Purcell v F. C. Trigell Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WINN,LORD JUSTICE BUCKLEY |
| Judgment Date | 22 June 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0622-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 1970 |
[1970] EWCA Civ J0622-1
The Master of The Rolls (Lord Denning)
Lord Justice Winn
Lord Justice Buckley
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Plaintiff from Judgment of Mr. Justice Shaw)
MR. JOHN HICKS, instructed by Messrs. Watkins, Pulleyn & Ellison, agents for Messrs. Bernard Chill & Axtell (Southampton), appeared for the Appellant (Plaintiff).
MR. C. WHITBY, Q.C., instructed by Messrs. Barlow, Lyde & Gilbert, appeared for the Respondents (Defendants).
Four years ago there was a serious accident in Winchester. Mr. Purcell was employed as a window cleaner by a firm called Trigell Limited (who traded as the Southern Window and General Gleaning Company). He was sent on 24th March 1966 to clean some windows at the Winchester Travel Bureau, which was on the first floor of Nos. 49 and 50 High Street, Winchester. Unfortunately, whilst he was cleaning them, a catch on the window gave way and he was thrown to the ground and severely injured. He had a large depressed fracture of the skull, a broken back and many troubles. He did not remember a thing about it.
He sought to claim damages against his employers for not giving him proper protection or taking adequate precautions. Soon after the accident solicitors wrote on his behalf. They started writing in July 1966, but they got little satisfaction from the defendants or their solicitors. A question arose as to the name of the company which employed the plaintiff. The defendants' solicitors gave no help about it. So the plaintiffs' solicitors issued a writ which they afterwards had to amend. They sued Trigell Limited and Mr. Davies, the man who was working with Mr. Pure ell and was said to be responsible for the accident. The plaintiffs delivered the statement of claim on 4th October, 1968. Again there was a long delay by the defendants in putting in their defence. Eventually, after many extensions of time, the solicitors for the defendants, in order to gain further time, delivered what they called a "blanket" defence on 5th December, 1968.
The plaintiff wanted to get on with the matter and particularly he wanted to get interrogatories answered, because the plaintiff himself knew nothing about the accident. They went to the Registrar in Winchester on 24th March, 1969, and got, amongst other things, an order for interrogatories on the defendants to be answered within 14 days, that is, 14 days from the 24th March, 1969. They were not answered in that time, or for months afterwards. Eventually the plaintiff's solicitors took out a summons returnable on 11th August, 1969. They asked for judgment on the ground that the defendants had not complied with the order for interrogatories. Then some important letters passed.
On 6th August the defendants' solicitors wrote, saying: "In an attempt to avoid our unnecessarily journeying to Winchester on the hearing of your application, would you please agree to the learned Registrar making an order that unless the defendants answer the interrogatories as ordered within 14 days that their defence be struck out?". The plaintiff's solicitors replied on 7th August: "We would be prepared to agree an order for interrogatories to be delivered in seven days or defence of both defendants struck out and with the costs of this application to be borne by the defendants in any event". After those two letters there was a telephone conversation. As a result, on 11th August, 1969, there was a consent order. It says: "It is ordered that as agreed the defence of both defendants be struck out unless answers to the interrogatories ordered be delivered within ten days and unless a full disclosure as ordered be made within ten days".
Within those ten days the defendants delivered answers to the interrogatories, but they were not complete answers. The defendant company were required to answer the Interrogatories Nos. 1 and 5, and the defendant Davies was required to answer the Interrogatories Nos. 2 to 9 inclusive. The company did answer Nos. 1 and 5, but the defendant Davies did not answer all of Nos. 2 to 9; he answered No. 1, the first interrogatory, and the fifth, sixth, seventh, eighth and ninth, but he failed to answer Nos. 2, 3 and 4. The plaintiff's solicitors at that time did not notice the omission and did not raise any query about it: but a few weeks later they noticed it. On the 6th November, 1969, they asked for judgment. They said that the defence should be struck out on the ground that the interrogatories had not been properly answered. The defendants took umbrage at this summons. They thought that the plaintiffs were taking unfair advantage of an oversight. The plaintiff's solicitors replied on27th November: "We are prepared to withdraw our present application, provided you agree to pay the costs thrown away, upon receipt of the further affidavits to properly answer the interrogatories, and upon your specifically replying to those matters referred to herein which you have not yet answered".
So they gave the defendants an opportunity to put things right. But it was not taken. December went by. Still no affidavit. On 22nd December, 1969, the plaintiff's solicitors told the defendants that they would extend the time to 31st December, but they would not extend it for longer. That opportunity again was not taken. The affidavit was not sworn and filed until the first week of January 1970.
The affidavit was then in order, but it was too late. So the plaintiffs continued with the summons for judgment. They asked for judgment because of the default of the defendants in complying with the consent order. On 20th January, 1970, the Registrar ordered judgment to be entered accordingly. On appeal to Mr. Justice Ashworth on 3rd February, 1970, the appeal was dismissed. When the defendants saw themselves thus defeated on this score, they took out an application before the judge in chambers, asking him to extend the time for appealing from the original consent order of 11th August, 1969. Mr. Justice Shaw allowed that appeal. He allowed the defendants to come in and defend on their paying all the costs thrown away.
Now the plaintiff appeals to this court. His appeal raises three points.
First. The plaintiff says that the judge had no jurisdiction to hear the appeal as it was a consent order.
Section 31(1) (h) of the Supreme Court of Judicature Act, 1925, says that no appeal shall be "without the leave of the court or judge making the order, from an order of the High Court or any judge thereof made with the consent of the parties".
In the present case the consent order was made by the District Registrar on 11th August 1969. It said that: "as agreed the defence of both defendants be struck out unless the answers to the interrogatories ordered be delivered within ten days".
The plaintiff says that that consent order comes within section 31(1) (h) so that no appeal lies without the leave of the District Registrar. The defendants say it does not come within section 31(1) (h) because the Registrar is not the "court or judge". The defendants say that that "court" means the court sitting in banc: and that 'judge' means a judge of the High Court sitting in open court or in chambers. I cannot agree with that submission. Ever since the Judicature Act 1873 the words "court" of "judge" have been used to include a Master or Registrar when he is exercising the powers which a High Court judge can exercise in chambers. The Master or Registrar is the delegate of the judge for the purpose. I think, therefore, that the consent of the District Registrar ought to have been obtained. As it was not obtained, there was no jurisdiction to hear the appeal from the consent order. It would, however, be possible to get...
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...order in the technical sense. [emphasis added] 46 I turn, now, to the English Court of Appeal decision of Purcell v F C Trigell Ltd [1971] 1 QB 358 (“Purcell”). It will figure again in a later part of this judgment. However, it is, as we shall see, of no less importance in the present part ......
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...a contract between the parties with which the court would not interfere except on the same grounds as any other contract. In Purcell v. F.C. Trigell Ltd. (1971) 1 Queen's Bench 358 the correspondence (which is set out in the facts of the case) showed that there was a real contract agreed b......
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