Perry v Wong

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE,LORD JUSTICE AULD,SIR BRIAN NEILL
Judgment Date25 November 1996
Judgment citation (vLex)[1996] EWCA Civ J1125-5
Docket NumberFC3 96/7518/G CCRTI 96/0119/G CCRTI 96/1348/G
CourtCourt of Appeal (Civil Division)
Date25 November 1996

[1996] EWCA Civ J1125-5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURTS AT

ST HELENS, WARRINGTON and MANCHESTER

(MR RECORDER GARSIDE)

(HIS HONOUR JUDGE ELYSTAN MORGAN)

(MR RECORDER GRIME QC)

Royal Courts of Justice

The Strand

London

Before:

The Lord Chief Justice of England

(Lord Bingham of Cornhill)

Lord Justice Auld

and

Sir Brian Neill

FC3 96/7518/G

CCRTI 96/1294/G

CCRTI 96/0119/G

CCRTI 96/1348/G

Between:
Robert Perry
Appellant/Plaintiff
and
Kang Ho Wong
Respondent/Defendant

And

Between:
Gary Sampson
Respondent/Plaintiff
and
David Moon
Appellant/Defendant

And

Between:
John William Jones
Appellant/Plaintiff
and
Roe Shopfitting Limited
Respondent/Defendant

MR EDWIN GLASGOW QC and MR GRAHAM WELLS (instructed by Messrs J Keith Park & Co, Merseyside) appeared on behalf of THE APPELLANT MR PERRY

MR EDWIN GLASGOW QC and MR PHILIP GRUNDY (instructed by Messrs Frank Howard, Warrington, Cheshire) appeared on behalf of THE RESPONDENT MR SAMPSON

MR EDWIN GLASGOW QC and MR SAM GRODZINSKI (instructed by Messrs Pannone & Partners, Manchester) appeared on behalf of THE APPELLANT MR JONES

MR DAVID STOCKDALE QC (instructed by Messrs Davies Wallis Foyster, Manchester) appeared on behalf of THE RESPONDENT MR WONG THE APPELLANT MR MOON and THE RESPONDENT ROE SHOPFITTING LIMITED

1

Monday 25 November 1996

THE LORD CHIEF JUSTICE
2

There are three appeals before the court, two by plaintiffs and one by a defendant. All three appeals concern the proper application and construction of Order 17, rule 11 of the County Court Rules where the plaintiff has failed to request a hearing date within the six-month period prescribed by Order 17 rule 11(3)(d), but has made such a request within the 15-month period prescribed by Order 17, rule 11(9).

3

The first of the appeals is an appeal by the plaintiff against a decision of Mr Recorder Grime QC in the Manchester County Court sitting at Bury on 20 October 1995 in Jones v Roe Shopfitting Ltd. The brief background facts are that, on 3 September 1991, the plaintiff suffered an accident in which he sustained personal injuries. On 18 November 1993 he issued proceedings in the Manchester County Court, claiming damages in excess of £5,000. On 20 January 1994 a defence was sent to the court. Accordingly, under the automatic timetable, pleadings closed 14 days thereafter by virtue of Order 17, rule 11(11), the period being calculated from delivery of the defence to the court office, as is made clear by Order 9, rule 2(6). On the day following the receipt of the defence in the court office Form N450 was sent to the parties, recording that the defence had been received. The position accordingly was that the six-month period prescribed by Order 17, rule 11(3)(d) expired on 3 August 1994, and the 15-month period in Order 17, rule 11(9) on 3 May 1995.

4

On 18 April 1995 the plaintiff's solicitors wrote a letter to the court, seeking a hearing date. That prompted the defendant to apply to have the case removed from the list. The plaintiff countered by seeking a declaration that the action had not been struck out or alternatively seeking, if it had, that it should be reinstated. Those applications came before Deputy District Judge Buckley on 28 July 1995. He made no order, save that the plaintiff should have his costs in any event. His ruling was that the plaintiff could submit a request for a hearing date within the 15-month period and that the plaintiff had accordingly applied in time. From that decision the defendant appealed and Mr Recorder Grime, on 20 October, allowed the appeal. The basis of his decision was that a request for a hearing date made outside the six-month period was of no effect unless a request had been made for an extension of time which, on the facts of this case, it had not. It is the correctness of that conclusion which is in issue on this appeal.

