Mason v First Leisure Corporation Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat:,The Honourable Mr Justice Tugendhat |
| Judgment Date | 30 July 2003 |
| Neutral Citation | [2003] EWHC 1814 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2003/APP/0229 |
| Date | 30 July 2003 |
[2003] EWHC 1814 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: QB/2003/APP/0229
Timothy Lamb QC (instructed by Hamlins) for the Claimant
Howard Stevens (instructed by Badhams Law) for the Defendant
Hearing dates: 2 July 2003
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.
On 24 April 1999 the Claimant, then aged twenty, suffered a very serious traumatic brain injury at Tamworth Leisure Centre. The Centre had a dry ski slope, and the Claimant alleges that he fell and suffered the injury there as a result of the breach of duty of the Respondents. The Claimant appeals from the order of Master Leslie made on 11 March 2003. The Claim Form had been issued on 23 April 2002, and time for service of it had been extended to 23 December 2002 by Master Leslie on 8 August 2002, by an order made on an application without notice. The Claim Form was served on 19 December 2002. The order of 11 March set aside the order of 8 August 2002, and the service of the Claim Form.
The order of 11 March 2003 was made on the Defendant's application in a Notice issued on 17 January 2003. The Defendant recognised that that application was out of time, and the Notice included an application for an extension of time for making it. The grounds of the Application were that there had been insufficient grounds for extending the time for service of the Claim Form, which should have been served within four months of issue (that is 23 August 2003) and that the effect of the order of 8 August 2002 was to deprive the Defendant of a limitation defence.
It is probably correct that the order of 8 August 2002 did deprive the Defendant of a limitation defence, but that requires some explanation. Although the Claim Form was issued the day before the third anniversary of the injury, it is common ground that that was not the day before the relevant limitation period expired. The reason for this is that by s.11(4) of the Limitation Act 1980 the period runs from the date on which the cause of action accrued, or, the date of knowledge, if later, of the person injured. This was specifically accepted in the Skeleton Argument of the Defendant before the Master, although the skeleton argument does also state, erroneously, that the limitation period expired on 24 April 2002. In fact, the evidence before the Master in August 2002 (a witness statement of Martine Pilling) had made clear that Claimant had been sedated and in intensive care for some weeks after the injury.
The medical report of Dr Charles Clarke, subsequently obtained on 31 October 2002 (which was to hand at the hearing on 11 March 2003), gives the estimated period of post traumatic amnesia as around eleven weeks. So while the precise date on which the limitation period started to run is not yet established or agreed, it is agreed that it was probably a number of weeks after the date on which the Claim Form was issued. I assume for the purposes of this judgment that the period after the injury, but before the date of knowledge, was less than the four months by which the Master extended the time for service. It is clear that a limitation defence would not have been available if the Claim Form had been served without an extension (23 August 2002), and would probably not have been available if a Claim Form had been issued in June and served without an extension of time in October. It is unlikely that, without an extension of time, a Claim Form could have been served on the date this one was served without there being a limitation defence available to the Defendant.
The solicitors for Claimant had been instructed on 22 April 2002. It was the following day that they issued the proceedings. By CPR Part 7.5 the Claim Form had to be served within 4 months. By CPR Part 7.4 Particulars of Claim had to be served within 14 days after the service of the claim form. By CPR Part 16.2( 1)(d), 16.3 and para 4.1 of the Practice Direction supplemental to it, the Particulars of Claim were required to contain, or have attached to them, specified information and documents. These included a medical report and details of the amount claimed. In addition, the solicitors were mindful of the need to follow the spirit of the Pre-Action Protocol for Personal Injury Claims (see para 2.4). This need put them in a difficult position. When solicitors are instructed just before the third anniversary of an accident, there may be some tension between the need to make sure that the Claim Form is issued in time (even when the date of relevant knowledge clearly delays the start of the limitation period to some extent), and the need to act in the spirit of the Pre Action Protocol. There will be cases where the four month period for service of the Claim Form will appear unlikely to be sufficient for the taking of instructions, preparation of the Particulars of Claim, and the steps required to be followed by the Protocol. The solicitors appear to have thought that this was such a case. It appears to be that that explains their subsequent actions.
The Claimant is a young man, whose employment has been affected by the accident, and it may perhaps be inferred from the solicitors' reference to insurance that his means are limited. However, the evidence does not explain why the Claimant did not instruct solicitors before he did, nor why the solicitors had not made further progress than they had made at the time they made the application in August.
By 7 th August 2002, the date of Martine Pilling's witness statement, the solicitors had obtained an expert report from a consultant on winter sports which was the basis of the case on liability subsequently advanced. He had been instructed on 7 May and reported on 25 June. They had also obtained some advice from counsel. They had not obtained the medical report, nor had they obtained a report from an employment consultant who might assist in the preparation of a claim for loss of earnings. In addition, they had not yet contacted the witness who accompanied the Claimant at the time of the injury, who was described in the witness statement as not hostile, but difficult to contact. The final concern expressed in the witness statement was that the evidence be available for underwriters to assess the strength of the case with a view to the Claimant obtaining after the event insurance.
It was upon evidence to the foregoing effect that the extension of time of four months was sought in August 2002. It was a prospective application, pursuant to CPR Part 7.6(1) and (2). Importantly, the witness statement had attached to it the draft of a letter of claim in the form of Annex A to the Pre-Action Protocol for Personal Injury Claims. The witness statement stated that, upon the extension being granted, the solicitors would send such a letter to the Defendant, which would allow them 90 days in which to investigate liability. That appears to be a reference to the three month timescale for a defendant to investigate a claim, which is set down in the Pre Action Protocol para 3.7. CPR Part 7.6(2), unlike 7.6(3), lays down no conditions for the making of the order, and there is little guidance in the case law apart from Jones v Wrekin District Council (ureported) 9 July 1999. I am indebted to counsel for the extensive research which they have made to establish this fact.
In his judgment of 11 March 2003 the Master stated that the Claimant should not have adopted the course of applying for an extension of time for serving the Claim Form. What he should have done, said the Master, was to serve the Claim Form and apply to the Court on notice to the Defendant for an extension of time for service of the Particulars of Claim, or of the medical report, or of the other material required by the Rules, if these could not be obtained by the end of the primary period of validity of the Claim Form. In saying this the Master was clearly right. In Jones v Wrekin, Lord Woolf MR said that the failure to get your full medical evidence in order cannot be a justification for not serving proceedings, so far as the CPR are concerned. However, as that case also shows, a party who mistakenly adopts the course adopted by the Claimant will not necessarily have the service of proceedings set aside if the Court does grant an extension for which there are not proper grounds.
The reason why the Master gave an extension of time to the Defendant to apply to set aside service of the Claim Form is that he considered that the delay was either two or three and a half weeks, and that this was, in his view, a technicality 'when the claimant himself has been so late', and because the overriding objective required him to 'look at the real merits of the case rather than decide whether the fine print of the rules have been complied with fully or at all'. The soundness of the Master's decision to grant an extension of time to the Defendant is therefore to be judged in the light of his view as to the lateness of the claimant himself. The two are linked.
The uncertainty as to whether the Defendant's delay was two, or three and a half, weeks arose because it was unclear under which provision of the CPR the Defendant's application fell to be considered. The application might be considered under CPR Part 23.10, which applies to setting aside orders made without notice. For this the time limit is seven days after the date on which the order was served on the person making the application. Alternatively, the Defendant's application might be considered...
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