Robert v Momentum Services Ltd
| Jurisdiction | England & Wales |
| Judge | THE VICE CHANCELLOR:,LORD JUSTICE DYSON,LADY JUSTICE HALE,VICE CHANCELLOR |
| Judgment Date | 11 February 2003 |
| Neutral Citation | [2003] EWCA Civ 299 |
| Docket Number | B1/2002/1487 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2003 |
[2003] EWCA Civ 299
THE VICE CHANCELLOR
LADY JUSTICE HALE
LORD JUSTICE DYSON
B1/2002/1487
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE
MR S BROWN appeared on behalf of the CLAIMANT/APPELLANT
MR S HOWARTH appeared on behalf of the DEFENDANT/RESPONDENT
(As approved)
Dyson LJ will give the first judgment.
CPR 3.1 (2)(a) permits the court to "extend or shorten the time for compliance with any rule, practice direction or court order." The question that arises on this appeal is how should this discretion be exercised in the case where the application is made before the time for compliance has expired. No guidance is given in the rule itself or the accompanying practice direction. In the present case, the claimant served her claim form within four months of issue as required by CPR 7.5. It was assumed that the claim form was served on or by 1 July 2001 (the latest time for service). Rule 7.4 requires the particulars of claim to be served on the defendant within 14 days after service of the claim form, and in any event, no later than the latest time for service of the claim form. On 13 June 2001, the claimant applied for an extension of time for service of the particulars of claim. On 3 October 2001, in the Central London County Court District Judge Wigfield extended the time until 17 October. The defendant appealed. On 3 July 2002, His Honour Judge Collins CBE allowed the appeal, and dismissed the action.
The facts.
The claimant seeks damages in respect of an accident that she suffered on 5 March 1998 during the course of her employment by Cross Channel Catering Company Limited as a Eurostar stewardess. She had been provided with a uniform which she was required to wear to carry out her duties. The uniform included shoes. Her pleaded case is set out in her particulars of claim, which includes the following:
"5. The accident was caused by the negligence of the defendants, their servants and/or agents.
Particulars.
5.1. The defendants provided the claimant with shoes which were unsafe. Without prejudice to the generality of that allegation it is specifically allege that the shoes were unsafe in that:
(a) their heels were too high and too narrow;
(b) they were thin-soled and flimsy.
(c) they were ill-fitting and loose for the claimant.
5.2. They failed to provide her with safe and appropriate footwear.
5.3. They failed as aforesaid despite knowing that the trains upon which the claimant was required to work did jolt and move passengers from side to side and "off balance."
5.4. They failed until after the claimant's accident to (a) provide shoes with a lower heel and (b) provide employees with vouchers with which they themselves could obtain their shoes.
5.5. They failed properly or at all to make a suitable and sufficient assessment of the risks of the claimant's work and/or failed to take appropriate steps to reduce such risks.
5.6. In the circumstances, they failed to devise, institute and maintain a safe system and place of work for the claimant, thereby exposing her to an unnecessary and foreseeable of injury."
She brought proceedings in the Employment Tribunal, alleging that she had suffered discrimination on the grounds of her disability, and that she had been constructively dismissed in July 1999. This claim was subsequently compromised. In October 2000, she instructed solicitors to pursue her personal injury claim. The defendants were first notified of her claim by the claimant's solicitor's letter dated 28 November 2000. In this letter it was said that the heel of one of the claimant's shoes snapped causing her to fall. It will be seen at once that this account of what happened differs from the pleaded account. The judge regarded this as a significant factor when he came to exercise his discretion to refuse to grant an extension of time.
A claim form was issued on 1 March 2001. It did not include the particulars of claim. By this time, the claimant's solicitors had discovered that Momentum Services Limited had assumed the liabilities of Cross Channel Catering Company Limited. Later that month, the claimant's solicitors wrote to the defendant's insurers suggesting that the claimant be examined by an independent orthopaedic surgeon, Mr Coull, as a joint expert. On 24 April, the defendant's solicitors rejected this suggestion, and proposed three alternative surgeons. They also asked for a copy of the particulars of claim or any draft particulars of claim "so that we can investigate the claim."
