Langley v North West Water Authority

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date27 March 1991
Judgment citation (vLex)[1991] EWCA Civ J0327-15
Docket Number91/0370
Date27 March 1991

[1991] EWCA Civ J0327-15





Royal Courts of Justice


The Master of the Rolls (Lord Donaldson)

Lord Justice Woolf

Lord Justice Mann


Margaret Langley
North West Water Authority

MR. GERARD WRIGHT Q.C. and MR. MARK CHATTERTON (instructed by Messrs. E. Rex Makin & Co., Liverpool) appeared for the Appellant (Mr. Robin Makin).

MR. RICHARD CLEGG Q.C. and MR. ROBERT WARNOCK (instructed by the Solicitor, North West Water Limited) appeared for the Respondents (Defendants).


Mr. Robin Makin, a solicitor with the Liverpool firm of E. Rex Makin & Co., appealed against an order that he personally pay certain of the defendants' costs in the action. On 19th March we dismissed that appeal with costs, but in view of the fact that some of the arguments deployed on his behalf raised issues of general importance, took time to put our reasons into writing. This we now do.


Before coming to the order under appeal, it is necessary to set the scene. Mrs. Langley had the misfortune to trip over a manhole cover for which the defendants were responsible and suffered personal injuries. The action was settled in December 1990 by a payment of £2,750 and there is no longer any issue as between the parties. Mr. Robin Makin acted throughout as her solicitor. No distinction was made in argument between action taken by Mr. Makin personally and action taken by staff working under his supervision. In what follows I therefore am unable to make, and do not make, any such distinction and refer to the plaintiff's solicitor as "Mr. Makin".


There was a time when the role of the civil courts in this country was to be available to hear disputes, it being left entirely to the parties to decide the pace at which the litigation should be conducted. The increase in the amount of litigation which has occurred over the years has given rise to a re-appraisal of that role. As is the way with the law, and it is not necessarily any the worse for that, it has not taken place overnight or in any dramatic and ill-considered form, but has been evolutionary in nature.


In recent years the Liverpool County Court has been amongst the busiest in the country and it has taken a series of local pioneering initiatives designed to reduce delays. This is wholly to be applauded. His Honour Judge Nance together with Mr. Registrar Wilkinson and a small committee acting in consultation with, and with the full co-operation of, the Law Society, the Bar and other members of the legal profession, devised what His Honour Judge Hamilton described as a "Code of Practice" for county court trials in Liverpool. In the nature of things experience has shown the need for modifications from time to time, either generally or in relation to particular types of claim. Thus a special regime was introduced for industrial deafness claims. All this is in line with the recommendations of the Review Body on Civil Justice which reported in 1988 (Cmnd. 394). It is also a step on the way towards fully court controlled case management foreseen and recommended by Lord Griffiths with the agreement of Lord Keith of Kinkel, Lord Roskill, Lord Oliver of Aylmerton and Lord Goff of Chieveley in Department of Transport v. Chris Smaller (Transport) Limited [1989] A.C. 1197, 1207.


No such system will work unless solicitors loyally adhere to the "Code of Practice". If, in special circumstances, the legitimate interests of their client require some departure, they should explain the problem to their opponent and, if necessary, apply to the court for special directions.


A feature of the "Code of Practice" is a series of automatic directions dealing, amongst other things, with medical reports which have to be exchanged within 10 weeks of the date of those directions. This creates no problem for plaintiffs, who can assemble their expert, including medical, evidence before issuing the proceedings. From the point of view of defendants, however, it creates a very tight timetable. With a view to avoiding the necessity for defendants seeking extensions of time for the exchange of medical reports, with a consequent risk of postponement of the hearing date and the inevitable postponement of the time at which they are in a position to make an offer of settlement or payment into court, the "Code of Practice" contains the following provision (paragraph 11.2):—

" Hospital Records

As we have seen, the new directions include provision for the simultaneous exchange of medical reports. In an effort to enable the defendant's solicitor to obtain his medical report more quickly, the plaintiff's solicitor will be expected to send the plaintiff's written authority to inspect any hospital records with the service copy of the particulars of claim if he has not already done so. In this way, it is hoped to secure an earlier rather than later simultaneous exchange of medical reports."


