Walkley v Precision Forgings Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,ORD JUSTICE SHAW,LORD JUSTICE WALLER |
| Judgment Date | 20 June 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0620-4 |
| Date | 20 June 1978 |
| Court | Court of Appeal (Civil Division) |
[1978] EWCA Civ J0620-4
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Order of Mr. Justice Swanick - London)
Before:
Lord Justice Megaw
Lord Justice Shaw and
Lord Justice Waller
Mr. R. WALKER (instructed by Messrs. Hextall, Erskine & Co.) appeared on behalf of the Appellants (Defendants).
Mr. A. SCRIVENER, Q.C. and Mr. C. CARLING (instructed by Messrs. B.M. Birnberg & Co.) appeared on behalf of the Respondent (plaintiff).
This appeal from an order of Mr. Justice Swanwick dated 20th April, 1978, raises a question as to the principle laid down by the House of Lords in Birkett v. James (1978) Appeal Cases 297, against the background of the provisions of the Limitation Act, 1975.
The plaintiff, Mr. Anthony Walkley, was employed as a grinder by the defendants, Precision Forgings Ltd., at their Cwmbran Works, from 1966 until 1970 or 1971. In the autumn of 1969 he became aware that he had contracted a disease, affecting the circulation of blood in the fingers, known as Raynaud's Phenomenon. It is, or may be, caused by vibration such as may be created by the use of certain machine tools. Mr. Walkley consulted his Union. They told him that their legal department did not think that a claim for damages could be established; but they passed the case to solicitors ("the first solicitors") They wrote to the defendants in November, 1970, claiming that the defendants were liable for damages in respect of the plaintiffs disease. In June, 1971, the defendants' insurers denied liability. On.7th October, 1971, the first solicitors issued a writ, thus bringing into being what may be called "the first action".
The indorsement on the writ was: "The Plaintiffs claim is for damages for personal injury sustained by the Plaintiff in the course of his employment by the Defendants at their premises at Cwmbran, Monmouthshire, on or about December 1968 and caused by the negligence and or breach of statutory duty of the Defendants".
It is beyond dispute that what was being asserted was the claim in respect of the Raynaud's Phenomenon suffered by the plaintiff. An appearance was entered promptly. No statement of claim was served within the limit of time prescribed by Order 18 Rule 1 (14 days from entry of appearance). By April, 1978, it had still notbeen served. It was by then some 6½ years out of time.
The first solicitors, having investigated the claim and taken counsel's opinion, told the plaintiff that he did not have a good claim. (This is deposed to in an affidavit of the plaintiff).
The first action went asleep, so far as the defendants knew, from October, 1971, until June, 1973. Meanwhile, in October, 1972,the plaintiff had consulted another firm of solicitors ("the second solicitors"). On 15th June, 1973, they wrote to the defendants asserting the defendants' liability in respect of the Raynaud's Phenomenon claim. On 1st August, 1973, the defendants' solicitors wrote saying that, if it was the plaintiff's intention to proceed with the claim, a summons to dismiss for want of prosecution would be issued. There was no reply. Again, so far as the defendants knew, the action simply went to sleep. And it remained asleep for a further 3½ years, until February, 1977. By that time more than 7 years had passed since the plaintiff had become aware of his illness, more than 6 years since the first solicitors on his behalf had asserted that the defendants were liable, and more than 5 years since the writ had been issued. No single further step had been taken in the action.
The plaintiff's affidavit does not disclose when or in what circumstances he ceased to retain the second solicitors. But his affidavit says that, at some unspecified date (whether in or after 1974), he instructed yet another firm of solicitors ("the third solicitors") who have acted for him since. A civil aid certificate was issued in August, 1975.
The plaintiff's affidavit asserts that the third solicitors "took counsel's opinion and in April, 1976, obtained a full and careful engineer's report"; and he says that he has been advised that his claim "has a reasonable chance of success". On 6th December, 1976, another writ ("the second writ") was issued commencing the secondaction. The indorsement of the writ asserts a breach of duty on the part of the defendants "from 10th November 1966 until in or about 1971", causing the plaintiff's Raynaud's Phenomenon, There is no doubt that this is the selfsame cause of action as was asserted in the first writ. The first action was not discontinued. The second writ and an accompanying statement of claim were served on the defendants on 23rd February, 1977.
