Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Etherton,Lord Justice Lewison |
| Judgment Date | 26 April 2012 |
| Neutral Citation | [2012] EWCA Civ 518 |
| Docket Number | Case No: B3/2011/0481 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 April 2012 |
[2012] EWCA Civ 518
Lord Justice Rix
Lord Justice Etherton
and
Lord Justice Lewison
Case No: B3/2011/0481
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LUTON COUNTY COURT
DISTRICT JUDGE WILDING
8LU01623
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark James (instructed by Pictons Solicitors LLP) for the Appellant/Claimant
Mr Paul Joseph (instructed by Plexus Law) for the Respondent/Defendant
Hearing dates : Wednesday 23 rd November 2011
This is an appeal about the powers of the court to "vary or revoke" an order which it has itself made, pursuant to CPR 3.1(7). It arises as a "second appeal" on the basis that it concerns an important point of principle or practice regarding the width or limitations of that rule.
The bone of contention is whether a district judge should, when reallocating a small claims track case to the fast track, have made a special order to avoid the default operation of CPR 44.11 whereby costs incurred prior to reallocation would be dealt with under the small claims track rules. The claimant, here the appellant, Mr Matthew Tibbles, submits that the district judge misled himself (in the absence of having the default rule drawn to his attention by counsel) by failing to make a special order that costs prior to the reallocation be dealt with according to fast track, and not small claims track, rules. It is said that £20,000 of costs incurred prior to reallocation are thus curtailed by the stringent costs rules relating to small claims track cases.
The claimant submits that there is power within CPR 3.1(7) to vary the district judge's order (which had said nothing about avoiding the default rule) and that as a matter of discretion the district judge was right subsequently to vary his order by ordering that prior costs should be dealt with on the fast track basis. The defendant, here the respondent, SIG plc trading as Asphalt Roofing Supplies, submits that the district judge was wrong to have varied his order and that on first appeal the county court judge was right to have concluded that the district judge should not have done so, both for the reasons which he gave and for further reasons contained in a respondent's notice.
As will appear below, the claimant did not apply to vary the district judge's order until after trial and final judgment in his claim. It was only when the question of pre-reallocation costs came to be debated as part of the detailed assessment of costs following judgment that the issue came to the fore and an application to vary was issued. Thus the district judge's reallocation order was made on 11 December 2008, final judgment was given on 28 April 2009, the CPR 44.11 point was taken by the defendant in its points of dispute on 15 June 2009, and the claimant's application to vary was issued on 23 October 2009. The application was to add the words: "The costs incurred prior to today [ie prior to 11 December 2008] are to be treated as costs in the fast track."
The district judge, DJ Wilding, varied his order, as requested, on 7 April 2010. On appeal, HHJ Elly, on 4 February 2011, allowed the defendant's appeal, albeit with regret, on the basis that the district judge lacked jurisdiction to operate under CPR 3.1(7).
The rules
CPR 3.1(7) provides:
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
CPR 26.9 provides:
"(1) When it has allocated a claim to a track, the court will serve notice of allocation on every party."
CPR 44.9 (headed "Costs on the small claims track and fast track") provides:
"(1) Part 27 (small claims) and Part 46 (fast track trial costs) contain special rules about –
(a) liability for costs;
(b) the amount of costs which the court may award; and
(c) the procedure for assessing costs.
(2) Once a claim is allocated to a particular track, those special rules shall apply to the period before, as well as after, allocation except where the court or a practice direction provides otherwise."
CPR 44.11 ("Costs following allocation and reallocation") provides:
"(1) Any costs orders made before a claim is allocated will not be affected by allocation.
(2) Where –
(a) a claim is allocated to a track; and
(b) the court subsequently re-allocates that claim to a different track,
then, unless the court orders otherwise, any special rules about costs applying –
(i) to the first track, will apply to the claim up to the date or reallocation; and
(ii) to the second track, will apply from the date of reallocation.
(Part 26 deals with the allocation and reallocation of claims between tracks.)
The Costs Practice Direction (CPR Pt 44) provides by its section 16 ("Costs Following Allocation and Re-Allocation: Rule 44.11"):
"16.1 This paragraph applies where the court is about to make an order to re-allocate a claim from the small claims track to another track.
16.2 Before making the order to re-allocate the claim, the court must decide whether any party is to pay costs to any other down to the date of the order to re-allocate in accordance with the rules contained in part 27 (The Small Claims Track).
16.3 If it decides to make such an order about costs, the court will make a summary assessment of those costs in accordance with that Part."
The background facts
Mr Tibbles' claim was a low value personal injury claim arising out of an accident at work. He strained his back while lifting a roll of lead weighing 55 kilos. He suffered moderately severe back symptoms for about 3 weeks and his symptoms resolved in about 8 weeks.
He instructed solicitors on the same day as he suffered his injury, 6 July 2006. A letter of claim was sent to the defendant on 4 October 2006. The reply sent on 6 December 2006 denied liability. A claim form was issued on 28 May 2008, claiming damages in excess of £1,000 (the small claims track limit, see CPR 26.6(1)(a)(ii)). A medical report from the consultant orthopaedic surgeon, Mr Knottenbelt, dated 25 February 2009, was served with the proceedings. A defence was filed on 3 July 2008. In late July 2008 both parties lodged their respective allocation questionnaires at court, contending for a fast track allocation. On 11 September 2008 the parties, by their solicitors, agreed directions involving allocation of the claim to the fast track. Their agreed order was sent to the court.
