Uphill (Widow and Administratrix of the Estate of Malcolm Ernest Uphill) v BRB (Residuary) Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE DYSON
Judgment Date03 February 2005
Neutral Citation[2005] EWCA Civ 60
Docket NumberCase No: 2004/1430
Date03 February 2005

[2005] EWCA Civ 60

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CARDIFF COUNTY COURT

HIS HONOUR JUDGE WYN WILLIAMS Q.C.

ZJ2–02554

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Tuckey

Lord Justice Dyson

Case No: 2004/1430

Between
Uphill (Widow and Administrator of the Estate of Malcolm Ernest Uphill)
Claimant (Respondent)
and
BRB (Residuary) Ltd.
Defendant (Appellant)

Mr Mark James (instructed by Weightmans) for the Appellant

Mr Robert O'Leary (instructed by Hugh James) for the Respondent

LORD JUSTICE DYSON

This is the judgment of the court.

1

The claimant is the widow and administratrix of the estate of Mr Malcolm Uphill. Between 4 June 1951 and 14 April 1956, Mr Uphill was employed as an apprentice by British Transport Commission or its predecessors in title. It is the claimant's case that during this period he was exposed to asbestos dust, as a result of which he died of mesothelioma on 15 August 1999. In these proceedings, the claimant claims damages for negligence under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. The defendant is a residuary body, which was created to deal with such claims brought against its predecessors in title. The limitation period expired on 14 August 2002.

2

The claimant consulted Messrs Hugh James, solicitors, in March 2002. The claim was handled by Mr Lysaght, assisted by Miss Evans. On 31 May 2002, they wrote to the defendant asking for confirmation that it was the correct party to sue. The reply dated 26 June came from Miller Fisher, a firm of loss adjusters. They did not explicitly state for whom they were acting or that the defendant was the correct party to the proposed litigation, but they asked for various information. A reminder was sent by the claimant's solicitors on 15 July, but this produced no reply.

3

On 29 July, Miss Evans telephoned Miller Fisher. She spoke to a Mr Crawford. She recorded the gist of the conversation in an attendance note as follows:

"MLE spoke to Mr Crawford at Miller Fisher. I told him we were issuing proceedings and I needed the correct name. He confirmed it was BRB Residuary Limited. I asked if it was his address and he said yes."

4

Mr Crawford says in his witness statement that he has no recollection of this conversation. The district judge held that the conversation recorded in the attendance note was insufficient to amount to a clear agreement that service on the defendant could be effected by serving the claim form on its loss adjusters. Accordingly, he held, the claim form should have been served either on the defendant itself or on its solicitors.

5

On 6 August, the claimant's solicitors sent the claim form to the court. It was issued by the court on 8 August. CPR 7.5(2) provides that the general rule is that the claim form "must be served within 4 months after the date of issue". It was not so served. The reasons for this are set out at paras 5–7 of the witness statement of Mr Lysaght. He considered that he did not have the material necessary to enable him to prepare a "meaningful" schedule of loss. Accordingly, he applied for an extension of time for service of the claim form. On 25 November 2002, Deputy District Judge Jones granted without notice an extension of time for service until 1 April 2003.

6

The claimant's solicitors purported to effect service by sending the claim form by first class post under cover of a letter dated 11 March 2003 to Mr Crawford at the address of Miller Fisher in Derby. He forwarded the document to the defendant's solicitor who received it on 17 March. On 18 March, the defendant acknowledged service of the proceedings by its solicitors. In the Acknowledgement of Service, the solicitors ticked a box indicating that the defendant intended to contest the whole of the claim, but they did not tick the box which indicated that it intended to contest jurisdiction. On the same day, they wrote to the claimant's solicitors seeking an extension of time for service of the defence. The claimant's solicitors acceded to this request. On 1 April 2003, the defendant's solicitors sought further information relevant to the merits of the claim.

7

On 10 April, the defendant applied for an order that "1. The "without notice" Order dated 25 November 2002 be set aside. 2. The purported service of the Claim Form be set aside. 3. The action be dismissed with the Claimant paying the Defendant's costs."

