JAMES v BAILY GIBSON & CO [2002] EWCA Civ 1690

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION
TO RENEW GROUNDS OF APPEAL,
PERMISSION TO AMEND APPELLANT'S NOTICE
AND AN ORDER FOR A STAY OF PROCEEDINGS TO BE LIFTED
APPEAL FROM ORDER OF MR JUSTICE PENRY-DAVEY
[2002] EWCA Civ 1690Case No A2/2002/0428/AVenue Royal Courts of Justice, Strand, London, WC2, Wednesday, 30 October 2002
Between
JAMESAppellantBAILY GIBSON & CORespondent
Before
Lord Justice JudgeLord Justice MayThe Appellant appeared in personMR C BROWN (instructed by Henmans of Oxford) appeared on behalf of the RespondentDate 30 October 2002

LORD JUSTICE MAY:

This

[1]is an appeal from an order made by Mr Justice Penry-Davey on 14 February 2002. The judge then stayed Miss James' claim for professional negligence against the respondent solicitors. Permission to appeal against that order was refused on paper by Lord Justice Brooke on 15 April 2002. Miss James renewed her application for permission. I heard that renewed application in open court on 22 May 2002. I gave her very limited permission to appeal and thus her appeal comes to court today. In addition, Miss James has applied to renew her application for permission on nine grounds of appeal on which I refused permission in May.[2]Central to understanding the circumstances of this appeal and that application is Section 54 (4) of the Access to Justice Act 1999. That provides that - "No appeal may be made against a decision of a court under this section to give or refuse permission" that is permission to appeal "but this sub-section does not affect any right under rules of court to make further application for permission to the same or another court." That section impinges on this case in two respects, as will appear.[3]The facts underlying this appeal may be taken from the introductory parts of the judgment I gave on 22 May. I said this:
"1 This is an application by Miss James (who presents her own case) for permission to appeal against a decision of Penry-Davey J in the High Court of 14th February 2002. The matter that he had to decide came about in the following way. As long ago as April 1989 Miss James sustained injuries in an accident during the course of her employment as a secretary for the National Foundation for Educational Research ("
NEFR"). She started an action for personal injury damages in respect of her loss and there was a medical report at the time which stated a likely diagnosis as including a condition which was coccydynia. She started those proceedings against NFER in April 1992. 2 She consulted the defendants in the present action, Baily Gibson & Co, a firm of solicitors, in relation to those proceedings. Those proceedings came to grief because they were struck out under the old Order 17 Rule 11 (9) of the County Court Rules because the solicitors failed to set the matter down for trial, and Miss James was subsequently ordered to pay NEFR's costs. The solicitors refunded to her the costs which she had already paid to them. So her personal injury action against NFER was lost. 3 On 1st September 2002 she started an action for negligence against the solicitors. In their defence the solicitors admitted that they had been negligent and that as a result of this she had lost her chance to pursue her claim for damages. However, no admission was made as to the value of that lost chance or as to whether or not she would have been able to establish negligence on the part of NFER. At a later stage by amendment the solicitors contended that Miss James had herself caused or contributed to the injury she had suffered. She denies this. 4 These 2000 proceedings had a number of case management hearings and decisions which dealt with, among other things, the question of expert evidence. Most of those hearings were conducted by Master Leslie except the last one which was before Penry-Davey J. The original idea seems to have been that experts in rheumatology and orthopaedics would be necessary, and it was on 12th March 2000 that Master Leslie gave permission to the parties to rely on evidence of that kind. This obviously was directed towards assessing the value of Miss James' lost chance claim and, I suspect she would say, her claim for damages against the solicitors. 5 On 18th June 2000 those representing the solicitor defendants applied to the court for permission to rely on expert evidence in the field of psychiatry. This was because the evidence of their orthopaedic expert indicated that Miss James' psychological condition was a significant factor in her complaints of ongoing symptoms relating to her accident in April 1989. It appears to have been a diagnosis that she was suffering from chronic pain syndrome. 6 In response to this application Miss James applied for an order that the permission asked should be refused. That was not necessary because that was exactly what the Master was going to have to decide. Or 28th June 2001 Master Leslie ordered the parties' experts to discuss and attempt to agree issues, in particular the question whether Miss James had had or still had psychological symptoms or problems that were relevant to her claim, and it was ordered that these experts produced a joint statement under CPR 35.12. At some stage later a trial date was set for 13th March 2002. 7 The experts did indeed meet. They produced a joint statement which included the following (at paragraph 12): `Her over-riding symptoms are due to her chronic pain syndrome. We believe that all pain has a psychological element and in this case the psychological part of her pain is probably significant. We would recommend a psychological or psychiatric opinion for further information regarding this.' 8 In the light of that Master Leslie made a further order on 10th October 2001 in which he gave permission for the parties to rely on expert evidence in the field of psychology and psychiatry. Miss James sought permission to appeal against this order, but this was refused. The idea then was that she should attend an appointment with a proposed psychiatrist but she has consistently not done so. She did not attend an appointment on 21st November. She did not attend another one which was rearranged for 17th January 2002, and she wrote to the psychiatrist indicating that she was not proposing to attend. The first of those may well have been at a time when she was seeking permission to appeal against Master Leslie's order, but that had been disposed of by January 2002. 