Ward v James
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sellers,THE MASTER OF THE ROLLS,LORD JUSTICE SELLERS,LORD JUSTICE PEARSON,LORD JUSTICE DAVIES |
| Judgment Date | 25 January 1965 |
| Neutral Citation | [1964] EWCA Civ J1110-1 |
| Judgment citation (vLex) | [1965] EWCA Civ J0125-1 |
| Docket Number | 1962. W. No. 197. |
| Court | Court of Appeal |
| Date | 25 January 1965 |
[1964] EWCA Civ J1110-1
Lord Justice Sellers
and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
From: Mr. Justice Roskill Middlesex.
Mr. H. Tudor Evans, Q. C. and Mr. ROY BELDAN (instructed by Messrs. William Charles Crocker) appeared on behalf of the Appellant (Defendant).
Mr. Martin Jukes, Q. C. and Mrs. Margaret Puxon (instructed by Messrs. Thompson Smith & Opuxon, Colchester) appeared on behalf of the Respondent (Plaintiff).
By this motion the defendant asks for three orders: (1) to enlarge the time for appealing: (2) for leave to appeal, the judge having refused leave; and (3) to vary the judge's order by reversing it.
On the 30th July, 1963, Mr. Justice Roskill affirmed the Master's order and ordered trial by jury of this action, which is arising out of a road accident in Germany in May of 1962, the plaintiff being a passenger in a car which overturned. He received grave injuries and he seems to be in a state of permanent quadriplegia.
Since that order of Mr. Justice Roskill, as far back as July, 1963, three relevant cases have come before the Court of Appeal. The first one, on the 18th October, 1963, Hennell v. Ranaboldo, was reported in December, 1963 (1963 1 Weekly Law Reports page 1391). On the basis that the judge, who had awarded a jury, had misdirected himself, a Division of this Court of Appeal laid down a principle of uniformity as between plaintiff and plaintiff and defendant and defendant, and to achieve it held that cases of this kind should be tried by a judge alone.
Then on the 17th February, 1964, there was a case of Sims v. William Howard & Son Ltd. That came into the reports on the 10th April, 1964, and is reported in 1964 2 Weekly Law Reports at page 794. That is again a case of personal injuries arising out of a road accident, where the injuries were very severe. It was held there by a Division of this Court that it is not now a correct exercise of discretion to award a jury because the injuries are very grave: the severity of injuries does not amount to an exceptional circumstance – which had been stated in the Hennell case to be a requirement before a jury should be ordered.
There is one further case, on the 17th March of this year, Watts v. Manning, which came into the reports in May 1964, (1964 1 Weekly Law Reports page 624). That carried the matterstill further.
I do not propose to review those authorities now, but it is said that they are in conflict with a decision of this court in Hope v. Great Western Railway Company, going back a number of years. That case was a decision of a full court, and this particular problem has not been reconsidered by a full court since that date. In those circumstances the defendant has asked that the order of the judge should be reviewed and reversed by this court. The first question is as to whether he is so out of time and in such circumstances that this court should not accede to that request.
It appears that there are explanations as to why the very long delay has ensued. It might be said that not until March or April, after the decision of Sims v. William Howard & Son Ltd. would there have been much prospect of succeeding on an appeal and that the defendant was justified in doing nothing. I recognise that a mere alteration in the law may not be sufficient ground for extending the time. But the authorities cited to us were all cases of a final judgment and are not so apt and not so applicable to an interlocutory appeal of this character, particularly when the form of the trial is in issue and the action is still some way from reaching trial. But after March or April, when perhaps the delay could be explained by little hope of success on an appeal, there was a situation when negotiations were taking place between the parties; the action had not been set down; and in those circumstances I think there is some excuse for the defendant not taking any further step. By July the plaintiff set down the action, and thereupon, it appears, the defendant wished to take the view of this court as to whether a jury was an appropriate tribunal. He had not, as it happened, asked Mr. Justice Roskill in July of 1963 for leave to appeal and so application had to be made to him for his acceptance or refusal. Apparently, although there seemed in the circumstances a not inadequate explanation for the delay, the defendant did not get before Mr. Justice Roskilluntil the 26th October of this year, when he refused leave. After that, this motion was pursued with despatch.
