Woodhouse v Consignia Plc; Steliou v Compton

JurisdictionEngland & Wales
JudgeLord Justice Brooke
Judgment Date07 March 2002
Neutral Citation[2002] EWCA Civ 275
Docket NumberCase No: B2/2001/0332
CourtCourt of Appeal (Civil Division)
Date07 March 2002
Between
Tracey Woodhouse (Widow and Administratrix of the Estate of Mark Woodhouse Deceased)
Claimant/Appellant
and
Consignia PLC
Defendant/Respondent
and
Between
Martin Steliou
Claimant/Appellant
and
Nicola Jane Compton
Defendant/Respondent

[2002] EWCA Civ 275

Before

Lord Justice Brooke

Lord Justice Laws and

Lord Justice Dyson

Basingstoke County Court Hh Judge

Thompson QC District Judge Fuller

Case No: B2/2001/0332

B1/2001/1024

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CROYDON COUNTY COURT

HH Judge Coningsby QC

District Judge Fink

Royal Courts of Justice

Strand,

London, WC2A 2LL

Nicholas Dean (instructed by Bhatia Best) for the Appellant

Jonathan Spicer (instructed by Eversheds) for the Respondent

Colin Challenger (instructed by Collins, Stone & Thompson) for the Appellant

Paul Russell (instructed by Jacobs) for the Respondent

Part

Para

1 Introduction

1

2 Woodhouse v Consignia plc

2

3 Steliou v Compton

15

4 The principles to be applied in cases of this type

(i) The removal of an automatic stay

29

(ii) CPR 3.9

31

5 The application of the principles in the Woodhouse case

48

6 The application of the principles in the Steliou case

52

Lord Justice Brooke
1

Introduction

1

We heard these two appeals separately on the same day, but because they raise issues of general importance in relation to the transitional arrangements in Part 51 of the Civil Procedure Rules and the relevance of the Human Rights Act 1998 in cases where a court is minded to make an order which has the effect of barring a claimant from pursuing his case without a trial on the merits, we are now giving a single judgment of the court on the two appeals. We have structured our judgment so that it will begin with a statement of the facts in each appeal, continue with a consideration of the principles a court must apply when determining issues of this kind, and end with the application of those principles to the two cases before us. The Steliou case also raised an additional issue which we consider in the final part of this judgment.

2

Woodhouse v Consignia plc

2

This is an appeal by the claimant Tracey Woodhouse, who sues as widow and administratrix of her dead husband Mark Woodhouse's estate, against an order of Judge Coningsby QC at the Croydon County Court on 29th February 2001 when he dismissed her appeal against an order of District Judge Fink on 4th September 2000 whereby she had refused to lift the automatic stay imposed on the proceedings pursuant to paragraph 19 of the Practice Direction to Part 51 of the Civil Procedure Rules (" CPR 51PD").

3

This action was started on 30th April 1998. Mr Woodhouse committed suicide 17 days later. It appears that he had been suffering from paranoid psychosis prior to his death. He was claiming damages against the defendants, who were his employers, arising out of a reference they had written for him when he was applying for a job with the local council. He had been offered the job subject to satisfactory references, and he complained because he said that the unsatisfactory reference, which lost him the job, contained false information about his disciplinary record and otherwise failed to give a fair and accurate view of his employment history.

4

This episode occurred in November 1997. Mr Woodhouse obtained legal aid in February 1998 and commenced this action less than six months after his alleged cause of action arose. Following his death on 17th May, the defence was filed on 18th May, and Mr Woodhouse's solicitors told the defendant's solicitors of their client's death on 21st May 1998. Thereafter nothing happened in the action as between the parties for more than two years. On 28th June 2000 Mrs Woodhouse's solicitors made an application for an order removing the automatic stay imposed by virtue of the transitional provisions contained in CPR Part 51 and its Practice Direction, and also for an order amending the Particulars of Claim so that she was substituted for her husband as the claimant.

5

The only evidence she placed before the court in support of her application for the stay to be removed was in these terms:

"The untimely death of Mr Woodhouse caused her immense grief and distress. She now, however, feels able to continue this action on behalf of Mr Woodhouse's estate."

