James William Thompson (Plaintiff/Applicant) v Donovan Developments Ltd and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,SIR JOHN BALCOMBE |
| Judgment Date | 12 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0212-20 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | LTA+A 97/7301 CMS2 |
| Date | 12 February 1998 |
[1998] EWCA Civ J0212-20
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OLDHAM COUNTY COURT
(HIS HONOUR JUDGE CARTER QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Brooke
Sir John Balcombe
LTA+A 97/7301 CMS2
MR P A BUTLER (Instructed by Messrs Rowe & Cohen, Cheshire SK14 2QR) appeared on behalf of the Appellant
MR T OTTY (Instructed by Messrs Williams Davies Meltzer, London EC4A 4EP) appeared on behalf of the Respondent
Thursday, 12 February 1998
This is an application by the plaintiff for leave to appeal against an order of Judge Carter QC in the Oldham County Court on 16 September 1997 when he refused to grant the plaintiff leave to appeal out of time against an order of District Judge Stockton on 14 May 1997 declaring his action had been automatically struck out pursuant to CCR Ord.17,r.11. The time for appealing Judge Carter's order expired on 14 October 1997 and the plaintiff's application for leave to appeal was not lodged in this Court until 5 November 1997, so that he also requires a 22 day extension of time for this appeal. On 12 December 1997 I directed that the application should be heard inter partes with the appeal to follow if leave was granted.
The history of the proceedings is a simple one. The plaintiff was involved in an accident at work on 28 October 1992, over five years ago. He issued proceedings on 24 March 1995 and obtained a judgment in default of defence against the first defendants on 3 May 1995. The first defendants delivered a defence, notwithstanding this judgment, on 15 May, and the second defendants delivered their defence (which is undated) in early June. On 22 June the Court issued form N450 purporting to set that date as the date from which the timetable for automatic directions should be calculated as against the second defendants. On 3 August 1995 the deputy district judge made an order by consent setting the default judgment against the first defendants aside and stating that they were at liberty to defend the proceedings. On 18 March 1996 District Judge Flanagan made an order in contribution proceedings to the effect that the provisions of CCR Ord.17,r.11(3)(a) (b) and (c) and r.11(7) should apply to those proceedings, and that the timetable for compliance should commence on that day. He seems to have thought that the plaintiff had obtained a default judgment against both defendants which was still extant, and he linked the timetable for the contribution proceedings with the timetable for the assessment proceedings. This mistake was corrected by an order of District Judge Stockton on 29 May 1996 who now directed that the contribution proceedings should be heard at the same time as or immediately after the trial of the action. He also gave directions for the service of witness statements and for discovery.
The plaintiff, we were told, applied to the Court towards the end of that year for an order debarring the defendants from defending for non-compliance with the district judge's order, and on 27 February 1997 the defendants' solicitors applied for a declaration that the action had been automatically struck out pursuant to Ord. 17,r.11. On 14 May 1997 District Judge Stockton duly made that order, declaring the action had indeed been automatically struck out.
On 1 August the same district judge refused an application by the plaintiff that the action should be reinstated. On 5 August the plaintiff issued a notice of appeal against that order and on 8 September this notice of appeal was amended to include an application for leave to appeal out of time the earlier order of 14 May 1997.
It is well known that the automatic strikeout provisions in Ord. 17,r.11 created a great many practical problems for district judges and circuit judges. At the beginning of 1997 no less than 130 appeals and applications concerned with different aspects of this rule were awaiting decisions in this Court. To cope with this flood, a three judge division of this Court, headed by Saville LJ, of which I was a member, sat for a seven week period in April and May of last year working through them all. One of the continuing difficulties the Court had to resolve related to actions in which there was more than one defendant, a field in which a number of unresolved problems still lingered. In the leading judgment of Bannister v. SGB Plc [1997] 4 All ER 129, which brought together the Court's decisions in 21 of these cases and set out and contained a full restatement of the relevant law, the Court did not originally have occasion to deal with a case like the present where a default judgment against one of the defendants was set aside, while the other defendant delivered a defence timeously. In the circumstances, the Court simply made it clear that in an action with only one defendant there would be no difficulty in automatic directions...
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