Irwin Mitchell Solicitors v Patel [2003] EWCA Civ 633

Case No B1/2002/1864[2003] EWCA Civ 633
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE REYNOLDS QC)
Venue Royal Courts of JusticeDate Tuesday, 15th April 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE ALDOUS
LORD JUSTICE RIX
Between
IRWIN MITCHELL SOLICITORSRespondent-v-
Between
SMITA PATELAppellant
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT appeared on her own behalfMISS K SAWYER (instructed by Messrs Henmans, Oxford OX1 1HA) appeared for Respondent
J U D G M E N T(As approved by the Court)
Crown copyright©

LORD JUSTICE ALDOUS:

[1]I invite Lord Justice Rix to give the first judgment.

LORD JUSTICE RIX: This appeal (for which Sir Anthony Evans has given permission, although it is a second appeal) illustrates the truth of a possible proposition that there is a danger that those who live by procedure may perish by procedure. The course of these proceedings illustrate the sorry state into which litigation may descend if the parties and the court impose upon themselves an excess of formalism.

[3]The appellant is Miss Patel. On 3rd December 1998 she had resigned from her job with Texaco, with whom she had been employed since about 1990. She wished to bring proceedings in the Employment Tribunal and on the very next day, 4th December 1998, she retained the respondents, Irwin Mitchell Solicitors, to act for her. On 2nd March 1999 they issued proceedings on her behalf in the Employment Tribunal, complaining of constructive unfair dismissal, sex and race discrimination, and making an equal pay application.[4]On 27th September 1999 Miss Patel withdrew instructions from Irwin Mitchell in the face of a Tribunal hearing then due within the next few weeks, on 19th October 1999. She was unhappy with the way in which Irwin Mitchell were conducting her case. On 6th October 1999 she retained Paisner & Co to act for her in the proceedings.[5]On 19th October 1999, on the first day of the hearing, the Employment Tribunal adjourned it at Texaco's request on the basis that Miss Patel's case had expanded. The new hearing date was fixed for March 2000. Unfortunately, in March 2000 the Tribunal adjourned the hearing for a second time because of the illness of two of Texaco's important witnesses. A third hearing date was fixed for 27th November 2000.[6]In the light of these adjournments, or for whatever other reason, Miss Patel decided that she had run out of money by April 2000 and on 19th April she started to represent herself. As her schedule of loss now before the court indicates, she had paid Paisner & Co in all some £47,000. In addition she had made payments on account to Irwin Mitchell during the period of their retainer. But after that retainer came to an end, Irwin Mitchell had some £6,000 or a little less of outstanding fees which they charged her, and when she failed to pay them, they issued proceedings for them on 14th November 2000. That is the claim form out of which this litigation arises.[7]For a little while that litigation proceeded more or less efficiently and speedily towards a trial date which, in June 2001, was fixed for 4th December 2001. Thus upon receipt of the 14th November 2000 claim form, Miss Patel promptly filed her defence and counterclaim on 22nd November 2000. In her defence she said that Irwin Mitchell had handled her Employment Tribunal claim negligently, and in a counterclaim she claimed for consequential loss and damage arising out of that negligence in a sum of at least £173,000. Her particulars of counterclaim referred to a sum of £60,000 in respect of legal fees (those cover the fees of Irwin Mitchell and Paisner & Co to which I have referred), to a sum of £110,000 loss of salary, and to a further £3,000 in college fees and other course costs lost as a result of a deferment of studies said to arise out of Irwin Mitchell's negligence.[8]The next step following that defence and counterclaim should have been Irwin Mitchell's prompt defence to counterclaim. But that was not forthcoming and in due course an order had to be made against Irwin Mitchell on 10th April 2001 for them to file their defence to counterclaim within one week. Under the same order this litigation was allocated to the multi-track and transferred to the Central London County Court ("CLCC").[9]Irwin Mitchell were again late in serving that pleading. It was in fact served on 8th June 2001, together with a reply. On the same date, in preparation for a case management conference which had been fixed by the court for 11th June 2001, Irwin Mitchell prepared and served a case summary, which set out the issues arising on the pleadings. A brief perusal of that case summary indicates that this was bona fide litigation relating to an allegation of professional negligence, and on this appeal it has not been submitted otherwise.[10]The case management conference was heard before His Honour Judge Dean QC on 11th June. He made appropriate orders for standard disclosure and exchange of witness statements and for Miss Patel to file and serve a detailed schedule of loss.