R (Strickson) v Preston County Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Gage,Lord Justice Rimer |
| Judgment Date | 08 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1132 |
| Docket Number | Case No: C1/2007/0070 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 2007 |
[2007] EWCA Civ 1132
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE GOLDRING)
Lord Justice Laws
Lord Justice Gage and
Lord Justice Rimer
Case No: C1/2007/0070
Mr S Knafler (instructed by Messrs Bennett Wilkins) appeared on behalf of the Appellant.
Mr C Eccles (instructed by Messrs Halliwells, Forbes, & T Sols) appeared on behalf of the Respondent.
In this case we are required to revisit the circumstances in which the High Court may properly entertain a judicial review of orders made by a judge in the county court. The appellant appeals, with permission granted by the judge below, against the judgment of Goldring J given in judicial review proceedings on 21 December 2006, by which he declined to quash a decision made by HHJ Appleton in the Preston County Court on 7 July 2005. By that decision, HHJ Appleton declined to grant permission to the appellant to appeal to him against the decision of District Judge Law given on 17 March 2005, by which he struck out the appellant's claim brought against the Chief Constable of Lancashire and the Blackburn & Darwen Borough Council.
By that claim the appellant had sought declarations and damages in relation to the death of his daughter Melissa Jane on 10 October 2001, when she was thirteen years of age. Goldring J held that both the district judge and the county court judge had reached wrong conclusions, but he declined to grant relief by way of judicial review.
The particulars in the county court contain a lengthy and detailed factual narrative. Mr Knafler for the appellant, in his skeleton argument paragraph 5(1), is at pains to emphasise the fact that the details there set out are derived, or largely derived, from witness statements taken by the police and from social services files, and not from later statements compiled for the purpose of civil proceedings. While the length and detail of the particulars of claim was no doubt entirely appropriate for the case—and I certainly intend no criticism of it—a shorter summary will suffice for present purposes. Such a summary has been helpfully provided by Miss Sutton, a solicitor who made a witness statement dated 18 January 2006 in the judicial review proceedings, on behalf of both respondents. I repeat it here with some adaptations.
The claim arises out of the tragic death of Melissa Jane Strickson who was born on April 30 th 1988 and died on October 10 th 2001, aged 13 years. Melissa Strickson had a history of absconding from home or school. At various times complaints were received that she was staying at or visiting the home of one or more inappropriate persons. At times she was clearly involved in some degree of criminal or delinquent activity. Complaints about these matters were received by the local authority. The police were also aware of the broad nature of her activities and they had some degree of involvement with her.
On October 8 th 2001 she and her younger sister both went missing from home. The police were notified. Certain enquiries were made but to no avail. It would appear that during the night of October 9 th and the morning of October 10 th 2001 Melissa, together with her sister and two other girls, was at the home of two persons, Sally Corkhill and Lee Harrison. When at the property Melissa took certain drugs, believed to have been prescribed for Sally Corkhill, and as a consequence she died.
The appellant issued proceedings against the local authority and the chief constable. As against the local authority, he alleged that there was a failure on their part to use their childcare powers and to perform their duties under the Children Act 1989. It was said that she was beyond the control of her family. The case put is that the authority were negligent, in breach of statutory duty, and in breach of certain Articles of the European Convention on Human Rights. Negligence was also alleged against the police. In particular, it is said that they failed adequately to search the home of Sally Corkhill. Had they done so, Melissa's presence there would have been revealed or discovered, and her life maybe saved. Other allegations are made, into which it is not necessary for present purposes to go.
It is right to say that the allegations against both the local authority and the police are, as a matter of fact, vigorously denied. Defences were filed by both defendants. As well as denying the claims on a factual and legal basis, they also, within their defences, took the point that the claim form had not been served in time.
There ensued a complex procedural history which, as Goldring J was to observe (judgment paragraph 8), reflects badly on the appellant's solicitor's conduct of the case. The claim form was issued on 9 October 2002, the day before expiry of the limitation period for the human rights claims. There followed a whole series of successive applications and orders for extensions of time within which to serve the claim form. The time prescribed by the rules is four months from the date of issue ( CPR 7.5). At length, upon a further application, District Judge Jones made these orders on 22 September 2003:
“1) The time for service of the claim form is extended to 4pm on the 23 December 2003.
2) Any further application is to be made on notice to the other parties.
3) A Copy of the claim form and all applications and orders to be sent by the claimant to the Defendant by 30 September 2003.”
On 2 October 2003 the appellant's solicitors purported to send the claim form to the defendant's solicitors by way of service, but apparently the wrong claim form was sent. A copy of the correct form was sent on 24 November 2003. It was later to be contended before District Judge Law that the supply of the claim form on that date constituted good service, pursuant to District Judge Jones' order. District Judge Law held that it did not, for reasons given at paragraphs 16 to 21 of his judgment. Essentially they were to the effect that on later dates the appellant and his solicitors made yet further applications for extensions, and the court made orders upon them. That was inconsistent with the claim form having been validly served on 24 November 2003. HHJ Appleton was to uphold this decision of District Judge Law, in essence for the same reasons. Goldring J, before whom Mr Knafler accepted (see paragraph 40 of the judgment) that the matter was very much a question of impression, held (paragraph 15) that the judges below, in the county court, were entitled to conclude as they did on this issue. It is urged in this court (paragraph 9 of Mr Knafler's skeleton) that Goldring J was wrong on this point, and it is convenient to deal with it now. For my part, I cannot see that he was.
I return to the procedural narrative. After a further extension of time had been granted up to 23 March 2004, District Judge Duncan made an order on 22 March 2004 as follows:
“The time for service of the claim form is extended until the expiry of 35 days following receipt by the claimant's solicitors of the documents requested of the defendants in this order.”
That was amended on 23 July 2004 so as to require the provision of certain documents by the defendant's solicitors to the appellant's solicitors by 16 August 2004, and time for service of the claim form was extended until 35 days following the document's receipt. These documents were provided on 13 August 2004, and so the appellants had until 21 September 2004 to serve the claim form.
On 16 September 2004, of the court's own motion, District Judge Forrester issued a document headed “Notice of Case Management Conference” which indicated that the case management conference would take place on 2 December 2004, and that the court would give further directions as to service of the claim form and the Particulars of Claim. The second point later taken before District Judge Law was that this notice implicitly granted a further extension of time for service of the claim form, at least until 2 December 2004. District Judge Law said there was no question of that. HHJ Appleton agreed. The file had been put before District Judge Forrester because the case was not proceeding, and District Judge Forrester was dealing with it as a matter of case management. He in no way varied the earlier order. Goldring J (paragraph 24) considered that these conclusions could not be criticised; again, I agree.
In the event the claim form was not served by 21 September 2004, the date on which the stipulated 35 days expired. On 11 October 2004 solicitors for the chief constable indicated that unless the appellant's solicitors now complied with the order of 23 July 2004 they would apply to strike out the claim. On 13 October 2004 solicitors for the local authority indicated their view that because of the appellant's default, the claim in fact already stood struck out, but notwithstanding that view, if they did not hear from the appellant's solicitors within fourteen days they would apply for a strike out. On 29 October 2004 the appellant's solicitors informed the defendants that particulars of claim would be served the following week. On 4 November 2004 particulars of claim, but no claim form, were sent to the defendants. On 11 November 2004 solicitors for the authority asked for a 28 day extension of time within which to file the defence. On 23 November 2004 solicitors for the chief constable referred to an agreement made by telephone for an...
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