Lawson v Midland Travellers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE SIMON BROWN,THE MASTER OF THE ROLLS |
| Judgment Date | 02 December 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1202-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 1992 |
| Docket Number | 92/1193 |
[1992] EWCA Civ J1202-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE LAWS)
Royal Courts of Justice
The Master of the Rolls
(Sir Thomas Bingham)
Lord Justice Stuart-Smith
Lord Justice Simon Brown
92/1193
and
MR D. P. O'BRIEN Q.C. (instructed by Messrs Lawrence Graham) appeared for the Appellants.
MISS JULIA SMITH (instructed by Messrs Howell & Co., Birmingham) appeared for the Respondent.
This appeal raises a question of some interest and general importance on the interpretation of R.S.C. Order 12, rule 8 relating to disputes as to jurisdiction and in particular applications to set aside service of a writ, and Order 3, rule 5 relating to extensions of time within which such an application can be made.
The facts are these. The plaintiff is crippled and has to use crutches or a wheelchair to get about. He booked a holiday at a hotel in Spain through the agency of the first and/or second defendant. On 26th September 1987 he suffered an accident when he fell while walking up some steps at the hotel recommended by the defendants. On 31st August 1990 he issued a writ against both defendants claiming damages for personal injury caused by negligence, breach of statutory duty. On 25th September 1990 the limitation period expired. On 8th November the writ was amended to include a claim for breach of contract. The writ was not served within the four months permitted by the rules.
On 7th March 1991 the plaintiff's solicitors prepared to serve the writ and a statement of claim by fax. No point is taken by the defendants that the purported service was by fax. The statement of claim was not accompanied, as it should have been, with a medical report or statement of special damage. (Order 18, rule 12 (1A).) But Mr O'Brien does not contend that the statement of claim is a nullity because of non-compliance with this rule. On 8th March the second defendant (appellant's) solicitors filed an acknowledgment of service. On 28th March there was an oral agreement between solicitors extending the time for service of the defence until 14 days after the plaintiff served a medical report and schedule of special damage. On 2nd April 1991 the appellant's solicitors wrote to the defendants' solicitors as follows:
"We also confirm our telephone conversation with Mr Williams of the 28 March when we pointed out that when serving the Statement of Claim you had failed to comply with the revised provisions of R.S.C. Order 18 Rule 12 in that you had not served with the pleading your medical evidence and a Schedule of Special Damages. In these circumstances we confirm your agreement to extend our time for service of the Defence until 14 days after you have remedied this omission."
On 8th April by letter the plaintiff's solicitors confirmed their agreement in those terms. But for that extension of time, if it was valid, time for service of the defence would have expired on 3rd April. On 19th April the plaintiff served medical evidence, but not a schedule of special damages. On 4th July the appellant issued a summons to set aside service of the writ. On 11th November District Judge Hargreaves dismissed the application. The defendants appealed on 15th November and on the same day issued a summons returnable before the judge asking for an order for extension of time to serve the defence (if there had been no valid extension by agreement) and leave to withdraw the acknowledgment of service. On 6th March 1992 Laws J. dismissed the defendants' appeal; on 14th April 1992 he gave leave to the defendants to appeal his order. The defendants now appeal pursuant to that leave. For the sake of completeness I should add that the first defendants had successfully applied to have the service of the writ set aside against them. Furthermore the plaintiff had applied to the District Judge for an extension of the writ; that was refused and the plaintiff did not appeal.
Before coming to Order 12, rule 8 as it is presently drafted, it is desirable to consider briefly the legislative history of this rule. Before 1979 a defendant had to enter an appearance; by so doing he not only showed his intention to defend, but he submitted to the jurisdiction of the court. If he wished to challenge the jurisdiction, he could either obtain leave to enter a conditional appearance and then apply to set aside service of the writ, or make that application forthwith. In 1979 the rules were changed and the defendant no longer had to enter an appearance. Instead he had to file an acknowledgment of service.
Order 12, rule 7 was in substantially the same terms as it now is. The current rule provides:
"The acknowledgment by a defendant of service of a writ shall not be treated as a waiver by him of any irregularity in the writ or service thereof or in any order giving leave to serve the writ out of the jurisdiction or extending the validity of the writ for the purpose of service."
Order 12, rule 8(1) of the 1979 rules was as follows:
"A defendant who wishes to dispute the jurisdiction of the court in the proceedings by reason of any such irregularity as is mentioned in rule 7 or on any other ground shall give notice of intention to defend the proceedings and shall, within 14 days thereafter, apply to the Court for—
(a) an order setting aside the writ or service of the writ or notice of the writ on him."
Paragraphs (b) to (h) are not material to this appeal and are in substantially the same terms as in the current rule.
"(2) Order 3, rule 5 shall apply in relation to the period of 14 days mentioned in paragraph (1) with the modification that the said period may be extended by the Court only on an application made before the expiration of the period."
Sub-rules (3) to (6) are not material. Sub-rule (7) was as follows:
"Except where the defendant makes an application in accordance with paragraph (1) the acknowledgment by a defendant of service of a writ shall, unless the acknowledgment is withdrawn by leave of the Court under Order 21, rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings."
The effect of sub-rules (2) and (7) was that, if the defendant failed to make an application to extend the 14 days provided by sub-rule (1) within that time, he was to be treated as having submitted to the jurisdiction. This was so held by Robert Goff J. in Carmel Exporters (Sales) Ltd v. Sea-Land Services Inc. [1981] 1 W.L.R. 1068. But the judge drew attention to the difficulties caused by this rigid time limit. At page 1079 he said:
"Second, I wish to return to the requirement in the new Ord. 12, r. 8(2), that an application under Ord. 3, r. 5, for an extension of the 14 day period within which an application to the court under rule 8(1) has to be made, must be made before the expiration of the 14 day period. The exceptional rigidity of this requirement contrasts forcibly, with the flexibility which is now generally characteristic of the Rules of the Supreme Court, and which enables the court to ensure that justice is done. No doubt short time limits are sometimes desirable; a recent example of this is the period of 21 days now required under Ord. 73, r. 5, for the commencement and service of proceedings to challenge arbitration awards. But the imposition of the guillotine in Ord. 12, r. 8(2), appears to be contrary to the trend in our rules, which is to ensure so far as possible that parties do not fall into procedural traps, and to give the court power to deal with the situation if they do so. The widening some years ago of the court's powers under Ord. 2, r. 1, to deal with failures to comply with the rules provides a vivid illustration of this trend. It is not difficult to see how, due to error, oversight or even illness in a busy solicitors' office, the 14 day period in rule 8(1) might be allowed to pass without an application being made under Ord. 3, r. 5, for an extension of time. I must confess that it seems strange that the court should be deprived of any power to remedy the situation, especially where the plaintiff has suffered no prejudice, as for example where the point at issue has already been developed in correspondence."
He expressed the hope that the Rules Committee might remedy the situation. The Committee responded and produced the current rule in 1983.
The Order 12, rule 8(1) now reads, so far as is material:
"A defendant who wishes to dispute the jurisdiction of the court in the proceedings by reason of any such irregularity as is mentioned in rule 7 or on any other ground shall give notice of intention to defend the proceedings and shall, within the time limited for service of a defence, apply to the Court for—
(a) an order setting aside the writ or service of the writ on him, or…"
Sub-rule (2) has now been revoked.
Save for the deletion of reference to the notice of the writ which has been deleted sub-rule (7) is in the same terms as the 1979 rule.
I must now refer to Order 3, rule 5. This provides:
"(1) The Court may, on such terms as it...
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