[11]Pursuant to that order, Miss Patel was first in the lists with her disclosure list, served on 25th June 2001, and shortly thereafter -- I think on the next day -- Irwin Mitchell served their disclosure list. On that day, 26th June, the trial date was obtained and fixed for 4th December that year.[12]Up to that moment this litigation had, as I indicated before, proceeded more or less efficiently -- on Miss Patel's side wholly efficiently. The only delay had been in Irwin Mitchell's defence to counterclaim. Now, however, things began to go wrong. The wrong turnings which this litigation then took have been close to disastrous for Miss Patel, because, subject to this appeal, she has had both her defence and her very considerable counterclaim struck out. But looking back on the causes of this disaster, it is difficult, with the eye of retrospect, to understand why things should have progressed to this state. In essence there were two really very minor bones of contention between the parties. The first arose out of Irwin Mitchell's request to have sent to them copies of Miss Patel's disclosure. The second item was the matter of Miss Patel's schedule of loss. I will take them in turn.[13]On 3rd July 2001, the date stipulated in Judge Dean's order, Miss Patel requested copies of Irwin Mitchell's disclosure. She was asked to provide just under £129 for those copies and that she did. Somewhat later, and two weeks beyond the time fixed by Judge Dean's order, on 17th July Irwin Mitchell woke up to the fact that they also wanted to request copies of Miss Patel's documents. In their letter of request they offered to pay for those copies on provision of her invoice.[14]It is unfortunate that Miss Patel, who has been acting throughout this litigation as a litigant in person, was perplexed by Irwin Mitchell's request for copies of her disclosure. After all, all the documentation in her list, other than a few documents at the end of the list for which she claimed privilege arising after her move over to Paisner & Co, were documents between her and Irwin Mitchell. She could not understand why Irwin Mitchell were not satisfied with their original copies of the letters she had sent to them and their own copies of the letters that they had sent to her. She may not have realised, of course, that it might be that there were some gaps in Irwin Mitchell's files, and in particular she may not have realised the interest of litigants in inspecting the other side's copies of documents for possibly any notations upon them. I am not sure whether there was any particular consideration of these possibilities on Irwin Mitchell's part, but at any rate they wanted and were prepared to pay for and were entitled to copies of Miss Patel's disclosure. Judge Dean's order of 11th June 2001 had specifically referred to requests for inspection or copies of documents. Copies can of course be a very much more efficient way of dealing with a right of inspection than a physical inspection.[15]It may be that Miss Patel was also irritated by the two weeks which Irwin Mitchell had allowed themselves beyond the ordered time of 3rd July for such a request. Perhaps she also had in mind the delay that Irwin Mitchell had allowed to occur in respect of their defence to counterclaim. At any rate, it does appear that she began to think that Irwin Mitchell were deliberately abusing the process of litigation. I immediately go on to say that I have no reason at all for thinking that she was justified in that view, if indeed it was her view. But I mention these matters because they are, in effect, the only realistic explanation of the sad turn which this litigation was now in the process of taking.[16]As a result of Miss Patel's perplexity about Irwin Mitchell's request for copies of her disclosure, she did not comply with that request.[17]So far as the second bone of contention, the schedule of loss, is concerned, there again it is sad to realise that at this time in July 2001 Miss Patel -- as she says and has been saying for some considerable time, and as is not disputed on this appeal -- had already settled for herself a schedule of loss. However, she had suggested to Irwin Mitchell that that schedule of loss should be provided at the same time as exchange of witness statements, and Irwin Mitchell do not appear to have disagreed with that or, at any rate, there were discussions about this timetabling going on. Indeed, at about this time it was at Irwin Mitchell's own request that exchange of witness statements should be put off by one month from the ordered date of 30th July to a new date of 30th August 2001.