Although the views expressed by the parties are a factor in the court's allocation discretion, they are far from being the only factor: see CPR 26.8. It is for the court to allocate.
On 28 October 2008 DJ Wilding made his order, without a hearing, allocating the claim to the small claims track, with appropriate directions.
On 3 November 2008 the claimant applied to set aside the order, and on 7 November 2008 the defendant wrote to the court to say that it did not object.
At a first telephone hearing before DJ Wilding on 9 December 2008, the judge indicated that he was not minded to set aside his order (which would have involved a fresh allocation) but at most to reallocate the claim. However, he expressed his preference for keeping the claim in the small claims track, on the basis that the claim was worth just £500 or £600. The hearing was adjourned for further argument, and there was a second telephone hearing on 11 December 2008. The judge was then persuaded that the claim was worth more than £1,000 and reallocated it to the fast track. He said nothing to detract from the default position that prior costs would be on the small claims track basis. There was no submission that he should order otherwise. There was no request for him to decide whether any party should actually pay costs to any other party down to the date of the reallocation order, and no one brought CPR Costs PD16 to his attention, any more than any other rule. The defendant's attitude, expressed by its solicitor, Mr Johnson, was that it was a "borderline case…on the cusp between small and fast" and that he was content for the judge to decide. The district judge agreed that it was "on the cusp".
On 28 April 2009 the claim was tried by HHJ Everall QC. He gave judgment for Mr Tibbles for £750, being £1,500 less a fifty per cent reduction for contributory negligence. Thus the ultimate decision justified the decision to reallocate to the fast track, since contributory negligence is not to be taken into account for the purpose of the £1,000 threshold. The defendant was ordered to pay Mr Tibbles' costs on the standard basis to be the subject of detailed assessment if not agreed.
On 22 May 2009 Mr Tibbles commenced detailed assessment and on 15 June 2009 the defendant served points of dispute. The point was taken that by reason of CPR 44.11 costs prior to reallocation on 11 December 2008 were to be assessed subject to the restrictive special rules relating to the small claims track. Mr Tibbles complains (or perhaps his solicitors for they are acting under a CFA) that £20,000 (out of a total of some £30,000) costs which they are claiming from the defendant were incurred prior to 11 December 2008, and that under the small claims track's special rules none of such costs will be recoverable. The £20,000 is said to be inclusive of success fee, disbursements and VAT.
On 23 October 2009, that is to say some four months after the point was taken in the defendant's points of dispute and some ten months after the district judge's reallocation...
To continue reading
Request your trial
-
Samir Ramzi Samara (Claimant and Respondent) v (1) MBI & Partners UK Ltd (t/a M.B.I. International & Partners Co) (1) First Defendant and Applicant) (2) Ajwa Rmti Company (t/a Ajwa Group for Food Industries) (2) Second Defendant)
...under CPR 13.3. In the skeleton argument served on behalf of MBI that basis is identified in the following terms. Relying on Tibbles v SIG Plc [2012] 1 WLR 2591 and Thevarajah v Riordan [2016] 1 WLR 76 it is said that MBI may bring this second application to set aside the default judgment i......
-
Ministry of Defence v Blythe
...be used to reopen final orders, whether made at trial or by consent respectively, because of the decisions of the Court of Appeal in Tibbles v SIG Plc [2012] EWCA Civ 518 or Roult v North West Strategic Health Authority [2009] EWCA Civ 444, or, secondly, because, if there was a discretion t......
-
Liaqat Malik and Others v Manchester and Salford Magistrates' Court and Others
...relies among other authorities on the Panesar/Windsor case, to which I shall return in a moment, the decision of the Court of Appeal in Tibbles v SIG Plc [2012] 1 WLR 2591 and the decision of the Supreme Court in Thevarajah v Riordan [2016] 1 WLR 76. 16 Because the Panesar/Windsor case is c......
-
Middlesbrough Football & Athletic Company (1986) Ltd v Earth Energy Investments LLP ((in Liquidation))
...of interim orders. Consequently, this Court should be bound by the judgment of Rix LJ in the Court of Appeal, in Tibbles v SIG plc [2012] EWCA Civ 518 in respect of interim orders, as follows:- “39. In my judgment, this jurisprudence permits the following conclusions to be drawn: (i) Despi......
-
Disclosure Pilot: High Court Clarifies Test For Varying Disclosure Orders And Encourages Use Of Disclosure Guidance Hearings
...submission that the court could not exercise its discretion to vary its own order unless the criteria identified in Tibbles v SIG Plc [2012] 1 WLR 2591 were met - in particular that there had been a material change of circumstances or the order was based on misstated facts. That case concer......
-
Post-Trial Variations To Final Injunctions And The Principle Of Finality: Fiberweb v Geofabrics [2021] EWHC 1996 (Pat)
...fails to raise the issue of (non)infringement of its new product when it should have done so earlier in the proceedings. Footnote 1. [2012] 1 WLR 2591 Originally published 19 July 2021 The content of this article is intended to provide a general guide to the subject matter. Specialist advic......