Taylor v Anderson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,SIR DENIS HENRY |
| Judgment Date | 07 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1680 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2002/0593 |
| Date | 07 November 2002 |
[2002] EWCA Civ 1680
Lord Justice Chadwick and
Sir Denis Henry
B1/2002/0593
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MAIDSTONE DISTRICT REGISTRY
(District Judge Millward)
Mr S Maskrey QC (instructed by Messrs Stephens & Son, Chatham, Kent) appeared on behalf of the Appellant Claimant.
Mr L J West-Knights QC and Mr S Wilton (instructed by Messrs Vizards Wyeth, Dartford, Kent) appeared on behalf of the Respondent Defendants.
These proceedings arise out of a road traffic accident in the early morning of 18 January 1990. The claimant, a young man of 20, was driving his Peugeot 205 motor car in an easterly direction on the B2231 Lower Road towards Eastchurch, on the Isle of Sheppey. There is a point on that road, near to the junction with Scocles Road, Minster, where Lower Road rises to the brow of a hill. The claimant, having come over the brow of the hill, was in a head-on collision with a Mercedes-Benz articulated low-loader HGV travelling in a westerly direction. At the time of the collision the low-loader was in the eastbound lane—having pulled out and across the road in order to pass a stationary Ford truck, which was itself occupying the westbound lane at a point just to the east of the brow of the hill. The claimant suffered very severe injuries as a result of the collision; and it is common ground that he is now a patient within the meaning of the Mental Health Act 1983. These proceedings are brought in his name by his sister and next friend.
The first defendant, Mr Henry Anderson, is or was the owner and driver of the stationary Ford truck. There are allegations of negligence against him in relation to the circumstances in which his truck was stationary in a position in which it was a hazard to traffic travelling on Lower Road in both directions. The second defendant, a plant hire company, is or was the owner of the Mercedes low-loader. It is a tragic, but coincidental, feature of this case that the second defendant company is owned by the claimant's father; and, indeed, the claimant was himself an employee in the family company. The driver of the low-loader at the time of the collision was another employee of the company, Mr Ronald Knight. There are allegations of negligence made against Mr Knight, for whose acts or omissions the second defendant company is said to be vicariously liable, in relation to the circumstances in which he pulled out into the eastbound lane in order to pass, or overtake, the stationary Ford truck. There are counter allegations of negligence against the claimant in relation to his speed, failure to keep a proper look-out when approaching the brow of a hill and failure to brake in time to avoid the collision.
As a result of his injuries the claimant is not now, and never has been, in a position himself to give evidence as to the circumstances in which the collision occurred. Those who can, or might be expected to, give relevant evidence include, of course, Mr Anderson and Mr Knight. But there are others. Mr Servjit Aulak was driving his car eastwards on Lower Road at the relevant time. He was overtaken by the claimant on the approach to the brow of the hill and he was immediately behind the claimant at the time when the collision occurred. He saw the collision. Mr Martin Black was also travelling eastwards along Lower Road. His car was behind that of Mr Aulak. Although Mr Black did not see the collision, he too had been overtaken by the claimant. The police took signed statements from Mr Anderson, Mr Knight, Mr Aulak and Mr Black, amongst others, within a few days of the collision. There is also, as one would expect, a contemporary police accident report and a useful contemporary sketch plan showing measured distances—including the length of the skid marks from the point at which the braking of the claimant's car caused the wheels to lock to the point at which the collision occurred.
These proceedings were commenced by the issue of a writ in October 1994 against Mr Anderson. There may have been an earlier writ, but that is not before us. The 1994 writ was amended in December 1995 to add the second defendant company as a party. Defences and third party notices were served later in 1995. In September 1998 the solicitors then acting for the claimant informed those acting for the second defendant company that they intended to serve a reply and that they would not issue a summons for directions until that had been done. They also indicated an intention to apply for an interim payment. None of those steps were taken. Other than serving copies of medical and care management reports in October 1998, the solicitors then acting for the claimant took no further action to bring the proceedings to trial.
On 26 April 1999 the Civil Procedure Rules came into effect. As is well known, one object of those rules was to avoid the delays caused by inactivity of the kind illustrated in the history of these proceedings by involving the court in proactive case management. But CPR 51 contains transitional provisions to deal with existing cases—that is to say, cases commenced before 26 April 1999. The practice direction which supplements that rule provides, at paragraph 19(1), that if the existing proceedings (which these were) have not come before a judge or on paper between 26 April 1999 and 25 April 2000, those proceedings should automatically be stayed. The obvious purpose of that rule was to stimulate claimants, or their advisers, to take some step in existing proceedings which would bring those proceedings before the court; and so enable the court to give case management directions. In the present case the rule did not have that effect.
The continued inactivity on the part of the claimant's then solicitors led to that automatic stay taking effect in April 2000. Paragraph 19(2) of the practice direction enables any party to existing proceedings to apply for the automatic stay to be lifted. But that step was not taken either by the claimant or by the defendants. Instead, the solicitors then acting only for the second defendant company (but subsequently instructed by both defendants) applied for an order pursuant to CPR 3.4 that the claimant's action be struck out "by reason of the complete and deliberate disregard of the Rules of Court and/or the lack of intention on the part of the claimant to bring this matter to a conclusion". It may be that it was that application which prompted a change in the solicitors acting on...
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