6

The judge observed that although the formal evidence (apart from a reference to Mr Woodhouse's paranoid psychosis prior to death) was otherwise silent, it was possible to ascertain from the papers before the court that letters of administration had been granted to Mrs Woodhouse as long ago as 25th August 1998 and her husband's legal aid certificate was amended in her favour a month later. It also appeared that counsel had made the necessary amendments to the particulars of claim in December 1999, six months before the application to the court was made.

7

When the matter came before the district judge, she observed that this was a difficult area of law because it was still comparatively new. She considered that the Practice Direction did have the effect of imposing a stay in this case, and she went on to say that this was an inordinate delay. She accepted that the claimant was upset, but this was far too long a delay. She therefore refused to remove the stay.

8

The claimant appealed, and at the hearing of the appeal she sought permission to adduce new evidence in support of her case that the stay should be removed. She also asked that the judge should treat the appeal as a complete rehearing rather than merely a review of the district judge's judgment. The judge refused both these applications, and on this second appeal there is no challenge to either of those rulings. Although he dismissed the appeal, Judge Coningsby indicated that there was an area of law raised by the case on which he believed that further guidance from this court would be valuable. He expressed it in this way:

"Whether on an application to lift a stay imposed by PD 51.19 the criterion is the same as for an application to strike out for want of prosecution (ie inordinate delay) as stated in the footnote on page 1334 of Jordans' Civil Court Practice for November 2000, or some other criterion."

9

In saying this he made it clear that he did not wish to encourage an appeal to this court, because of the relatively small value of the claim and principles of proportionality. On 30th July 2001, however, Lady Justice Arden granted permission to appeal. She said:

"There is an important point of practice raised by this case for the purposes of CPR 52.13, and a real prospect of success, in respect of the argument that in the light of CPR 1.1 and the decision of this court in Biguzzi v Rank Leisure [1999] 1 WLR 1926 the test applied by the judge was too narrow."

10

When the matter came before the judge in January 2001, he had only two sources of guidance as to the manner in which a court should exercise its discretion whether to lift an automatic stay pursuant to CPR 51 PD para 19(2), the Practice Direction itself being silent on this subject.

11

The first was the footnote in the Civil Court Practice for November 2000 (see para 7 above). This was in these terms:

"A party may apply under CPR 23, supported by evidence, to lift the stay, and the provisions in the checklist set out in CPR3.9, dealing with relief from sanctions, would apply to any such application. Notwithstanding the clear guidance in Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 that compliance with time limits is more important under the CPR than under the old regime, a judge must still consider all the circumstances of the case before deciding whether to reinstate an action. Similar considerations will no doubt apply to an application to lift a stay. It is unlikely that the courts will decline to lift a stay introduced by PD 51 para 19 unless the delay involved in the individual case brings it within the criterion which would otherwise justify an order striking out the case for want of prosecution." (Emphasis added)

12

The other was a note of a judgment of Judge Adams, the former Registrar of Civil Appeals, in Axtell-Powell v Labor [2000] 12 Current Law 59, to the following effect:

"The purpose of Part 51 was not to kill off those cases which fall within its ambit but to require any party wishing to continue with the case to ask the court for permission to do so.

The two factors of significance in deciding whether or not to lift the stay were:

(i) whether the request to lift the stay was made timeously;

(ii) whether it was still possible for a fair trial to be conducted."

13

Judge Coningsby said that he had no reason to dissent from what Judge Adams had said, but it did not seem to him to be a complete statement of the law. In particular, he said, it did not pick up the point made in the footnote in the Civil Courts Practice which we have emphasised in the extract from that footnote cited in paragraph 10 above.

14

Because he was concerned only to review the way in which the district judge had exercised her discretion, he found that he was unable to interfere with her conclusion that the delay had been inordinate. He therefore dismissed the appeal. The claimant now appeals to this court.

3

Steliou v Compton

15

This is an appeal by the claimant Martin Steliou against an order of Judge Thompson QC in the Basingstoke County Court on 27th April 2001 whereby he dismissed Mr Steliou's appeal against an order made by District Judge Fuller in the same court on 19th January 2001 striking out as an abuse of court process an application he had made on 8th November 2000 for the removal of an automatic stay imposed on the...

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