McDonnell and Another v Walker
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Rimer,Sir Paul Kennedy |
| Judgment Date | 24 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1257 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2009/0082 |
| Date | 24 November 2009 |
[2009] EWCA Civ 1257
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
Deputy Circuit Judge Morgan
8MA06683
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice-President of the Court of Appeal, Civil Division
Lord Justice Rimer and
Sir Paul Kennedy
Case No: B3/2009/0082
Simon Hilton (instructed by Messrs Pannone LLP) for the Respondents
Frank Burton QC and Paul Russell (instructed by Messrs Cogent) for the Appellant
Hearing dates : 19 th October 2009
Lord Justice Waller :
This is an appeal from a decision of Deputy Circuit Judge Morgan who, by a judgment handed down on 1 st December 2008, granted the respondent claimants' (the claimants) application to disapply the provisions of Section 11 of the Limitation Act 1980 under Section 33 of that Act. The appellant defendant (the defendant) has put in lengthy grounds of appeal which broadly assert that the deputy judge misunderstood important aspects of the evidence, misdirected himself in various ways including the test to be applied, failed to identify the correct period of delay, and reached a decision in the exercise of his discretion which was not open to him.
The history
The facts and relevant chronology are as follows:—
i) On 24 th April 2001 the first claimant was the driver of a car, with the second claimant as a passenger, which was in collision with a car being driven by Richard Walker. Richard Walker was killed in the accident.
ii) The claimants instructed Anthony Hodari & Co (Hodari), solicitors, and on 31 st July 2001 that firm wrote a letter of claim to Richard Walker's family which was forwarded to Richard Walker's insurers, Direct Line.
iii) On 7 th September 2001 Direct Line wrote two letters to Hodari, the first relating to the first claimant and the second the second claimant. In both they stated they could not confirm their stance on liability pending the inquest; in both they requested a list of 3 consultants in the hope of agreeing a joint instruction. In the letter relating to the first claimant they noted “the severity of your client's injuries”.
iv) The inquest was held on 11 th October 2001 and on 29 th October 2001 Hodari asked Direct Line to confirm liability was not in issue. On 23 rd November Hodari sent details of an orthopaedic surgeon, Mr Swain, to Direct Line and again asked for confirmation that liability was accepted.
v) On 24th November 2001 Direct Line accepted liability and offered £900 for the claim in respect of the first claimant's car. The offer for the car was accepted on 6 th December 2001.
vi) In early 2002 the claimants returned from Northern Ireland to University in England and Hodari sought to find medical experts in England. By April 2002 experts had been agreed between Direct Line and Hodari but both claimants failed to attend appointments in that month “in the light of the fact that both claimants were at University and were on working placements”.
vii) In her statement Emma Swainbank of Hodari says she received details of an orthopaedic surgeon in Belfast on 14 th May 2002. Ultimately a letter of instruction to Mr Christopher Andrews in Belfast was sent but only on 14 th October 200 3. From logs produced by Direct Line it seems they were being informed by Hodari in December 2003 of difficulties getting touch with the claimants. They were also being informed that “it would seem” that there would be no loss of earnings claim, that Hodari were looking at “generals”, and “specials” were minimal.
viii) In February 2004 the Direct Line log records again that Hodari were saying they had difficulties getting instructions from the claimants but that loss of earnings would not be applicable since the first claimant was a student; and that they had no particulars of injuries “but would suggest he has recovered well as he is not pushing them at all”. The log records that Hodari had instructed a medical expert and that they were saying they will return with news as soon as possible.
ix) Eventually appointments were made for both claimants to see Mr Andrews on 29 th March 2004 – now nearly three years after the accident.
x) On 8 th April 2004 Hodari wrote to confirm they were issuing proceedings to protect the limitation position and asked for the correct name and address for the defendant.
xi) On 20 th April 2004 the claim form was issued limiting damages to £15,000. The claim handler within Hodari diarised the date for service as 26 th August 2004 which was an error.
xii) Hodari received medical reports on 24 th April 2004. They were served on Direct Line on 5 th July 2004. Particulars of claim were filed on 23 rd August 2004 with particulars of injury as follows:—“the first claimant sustained a broken knee cap, broken pelvis and several cuts and bruises. As a result of the accident the claimant will be at a handicap on the open labour market. Full details are set out in the medical reports of Mr Andrews dated 13 th April and 16 th April 2004. Further medical evidence to be adduced.” [Mr Andrews' medical reports made clear that the first claimant's injuries were serious indeed] …”“As a result of the collision the second claimant sustained facial cuts, bruising and psychological injuries. Full details are set out in the medical reports of Mr Andrews dated 13 th April and 16 th April 2004.” [Mr Andrews' reports showed the second claimant's physical injuries were not insignificant but there was no medical report to support the allegation of psychological injury]
xiii) Ultimately the proceedings were served on 23 rd August 2004, one day late. Schedules relating to special damages were served on 27 th August 2004, in each case claiming £50 but indicating other matters were to be advised.
xiv) On 6 th September 2004 the defence took the point as to late service and on 21 st October 2004 Hodari applied retrospectively for an extension of time for service. That application was refused on 12 th January 2005.
It is right just to take stock at this juncture. First the application to extend time retrospectively was doomed to failure because of the language of CPR 7.6 (3) which provides as follows: —
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.
Second, at this time Walkley v Precision Forgings Ltd [1979] 1 WLR 606 HL(E) was still good law. That decision held that the court may not exercise its power to disapply the ordinary time limit in a personal injury action under s.33 of the Limitation Act where the claimant had brought an action before the expiry of that limit and was bringing a second action in which the application under s.33 was being made. Thus, at this time the claimants would be advised that they could not commence a second action against the estate of Richard Walker. Direct Line would presumably put their files away.
The claimants went to different solicitors, Pannone, obviously with the intention of suing Hodari in relation to their mistake leading to late service. Pannone were contacted swiftly by the first claimant in January 2005. Papers were obtained from Hodari in July 2005 and ultimately both claimants attended a meeting at Pannone at the end of October 2005. What Debra Woolfson of Pannone says in her statement is that “Unfortunately there was then a gap in my instructions in that the client care documentation was not returned”. It was not returned until December 200 6.
In the meanwhile on 14th June 2006 the House of Lords decision in Horton v Sadler [2007] 1 AC 307 departed from Walkley and from that date it was possible for a court to exercise its discretion under s.33, even though a claimant had brought an action prior to the expiry of the limitation period and that action had been halted for any reason. The facts in Horton were that the defendant had suffered no forensic prejudice and it would have been a windfall if he could rely on an understandable error on the part of the claimant's advisers, and thus the judge's inclination to be allowed to disapply the limitation period was given effect by the House of Lords.
Pannone did not at this stage commence a second action against the Estate of Richard Walker. They pursued the claimants' claim against Hodari writing a formal protocol letter to Hodari on 3 rd April 2007. On 26 th July 2007 solicitors acting for Hodari, Reynolds Coleman Bradley, responded suggesting that a claim should now be pursued against the original defendant.
Between August 2007 and April 2008 discussions took place between Pannone and Reynolds Coleman Bradley about the funding of the second action. In September 2007 Mr Andrews prepared fresh reports on the claimants and in October 2007 both claimants were examined by a psychiatrist Dr Mangan. Dr Mangan produced a report on the first claimant dated 1 st October 2007 (that would seem to be an error since it refers to visits after that date).
On 17 th April 2008 the second action against the Estate of Richard Walker was commenced and it is in that action that the application to disapply the limitation period under s.33 was made and it is that application which succeeded before the deputy judge.
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