Price v Price (trading as Poppyland Headwear)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 26 June 2003 |
| Neutral Citation | [2003] EWCA Civ 888 |
| Docket Number | Case No: B1/2002/2205 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 2003 |
[2003] EWCA Civ 888
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
Judge O'Brien
Deputy District Judge Pugh
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Lord Justice Sedley and
Lady Justice Hale
Case No: B1/2002/2205
Anne Studd (instructed by Hansells) for the Claimant
Nicholas Heathcote Williams (instructed by Plexus Law) for the Respondent
This is the judgment of the court.
This is an appeal by the claimant Paul Terence Price against an order by Judge O'Brien at the Norwich County Court on 19 th October 2002 whereby he allowed the defendant's appeal against an order of Deputy District Judge Pugh on 15 th August 2002. The deputy district judge had granted the claimant an extension of time for serving the particulars of claim in this personal injuries action. In allowing the defendant's appeal, the judge struck out the action. Permission was granted for this second appeal on the grounds that it gave rise to an important point of practice.
The accident which gave rise to these proceedings is said to have taken place on 5 th May 1998. The claimant and the defendant are husband and wife, and at the material time the defendant was employing the claimant as a shop assistant in her hat shop in Cromer at a salary of £60 per week. The claim form was issued on 4 th April 2001, without any accompanying particulars of claim, medical report or schedule of loss. It was served on 14 th April 2001. The particulars of claim ought to have been served on the defendant on or before 28 th April 2001 pursuant to CPR 7.4(1)(b) which provides, so far as is material, that:
"(1) Particulars of claim must –
(b) … be served on the defendant by the claimant within 14 days after service of the claim form."
At that time there was an unresolved dispute as to whether a court had power in any circumstances to extend the time for serving particulars of claim pursuant to the general power to extend time which is contained in CPR 3.1. In Totty v Snowden [2001] EWCA Civ 1402; [2001] 4 All ER 577 it was held that this power did exist. However, CPR 7.4(1)(b) contains the mandatory word "must", from which it can readily be inferred that the longer the period a claimant allows to elapse before he/she applies for an extension of time, the slower a court may be to exercise a favourable discretion. In the event no application for an extension of time was made until 16 th July 2002, over 14 months out of time.
By this time this court had made it clear in Sayers v Clarke Walker (a firm) [2002] EWCA 645; [2002] 3 All ER 490 that in a case of any complexity, when a court was considering an application for an extension of time made after the time prescribed for the taking of a step in proceedings had expired, the court should follow the checklist given in CPR 3.9. Although the present case is concerned with an extension of time for serving particulars of claim, and not with an extension of time for appealing, the underlying logic is the same. If the court is not willing to extend time, the action will be at an end because the claimant will not be able to proceed with it any further.
Although this judgment had been fully reported in the All England Law Reports on 17 th July 2002, the deputy district judge did not, as this court had adjured, approach his task within the structured framework set out in CPR 3.9. He seems to have thought that it was sufficient for him to consider whether there was an adequate explanation of the delay and whether the defendant had been significantly prejudiced by the delay. His approach was reminiscent of the approach forced on the courts in pre-CPR days when an application was made to strike out a claim for want of prosecution. He appears, among other things, to have been influenced by a dictum of Chadwick LJ in Totty v Snowden [2001] EWCA Civ 1402 at [46] to the effect that once a defendant had been served with a claim form he would be in a position to invoke the assistance of the court if particulars of claim were not forthcoming within due time.
On the defendant's appeal Judge O'Brien, too, did not adopt the CPR 3.9 framework. He overruled the deputy district judge because he took the view that this was plainly a claim where there had been disgraceful, long delay all the way through it. He said that a great deal of the delay was unexplained, and insofar as it was explained it was in circumstances where the conduct of the claimant's solicitors was reprehensible. He therefore found that the delay was deliberate, long and without explanation.
When he came to consider matters of prejudice, he considered what Sir Thomas Bingham MR had said in a pre-CPR context in Costellow v Somerset County Council [1993] 1 WLR 256, 264H:
"Save in special cases or exceptional circumstances it can rarely be appropriate on an overall assessment of what justice requires to deny the plaintiff an extension where the denial will stifle his action because of a procedural default, which even if unjustifiable, had caused the defendant no prejudice for which he cannot be compensated by an order for costs."
