Powell v Watford Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 10 July 2017 |
| Neutral Citation | [2017] EWHC 2283 (QB) |
| Docket Number | Case No: QB/16/0246/0245 |
| Date | 10 July 2017 |
| Court | Queen's Bench Division |
[2017] EWHC 2283 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Jay
Case No: QB/16/0246/0245
Mr G Exall (instructed by Collins) appeared on behalf of the Claimant
Ms C Allen (instructed by DAC Beachcroft) appeared on behalf of the Defendant
(As Approved)
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There are before me today two appeals in this case. The first is an appeal against the order of HHJ Charles Harris QC, which I think was made on 18 October 2016, although the claimant/appellant's skeleton argument gives the date as 16 October, setting aside a judgment made on the basis that the defendant was in breach of a previous court order; and secondly, the order of HHJ Melissa Clarke given on 31 October 2016 dismissing the claim after trial.
This claim relates to an accident which took place on the defendant's land on 13 April 201The claimant, Alfie Powell, was playing football in a grassy area on the defendant's land, which was in the nature of a park or recreational area. The defendant clearly owed duties under the Occupiers' Liability Act 1957. What happened is that unfortunately the claimant injured his hand on a piece of glass, and that caused him quite significant injury to a nerve, I think the ulnar nerve. The claim is likely to be fairly substantial.
I will be coming back to the facts of the case when I examine the judgment of HHJ Melissa Clarke in due course, but it is necessary to set out some of the procedural history. On one level this case is fairly straightforward, but I do not disagree with the characterisation of Ms Caroline Allen for the defendant that the procedural history is long and convoluted. I need to focus on certain highlights in that history, and I can do this with reference to the chronology set out in Ms Allen's skeleton argument.
On 19 December 2014 the parties were required in the ordinary way to provide standard disclosure by list. The defendant complied with that obligation in that it served a list disclosing inspection records and various photographs. Inspection later took place.
An original trial date was listed to take place before District Judge Wood on 3 November 2015 but had to be adjourned on the claimant's application. I understand that the district judge noted that there were documents in the bundle which were missing, being documents which he would expect to see from his experience of this sort of case. There was a CMC before District Judge Wood on 4 May 2016, and he ordered that "the defendant shall carry out a search for any policy documents relating to inspection regimes within its public open spaces and shall provide disclosure of any such documents within four weeks". So, the four-week period ended at the beginning of June 2016. On 8 June (that is to say, after the time expired for compliance) there was a letter from the defendant's solicitors to the claimant's solicitors seeking a retrospective extension of time to 17 June. There had been a bereavement in the fee earner's family. That request was refused on 14 June, largely on the basis that the trial was listed to take place on 6 July 2016. On 20 June the claimant applied for an unless order that the defendant comply with paragraph 2 of the order of 4 May 2016 within three days, failing which the defence be struck out. On 4 July (that is to say, before the application that I have just referred to was dealt with) the defendant's solicitor wrote to the claimant saying this:
"We do apologise for the delay in responding regarding the documents but confirm our council clients have carried out a full search for the documents sought and have advised that none of the documents requested have been located."
Unfortunately the trial date had to be adjourned and was put back to the end of October, although the exact fixing of the date of trial I think took place slightly later.
The application for an unless order (that is to say, the application dated 20 June) was dealt with on the papers by HHJ Harris QC on 28 July 2016. The order was worded in a slightly unusual way:
"If the defendant has not complied with the paragraph 2 of the order of District Judge Wood, the said order is to be complied with by 12 August 2016. In default of compliance, the defence will be struck out."
It seems clear from later events that the letter of 4 July 2016 was in the papers which HHJ Harris was considering on 28 July, but it also seems clear that he did not on that occasion examine the letter particularly closely. These things happen. Rightly or wrongly, on 15 August 2016, which was three days after the date stipulated in the unless order, the claimant applied to strike out the defence. On 2 September, again on the papers, HHJ Harris struck out the defence, but there was automatic liberty to apply in the defendant to set aside that order.
On 16 September 2016, which was two days late, the defendant applied to set aside the order of 2 September and reinstate the defence. There was some evidence in support from the defendant's solicitor and appended to it with a statement of truth. The evidence is dated 16 September. It says:
"The defendant confirms again that a full search for the documents requested has been carried out and no such documents have been located, and the defendant cannot therefore disclose what it does not have."
On 18 October there was an oral hearing of the defendant's application, again before HHJ Harris QC. Caroline Allen was counsel for the defence at that hearing, as she has been at all material times; although I should say in deference to her that she was not responsible in any way for the preparation and drafting of the local authority's defence. I understand that HHJ Harris was dealing with this in a busy list, as often happens, and he may well have formed a preliminary view. The upshot was that he reinstated the defence. We do not have a transcript of the hearing, which is not particularly surprising, although I am grateful for the note which has been prepared by Ms Allen. She does not say that it is a comprehensive note, and it is likely that the learned judge gave his reasons in his characteristically fluent, elegant and rapid way. He said, being entirely frank, that it was not clear whether he had seen that letter of 4 July when he made the unless order. He noted that the application of 16 September was about two days late. We see this (it is not altogether clear from the note): there was a failure by the defendant to comply with the original order of 4 May 2016. Information (that is to say, the letter of 4 July) was provided, albeit possibly not in the right format, four and a half weeks late. The unless order of 26 July extended the time for compliance to 12 August, and the letter of 4 July had clearly been provided by then: in other words, the letter was within the time for compliance. So, what HHJ Harris was clearly saying was that in his view the letter of 4 July did amount to compliance with the unless order, because before the unless order was made, and this relates to the conditional "if" which we see at the start of the order, the defendant had already complied with it. Therefore, I take Ms Allen's point that, strictly speaking, the unless order did not apply. That is on the basis that her clients had already complied with the order of the district judge.
It is also to be noted that (and here, according to Ms Allen, it was the crux of the judgment) HHJ Harris stated that one must not lose sight of the fact that the lifeblood of the law is common sense. To some large extent I agree with that, but on the other hand compliance with the Rules is also a mandatory obligation. Whether compliance with the Rules and relief from failure to comply with then Rules falls within the rubric of common sense is a matter for some debate, but it is unnecessary for me to resolve that issue.
The subsequent history does not matter in as much as there were attempts to adjourn the trial before HHJ Melissa Clarke. Those attempts failed, and then there was a hearing, a full trial, as I have said, on 31 October 2016. I will be coming to what happened on that date in due course.
But it is necessary first of all to consider the first appeal, which is against the order of 18 October 2016. The backdrop for the consideration of the first appeal is the relevant rules and practice directions set out in Part 31. There is an obligation under Rule 31.7 to carry out a reasonable search, and various factors are there stated. Under Rule 31.10, which is the Rule dealing with standard disclosure, there is an obligation to provide a disclosure statement. Under sub-rule (6), a disclosure statement must set out the extent...
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