[18]The matter of the schedule of loss was complicated, at any rate in Miss Patel's mind, by the consideration that now that more time was going by she wished to amend the schedule of loss which she had prepared by bringing into account a further year's losses, in particular a further year's loss of salary. For these purposes she also wished to amend her counterclaim. She wrote to Irwin Mitchell saying that she was in the process of amending her counterclaim. Irwin Mitchell wrote back to say that she needed leave to do so. It turns out that she may not have needed leave to do so. That is not a matter that has had to be investigated on this appeal. But this matter of amending her counterclaim, if necessary with leave, and amending her schedule of loss led to Miss Patel not serving her schedule of loss when she could so easily have done so -- and it is a great pity that she did not do so in response to Irwin Mitchell's request.[19]In due course Irwin Mitchell sent a chasing letter of 9th August 2001. There they focused on two matters that they had been following up in recent weeks, not as it happens in that particular letter the schedule of loss, but copies of Miss Patel's disclosure and also a copy of the Employment Tribunal decision. Their letter said that unless she had complied with their request for those two matters, which she had until 17th August to do, they would be making an application to the court for disclosure.[20]As I say, that letter did not deal with the schedule of loss. I would infer that it did not do so because on 26th July 2001 Miss Patel had written to suggest that her schedule of loss should also await 30th August and there was no complaint about that in succeeding letters from Irwin Mitchell. I would therefore infer from that course of correspondence that Irwin Mitchell were content to indicate to Miss Patel that they accepted 30th August as a new agreed date for her schedule of loss.[21]Miss Patel did not immediately reply to Irwin Mitchell, because, as she said in her next letter, she had been away, for which she apologised. But on 20th August she replied by fax dealing with each of the points raised in Irwin Mitchell's letter of 9th August.[22]As to the request for the decision of the Employment Tribunal, a new request for disclosure -- that was not something that had been itemised is Miss Patel's disclosure list -- she took the point that the decision was irrelevant to the case. In that I am confident that she was wrong, but that is the point that she took at that time.[23]As for requests for copies of her documents, she explained her perplexity about why there should be any need for that. She said in her fax of 20th August that:
"If as threatened, you are going to apply for Order from CLCC, I will appreciate if you will attach this fax to your request."
Later that day Irwin Mitchell did make an application for copies of her documents. That application is ultimately the source from which all further troubles for Miss Patel stemmed.[24]The application was made on a standard form of application notice. It indicated, on the standard form, that the request was to have the application considered without a hearing. An X was put against the appropriate question. It was, however, a with notice application, as such a notice would in principle have to be, and the notice itself indicated that the defendant was to be served. There is a line in the form, "6. Parties to be served" and that had typed in against it the word "defendant".[25]If Irwin Mitchell were seeking to have the court serve Miss Patel, then, as the form also indicated, they were required to provide the court with copies for service, but unfortunately they did not do so; and if Irwin Mitchell were planning to serve Miss Patel themselves they, again unfortunately, did not do so.[26]The application applied for an[27]Since that application notice was not served on Miss Patel, Miss Patel did not know what was happening, and indeed was unaware that, contrary to the impression given by the inter partes correspondence, Irwin Mitchell were now not willing, so far as the attitude they indicated to the court was concerned, to extend her time for serving her schedule of loss until 30th August.[28]Judge Dean's order of 11th June had specified 3rd July for that schedule of loss, so that the judge reading those documents, without further assistance, would be under the impression that Miss Patel, having been ordered to produce her schedule of loss by 3rd July, was still, without any warrant, failing to produce it on 20th August. That was not in fact the position.[29]The judge dealt with this application on paper on 12th September 2001. I need to set out the whole of his[30]The second matter to notice is that Irwin Mitchell's application is referred to in the order as a "without notice application". In that the judge was unfortunately in error. The application notice stated on its face that the defendant was to be served, and seeing that it was an application to strike out Miss Patel's defence and counterclaim it would be natural, I think, to view such an application as having necessarily to be made with notice. But there it was. The judge plainly, on the terms of his order, treated this application as a without notice application.