The judge said that for the reasons he had given he did not regard what had been going on, on the claimant's side of the action, as being capable of the description of "a procedural default". Having regard to the degree, extent and gravity of the delay in this case and the real reason for that delay he thought it was right that justice did not require the defendant to prove an enormous amount of prejudice to her. It seemed to him that there was prejudice, and that the deputy district judge had somewhat underrated it. He also founded his decision on matters relating to the administration of justice. He said that to permit an extension of time in all the circumstances of this case would be an affront to civil justice and an affront to the administration of justice under the Civil Procedure Rules, which he was not going to permit. He therefore held that the deputy district judge was wrong.
The claimant is legally aided, and it is noteworthy that the deputy district judge and the judge in turn directed that the claimant's solicitors should show cause why they should not pay the defendant's costs of the original application for an extension and the defendant's appeal.
The reasons why the two judges took such a jaundiced view of the behaviour of the claimant's solicitors are not difficult to seek. The first notification the defendant's insurers received about the claimant's accident was when they received a letter on 9 th April 1999, 11 months after the accident. A period of six months then elapsed before they agreed to provide indemnity in principle for this claim. On 5 th November 1999 they obtained a short statement from the defendant, and on the same day the claimant's solicitors wrote to them for the first time. This letter did not comply with the Pre-Action Protocol for Personal Injury Cases in that it did not contain a clear summary of the facts on which the claim was based, nor any indication of the nature of any injuries suffered nor, most importantly, of any financial loss incurred (Protocol, para 3.2). In these circumstances there was nothing within the letter to enable the insurers to put a broad valuation on the "risk" (Protocol para 3.5). Instead, the solicitors merely said that they were acting for Mr Price, identified the date of his injury at work, and referred to their understanding that the insurers already had full details of the circumstances of the accident from Mr Price and that an identified firm of loss adjusters had been investigating the circumstances of the accident. At this stage the insurers had received no notice of any claim for loss of earnings. Their initial investigation had revealed that Mr Price had returned to work after the accident and had suffered no loss of earnings as a result of it.
On 17 th November 1999 a legal aid certificate was granted to Mr Price, limited to obtaining further evidence and counsel's opinion thereafter.
On 4 th January 2000 the claimant's solicitors particularised their allegations of negligence for the first time. They also told the insurers that they wished to instruct a local consultant rheumatologist, Dr Gaffney, to prepare a medical report. Their letter was phrased in such a way as to make it clear that they were familiar with the provisions of the Pre-Action Protocol relating to the instruction of experts (Protocol, paras 3.14 to 3.19). The defendant's insurers agreed to Dr Gaffney being instructed, and on 2 nd February 2000 they wrote to the effect that negligence was accepted "subject to the sight of medical evidence which will confirm causation". In the ordinary course of things it would have been expected that this admission of liability would have resulted in the disclosure of Dr Gaffney's medical report, once it was ready (Protocol para 3.21). The defendant's solicitor has said that at this stage up to £10,000 was being allowed by the insurers for the cost of a claim for a moderate back injury, and that their belief that there was no loss of earnings claim influenced their decision on the value of the claim and the extent of any investigations that were required.
The defendant's insurers knew nothing more about the matter for over 14 months, when the claim form, issued on 4 th April 2001, was served by the court. This stated, unexpectedly, that the value of the claim was expected to exceed £50,000. As I have already said, the...
To continue reading
Request your trial
- Cunliffe v Fielden and Others
-
Associated Electrical Industries Ltd v Alstom UK (a private unlimited company)
...are "a nullity", or should be treated as such for the purposes of this application. He relied on the judgment of the Court of Appeal in Price v Price, [2003] EWCA 888 in which it was said (at para 4) that "in a case of any complexity" when the court considers an application for an extension......
-
Susan Berney v Thomas Saul (t/a Thomas Saul & Company (Solicitors))
...prior to the settlement date, would have failed. However, Ms. Simpson submitted that, in accordance with the decision of this Court in Price v Price [2003] 3 All ER 911, any such application would only have succeeded on terms that Ms. Berney was restricted to the early quantum of her claim ......
-
Caterpillar Logistics Services (UK) Ltd v Paula Huesca De Crean
...of particulars of claim, since there had been no citation of authority on this point at the hearing (I referred in particular to see Price v Price [2003] EWCA Civ 888; [2003] 3 All ER 911 at para 27, which appeared to me to the relevant case on the facts as I then understood them). I noted......