In all the circumstances, we have come to the conclusion that the time should be enlarged for appealing and, having regard to the issue, and the situation with regard to the conflicting decisions in this court, there should be leave to appeal.
With regard to the last and major matter, that the order of the judge should be reversed, we have come to the conclusion that appeal should be dealt with by a full court. I have consulted the Master of the Rolls and he has approved of such a course; and there is every indication that the Master of the Rolls will be able to assemble a full court for the hearing of this matter within the next few weeks. In those circumstances this court will adjourn to that full court the application for the final hearing of the appeal on the question as to whether the learned judge was right or wrong in awarding a jury in this case.
The costs of this application will, of course, be adjourned to the full hearing.
Before the court came to this conclusion, having regard to the gravity of the injuries to the plaintiff and the position in which he is, it received an undertaking from learned counsel on behalf of the defendant that they would be satisfied with any decision to which the full court comes on the hearing of this appeal and would not proceed further to the House of Lords. We regard that as imperative, I think, in the interests of the plaintiff, and it is on that basis that we have arrived at the conclusion which we have.
| (Order accordingly) |
[1965] EWCA Civ J0125-1
The Master of the Rolls, (Lord Denning)
Lord Justice Sellers,
Lord Justice Pearson,
Lord Justice Davies and
Lord Justice Diplock.
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Roskill J. dated 30th July, 1963.
Mr. H. TUDOR EVANS, Q. C., and Mr. A. R. ASPLAN BELDAM (instructed by Messrs William Charles Crocker) appeared on behalf of the Appellant (Defendant).
Mr. E. MARTIN JUKES, Q. C., and Mrs. C. MARGARET PUXON (instructed by Messrs Thompson, Smith & Puxon, Colchester) appeared on behalf of the Respondent (Plaintiff).
In the spring of 1962 Thomas Ward was a warrant officer in the Army. He was serving in West Germany. He was aged thirty-four, a carried man with two children. On the 20th May 1962 he was off duty. He was a passenger in a car driven by another military man, Sergeant James. They were going along the road from Lunenberg to Drogeniendorf. There was an accident in which Thomas Ward was very severely injured. His back was broken. Both his arms and both his legs were paralyzed.He can never recover. In medical terms he is a permanent quadraplegic. Ha was taken to the hospital at Stoke Mandeville where much skill is devoted to the treatment and training of persons so afflicted. He is able to get into a wheel-chair and to use it, and he has some use of his arms.
On the 14th December 1962 an action was brought on his behalf against the driver of the car for negligence. The driver denied negligence and did not admit the damage. It is unlikely that there will be any serious contest on liability. The substantial question is: what damages should be awarded?
On the 23rd July 1963, on the summons for directions, the plaintiff asked for trial by jury, faster Lawrence so ordered. The defensant appealed. On the 30th July 1963, Mr Justice Roskill dismissed the appeal. So the case was to be tried by jury. It was set down for trial in the jury list and was about to come on for hearing. Then on the 2nd November 1964 (fifteen months after trial by jury was ordered) the defendant sought to have the mode of trial altered. He wanted trial by judge alone. He applied for leave to appeal out of time. On the 10th November 1964. Lord Justice Sellers and Lord Justice Russell enlarged the time for appealing, gave leave to appeal from the order of Mr. Justice Roskill and ordered that the appeal be heard by a full court. Both parties have agreed to accept the decision of the full court and not to appeal to the House of Lords. The reason why leave was given was so that the views of the full court might be obtained on the question of trial by jury in personal injury cases.
Up to the year 1854 all civil cases in the courts of common law ware tried by juries. There was no other mode of trial available. Since 1854 trial by jury in civil cases has gradually lessened until it is now only some two per cent of the whole. I will not now go through the history of the enactments from 1854 onwards; It can be found in the judgment of the court in Ford v. Blurton. (1922) 38 Times Law Reports, page 801. I will go straight to the governing enactment today, which is section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933.It gives a right to trial by jury to a party in the Queen's Bench division where fraud is charged against that party, or a claim is made for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage. Then for all the remaining cases (which include personal injury cases; it says: "But, save as aforesaid, any action to be tried in that Division may, in the discretion of the court or...
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