquittal in respect of that count.
In the Dorman Action, the procedural chronology can be summarised as follows:
| 19 May 2014 | The fatal accident. |
| 30 May 2017 | Claim Form stamped as having been issued (there was no point taken on limitation by the Appellant). |
| 1 August 2017 | The Claimants applied for an extension of time for service of the Claim Form on the ground that they were unable to ‘draft any meaningful Particulars of Claim’ pending the conclusion of the criminal investigation. |
| 26 September 2018 | Further Order staying the proceedings until 20 May 2019. |
| 15 May 2019 | The Claimants served Particulars of Claim, Schedule of Loss and medical evidence. |
| 15 May 2019 | The Claimants and the Appellant agreed the order which should be made at the CMC on 23 May 2019. The agreement was that the Appellant would serve its Defence by 16 August 2019 and the parties would then file Directions Questionnaires by 13 September 2019. Costs were to be in the case. |
I interpolate here to note that as at 23 May 2019, the Appellant was still well within time for service of its Defence in the Dorman Action. There had been no default.
In the Turton Action, I can summarise the procedural chronology as follows:
| 19 May 2014 | The fatal accident. |
| 22 May 2017 | Claim Form stamped as being issued (again no point taken on limitation by the Appellant). |
| 20 September 2017 | Claim Form and Particulars of Claim served. |
| 17 November 2017 | Defence served. It was pleaded that there should be a stay pending the criminal proceedings. |
| 20 December 2017 | The Claimant filed his directions questionnaire asking for a stay of the action “pending the outcome of the criminal proceedings”. |
| 3 April 2018 | Order staying the action. |
| 19 September 2018 | Further stay, by consent, to 20 May 2019. |
| 14 May 2019 | The parties filed a signed Consent Order providing for the Claimant to serve Amended Particulars of Claim, if so advised, by 2 August 2019, for the Appellant to serve an Amended Defence by 5 September 2019, and directions questionnaires to be filed by 17 October 2019. Costs were to be in the case. |
Again, as in the Dorman Action, the Appellant in the Turton Action was not in default of any orders or rules concerning service of the Defence. Its Defence had been served long ago (and indeed, it was in fact the Claimant who wished to consider amending his Particulars of Claim). I should also record, because it becomes relevant later, that this was not simply a “holding” Defence (in the pejorative sense that a party has not properly complied with its pleading obligations). It set out properly arguable points of law on the basis of which the Appellant proposed to defend the Turton Action and made the point that it would not be proper for the Appellant to plead to the facts while serious criminal proceedings were in progress against it and its employees.
Aware that a hearing was coming up in both actions, the parties in both claims sent the consent orders referred above to the Court (seeking vacation of the hearing fixed for directions on 23 May 2019) but the Judge required a hearing. That was wholly appropriate given the substantial delay since the accident and the Judge was entitled to ensure that directions were now made to get the claims moving towards trial as soon as possible.
So, that is how matters stood when both claims came on before the Judge on 23 May 2019. On that day, the Judge made (against the Appellant) unless orders for service of...
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Keston Riley v The Attorney General
...Ltd [2006] EWCA Civ 6 at paragraph 20. 38 2003 SCC 45 at paragraphs 57 and 58. 39 Dorman & Ors v Clinton Devon Farms Partnership [2019] EWHC 2988 QB at paragraph 40 Man O'War Station Ltd v Auckland City Council [2002] UKPC 228 at paragraph 11. 41 Morrison v AWG Group Limited [2006] EWCA ......
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Keston Riley v The Attorney General
...Ltd [2006] EWCA Civ 6 at paragraph 20. 38 2003 SCC 45 at paragraphs 57 and 58. 39 Dorman & Ors v Clinton Devon Farms Partnership [2019] EWHC 2988 QB at paragraph 40 Man O'War Station Ltd v Auckland City Council [2002] UKPC 228 at paragraph 11. 41 Morrison v AWG Group Limited [2006] EWCA ......
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