8

These applications were heard by District Judge Doel on 17 October 2003. The district judge refused to set aside the order of 25 November 2002. He said (para 15) that he would not himself have granted the extension of time for service, but would have ordered the claimant to serve the claim form without further delay. He explained at para 19 that, having regard to the overriding objective of dealing with cases justly, it would be wrong to set aside the order granting an extension of time. If he were to set aside the order, the claimant would be left without a remedy against the defendant. This would be unjust, not least because there was no evidence that the defendant had been prejudiced by the extension of time and the delayed service of the claim form.

9

As we have already said, the district judge held that service on the loss adjusters was not good service. But he went on to make an order under CPR 6.9 dispensing with service of the claim form on the grounds that the document had in fact been delivered to the defendant's solicitors within the extended time for service, so that "any arguments about irregularity are completely overridden."

10

Finally, although it was not necessary from him to do so, the district judge dealt with the claimant's argument that the defendant had waived the right to object to service of the claim form, and held that there had been no waiver.

11

Permission to appeal was given by His Honour Judge Graham Jones. The appeal was heard by his Honour Judge Wyn Williams QC on 7 May 2004. There were three issues:

i) should the district judge have set aside the order of 25 November 2002 extending time for service of the claim form until 1 April 2003? If not,

ii) was the claim form validly served 2 days after it was posted to Miller Fisher on 11 March, and if not, was the district judge right retrospectively to dispense with service of the claim form?

iii) (by a respondent's notice) was the district judge right to hold that the defendant had not waived the right to challenge the validity of the service of the claim form?

12

The judge held:

i) the order of 25 November 2002 should not be set aside;

ii) the claim form was not validly served but there were exceptional circumstances justifying the retrospective dispensing with service; and

iii) the defendant had waived its right to challenge the validity of service.

13

On behalf of the defendant, it is submitted that the judge erred in each of these conclusions. Dyson LJ adjourned the application for permission to appeal, because it seemed to him that the application raised important questions as to the meaning and scope of CPR 52.13(2) which provides that the Court of Appeal will not give permission to appeal on a second appeal unless it considers that "(a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it."

14

The principles applicable to the grant of an extension of time for service of a claim form under CPR 7.6 have been identified by this court in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206. The principles applicable to the making of an order dispensing with service under CPR 6.9 have been identified by this court in a number of decisions, including Anderton v Clwyd County Council [2002] EWCA Civ 933, [2002] 1 WLR 3174 and Cranfield v Bridgegrove [2003] EWCA Civ 656, [2003] 1 WLR 2441.

15

The broad questions that arise on the current application are (i) whether, and if so in what circumstances, permission to appeal should be given under CPR 52.13(2)(a) where the ground of appeal is that there has been a failure to apply correctly a point of practice or principle which has already been established by a court of higher authority, and (ii) the scope and meaning of the phrase "other compelling reason" in CPR 52.13(2)(b).

16

The Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 provides at para 6.1 that judgments on applications for permission to appeal may not be cited before any court "unless it clearly indicates that it purports to establish a new principle or to extend the present law". This judgment is intended to provide guidance as to the true meaning and effect of CPR 52.13(2)(a) and (b) and may be cited in future cases.

17

In considering these questions, it is important to have in mind what Brooke LJ said in Tanfern Limited v Cameron-MacDonald [2000] 1 WLR 1311 at paras 41–46. It is only in an "exceptional" case that a second appeal may be sanctioned. The general rule is that the decision of the appeal court on the first appeal will be the final decision. It is no longer possible to pursue a second appeal merely because the appeal is properly arguable or has a real prospect of success. The principle embodied in CPR 52.13(2) reflects the need for certainty, reasonable expense and proportionality.

"Important point of principle or practice"

18

In our judgment, it is clear that the reference in CPR 52.13(2)(a) to "an important point of principle or practice" is to an important point of principle or practice that has not yet been established. The distinction must be maintained between (a) establishing and (b) applying an established...

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