9 So it was that on 29th January 2002 the solicitor defendants applied for an order that her claim should be stayed unless she attended their consultant psychiatrist on 18th April 2002. Penry-Davey J heard that application and was persuaded to grant it. It is against that order that Miss James seeks permission to appeal. Penry-Davey J was persuaded that it was clearly in the interests of justice that, if she continued to decline medical examination which in his judgment was clearly necessary if the claim was to be disposed of fairly and justly, it was right that he should make the order that the defendants sought; and so he did. So the position in the action is, pursuant to Penry-Davey J's order, that unless Miss James attended an appointment with the psychiatrist on 18th April, which she did not do, her action is stayed. 10 She has a number of grounds of appeal which I will refer to in detail in a moment. But the essential thing which she seeks is permission to appeal against the order staying her action. 11 Brooke LJ refused permission on the papers ....."[4]My conclusion was:
"For those reasons I give her permission to appeal, but it is a limited permission to appeal. I refuse permission to appeal on her grounds one to six inclusive, and eight to ten inclusive. I limit the permission to ground seven on the basis which I have attempted to describe."
Ground 7 was in these terms:
"The subsequent loss of trial date by the order on 14.2.02 constitutes a violation of the appellant's right to a `fair ..... hearing within a reasonable time' within the meaning of Article 6 (1) within `the Act'."
[5]Miss James has applied for reconsideration of my refusal of permission to appeal on the other nine grounds. In my judgment, that application cannot be entertained by this court. The reason for that stems from Section 54 (4) of the Access to Justice Act 1989 to which I have already referred. It also stems from the terms of Rule 52.3 of the Civil Procedure Rules. I am not going to refer to those in full but it is appropriate to point out that Rule 52.3 (7) provides that an order giving permission to appeal may limit the issues to be heard and be made subject to conditions.[6]The reason why, in my judgment, this court cannot entertain Miss James' application to re-open the nine grounds of appeal on which I refused permission can best be found in the decision of the Vice-Chancellor in Fieldman v Markovic , a decision in the High Court, Chancery Division, on 4 July 2001. The Vice-Chancellor was invited to reconsider an order of Mr Justice Lawrence Collins. Mr Justice Lawrence Collins had given limited permission to appeal solely on a question which his order defined. Those representing the applicant sought to renew the application before the Vice-Chancellor. The Vice- Chancellor held there was no jurisdiction by which he could entertain that application. He said that paragraph 4.18 in the Practice Direction reflects the position under the Act and the Rules which now deal with the requirement of permission to appeal.[7]He referred to Section 54 (4) and the provisions of Rule 52 which provide for permission to appeal. He then said:
"It seems to me to be evident the object of the Rules, and of the Act under which they were made, was to make the oral application, which is the further application envisaged by s.54(4), final. Once the order has been made by the judge at that stage, at whatever level in the process it is in the appeal proceedings, then the order is final. There can be no further appeal to a higher court, because of the provisions of the Act, and the order which was made on the further application is, as between the parties to the proceedings, final. There is nothing in either the Act or the Rules to give countenance to the suggestion that an Appellant, if he fails at the oral hearing before the judge, can invite the court, before whom the appeal on the limited permission comes, to re-visit the decision made by his brother judge at the earlier hearing, for which the rules provide. In my view, paragraph 4.18 Practice Direction reflects the position provided for in the Rules. If the lower court has refused permission or has granted permission subject to conditions or limitations then that order may be revisited on an application to the appeal court. Likewise, if the appeal court has refused permission or has granted it subject to conditions or limitations on the papers then that order may be revisited by another judge of that court on an oral application. But where the appeal court has heard the application in court and refused permission or granted it subject to conditions or limitations it is not open to another judge or judges of that court to revisit that decision. The rules do not permit any further application for permission to that court following the making of an order on an application heard in court. In this case the appeal court is the high court. The jurisdiction whether to grant permission to appeal was fully exercised Lawrence Collins J at the oral hearing before him. In my view, I have no jurisdiction as another High Court judge of the Chancery Division to extend the limited permission granted by him. I will hear the appeal on that basis."
[8]In my judgment, that is precisely the position with Miss James' application before this court today. If, after an oral hearing of an application for permission to appeal, limited permission is given on one or more issues but refused on others the applicant cannot renew the application on the issues on which permission has been refused at the hearing of the appeal. That is so under the present rules and practice direction.[9]It is also worth pointing out that an amendment has been made, but has not yet come into force, of the Part 52 practice direction. The amendment comes into force on 2 December 2002. When it comes into force paragraph 4.21 of Part 52 of the Practice Direction will provide as follows:
