Welsh v Parnianzadeh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lord Justice Mance,LORD JUSTICE MANCE |
| Judgment Date | 10 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1832 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2004/1114 |
| Date | 10 December 2004 |
[2004] EWCA Civ 1832
Lord Justice Peter Gibson
Lord Justice Mance
——
B1/2004/1114
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HER HONOUR JUDGE DANGOR)
Royal Courts of Justice
Strand
London, WC2
MS JOHANNA BOYD (instructed by SDR Rosser & Co Solicitors, London NW10 2TE) appeared on behalf of the Appellant
MS YVETTE GENN appeared on a Pro Bono basis on behalf of the Respondent
——
(Approved by the Court)
—-
Friday, 10 December 2004
I will ask Lord Justice Mance to give the first judgment.
I would like to start this judgment by paying tribute to the quality of the concise advocacy which we have heard from both counsel. I take the facts from the chronology, which is helpfully contained in the skeleton argument submitted by Miss Johanna Boyd for the appellant, which is broadly the same as the chronology she used before the circuit judge below.
This appeal arises out of matters going back as far as 13 February 2000 when the respondent, the claimant in the proceedings, suffered an alleged accident at the premises of the appellant, Southern Fried Chicken, 95 Dudden Hill Lane, Willesden, London NW10. The claim was not brought until near the expiry of the three-year time period, and this appeal arises from the fact that after a series of defaults the claim was on 19 January 2004 ordered to be struck out by District Judge Morris for failure to comply with an order of District Judge Cohen dated 29 September 2003. From that decision of District Judge Morris an appeal was brought which came before Her Honour Judge Dangor on 10 May 2004. The present appeal arises from the remarkable terms of that order, paragraph 1 of which reads:
"The appellant's appeal is thus dismissed but the case is to proceed with the following directions."
The circuit judge then gave directions: limiting the extent to which the claimant would, if she succeeded, be able to recover interest; allocating the claim to the multitrack; ordering the parties to agree the instruction of a joint orthopaedic expert; ordering disclosure by lists; ordering a report of the jointly instructed orthopaedic expert; ordering mutual exchange of witness statements; ordering service by the claimant of an up-dated schedule of loss; giving permission to the parties to ask questions of the orthopaedic expert; ordering the defendants to serve a counter-schedule of loss; and ordering the filing of pre-trial check-lists, dates being given for all the orders requiring specific action on the part of one or both of the parties. Not surprisingly, that order led to submissions by counsel before the circuit judge, but she stood by paragraph 1. Hence the present appeal, presented on behalf of the appellant by Miss Boyd, submitting that, in substance, the appeal from District Judge Morris was dismissed and asking us to delete all subsequent parts of Her Honour Judge Dangor's order.
On the other side the respondent, represented by Miss Yvette Genn, submits by an amended respondent's notice that the order is also clear, but in this case in her client's favour, and that the substance of the order is that the appeal was allowed on the basis that it would be disproportionate to strike the case out and that we should vary Her Honour Judge Dangor's order to make clear that that was the result.
Before the matter came on we communicated to both counsel our preliminary thoughts that there might be a possibility that neither side was right in their submissions and that the matter might, in effect, have to be redetermined.