[31]The next thing to note is that the order was to be automatically self-effective unless it had been complied with by 1st October. Costs were awarded, assessed at £200, which does not fit very happily with the idea that this was an order made on the court's own initiative. Finally, there was the notice to any party affected that they may apply within seven days to have the order varied, set aside or stayed.[32]Miss Sawyer, who appears today on behalf of Irwin Mitchell, has submitted, on the basis of Robert v Momentum Services Ltd [2003] EWCA Civ 299, that in such a case, provided an application to extend time were to be made before the time limited for the automatic sanction to come into effect, the sanction would not come into effect, at any rate not in such a way as to make it necessary for a party facing such a sanction to have to go through the route of reinstatement provided by CPR 3.8 and 3.9. I am prepared to assume that the same may be true, at any rate upon the wording of this order, in respect of an application to vary or set aside as well. But the matter is not entirely clear and it does appear to me that although this notice could have been worded so as to state that the automatic sanction did not take effect if an application to vary or set aside had been made within seven days of service, it was not on its own language drafted in those terms.[33]That order was drawn up on 19th September and posted to Miss Patel on 24th September, a chronology which must indicate how busy the CLCC is. So it was that Miss Patel was not served with it until the post arrived on 25th September.[34]She thereupon, by fax of 26th September, lost no time in writing a detailed letter to the court. That letter was not at that time copied to Irwin Mitchell, but Irwin Mitchell did in due course receive it from the court. That fax asked the court administration to place it before the judge for his consideration urgently. The letter began by saying that she had just received the order of 12th September and continued as follows:
"The Defendant respectfully requests His Honour, District Judge to set aside with a view to vary the above-mentioned order and further requests a Case Management Conference to agree on the issues addressed in the Order and raised by Irwin Mitchell since the last Case Management Conference dated 11th June 2001."
The letter then went into great detail in setting out all the various issues which had arisen since the last case management conference and explaining her side of the story. Thus, she went through the matter of requests on either side for copies of disclosure, adding that she did not understand why Irwin Mitchell were demanding copies of documents already in their possession. She also went into the question of the request for the Employment Tribunal decision and referred to the matter of the schedule of loss. All in all, she made it clear that what she was seeking was an oral hearing before the court, which she described as a further case management conference, in which all these various issues which had arisen between the parties since 11th June could be addressed.[35]She had already on 24th September, two days earlier, and before being served with the 12th September order, faxed the CLCC pointing out that she had not had any correspondence with Irwin Mitchell for some time, had had no response to her last fax of 20th August and making clear that she was already, even in ignorance of the 12th September order, seeking guidance from the court and requesting a case management conference to revise the deadlines for the witness order and submission of schedule of loss and to address the relevance of additional issues regarding the Employment Tribunal decision. Therefore, even before the bombshell of learning in the order that her case had been struck out, she had addressed every one of the issues between the parties in that letter of 24th September to the court.[36]It is unfortunate that this correspondence from Miss Patel to the court was not put before District Judge Lightman until well past the sanction date of 1st October, and was not before him until 19th October. Upon that day District Judge Lightman made a further order as follows:
"Upon review of the court file and upon reading letters dated 24th September 2001, 25th September 2001 and 26th September 2001 from the defendant (which have been produced to the judge today 19th October 2001). And the court not being prepared to enter into correspondence with any party. And it appearing that the defendant has not complied with the order of 12th April [sic scilicet September] 2001 and has not made any application pursuant to paragraph 4 of the order dated 12th September 2001 (the court refusing to treat any in the aforementioned correspondence as such application). IT IS ORDERED THAT 1. It is declared that as at 4.00pm Monday 1st October 2001 the defence and counterclaim stood struck out automatically. 2. The trial listed for 4th December 2001 be vacated. 3. Permission to the claimant to request entry of judgment, interest and costs."