Mr. Gerard Wright Q.C., appearing for Mr. Makin and undoubtedly reflecting his views, referred to this dismissively as an "exhortation" and contrasted it unfavourably with a statutory County Court rule, a direction given in relation to the particular litigation, whether automatically or specifically, or a Practice Direction given by the Lord Chancellor under C.C.R. Order 50. He is correct in saying that it is expressed in terms of expectation and to that extent might be said to be exhortatory, but when the court is concerned with the conduct of solicitors, who are officers of the Supreme Court, it should not be necessary to employ mandatory language. The reality is that the "Code of Practice" entitled "Liverpool County Court. The Listing of Trials. An Explanatory Memorandum", which was issued in November 1987 to take effect from 4th January 1988 was a local Practice Direction and I will so refer to it. Although there is no statutory authority for making local Practice Directions, none is needed because every court has inherent jurisdiction to regulate its own procedures, save insofar as any such direction is inconsistent with statute law or statutory rules of court. It is no doubt for this reason that C.C.R. Order 50 empowers the Lord Chancellor to "issue directions for the purpose of securing uniformity of practice in the County Courts".


So much for the background. Mrs. Langley's accident occurred on 1st May 1989 and, with commendable promptitude, Mr. Makin despatched a "letter before action" on 3rd May 1989. That action was begun when on 9th August 1989 he served Particulars of Claim. Contrary to the local Practice Direction it was not accompanied, as it should have been, by any written authority from the plaintiff for the inspection of hospital records and no explanation for this omission was given to the defendants. A defence was filed on 30th August 1989 and at the same time the defendants' solicitor sent Mr. Makin a blank form of authority to inspect hospital records and also the records of Mrs. Langley's general practitioner. In addition, the defendants sought disclosure of any medical evidence to be adduced by Mrs. Langley with a view to its agreement.


The request for authority to inspect the general practitioner records was not covered by the local Practice Direction and Mr. Makin could reasonably have pointed this out, asked why the request was made and, if not satisfied, required the defendants to apply to the court for an order. He did no such thing. Instead he replied "When we see our client, we shall also deal with the request relating to our client's hospital and G.P. records". So far as the medical evidence was concerned, he said "We do not propose at this stage to submit our medical evidence. Your request is premature."


No real criticism can be made of Mr. Makin's refusal to submit medical evidence, since the automatic directions call for an exchange of such evidence at a later stage. The refusal might perhaps have been expressed in less laconic terms, but that must be a matter of style and taste. However, if in the particular circumstances of Mrs. Langley's claim there was any obstacle to providing the necessary authority for the inspection of hospital records, Mr. Makin should have explained what it was. In the course of argument Mr. Wright put forward two alleged obstacles. The first was that the form of authority put forward by the defendants' solicitor included a waiver of the right to sue the hospital and that Mr. Makin could not conscientiously advise his client to sign such a waiver. As to that I would only say that I do not believe that it ever occurred to Mr. Makin that this was any obstacle, since he never mentioned it in the course of a prolonged and exhaustive argument before His Honour Judge Hamilton on 19th and 20th February 1990. The second alleged obstacle was that Mr. Makin was too busy to see his client and that there were difficulties in getting in touch with her. As to this I would only say that a primary duty of solicitors is not to take on more work than they can handle efficiently. I have some difficulty in accepting this explanation which, in any event, is an indictment rather than an excuse. A more plausible explanation is that Mr. Makin was living in a bygone age in which solicitors conducted litigation at a speed and in a manner which suited their personal convenience.


On 11th September 1989 the court issued automatic directions and fixed the hearing for the week beginning 8th May 1990. Thereupon time began to run against the defendants in that they had to prepare their medical evidence for exchange not later than 10 weeks hence. Mr. Makin used up six of those 10 weeks by refraining from obtaining an...

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