5

The plaintiff's response to that ruling has been very helpfully summarised in a skeleton argument submitted by Mr Glasgow relating to these three appeals. He submits that a request for a hearing date made within the 15-month period is valid and effective without the need for a prior extension of the six-month period specified in rule 11(3)(d). He acknowledges the effect of earlier authorities on the automatic strike-out regime introduced by Order 17, rule 11 of the County Court Rules, but submits that it would be unfair and offensive if an action were automatically struck out where a party had done precisely what the rule itself provided, namely had made a request within the 15-month period in rule 11(9).

6

He draws attention to a series of cases decided since Rastin v British Steel Plc [1994] 1 WLR 732 and suggests that the clear effect of these decisions is that a request for a hearing date is effective and treated as timely if made within the 15-month period, even if made outside the six-month period. He places particular reliance upon Ashworth v McKay Foods Ltd [1996] 1 WLR 542. He also places reliance on Ferreira v The American Embassy Employees Association [1996] 1 WLR 536. He submits that the rules themselves support the submission which he makes, and draws attention to other County Court Rules which prescribe a specific penalty for failure to comply, drawing the contrast with this situation in which the only sanction applies on failure to request a hearing date within the 15-month period. He accordingly submits that a request made within the 15-month period is effective.

7

Mr Stockdale, on behalf of the defendant, has also summarised his arguments most helpfully and clearly in a skeleton argument which he has elaborated orally today. At the forefront of his argument he places reliance on the language of Order 17, rule 11(3)(d) which is, he submits, unambiguous and mandatory; it imposes a duty on a plaintiff to request the fixing of a hearing date within six months; and there is (he submits) nothing in the rules which relaxes that requirement or exonerates a plaintiff who fails to comply with it. He submits that if Order 17, rule 11(9) were to be construed as the plaintiff contends, the purpose of rule 11(3)(d) would in practice be utterly defeated. He submits that the proper approach is to construe the two rules together and to conclude that on failing to make a request for a hearing date within six months a plaintiff has to obtain the leave of the court to proceed if he wishes to take advantage of his right to apply for a hearing date before the expiry of 15 months. He goes on to submit that a failure to comply with the requirements of paragraph (3)(d) is an irregularity which, while not nullifying the proceedings, has to be cured. He draws our attention to the judgment of Cumming-Bruce LJ in Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513, where the learned Lord Justice said:

"In my view it is plain that on the ordinary language of Ord. 2, r.1 where there is a failure to comply with the rules, what has been done or left undone remains irregular until the court takes action either to kill the particular proceeding or to cure it, to adopt the language of Mr Lindsay. It is wrong to construe this rule as saying that something that is done which fails to comply with the rules is not to be treated as irregular until the opposite party successfully applies to the court to set the proceedings aside.

As I construe Ord. 2, r.1, from the moment a step in proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document remains irregular inter partes until the matter has been brought before the court and the court has decided in which way to exercise the jurisdiction conferred by Ord. 2, r.1(2)."

8

The defendant relies on the rest of that passage of Cumming-Bruce LJ's judgment, culminating in the paragraph at 520E where he said:

"It is not correct, where there has been this kind of irregularity, to hold that the party who fails to comply with the rules can in the absence of waiver rely upon the irregular step or document as regular until the court has exercised its power under Ord. 2, r.2 to kill or cure."

9

Mr Stockdale goes on to draw attention to a series of passages in a number of reported judgments on Order 17, rule 11 (most of those judgments having been given by myself). They are, as he rightly points out, passages in which the court draws attention to the necessity of taking seriously, and complying with, the requirement to apply for a hearing date within six months. Reliance is placed on those passages for obvious reasons, namely as showing that the court intends the six-month requirement to have teeth and not merely to be an exhortatory provision which can be ignored with impunity.

10

Mr Stockdale also places reliance on references by the court in previous cases to the desirability of the County Court itself taking control of the timetable so as to make sure that the case is expeditiously progressed. Mr Stockdale is not deterred in his submissions by reference to cases such as Ashworth v McKay Foods Ltd since he points out, quite correctly, that the...

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2 cases
  • Re Order 17, Rule 11 of the County Court Rules; Bannister v S.G.B. Plc and Others and other Cases
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 25 April 1997
    ...date related to an act of a formal or administrative character which is not by statute the responsibility of the district judge. Indeed in Perry v Wong Sir Thomas Bingham MR attached significance to this fact when he said at p 9 of the transcript that in this context the expression "the pro......
  • Mohans (Warehouses) Ltd v Bimal Kumar and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 April 1997
    ...sought to distinguish the Metro-invest Anstalt case by reference to two other authorities, namely Chapman v Chapman [1985] 1 WLR 599 and Perry v Wong [1997] 1 WLR 381. In particular, counsel relied on the terms of Order 2, rule 1, paragraph 1, which (omitting immaterial words) provides that......

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