[37]It appears that that order may have been made at that time as a result, in part, of a fax from Miss Patel to the court of 17th October. At any rate she visited the court on 25th October and a fax to her of that date said that she should by now have received a copy of the order made on 19th October. On the same day, 25th September, Miss Patel, no doubt noting in the order of 19th October that the court had refused to treat her letter of 26th October as an application, did formally apply to set aside the order of 19th October. That application came before District Judge Lightman on notice and inter partes on 16th November 2001.[38]At that hearing, of which this court has a full transcript, the judge made it clear to Miss Patel that her application of 25th October was of no use in his view, since it was related to his order of 19th October and not his order of 12th September. Since the judge regarded his order of 19th October as merely being declaratory of the position automatically reached on 1st October under his order of 12th September, the judge was unwilling, without the co-operation of Irwin Mitchell's representative, to treat that application as being what in his view he considered it ought properly to have been, namely an application under CPR 3.9 for relief against sanction and reinstatement of the defence and counterclaim. He therefore struck out that application without more ado.[39]As I say, he would have been willing to treat it as an informal application under CPR 3.8 and 3.9, but unfortunately Irwin Mitchell's representative on that occasion, their clerk, Mr Thomas, stated, no doubt fairly from his point of view, that he was not in charge of the case and would be unable to deal with a CPR 3.9 application.[40]Since Irwin Mitchell were aware by now from copies of Miss Patel's correspondence to the court of all the issues between the parties, they ought to have sent along to the court on that occasion someone who was in a position to say that he was in a position to deal with the merits of the continued status or reinstatement of this litigation. Unhappily, that was not the position.[41]In the course of the dialogue between the court and Miss Patel on that occasion nevertheless, the judge made it perfectly plain to Miss Patel what she had to do in his opinion, namely bring an application to reinstate the defence and counterclaim; provide evidence to the court which would address all the factors within CPR 3.9, to which the judge specifically referred Miss Patel; and of course provide copies of the disclosed documents and her schedule of loss. All this he ordered was to be done by 7th January 2002. He there and then fixed a date of 13th February 2002 for an oral hearing between the parties to consider that further application. That date was fixed a suitable period after 7th January 2002 to enable Irwin Mitchell to respond to the material which they would receive by, at latest, 7th January 2002.[42]The judge specifically asked Miss Patel whether she was willing to have him hear that further application. She indicated that she was, and she indicated to the judge that she would take notice of and abide by his advice and further order. However, it appears that she changed her mind about that course and decided instead to go by way of appeal to the circuit judge.[43]At the hearing today she explained how it was that she changed her mind. First of all, the order made on 16th November 2001, although she had made notes of it, did not reach her in formal form until 4th December 2001. She had sought to get legal advice before then, but the Citizens' Advice Bureau lawyers were telling her that without a copy of the formal order which she was facing they were unable to give her advice. She had also in the meantime corresponded with Irwin Mitchell about the making of the earlier orders, and so it was that it was only on 6th December by fax that she received a copy of Irwin Mitchell's original application of 20th August 2001 and also of the evidence and annexures used by Irwin Mitchell at the hearing of 16th November.[44]Thus it was that it was not until 6th December that she was able to appreciate that the application of 20th August was not a without notice application, but was a with notice application which had not been served upon her. It is this point which has been at the bottom of her applications to this court, first for permission to appeal and now, today, on appeal. Miss Patel also told the court today that in the light of this new information she was advised at the Citizens' Advice Bureau by a barrister that if she had not been aware of the 20th August application, then it was in her interest to go to a judge on appeal. She also says that in effect she got similar advice from the Lord Chancellor's Department, namely advice to the effect that a judge could not revisit orders already made at a horizontal level, but that to do that one needed to go up a level on appeal.