"If the appeal court refuses permission to appeal on remaining issue at or after an oral hearing the application for permission to appeal on those issues cannot be renewed at the appeal hearing. (See Section 54 (4) of the Access to Justice Act 1999)."
That, in my judgment, is doing no more than stating in a couple of sentences the effect of the present position as outlined by the Vice-Chancellor.[10]The application which Miss James puts forward also seeks to amend ground 7. The amendment which she seeks is to add to ground 7 references to Article 1 of the European Convention on Human Rights and the First Protocol. In my judgment, that application does nothing to extend the substance of that which she has been given permission to advance on this appeal.[11]I would refuse the application which she makes on both grounds and confine the appeal to the limited issue on which I gave permission to appeal.[12]It is then necessary to return to the judgment I gave to find exactly what that limited issue is. In paragraph 17 of that judgment I said this:
"17 The court has power in an appropriate case and when it is reasonable, just and proportionate to stay proceedings if the claimant refuses to cooperate in a medical examination which the justice of the case reasonably requires."
I went on to deal with one of the grounds of appeal relating to that on which I refused permission, that is a ground in which Miss James had submitted that the case law in support of that proposition applied to personal injury cases but not to professional negligence cases. That is not, in my view, a matter that it is open to Miss James to have reconsidered today. I then said:
"18 ..... Proceedings must be conducted fairly as between the parties. A claimant cannot, in my judgment, bring proceedings, but unilaterally decide not to cooperate in complying with an order of the court reasonably and justly made to enable the other party properly to present their case. It seems to me that that is a principle which has no violation of any ECHR principle in it at all. It is simply a matter of the fair conduct of proceedings. 19 On the other hand, I think that there may possibly be a basis on which Penry-Davey J's order might be successfully appealed. Its effect is to prevent Miss James having her trial if she continues to refuse to cooperate, which she is entitled to do as Brooke LJ has pointed out. On one view all she has to do is to cooperate. But, absent cooperation, the position would be that the defendants admit negligence and Miss James will succeed on liability if she establishes a viable lost chance. That issue is unaffected by the psychiatric evidence. The defendants' schedule of damages, which I have looked at, denies much of the quantum of the claim but admits some of it. Thus, if she succeeds on the lost chance issue she should recover something (not perhaps anything like as much as she is claiming) irrespective of psychiatric evidence. Penry-Davey J's order denies her even that, unless she cooperates. Given that she did not raise the psychiatric issue and her case is that it is not relevant, that might be seen as disproportionate. It might further be seen as possible, proportionate and just that the stay should be removed to enable the action to proceed on the basis that, if Miss James continues not to cooperate, her case would suffer any proper evidential disadvantage resulting from that. That is, to put it bluntly, the relevant psychiatric issues (if there are any) which should have been covered by the psychiatric evidence would or might be taken against her. I do not say that is what would happen, but the court would be faced with having to decide what to do in those circumstances. I emphasise that this is no more than an indication of a possibly viable ground of appeal, not a prediction of the outcome of an appeal. I do not encourage Miss James to suppose that she would necessarily succeed, but I do give her limited permission to appeal on that basis and on that basis alone. It seems to me that the basis which I have described can be brought within her seventh ground of appeal which relates to the subsequent loss of a trial date which she would contend constitutes her right to a fair hearing within a reasonable time within the meaning of Article 6 (1) of the ECHR."
[13]That indicates the limited basis on which permission to appeal was given. I tied it to ground 7 of her amended grounds of appeal as a convenient technical means of bringing it before the court. I did not give permission to appeal on any wider basis than that described in paragraph 19 of my judgment in May.[14]Miss James has made submissions to the court today which, in part, seek to re-open matters which were raised in the nine grounds of appeal on which I refused permission. Those included, but are not necessarily limited, to questions under the Data Protection Act and whether Master Leslie's orders relating to expert evidence were wrong and should be reversed. Those were parts of the grounds of appeal upon which I refused permission and they are not, for the reasons I have given, available to Miss James today.[15]Miss James also addressed us, or wished to address us, on a number of authorities relating to Article 6 of the European Convention. Article 6 is, of course, central to questions of a fair hearing and access to justice. But it seems to me that Article 6 and its effect is, for present purposes, entirely encapsulated in those short passages in my previous judgment to which I have referred, that is(1) a court does have power in an appropriate case and when it is reasonable, just and proportionate to do so to stay proceedings if the claimant refuses to cooperate in a medical examination which the justice of the case reasonably requires, and(2) those proceedings must be conducted fairly as between the parties, that is as between both parties. A claimant cannot bring proceedings but unilaterally decide not to cooperate when complying with an order of the court reasonably and justly made to enable the other party properly to present their case. It does not add to the just, fair and proportionate conduct of proceedings to rephrase those principles in language referable to Article 6 and authorities which are, in their various ways and various language, essentially saying the same thing.