Ministry of Defence v Blythe
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Allan Gore |
| Judgment Date | 02 May 2013 |
| Neutral Citation | [2013] EWHC 1422 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: HQ12X04911 |
| Date | 02 May 2013 |
[2013] EWHC 1422 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Allan Gore QC
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Claim No: HQ12X04911
MR MICHAEL BRACE (instructed by Messrs Slater & Gordon) appeared on behalf of the Claimant
MR ADAM HEPPINSTALL (instructed by Messrs Kennedys) appeared on behalf of the Defendant
Approved Judgment
Thursday, 2 May 2013
THE DEPUTY JUDGE:
On 13 February 1990 a Master, whose initial I do not recognise, approved an order that was then sealed two days later, on 15 February, by which the plaintiff, as he was then known, then represented by solicitors called Gasters, was awarded an immediate award of damages for pleural plaques, an asbestos induced illness, then, but not now, considered to be an actionable injury. It was a provisional award under a relatively new jurisdiction introduced in the High Court by section 32A of the Supreme Court Act 1981, as it was then known, now the Superior Court Act. It named so-called comeback conditions excluded from consideration in the quantum of the award and there is no dispute that the claimant has not now developed any of them, at least as far as yet can be established. Paragraph 2 of the order read:
"The Plaintiff has leave to apply for further damages within 20 years of the date of this Order if he develops one or more [of] the diseases specified in paragraph 1 the Plaintiff to be at liberty to apply for such time to be extended."
There is no dispute that on 2 August 2012 the claimant, as he had now become, lodged a notice of application (therefore outside the 20-year period specified) for an extension of time in which he could exercise the right to apply for further damages if any of the expressed conditions did develop. That was resisted by the defendant appellant and the matter came before Master Eastman on 5 November 2012. He granted the application. The appellant filed notice of appeal seeking permission on 26 November 2012. Males J refused the application for permission to appeal, on 6 February 2013. His stated reasons were:
"The order dated 15 February 1990 expressly provided that the claimant was at liberty to apply for the 20 year period within which an application for further damages might be made to be extended. It did not limit that liberty to an application made within the 20 year period. Accordingly, and contrary to the appellant's grounds of appeal, this is not a case where the parties agreed or the court ordered that there could be no extension or that any application had to be made within the 20 year period. There is therefore no question of the court having been asked to vary its order to override the parties' contract. Rather the application for an extension was contemplated and permitted from the outset. Thus, and whether regarded as a matter of contract or the exercise of the court's powers under the applicable rules (now the CPR), the court had a discretion to extend the time. The master's exercise of that discretion was within the permissible range of decisions open to him."
The appellant renewed the application at an oral hearing and Silber J granted permission on 22 February 2013 and, as appears from the transcript of that hearing, he gave no reasons, but was not required to either, and so the matter comes before me today. There is no dispute, and the appellant submits, that this case was first concluded under and therefore subject to the old Rules of the Supreme Court. The material provisions were order 37, rule 8 and rule 10. So far as is material to this appeal, rule 8 subparagraphs (2) and (3) provided as follows:
"An order for an award of provisional damages shall specify the disease or type of deterioration in respect of which an application may be made at a future date, and shall also, unless the Court otherwise determines, specify the period within which such application may be made.
"The Court may, on the application of the plaintiff made within the period, if any, specified in paragraph (2), by order extend that period if it thinks it just to do so, and the plaintiff may make more than one such application."
Order 37, rule 9 deals with acceptance of offers to submit to a provisional award and order 37, rule 10 provided at subparagraph 2 that no application for further damages may be made after the expiration of the period, if any, specified under rule 8(2) or such period as extended under rule 8(3). Those rules when they were brought into force, representing as they did the first occasion upon which the law departed from the common law tradition until then that all damages for prospective losses had to be awarded in a single lump sum at the time of the trial of the single cause of action, were amplified therefore by a practice direction issued by the Lord Chief Justice, then Lord Lane, sitting at the time with Skinner J and Macpherson J. The Practice Direction (Provisional Damages Procedure) [1985] 1 WLR 961, differentiated between provisional damage awards after trial proceedings and provisional damages orders without trial. The latter is dealt with in section (b) of the Practice Direction, they material parts of which read as follows:
"(b) Orders Without Trial. Section 32A of the Supreme Court Act 1981 requires that immediate damages and provisional damages must be the subjects of awards by the court if they are to be enforced [I emphasise the words 'if they are to be enforced'] under that section. Accordingly the following practice shall be followed in relation to settlements under that section.
"10. Applications shall be made by summons for leave to enter judgment by consent in the terms of a draft annexed to the summons. If the plaintiff is under a disability, the approval of the court should be asked for in the summons and recited in the draft judgment.
"11. The draft shall contain the particulars in paragraphs 1 to 3 hereof. It should also contain a direction as to the documents to be placed on the case file. These will normally be (a) a copy of the order made on the summons, (b) a copy of the judgment, (c) pleadings, if any, (d) an agreed statement of the facts, (e) agreed medical reports. The contents of the case file shall be scheduled to the order and to the judgment. The terms of the order and judgment shall be subject to the court's approval.
"12. The plaintiff's solicitor shall (1) prepare the case file, which shall be secure and clearly marked, (2) draw up the order and judgment and place copies on the case file, (3) lodge the case file in the office in which the action is proceeding, where it shall be preserved as though it were the pleadings of an action disposed of by trial, (4) forward a copy of the judgment as directed in paragraph 8(2) hereof." [Quotation unchecked.]
There are then certain duties placed on Central Office here in London for the filing of the case file. Neither parties, according at least to the evidence and materials that I have been provided with for the purposes of this appeal, have sought of the Court Office a copy of the case file. I took it upon myself yesterday to inquire whether it could be traced, but hardly surprisingly in the limited time available it has been impossible to trace it, if it still exists, but insofar as the practice direction clearly states that it should be retained by the court, that court file somewhere does exist and in it would be included the agreed statement of facts. But I do not have the benefit of any of that material today. The claimant's instructing solicitor, doing the best that she can in the circumstances, has found the original order, has found an offer letter that may have contributed towards the making of the original order and has been able to trace a copy at least of the claimant's medical evidence obtained at the time and for the purposes of obtaining the provisional damages award, but none of the other material that would have been included in the retained case file has been traced or is available.
Mr Heppinstall, who appears for the appellant and did so below, submits then and now that the dominant feature in relations between the parties is what he calls "a contract embodied in a consent order compromising" the claim and this, he submits, was a contract by which each party of full age and capacity, and with the benefit of legal advice, "contractually obtained the certainty of being free from any further liability after 20 years, should no application be made during that time to extend the period". I take those quotes from his skeleton argument for the purposes of this appeal and he repeats those submissions in orally developing that skeleton before me today. If that is so, he goes on to submit that this court has either no jurisdiction, or as he submits it would be, to vary the terms of the contract, or alternatively only very limited jurisdiction which the court should not exercise. All of those arguments were rejected by Master Eastman, the material parts of whose judgment said this:
"It should be remembered (and I...
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