[45]So it was that on 11th December she served her notice of appeal. That was a very full document sent to the CLCC, together with a witness statement, a chronology, some of the underlying documents, and a large annexure of supporting evidence and an amended defence and counterclaim. Regretfully, the schedule of loss, being then under amendment, was still not sent.[46]On 7th January 2002, the date fixed by the District Judge for filing of all the matters that he had dealt with in his order, Miss Patel sent a further fax to the court, with copy to Irwin Mitchell, pointing out that she had gone by way of appeal -- the court of course already knew that, as did Irwin Mitchell -- and also pointing out that there had now been a dispute between the parties about the cost of providing the copies of documents, since Miss Patel was requesting 45p a copy and Irwin Mitchell were only offering 25p a copy, and pointing out that the revised schedule of loss would be faxed later that day. It was faxed to the court later that day, albeit after hours. The schedule had become a very long and detailed document of some 70 pages or more. The leading principal pages of it were also faxed to Irwin Mitchell that day, but either Miss Patel ran out of paper or strength because she did not send the rest of the schedule to Irwin Mitchell save under post a week later.[47]Her appeal reached His Honour Judge Reynolds QC on 20th August 2002, and it is of course from that judgment that the present appeal comes to this court. The judge set out the background to the litigation. His attitude to the case was that whatever had happened in the past Miss Patel had been dealt with more than generously by the judge's willingness to extend time to 7th January 2002 for a reinstatement CPR 3.9 application, that Miss Patel had failed to take advantage of that and so in effect lacked any merits. So far as the specific issues put before him, he dealt with them and set out the background very briefly indeed. Thus he said, in the critical paragraph:
"Miss Patel is an intelligent woman and has argued her case with considerable skill and vigour. However, she falls into the trap of imposing what she regards as fair in place of the existing rules of court. The Civil Procedure Rules are designed to ensure that cases proceed both fairly and expeditiously. They must be observed. So far as the appeals against the orders of 11th June, 12th September and 19th October are concerned I rule that the notices of appeal are out of time and the appeals in respect of those orders must fail. So far as is necessary, I further rule that I do not find that the decisions which were made were improper under my limited powers of review under CPR part 52.11."
That is the substantive part of the judge's reasoning.[48]On this appeal Miss Patel has been very helpful with the documents and written submissions which she has provided to the court. She has also assisted the court with her oral submissions, and in particular with answering the court's questions.[49]On behalf of Irwin Mitchell, Miss Sawyer has also been extremely helpful with her written and oral submissions which have been very much to the point. She submits that there are essentially three issues. Perhaps Miss Patel will forgive me if I approach her appeal through the prism of Miss Sawyer's analysis.[50]The first is whether the District Judge's original order of 12th September 2001 was a legitimate order made within his discretion. She accepts that if it was not, or even if it was but if the next order of 19th October was not, then this appeal must be allowed, at any rate if time should have been extended in respect of the appeal below. Thus, the penultimate paragraph of her supplemental written skeleton argument is as follows:
"If the order of 12 September 2001 cannot be upheld, then it is right to say that the effect of that order, which was the automatic striking out of the Appellant's defence and counterclaim upon the non-compliance of the Appellant with the directions contained therein, could not be sustained, as it was in the subsequent orders, pending an application by her to have it varied, which was never brought."
