Samuels v Linzi Dresses Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE LAWTON,SIR STANLEY REES |
| Judgment Date | 28 November 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1128-3 |
| Docket Number | 1977 S No. 4513 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 1979 |
[1979] EWCA Civ J1128-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
Lord Justice Roskill
Lord Justice Lawton
Sir Stanley Rees
MR. A. McGREGOR (instructed by Messrs. Paisner & Company) appeared on behalf of the Plaintiff.
MR. M. J. SEGAL (instructed by Benjamin & Benjamin) appeared on behalf of the Defendants.
This is an interlocutory appeal from His Honour Judge Hawser, sitting as an Official Referee. The learned Judge, on the 5th March, 1979, gave an extension of time to the defendants in this action, the respondents in this appeal, for delivery of Further and Better particulars of their defence and counterclaim. They had failed to comply with an "unless" order, which had been made some weeks previously.
The history of this matter is set out, with admirable clarity, in the learned Judge's judgment, and I cannot do better than quote from pages 53 onwards of that judgment.
In the opening paragraph, he explains how the plaintiff, a Mr. Samuels, was employed by the defendants, and how, "On the 3rd May, 1977, Mr. Samuels issued a writ claiming certain rather complicated accounts and enquiries, payment of the sums thereby found to be due and damages for breaches of his contract of employment. By the defence and counterclaim dated the 21st July, 1977t the defendants denied that the plaintiff was entitled to any further sums than those already paid to him and denied the allegations of alleged breaches of contract. They also pleaded a set-off. The counterclaim contains serious allegations of misconduct by the plaintiff and claimed payment of secret profits he was alleged to have made and damages for breaches of the implied terms of contract. On the 12th July, 1973 the plaintiff issued a Summons for Directions which was heard on the 4th October 1978. One of the orders then made was that the defendants should comply with a request for Further and Better Particulars of the defence and counterclaim, which request runs to nearly five pages. The order was that the defendants should serve such particulars within 21 days. On the 16th November, 1978 the plaintiff issued a Summons for an Order that the defendants' defence set-off and counterclaim herein be struck out and that the plaintiff have leave to enter judgment against the defendants in accordance with the Statement of Claim, the defendants having failed to comply with paragraph 1 of the Order of the Court, dated the 4th October, 1978. That, of course, was the Order for Further and Better particulars. This Summons was heard on the 15th December, 1978 when an Order was made in this form":- and I quote the learned Judge's quotation "that unless the further and better particulars of the defence and counterclaim ordered on the 4th October 1978 be served by the 2nd January, 1979, the defence and counterclaim be struck out and that the plaintiff be at liberty to sign judgment for damages to be assessed".
The learned Judge went on: "The Particulars were not served on the 2nd January 1979 but the document containing the Particulars, which runs to some 19 pages, was handed to the plaintiff's solicitors on the 5th January 1979". I interpose that, we are therefore concerned with a case where the appellants were three days out of time, and of course time was running over the Christmas holiday and during the Christmas vacation.
The learned Judge went on: "On the 2nd January 1979 the defendants issued a Summons, asking for an Order extending the time for serving the Further and Better Particulars until the 8th January, 1979. After various adjournments this Summons was heard by me on the 19th February, 1979, when the matter was fully argued. At that hearing Counsel for the defendants gave the following explanations for the failure to comply with the 'unless' Order the details of which explanations were not challenged by the plaintiff. Counsel received instructions to settle the Further and Better Particulars on the 21st December, 1978. He prepared a draft running to some 19 pages, which contained certain gaps requiring further instructions from the clients. This draft was collected from his Chambers by the defendants' solicitors on the very day he completed it, namely the 28th December, 1978. The defendants' solicitors tried to contact their clients on the 28th or 29th December, but failed to do so. On the 29th December, 1978, they spoke to someone in the plaintiff's solicitors office, who was himself dealing with the matter. They also wrote to the plaintiff's solicitors on that date explaining the difficulties which had arisen and asking for an extension to 5th January, 1979. On the 2nd January, 1979 they again telephoned the plaintiff's solicitors, and this time were able to speak to the person dealing with the matter. He said he had strict instructions not to consent to an extension but agreed not to file judgment if a Summons was taken out. This, as I have stated, was done that day. The plaintiff had not signed judgment against the defendants. No date for the trial had yet been fixed nor was this asked for or dealt with on the hearing of the Summons for Direction".