On 27 April, the claimant's solicitors replied saying that the particulars of claim had not yet been prepared, and asked the defendants to reconsider their rejection of Mr Coull, adding that they were now instructed that:
"the circumstances of the accident are not that the heel of one of our client's shoes snapped… but that the shoes were loose fitting and as such our client was unable to keep her balance."
On 13 June, the claimant asked for an extension of time for the service of the particulars of claim. The application was supported by a statement made by Mr Ian Barnett, the claimant's solicitor. This statement included the following:
"I had written to McLarens Toplis, on 23 March, telling them that I had not yet obtained medical evidence but nominating Mr J T Coull FRCS (an orthopaedic surgeon with a special interest in spinal injury) and asking for their confirmation that they had no objection to him being instructed. Unfortunately, there has not been any agreement as to an agreed orthopaedic expert and though I instructed Mr Coull to examine on 14 May he is not able to examine the claimant until 4 July. In consequence I will not obtain the medical report prior to 29 June and it will not be possible for me to effect service of all relevant documentation with the claim form. Mr Coull has however advised me that he should be able to produce his report within 14 days of the examination and in the circumstances I would hope to be in a position to serve all relevant documentation no later than 10 August."
It is clear, therefore, that the reason why the particulars of claim had not yet been served, and would not be served before the deadline of 1 July, was that Mr Barnett had not yet obtained the medical report on which the claimant intended to rely. Although he does not say so in terms either in the statement in support of the application or in his later statement dated 3 October, it seems clear that Mr Barnett believed that he could not, or should not, serve the particulars of claim unless it was accompanied by the medical report. This belief was plainly engendered by 16 PD paragraph 4.3.
Mr Coull examined the claimant on 1 July, and produced his report on 14 July. On 1 October, the defendant's solicitors received a copy of the particulars of claim and the Coull report.
The defendants opposed the application for an extension of time before the district judge. Their main point was that they had been prejudiced by the delay. Mr O'Brien, the defendant's solicitor, put it like this in his witness statement:
"4. This delay in notifying the claim has caused prejudice to the defendant in that the defendant has been hampered in its efforts to investigate the claim. This is because the claimant's employer Cross Channel Catering Company Limited has effectively ceased to exist, the business being taken over by the present defendant.
5. To date, I instructed and believe that searches made on behalf of the defendant have failed to locate relevant documents such as accident reports. Further, personnel have moved on, such that I have been unable to date to track down any witness who might be able to give a statement relating to the claimant's allegations. My enquiries in this respect continue.
6. A greater obstacle to my investigations, however, is that only until now (3 and a half years after the accident) have I had sight of a properly pleaded particulars of claim explaining exactly how the claimant says her accident occurred and precisely why she says that the defendant is at fault. The particulars of claim and medical report of Mr Coull were received at my offices on 1 October 2001, though it is not clear whether these have been served on the defendant. Indeed it is worth noting that the claimant appears to have fundamentally changed her account in that she said first of all that she fell because the heel snapped off her shoe (the shoes being part of her uniform supplied by the defendant) and now says that this did not happen but that her shoes were loose fitting and this caused her to fall."
The nub of the district judge's reasoning is to be found at paragraphs 15 to 17 of his judgment:
"15. Is this a proper case that this lady should have her extension or is this a case where the defendant should have the benefit of the doubt and the exercise of the court's discretion exercised against the claimant? The effect of denying the claimant's application would effectively mean that her claim would be at an end and that would be the end of her claim for damages.
16. I do not think this is a proper case to adopt the same viewpoint as one might in a case of want of prosecution. One must obviously look at the situation from both parties' point of view and I do not dismiss the points that are being made as to possible prejudice on the part of the defendant. But such prejudice I think may well have existed long before the solicitors were involved...
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