[51]In my judgment, the original order of 12th September cannot be sustained. The judge plainly considered that he was dealing with a without notice application. It was on that basis that he was prepared to deal with the matter without a hearing.[52]In those circumstances, it must follow that the judge could not have addressed his mind as to what in his discretion he ought to do if he had realised that there was a real dispute between the parties about matters which could only be dealt with by hearing both parties on those matters, albeit, if necessary, that could have been done on paper and without a hearing once that had been elucidated. The without hearing rule, CPR 23.8, makes it clear that a court may deal with an application without a hearing if the parties are agreed as to the terms of the order sought -- that was not this case; if the parties agree that the court should dispose of the application without a hearing -- that was not this case, although it is possible that the judge perhaps thought that it was; or if the court did not consider that a hearing would be appropriate. We have no insight, other than his order, into what the judge thought about that third question, but it follows from the fact that he considered that he was dealing with a without notice application that he could not have considered that question upon the true facts.[53]In those circumstances, it seems to me that the discretion of the learned District Judge goes by the way. This is an order which should not have been made without prior service on Miss Patel, and with its failure the whole of the rest of the respondent's argument in my view falls as well. Even if that was not the case, I come next to the way in which the judge dealt with his order of 19th October 2001.[54]It is plain from the terms of that order that although the judge read Miss Patel's letter, in particular the important letter of 26th September 2001 -- albeit the letter of 24th September is also important because it supports and confirms Miss Patel's bona fides, seeing that that letter was written before she received service of the order of 12th September -- the judge nevertheless plainly did not attach any consideration to the merits of the matters set out in that correspondence. That is plain from the fact that the judge said that he refused to treat the correspondence as an application to set aside or vary. In my judgment, having read those letters, the judge ought to have taken account of the merits there discussed. If he had done so, he ought to have realised that Miss Patel was not simply a recalcitrant defendant seeking to evade judgment, but was a serious and bona fide, albeit inexperienced, litigant, whose counterclaim far exceeded the value of the claim against her and who was seeking the help of the court to resolve a number of issues which had emerged in recent weeks between her and Irwin Mitchell.[55]In those circumstances, I consider that his refusal to treat the letter as an application or quasi-application or attempt in good faith at an application pursuant to his order of 12th September, thereby stopping time running in advance of the sanction date of 1st October, wholly failed to meet the justice of the situation and did not comply with the leading authority in these matters of Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926. There, in an early and leading judgment on the effect of the new regime of the CPR, Lord Woolf MR pointed out that although the keeping of time limits laid down by the CPR, or by the court itself pursuant to the CPR, was even more important than it had been under the old regime, nevertheless it was equally important, on the other side, for courts to bear in mind that the CPR regime now gave to them a whole quiver full of remedies other than the ultimate weapon of a strike out. Those alternative remedies are mentioned in detail at pages 1933 and 1934.[56]Although in that case the Court of Appeal decided that what the judge had done had been quite right and that they would not interfere with his decision, nevertheless numerous cases decided in this court since Biguzzi have underlined the wisdom of the obiter remarks there made, that courts have got to be aware of the full range of sanctions which are open to them and not just the ultimate, however important, weapon of a strike out.[57]Although Miss Sawyer submitted that this case, arising as it does out of an unless order, is different from the acceptance of a strike-out application dealt with in Biguzzi, and so far as that submission goes that difference is there to be made as I accept, nevertheless the principle is the same and can be seen operating at the time of the judge's order of 19th October 2001. It was not consonant with the overriding objective of CPR 1 or with the principles laid down in Biguzzi for the judge to have simply disregarded Miss Patel's, albeit informal, application by way of correspondence. He should either have been prepared to hear the parties as soon as possible to deal with issues which had arisen, or should have proceeded simply, if he felt he could deal with it on paper, to deal with it on the merits. Inasmuch as a formal application was necessary, it could have been put in place and Miss Patel could have been put on terms to pay the appropriate fee, the absence of which has been commented on below. Furthermore, the judge was still at that time labouring under the misapprehension that his original order had been properly made, when in truth it had been made in the absence of service of the appropriate application on Miss Patel.[58]In my view, therefore, the judge's order of 19th October 2001 was not within the legitimate range of his discretion and cannot stand either.[59]In these circumstances, it is perhaps not necessary to go on to deal with the order made on 16th November 2001. But again I would comment in respect of that that the judge should not have been too ready to allow more time to pay and further heat to grow in respect of an underlying dispute, relating to what I have called the two bones of contention, which was very narrow indeed and could easily have been solved, in my judgment, in court between the parties when they were there before him together on 16th November. Nevertheless, since the judge was prepared to give Miss Patel further time, it may be that that opinion of mine has to be muted in its criticism.