Smith v Cosworth Casting Processes Ltd (Practice Note)

JurisdictionEngland & Wales
Judgment Date26 February 1997
Judgment citation (vLex)[1997] EWCA Civ J0226-12
CourtCourt of Appeal (Civil Division)
Docket NumberFC2 96/7264/G
Date26 February 1997
Paul Anthony Smith
Cosworth Casting Processes Limited

[1997] EWCA Civ J0226-12


The Master of The Rolls

(Lord Woolf)

Lord Justice Peter Gibson

Lord Justice Swinton Thomas

FC2 96/7264/G





Royal Courts of Justice


London WC2

MR P DOWNES (Instructed by Messrs Connell Smith, Worcester) appeared on behalf of the Applicant.

MR S MONTY (Instructed by Messrs Everatt & Co, Worcester, WR11 4EU) appeared on behalf of the Respondent.


I will ask Lord Justice Swinton Thomas to give the first judgment.


This is an application made by the defendant to set aside an order made by Otton LJ on 17 September 1996 granting leave to the plaintiff to appeal from an order made by His Honour Judge Morris in the Worcester County Court on 22 August 1995. In granting leave, Otton LJ said:

"I gave leave only because this appears to be an appropriate case for reviewing Ferreira with a view to circumscribing its application."


Mr Downes, in the course of his forceful submissions, places stress upon the learned Lord Justice's use of the word "only". He submits that by using that word it is reasonably clear that Otton LJ overlooked the point which Mr Downes makes, that the plaintiff was out of time with the service of his notice of appeal from the District Judge to the judge.


The reference to Ferreira is a reference to Ferreira v The American Embassy [1996] 1 WLR 536. Mr Downes accepts that the grant of leave by the single Lord Justice is in all ordinary circumstances conclusive and can only succeed in setting aside if he shows that in due time the appeal could not succeed. He invited our attention briefly to the relevant authorities, The Iran Nabuvat [1990] 1 WLR 1115 and First Tokyo Index Trust Ltd v Morgan Stanley Trust Co [1995] Times Law Reports 500.


On 22 August 1995 His Honour Judge Morris ordered:

1. Leave to appeal against an order of District Judge Vincent of 15 February 1995, declaring that the action was struck out by virtue of Order 17 rules 3(d) and 11 of the County Court Rules on 28 January 1995, was refused.

2. The appeal against the order of Deputy District Judge Freeman of 27 April 1995, dismissing the Plaintiff's application to reinstate the action, be dismissed.


I can relate the facts giving rise to the judge's order comparatively shortly for the purpose of this application. The plaintiff was an employee of the defendants. He alleges in his Particulars of Claim that on 27 August 1990 he sustained an accident at work when he slipped carrying a heavy weight, and that his accident was caused by the negligence and/or breach of statutory duty of his employers. That is denied by the defendants.


The Particulars of Claim were issued on 10 August 1993. There is an issue between the parties as to the date of the service of the Defence. The defendants allege that it was delivered on 8 October 1993 and the plaintiff alleges that it was delivered on 9 November. The District Judge found that it was served on the earlier date. That finding was challenged by the plaintiff. The dates are relevant to the application of the relevant automatic directions in this case. The automatic directions apply to the case as a result of the provisions of Order 17. Order 17 rule 9 provides that the action must be set down for trial within 15 months of the close of pleadings. If no application is made to set the case down for hearing then the action is automatically struck out, hence the importance of the date when the pleadings were closed.


It is clear that the provisions are intended to be draconian, as was underlined by the Master of the Rolls, Sir Thomas Bingham, in Rastin v British Steel [1994] 1 WLR 732. However, there was a directions order made by the District Judge on 20 July 1994 when he ordered, amongst other matters, that:

"That the action shall be listed for trial upon the filing of a joint Certificate of Readiness signed by or on behalf of both parties containing a time estimate in hours."


The plaintiff submits that that order overtook the provisions of the automatic directions in relation to setting the action down for trial.


The plaintiff's solicitors issued an application for further directions dated 5 January 1995. The plaintiff submits following Ferreira, that this application included by implication a request for a hearing date to be fixed in the event of the application for an extension of time being refused. On 15 February of that year District Judge Vincent found that the action was struck out under the provisions of the automatic directions. The plaintiff's solicitors immediately applied for an order reinstating the action under the provisions of Order 13 rule 4. That application was refused by District Judge Freeman on 27 April and, as I have said, the plaintiff's appeal against that order was dismissed by Judge Morris.


In the proposed appeal there are three issues:

1. Was His Honour Judge Morris wrong to refuse to exercise his discretion to extend time to appeal against the order of District Judge Vincent of 15 February 1995?

2. Was the judge wrong to find that the action had been struck out pursuant to the provisions of Order 17?

3. Was the judge wrong to refuse to reinstate the action?


Mr Downes concedes that the plaintiff has an arguable case in respect of issue 2, but he submits that he has no arguable case in respect of the first issue, in which case the second would not arise. He submits further that the plaintiff has no arguable case in respect of the third issue.


As I have indicated, Mr Downes submits, so far as Otton LJ's order was concerned, that the Lord Justice overlooked the judge's exercise of discretion in refusing to grant leave to appeal out of time.


In the judgment refusing leave to appeal out of time, Judge Morris did not indicate that he was purporting to exercise a wide discretion, but he did so on the basis that there was no material before him in respect of which he could exercise his discretion. In reaching that conclusion, he relied, as does Mr Downes, on the well-known case of Savill v Southend Health Authority [1995] 1 WLR 1254. Mr Downes submits that Savill is binding on this court and, that being so, any appeal to the this court is bound to fail.


The headnote to Savill reads:

"The discretion of the court can only be exercised upon the material before the court.

Where, therefore, the notice of appeal against the dismissal of the plaintiff's claim for want of prosecution was issued five days out of time, the judge refused to extend the time under the RSC., Ord 3 r.5, because no explanation for the delay had been given, and the plaintiff appealed:-

Held, dismissing the appeal that, although the delay was short, the judge in exercising his discretion to refuse to extend the time for appealing did not act contrary to principle."


On page 1256 Balcombe LJ said:

"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."


Accordingly, in that case there was evidence but no explanation.


Balcombe LJ continued on page 1257 by saying:

"One therefore starts with the principle that if the court is asked to exercise a discretion there must be some material before it upon which that discretion can be exercised."


It is relevant, in my view, that the word used by Balcombe LJ therein is the word "material".


On page 1258, Balcombe LJ referred to Costellow v Somerset County Council [1993] 1 WLR 256 and the passage in the judgment of the Master of the Rolls, Sir Thomas Bingham, as follows:

"The first principle is that the rules of the court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed….The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate."


Balcombe LJ continued:

"Of course, it is apparent, when you state those two principles like that, that they are in conflict. The court is always having to achieve some sort of a balance between them."


On page 1259 Balcombe LJ said:

"I have to say that the authorities are not all entirely easy to reconcile. I prefer to go back to first principles and to the statement made by Lord Guest in the Ratnam case [1965] 1 WLR 8, 12 that 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. He went on to say, and it is worth repeating:

'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 timetable for the conduct of litigation.'

It seems to me that that statement applies as much to a minimal delay as it does to a substantial delay. Realistically, the court may be satisfied with an explanation for a minimal delay, even possibly forgetfulness, which it would not accept for a substantial period of delay. Nevertheless, there must be some material on which the court can...

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