Going back over the chronology in a little greater detail, events during the initial period prior to the commencement of proceedings have been somewhat clarified by the production today of a witness statement of the claimant, which is dated 19 January and was, we understand, put before District Judge Morris. This deals with the circumstances of the accident. The alleged circumstances were that the claimant fell heavily while entering the defendant's shop because there was a wet and defective shop floor and has, as a result, suffered loss of employment, injury and strain. THe claimant then says:
"I decided to pursue a claim … For this claim to be effective, it required sufficient correspondence to be exchanged between the Defendant's Insurers and my legal representation, who were at that time Messrs Brewer, Harding and Rowe Solicitors. However, the Defendant, from the outset has shown himself to be unwilling and unsympathetic towards my situation and has a history of avoiding response to my claim. There is now shown to me a bundle of correspondence from Messrs Brewer, Harding and Rowe…"
It is not clear to me precisely to what date that correspondence relates since we have not been shown the bundle, but it seems that it must be early correspondence since Brewer Harding & Rowe left the scene on or about 15 May 2003. Chronologically it seems, therefore, to fit in with the period before or immediately after the commencement of proceedings. The claimant goes on:
"The defendant has done everything within his power to avoid dealing with this claim. It can be seen from the bundle that I initially sought the assistance of Claims Direct in pursuing my claim against the Defendant. Pages 1 to 24 of the exhibit bundle are copies of 6 separate letters written to the defendant at his business address between the dates of May 2000 and June 2002 which letters were all ignored by the defendant and the lack of information as to whether or not occupiers liability insurance was held by the Defendants was the basis on which Claims Direct used to withdraw from the case at the end of August 2002."
That suggests that Brewer Harding & Rowe were on the scene for a period of roughly a year from June 2002, whereas prior to that date Claims Direct were handling the claim. The claimant goes on at page 25:
"… it can be seen that a premium of £1,250.00 exclusive of insurance premium tax was paid for legal expenses insurance. Having committed over £1.000.00 to pursuing my claim and having suffered so much loss, pain and inconvenience, I decided to pursue my claim but could not afford to instruct solicitors and therefore acted in person. I was made more determined to pursue justice because of the manner in which the defendant had totally ignored my claim.
7. In April 2003, the Defendant filed a defence stating that the shop was not open on the date of my accident. I have two independent witnesses who confirm that the shop was open and one witnessed my accident there. Their statements are at pages 26 to 29 of the bundle.
8. The defendant totally ignored the pre-action protocol and now makes a second application for my claim to be struck out for failure to comply with the court rules. I ask the court not to make the order sought because deficiencies, if any, are due to those that I have instructed to act on my behalf ie McCormack & Co."
Miss Boyd's chronology indicates that they acted between 15 May 2003 and 15 August 2003 when apparently they ceased to conduct their solicitor's practice. The claimant went on:
"I feel that a serious injustice would be done to me if I am not allowed to pursue any claim and the Defendant would have succeeded in avoiding responsibility for all that I have suffered."
Reverting to the chronology, after the issue of the claim form on 30 January 2003, an acknowledgment of service was entered but that was rejected by the court because a request for judgment in default had been received from the claimant. Judgment in default was entered by the district judge on 25 February 2003 but was set aside by another district judge on 4 March 2003 with an order that the claimant do pay £245 in respect of the defendant's costs of the application to set aside. The first district judge, District Judge Tetlow, then resumed control of the case on 1 May 2003 and, having considered the statements of case and allocation questionnaires, ordered a further hearing, first, to obtain medical evidence of the claimant's injuries; secondly, to obtain medical records of the claimant; thirdly, to establish the date of the accident or give directions as to the means of identifying that date; and fourthly, to consider what directions should be given at this stage on the claim.
On 14 May the defendant's solicitors wrote to the claimant enclosing letters of authority, addressed to her GP and to the hospital who treated her, for all medical notes to be released to them and enclosing a stamped-addressed envelope. Nothing happened. On the next day, however, the claimant's solicitors changed from Brewer Harding & Rowe to McCormack & Co. However, they apparently filed a notice of change which said that they were acting for the defendants, rather than the claimant, which caused a certain amount of confusion.
On 16 May District Judge Mostyn ordered that the matter be transferred to the Willesden County Court; that the parties agree a joint orthopaedic report by 13 June; and that the claimant have permission to file an amended particulars of claim by 16 July with permission to the defendant to amend his defence if so advised within 21 days. He ordered the matter be relisted for a case management conference date after 8 August and he ordered costs in the case. That was what Miss Boyd described as a "second chance" to get the particulars of claim and the claimant's case in order.
On 10 June the defendant's solicitors wrote to McCormack & Co, stating that they would "no doubt be writing to us...
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