Miss Caren Sharp v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Irwin,Lord Justice Jackson |
| Judgment Date | 01 February 2017 |
| Neutral Citation | [2017] EWCA Civ 33 |
| Docket Number | Case No: A2/2015/3877 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 2017 |
[2017] EWCA Civ 33
Lord Justice Jackson
Lord Justice Briggs
and
Lord Justice Irwin
Case No: A2/2015/3877
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WAKEFIELD CIVIL AND
FAMILY JUSTICE CENTRE
His Honour Judge Saffman
B00WF286
Royal Courts of Justice
Strand, London, WC2A 2LL
Alexander Hutton QC and Mr Ian Pennock (instructed by Emsleys Solicitors) for the Appellant
Nicholas Bacon QC (instructed by Leeds City Council) for the Respondent
Hearing dates: 24 January 2017
Approved Judgment
Introduction
This second appeal, from the Order of HHJ Saffman made on 2 November 2015 in the County Court at Wakefield raises a short but important point of interpretation of the Civil Procedure Rules, namely whether the regime for fixed costs provided by Section IIIA of Part 45 for claims which started, but no longer continue, under the EL/PL Protocol applies to the costs of an application under Section 52 of County Courts Act 1984 for pre-action disclosure in connection with such a claim. We were informed by counsel that this question has received different answers from different district judges around the country, upon the determination of pre-action disclosure ("PAD") applications of this kind. Some have assumed that the fixed costs regime applies, treating the PAD application as an interim application within the meaning of Part 45.29H. Others have continued to treat the costs of PAD applications as if they were governed by Part 46.1 and, generally, summarily assessed costs on the standard basis. In the present case DJ Heppell awarded costs of a PAD application by the claimant Miss Sharp against the defendant Leeds City Council on the latter basis, summarily assessing them at £1,250.00. On appeal, Judge Saffman concluded that the fixed costs regime applied to the PAD application, with the result that the costs payable were reduced to £305.00. While the difference of a little less than £1,000 may appear modest as the casus belli for successive vigorously contested appeals, the issue gives rise to important practical consequences in terms of the cost/benefit of making PAD applications in small personal injuries claims of this kind, so that it is entirely understandable that this question has been pursued by way of a second appeal in order to obtain an authoritative determination of the point.
Pre-Action Disclosure — Jurisdiction and Specific Rules
The jurisdiction of the County Court to make PAD orders is to be found in Section 52(2) of the County Courts Act 1984, which provides as follows:
"On the application, in accordance with rules of court, of a person who appears to the county court to be likely to be a party to subsequent proceedings in that court, the county court shall in such circumstances as may be prescribed, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be a party in the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim —
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those document as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order —
(i) to the applicant's legal advisers; or
(ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or
(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant."
As is apparent from a more general reading of Section 52, this jurisdiction is by no means confined to personal injury cases. It requires that it should appear to the court that both the applicant and the person against whom the application is made are likely to be parties to the same subsequent County Court proceedings. Identical provision is made for PAD applications in relation to High Court proceedings by Section 33 of the Senior Courts Act 1981.
Under the heading "Orders for interim remedies" CPR Part 25.1(1)(i) makes provision for the court to grant interim remedies by way of orders under Section 33 of the Senior Courts Act and Section 52 of the County Courts Act. Such an order is described, in parentheses, as an "order for disclosure of documents or inspection of property before a claim has been made".
Part 25.2, headed "Time when an order for an interim remedy may be made" provides at sub-rule (1)(a) that an order for any interim remedy (within the broad range described in Part 25.1) may be made at any time, including before proceedings are started. Sub-rule (3) provides, in general terms, that where the court grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced. But sub-rule (4) provides:
"In particular, the court need not direct that a claim be commenced where the application is made under Section 33 of the Senior Courts Act 1981 or Section 52 of the County Courts Act 1984…"
Part 25.4 provides that PAD applications, both in the High Court and the County Court, must be made in accordance with the general rules about applications contained in Part 23. Prior to the coming into force of the CPR, such applications were made by originating summons. Under Part 23 they are made by application notice (see Part 23.3(1)), on notice to the respondent (see Part 23.4(1)) and, in the absence of any existing proceedings to which the application relates, are given a separate distinguishing number.
Part 46.1 makes specific provision (distinct from the general rules about costs) for the costs of PAD applications, both in the High Court and the County Court, departing from the ordinary general rule under Part 44.2, namely that unsuccessful party pays. Part 46.1(2) provides that:
"The general rule is that the court will award the person against whom the order is sought that person's costs —
(a) of the application; and
(b) of complying with any order made on the applications."
But Part 46.1(3) provides that:
"The court however may make a different order, having regard to all circumstances, including —
(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and
(b) whether the parties to the application have complied with any relevant pre-action protocols."
PAD Applications in the Personal Injuries Context
The present case is concerned with the costs of a PAD application made in connection with a claim for damages for personal injuries. The vast majority of such claims, where the personal injury damages claimed are £25,000 or less, will fall within the purview of one or more pre-action protocols. For present purposes, the relevant protocols are, first, the Pre-action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims ("the EL/PL Protocol") and secondly, the Pre-action Protocol for Personal Injury Claims ("the Personal Injury Protocol"). At the time of the making of the PAD application to which this appeal relates, in February 2015, the Personal Injury Protocol was in the form set out on pages 2739ff in Volume 1 of 2015 White Book. It has since been substantially revised: see pages 2381ff of Volume 1 of the 2016 White Book. Both versions set out aims which include the early exchange of information about the dispute, better and earlier pre-action investigation by all parties and enabling parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced. Both versions of the Personal Injury Protocol require a prospective defendant to respond to letters of claim by making early disclosure of relevant documents, which would be likely to be ordered to be disclosed by the court, either on a PAD application, or on disclosure during the proceedings.
As is well known, the EL/PL Protocol (like the more frequently used RTA Protocol) makes provision for the commencement of claims by means of an online process known as the Portal, by means of a Claim Notification Form ("CNF"). Paragraph 1.1(6) provides that:
"Claim" means a claim prior to the start of proceedings, for payment of damages under the process set out in this Protocol;"
The aim of the EL/PL Protocol is set out in paragraph 3.1 as follows:
"The aim of this Protocol is to ensure that —
(1) the defendant pays damages and costs using the process set out in Protocol without the need for the claimant to start proceedings;
(2) damages are paid within a reasonable time; and
(3) the claimant's legal representative receives the fixed costs at each appropriate stage."
Paragraphs 6.9 to 6.11 of the EL/PL Protocol make provision for the defendant's response to a CNF. In summary, the defendant must acknowledge receipt electronically the next day after receipt of the CNF and must complete a substantive response ("the CNF Response") within, in a PL case, 40 days of the sending of the CNF.
Where liability is admitted by the defendant the EL/PL Protocol is designed to encourage negotiation and agreement as to quantum, but makes provision for what is called the Stage 3 Procedure for determination of quantum by the court, usually at a very short (and highly efficient) hearing on documentary evidence alone.
A claim no longer continues under the EL/PL Protocol in the circumstances specified in paragraph 6.13. Those include a non-admission of liability, the failure to send the CNF response and an opinion by the defendant that the Small Claims Track would be the normal track for the claim. In the present case, the claim started in the EL/PL Protocol but did not continue within it after the defendant did not send a CNF Response within...
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