Savill v Southend Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE MANN |
| Judgment Date | 14 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1214-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No QBENI 94/0626/E |
| Date | 14 December 1994 |
[1994] EWCA Civ J1214-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CIVIL DIVISION
Appeal of Appellant from Order of
His Honour Judge Baker
Before: Lord Justice Balcombe Lord Justice Mann
No QBENI 94/0626/E
MR A BUCHAN (Instructed by Gadsby Wicks, Market Place, Ingatestone, Essex) appeared on behalf of the Appellant.
MR D EVANS (Instructed by Beachcroft Stanleys, London) appeared on behalf of the Respondent.
(As Approved)
This is an appeal with leave of the single lord justice from an order made by His Honour Judge John Baker (sitting as a High Court judge) on 27th January 1994 whereby he refused to extend the Plaintiff's time for appealing an order of the district judge with the result that the Plaintiff's action remains struck out for want of prosecution.
The relevant facts are as follows: the Plaintiff was given hospital treatment between the months of October 1985 and May 1986 which she now alleges to have been negligent. In January 1988, she having consulted solicitors, they wrote to the hospital giving a broad outline of the allegations and requesting the disclosure of medical records. On 18th October 1988 —that is just within the limitation period —a writ claiming damages for breach of contract and or negligence arising out of the treatment given to her at the Defendant's health authority hospital was issued. That writ was served —again only just within the permissible period —on 11th October 1989. On 16th October 1989 the Defendant's solicitors acknowledged service, saying: "We look forward to receiving the Statement of Claim." Their hopes were not fulfilled. It was not until over three years later that the Plaintiff's solicitors purported to serve on them a Statement of Claim.
What had happened in the intervening period is explained in an affidavit sworn by the Plaintiff's solicitor on 4th November 1993. Essentially he is saying that he was gathering the material, which was somewhat complicated in the circumstances, necessary to prepare a proper Statement of Claim. Eventually, the Defendant being unwilling to accept service of the Statement of Claim so long out of the time limits prescribed by the rules, the Plaintiff's solicitors issued a summons to extend time for the service of the Statement of Claim and the Defendants issued a summons to dismiss the Plaintiff's claim for want of prosecution. It was on the hearing of those two summonses that the affidavit to which I have referred and an affidavit sworn by the Defendant's solicitor were read. On 15th November 1993 the district judge dismissed the Plaintiff's claim for want of prosecution. From that order of the district judge the Plaintiff had a right of appeal to the judge in chambers. That right is governed by O. 58, r.3 which provides, by reference to O. 58, r.1, that on an appeal from the district registrar, as he was then called, to the judge in chambers, the notice of appeal must be issued within seven days and must be served within five days after issue.
In view of the fact that the district judge's order was made on 15th November 1993, the deadline for the issue of the Notice of Appeal was Wednesday, 24th November 1993. That allows for the fact that two of the days concerned were Saturday and Sunday and not counted. One might have thought that in the circumstances the Plaintiff's solicitors would have been diligent in the extreme to ensure that time limits were not broken, but it was not until Monday 29th November 1993 that the Plaintiff's solicitors issued a Notice of Appeal. And they faxed that Notice of Appeal to the Defendant's solicitors so that it would arrive within the time which, if it had been issued in time, was within the prescribed time for service. Nevertheless, the short fact is that the Notice of Appeal against the district judge's order was issued five days out of time.
The appeal came up for hearing before His Honour Judge Baker on 27th January and the initial point was taken that the appeal was out of time. Although the delay was minimal there was no affidavit on the part of the Plaintiff's solicitors explaining the reason for that short delay. When the partner in the Plaintiff's solicitors who was present before the judge gave oral evidence before him she was unable to give any explanation for the delay. So the judge said that in those circumstances —namely that although the delay was of a very short period no explanation for it had been volunteered —he was going to dismiss the appeal for that reason. I cite certain brief passages from his judgment. At page 3 B the judge said:
"It is right to say, and Mr Buchan [counsel for the Plaintiff before the judge as he has been before us] makes some emphasis on this, as would be expected, that within the five days that are allowed after issue he was in time. He says that this is a matter of technicality, that he was really only three days out of time."
He makes the point at page 3 D that -
"….. no affidavit had been filed to give some explanation for failing to comply with the rules."
He refers to the oral evidence given by the partner. He says that when it came to why this default had occurred and what explanation there was, she was unable to help the court or to give any evidence. He emphasised again on page 4 C that this was a very short period of time. He cites the case to which I shall refer shortly of Revici v Prentice Hall Incorporated and Others and cites passages from the judgments in that case. At page 5 D he says this:
"Even in a short delay of this nature, where an indulgence is asked for and the Plaintiff is out of time, in my view some explanation should be given for that ….."
In the result he refused to enlarge the time for appealing and dismissed the appeal without going into the merits.
Undoubtedly, there is a power to extend the time under O. 3, r.5. Before I refer to the notes to that rule in the White Book, I should refer to the various cases cited before us. Starting in chronological order, and one which is of the highest importance in this case, is the decision of the Privy Council in Ratnam v Cumarassamy [1964] 3 All E R 933. That was an appeal from the Court of Appeal of the Supreme Court of the Federation of Malaya. Although Mr Buchan sought to make something of that point, it seems to me that the principles which Lord Guest enunciated, and in reliance on English authorities, show that the fact that this was a Privy Council case is irrelevant for present purposes. Lord Guest who gave the judgment of the Privy Council says this:
"The principles on which a court will act in reviewing the discretion exercised by a lower court are well settled. There is a presumption that the judge has rightly exercised his discretion: Charles Osenton & Co v Johnston, per Lord Wright. The court will not interfere unless it is clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice: Evans v Bartlam. On questions of procedure, the Board is slow to interfere with the discretion exercised by a local court: Montreal Corpn. v Brown and Spingle.
"The rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation."
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