[16]The position of the respondents to this appeal is summarised in Mr Brown's skeleton argument. They accept the force of the argument that it is inappropriate to deprive Miss James in this case of all remedies. Mr Brown accepts that if the court is minded to allow her appeal on a limited basis they would consent so that her claim for heads of damage unaffected by psychiatric evidence can go forward. Mr Brown has set out details in paragraphs 2 and 3 of his skeleton as to which particular heads of damage that might apply to. But, in my judgment, it is not necessary to go through the particular details.[17]The quantification of Miss James' loss resulting from the defendant's admitted negligence would require the court to assess the chance or opportunity she lost of recovering damages against her former employers at a notional trial in about June 1994. Some issues in her schedule of damage are obviously unaffected by psychiatric evidence. Her position is that no psychiatric evidence is necessary. She submits that she should be allowed to continue her claim at trial without any limitation. She submits it is for the trial judge, not this court, to make decisions as to what evidence can and cannot be called and what decisions should be made on the basis of that evidence. She maintains that the consequences of her accident persist to this day. She has numerous heads of claim including very large sums for past and future loss of earnings.[18]The medical experts are agreed that there are no detectable physical consequences of the accident which persisted beyond a maximum of about a year after the accident itself. They differ slightly in their view about the time by which she would have recovered fully in physically, but the maximum period which either of them suggest is 12 months from the date of the accident in April 1989. For the rest, they acknowledge that she has or may have a psychological condition described as chronic pain syndrome or the like. Her position is that she has no psychological condition. Her present condition is, she maintains, the continuing physical consequence, 13 years or so later, of the 1989 accident. But on the medical evidence this is not so. The issue is whether her present condition could be established to be chronic pain syndrome or the like and, if it could be so established, whether it is a consequence of the accident such that she would, in law and in fact, have recovered damages for it in a notional trial in 1994.[19]That issue cannot be determined without psychiatric evidence and, in my judgment, notwithstanding that it is not open to us to reconsider the matter, Master Leslie was plainly right to make the order he did. Miss James' refusal to be examined by a psychiatrist nominated by the defendants denies the defendant and the court the proper opportunity of considering and determining the issue fairly. To that extent I consider that Mr Justice Penry-Davey's order was entirely correct, and I can understand why he made the order he did. But the order also has the effect of denying Miss James the opportunity of recovering damages on heads of claim which are unaffected by psychiatric evidence. Some of these are admitted in whole or in part. To that extent, I consider that on the very special facts of this case the order was disproportionate.[20]The court has under the Civil Procedure Rules a range of powers to manage cases to achieve the overriding objective of dealing with cases justly. These include in Rule 3 power to stay the whole or part of any proceedings, either generally or until a specified date or event. That is the power that Mr Justice Penry-Davey exercised. The powers also include in Rule 3.1 at (2) (k) power to exclude an issue from consideration. Rule 3.1 (3) empowers the court, when it makes an order, to make it subject to conditions. In my judgment, these are powers in addition to the inherent power of the court to make case management orders to achieve justice which can be used to achieve a just arrangement in this case.[21]I consider that the court should use these powers in this case to achieve the just objective of enabling the claim to proceed on those issues which are unaffected by psychiatric evidence. The respondents attempted to pick out those issues and heads of quantum to which this could apply. But I think that a broad pragmatic formula is preferable and can be achieved by limiting the potential damages that can be claimed to a period of 15 months after the accident in 1989.[22]I should explain the 15 months. In discussion with Mr Brown and then with Miss James, a period of 12 months was considered. Twelve months is the maximum period which either expert reckons would be the period during which the purely physical consequences of the 1989 accident persisted. There is, it seems to me, a theoretical possibility that a limitation of 12 months might preclude a head of damage which ran, for perfectly proper reasons, slightly beyond the period when any physical damages might have ceased. I think it would be pragmatic and just to have a period of 15 months rather than the 12 months that was under discussion. The 12 months would be the maximum period for which either medical expert contends. It would be open to the respondents to contend for a shorter period and within that period open to either party to advance their respective cases. Notwithstanding that Miss James contends that the court should not or does not have power to make an order of that kind, it seems to me that is the extent to which relief can be given from the severity of Mr Justice Penry-Davey's order.[23]For these reasons I would allow the appeal but on the limited basis which I have attempted to describe.

LORD JUSTICE JUDGE: I agree. I cannot usefully add anything.

Order

Appeal allowed, that is, stay lifted on condition that the court directs the issues which may be tried are limited to those described with the costs in this court but no interference with those awarded below

Cited in 3 later judgments