Reville v Wright
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE OTTON |
| Judgment Date | 20 December 1996 |
| Judgment citation (vLex) | [1995] EWCA Civ J1220-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1996 |
| Docket Number | LTA 95/5482/G |
[1995] EWCA Civ J1220-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SLOUGH COUNTY COURT
(His Honour Judge Holden)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Waite Lord Justice Otton
LTA 95/5482/G
MR. M JACKSON (Instructed by Messrs. Wansbroughs Willey Hargrave, London WC2B 5HA) appeared on behalf of the Appellant
MR. G EXALL (Instructed by Heath & Buckeridge, Maidenhead, Berks) appeared on behalf of the Respondent
Wednesday 20 December 1995
THE MASTER OF THE ROLLSI will ask Lord Justice Otton to give the first judgment.
This is a defendant's appeal against an order of his Honour Judge Holden when he allowed the Plaintiff's appeal and reinstated the Plaintiff's action. This particular appeal raises the question as to the correct application of the guideline cases commonly known as Rastin principles.
The background can be briefly stated. On 23 November 1990 there was a road traffic accident. The Plaintiff was driving his motor car when the Defendant, driving on the wrong side of the road, collided with him. In January 1992 the Defendant, through his insurers, made an open admission of liability. On 25 November 1992 proceedings were commenced. On 2 December 1992 a defence was filed at the court admitting liability. Thus pleadings closed on 16 December 1992, which was the trigger date for the operation of automatic directions. Shortly afterwards, on 10 February 1993, a payment into court of £17,500 was made on behalf of the Defendant. This was not accepted and the timetable continued. On 16 June there occurred the deadline for an application for a hearing date. On 16 March 1994 the action was automatically struck out. Six months later, the Defendant made an application for payment out of the amount still standing in court and the cost of the action. On 17 October 1994, the Plaintiff made an application for reinstatement of this action. The matter came before the district judge on 4 January 1995 when he refused the application. On 20 February 1995 the county court judge allowed the appeal. In doing so, he said in the course of his judgment at page 1:
"Having identified the cases of Rastin, Gardner and Hoskins there are three aspects to be considered, three thresholds, and I have to ask myself the following questions. Firstly, has the plaintiff pressed his action with at least reasonable diligence…..? Secondly, I have got to consider whether the failure to apply for the action to be set down is excusable in all the circumstances. Thirdly, if I am persuaded by the plaintiff in the first two aspects, I go on to consider the third threshold, which is the aspect of the interests of justice."
Then, at page 4 he said:
"I am not able to criticise the plaintiff's solicitors for failing to deal with the plaintiff's claim without the appropriate degree of diligence."
Later, at page 5 he said this:
"I am not sure how I can criticise the plaintiff's solicitors for being in a different position because, after all, when all is said and done they are bound to follow the reasonable instructions given to them by a client, and I cannot see that this attitude is necessarily unreasonable even by the summer of 1994 —an attitude which appear to be confirmed in the psychiatric report to which I have referred."
The principles of law have been succinctly and accurately set out in Mr. Jackson's well-crafted skeleton argument. Order 17 rule 11 paragraph (9) of the County Court Rules provides:
"If no request is made pursuant to paragraph (3)(d) within 15 months of the day on which pleadings are deemed to be closed (or within 9 months after the expiry of any period fixed by the court for making such a request), the action shall be automatically struck out."
The proper approach to an application for a retrospective extension of time under Order 13 rule 4 has been described by the Court of Appeal in three decisions, namely Rastin v British Steel [1994] 1 WLR 732, Gardner v London Borough of Southwark, an unreported decision in this Court, reference CCRTF/1694/F, and Hoskins v Wiggins Teape UK Ltd. [1994] PIQR at 377. The principles which emerge from those three decisions can be stated in summary form:
(a) there are two threshold tests, (see Rastin page 740 G-H and Hoskins page 381—382;
(b) in relation to both these tests the onus of proof lies on the plaintiff;
(c) the plaintiff must satisfy the Court that the action has been conducted with at least reasonable diligence; (d) in this context diligence must be tested, not by the approach adopted by the court on applications to dismiss for want of prosecution, but by the new timetables laid down by Order 17 rule 11 (see Gardner at page 7A-B);
(e) the plaintiff the must secondly satisfy the Court that the failure to apply for a hearing date within the time limit laid down by the rules was "excusable".
On behalf of the appellant, Mr. Jackson submits that the judge failed to take any or any sufficient account of the principle laid down in Rastin that the onus of proof lies upon the plaintiff and his advisers to show that they have prosecuted the case with at least reasonable diligence. There was no finding one way or the other on that issue. Had the learned judge applied the right test, he submits, he would have been unable to conclude that the Plaintiff...
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