Meanwhile, as appears from the affidavits on behalf of the defendants, the defendants' solicitors had returned all the papers to the defendants' insurers in July, 1974. The defendants no longer occupy the premises at Cwmbran. The relevant grinding machines would be difficult to identify and the precise working conditions could not now be simulated. The defendants' works manager has died. The senior group medical officer is believed to have died. If he is still alive his whereabouts are unknown. His evidence, it is said, would have been invaluable.
In the court below it was conceded on behalf of the plaintiff that, if the plaintiff had attempted to continue his first action, that action would have been dismissed for want of prosecution (though it was contended that such dismissal would not result in a fresh action being an abuse of the process of the court). It was therefore conceded that there had been inordinate and inexcusable delay in the conduct of the first action, which delay had resulted in the likelihood either that there could not be a fair trial of the action or that the defendants would suffer serious prejudice if the action were to be tried. In this Court, counsel for the defendants, Mr. Scrivener, who did not appear in the court below, sought leave to alter that concession, while not challenging that it had been made previously in the terms which are set out above. The alteration sought was to substitute for "that action would have been dismissed" the words "there would have been a definite liability that thataction would have been struck out". I do not think that the precise formulation of the concession matters, I have no doubt that, subject only to the possible effect of the Limitation Act, 1975, the first action would properly have been dismissed for want of prosecution.
The defendants having been served with the writ and statement of claim in the second action, entered a conditional appearance and promptly applied for an order, under the inherent jurisdiction of the court and under Rules of the Supreme Court Order 18 Rule 19 that the second action be struck out and/or dismissed.
Master Lubbock on 1st June, 1977, ordered that the second writ be struck out and the second action dismissed. The plaintiff appealed. The appeal was not heard until 20th April, 1978, when Mr. Justice Swanwick allowed the appeal. He rescinded the Master's order and thus restored the second action to life, the plaintiff undertaking to discontinue the first action. Proceedings in the second action were stayed until the plaintiff should have paid the defendants' costs in the first action, (The plaintiff did not have legal aid in respect of the first action). The learned judge gave leave to appeal to this Court.
The failure to discontinue the first action despite the issue and service of the second writ may have been an oversight or it may have been an attempt to have the best of both worlds. It must, surely, ordinarily be am abuse of the process of the court for the same plaintiff to have two actions in existence simultaneously against the same defendant in respect of the same cause of action. In some cases that might be an important matter. For by Order 21 Rule 3 (1), in those cases in which the leave of the court is required for a discontinuance, the court may order the action to be discontinued "on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just". In Hess v. Labouchere (1898) 14 Times law Reports 350, it was said by Lord Justice A.L. Smith that "Generally, in allowing a plaintiff to discontinue his action, the court should consider whether they should not make it a condition that he should not be at liberty to bring another action". If the intended discontinuance is for the purpose of avoiding the dismissal of the action for want of prosecution (as in the present case), it would seem not improbable that the court would think it just to impose that condition. It would hardly seem to be a valid objection to the exercise of this Rule-given discretion that the normal period of limitation for the bringing of the action had not yet expired. This question did not arise, at least directly, in ( Birkett v. James though counsel for the defendants in argument, at page 314. referred to Order 21 Rule 3), In that case the plaintiff had not started a second action, and his submission was that the first action should be allowed to continue. In the present case also, though for a different reason, the question of the court imposing such a term as a condition of granting leave to discontinue does not arise. It does not arise because Order 21 Rule 2 (1) provides that an action may be discontinued without leave "at any time not later than 14 days after service of the defence". In the present case no defence has been served. That is no fault of the defendants. It is because the plaintiff, in breach of the Rules, never served his statement of claim. So, curiously, the plaintiff, as a result of the wording of the Rules, is in a stronger position than he would have been in if he had complied with the Rules as to service of a statement of claim, resulting in the...
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