The learned Judge then made it plain that if he had jurisdiction to grantthe extension which the defendants sought, he would in the exercise of his discretion grant that extension. He held that he had such jurisdiction, and he exercised his discretion accordingly.
I have dealt with the facts at some length because, in his admirable argument, Mr. McGregor submitted to us that even if contrary to his main submission the learned Judge had jurisdiction, the learned Judge was wrong in exercising his discretion as he did. With respect, this is a matter entirely for the discretion of the learned Judge in Chambers or, as in this case, sitting as an Official Referee. There was ample material, on the facts which I have just read from the learned Judge's judgment, upon which, assuming jurisdiction, the Judge could properly exercise his discretion as he did and it seems to me quite impossible for this Court to interfere with the exercise of his discretion if there is jurisdiction. The all important question is whether or not there was jurisdiction. The learned Judge, in a long and careful judgment held that there was.
The question whether where an 'unless' Order has been made and the time is allowed to run out without that Order being properly complied with, further extensions of time can be granted has been a vexed one in recent times. The matter has been directly before this Court on no less than three recent occasions - and I will refer to each in due course - on two of which as it happens I was a member of the Court. The matter has also been more than once before one or other of the learned Judges who sit as Official Referees. There was before his Honour Judge Hawser, an earlier decision of His Honour Judge Fay, also sitting as an Official referee, in P. Laws Planbuild Limited -v- Globe Picture Theatres (Bristol) Limited., a decision which we had the benefit of reading in one of the three cases which I have just mentioned, Brown -v- Price Limited., unreported, but which came before Lord Justice Stephenson and myself on the 18th May, 1978. In that judgment, Judge Fay held that he had the jurisdiction which Judge Hawser, in the present case has also held that he had. In the case before Lord Justice Stephenson and myself, we found it unnecessary to decide that question, but Lord Justice Stephenson made it clear that hewas not in any way suggesting that Judge Fay's decision was wrong.
The strength of the argument in favour of this appeal, and against the views expressed by Judge Fay and Judge Hawser, lies in a decision of the Divisional Court, oft-quoted and oft criticised, Whistler -v- Hancock, (1878) 3 Queen's Bench Division, page 83, a case decided over 100 years ago on the 11th January 1878.
The Divisional Court consisted of Sir Alexander Cockburn, Chief Justice, and Mr. Justice Manisty, and the appeal was brought from an Order of Mr. Justice Fry, (as he then was) at Chambers. An Order had been made under the then Order 29, rule 1 of the Rules of the Supreme Court dismissing an action for want of prosecution unless a Statement of Claim should be delivered within a week. The week expired; no Statement of Claim had been delivered. A Summons was then taken out to extend the time, and Mr. Justice Fry, reversing the decision of the Master, held that the Master had no jurisdiction to make such an Order. The plaintiff appealed to the Divisional Court - in those days appeals from the Judge in Chambers went not as at the present time, to this Court, but to the Divisional Court.
Sir Alexander Cockburn, in giving judgment said: "This is a very plain case. The defendant obtained an Order that unless the Statement of Claim were delivered within a week the action should be at an end. The plaintiff took out a Summons to set aside the appearance, and if he could have obtained an Order to that effect before the week was out, he would have been the victor; but before the Summons could be heard, he fell under the operation of the Order dismissing the action, and the action was at an end. It cannot be contended that the taking out of a Summons to set aside the appearance in the meantime could keep the action alive after the period when by the operation of the Master's Order it was defunct. For these reasons, I think the Master had no jurisdiction and the Order of Mr. Justice Fry was right", Mr. Justice Manisty agreed.
The very next day, there was an almost identical case, Wallis -v- Hepburn before the Divisional Court of the Exchequer Division, Wallis -v- Hepburnis reported as a note at page 84 immediately following the report of Whistler -v- Hancock. By a strange coincidence, learned Counsel who...
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