[60]I should have pointed out in dealing with the order of 19th October that it was on that date that the real prejudice to the litigation was caused, in that it was then that the judge vacated the date of 4th December and the trial date was lost. It may be that given the time that had been lost from 20th August through 12th September down to 19th October it was already too late to save that date. But at any rate, the date when it was lost was not lost as a result, in my judgment, of any real default of Miss Patel, but was a result of the court acting essentially of its own motion.[61]So in my judgment the underlying orders of 12th September and 19th October cannot be supported on the ground that the judge was simply acting properly within the limits of his discretion, but turn out to be an insubstantial basis for the strike out of defence and counterclaim and the judgment which in the meantime has also been obtained by Irwin Mitchell.[62]Miss Sawyer's second point is that in any event Judge Reynolds was right to say that the appeals to him were out of time. They were out of time, in the sense that they had not been brought within 14 days of the underlying orders of 12th September and 19th October. However, when the justice of the situation is considered, as I have sought to do so in this judgment, it immediately becomes obvious that this is a case in which time must be extended. For the same reasons as appeared to Sir Anthony Evans on the application for permission to appeal to provide a compelling reason to permit a second appeal, so it seems to me that there is, in the underlying facts of this case and the justice and fairness of the position between these parties, a situation where time ought to be extended to Miss Patel. All the prejudice has been suffered on her part. Other than the fact that the litigation has now unfortunately been delayed by these procedural battles, Irwin Mitchell have suffered no prejudice themselves and Miss Sawyer has not submitted that they have.[63]There is another and more technical, but in my judgment equally valid, reason why time for the appeals to Judge Reynolds should have been extended, and that is that it was only on 6th December, as I have pointed out, that Miss Patel obtained the application form of 20th August and was able to appreciate that she had not been served with an application which ought to have been served upon her. As I have said, and as the reasons that she has given for going the appeal route rather than the District Judge's route have underlined, that factor lies at the bottom of her case today.[64]In these circumstances, it seems to me that this appeal must be allowed. I would add that even if, as in her written submissions Miss Sawyer has submitted, the question of an extension of time for permission to appeal should be looked at in this sort of context by analogy to the factors set out in CPR 3.9, it seems to me that although some of those factors no doubt go against Miss Patel, in that some of her failures were intentional and some of her actions do not have the best of explanations for them, although they do reflect the perplexity of a litigant in person not used to these matters, the critical factors mentioned in CPR 3.9 count in her favour. Those are (a) the interests of the administration of justice and (h) and (i), the effect of the failure on each of the parties in turn. So far as trial date is concerned, that had already been lost to the parties by 19th October already.[65]For all these reasons, I would allow this appeal.

LORD JUSTICE ALDOUS: I agree. There is nothing I wish to add.

order

"1. Unless the Defendant complies with the Court's Order dated 11 June 2001 her Defence and Counterclaim will be struck out. 2. The Order for exchange of witness statements be varied to 30 September 2001." Then the form went on to give reasons for that application, referring to Miss Patel's failure to disclose copies of her documents and also failure to serve her schedule of loss. It was said that without that disclosure and that schedule of loss Irwin Mitchell could not complete their witness statements. As evidence Irwin Mitchell annexed a series of letters between the parties, ending with Miss Patel's fax of 20th August 2001 to which I have already referred. order: "On the Court's own initiative UPON the without notice application of the claimant IT IS ORDERED THAT 1. Unless by 4.00pm on Monday 1st October 2001 the defendant both(a) serves copies of items 1-106 in the defendant's list of documents(b) files and serves a detailed schedule of loss and damage including future loss the defence and counterclaim do stand struck out automatically without further order. 2. Time for exchange of witness statements be extended to 4.00pm on 19th October 2001. 3. Defendant to pay claimants costs of the application assessed at £200 payable by 4.00pm on 5th October 2001. 4. Take notice that any party affected by this order may apply within 7 days of service of it upon him/her to have it varied, set aside or stayed." The following matters may be noted about that order. The first is the statement that it was made on the court's own initiative. This is puzzling, in the light of the fact that it would seem that Irwin Mitchell's application notice was the origin of it. It is, however, of course possible that the judge, on reviewing the court's own files, had noticed that various matters, such as the witness statements which were supposed to have been filed with the court by 30th July, had not reached the court. ORDER: Time for appealing against the orders of 12th September, 19th October and 28th November 2001 extended; appeal against the order of His Honour Judge Reynolds QC of 20th August 2002 allowed; orders of District Judge Lightman of 12th September 2001, 19th October 2001, 28th November 2001, 14th January 2002 and the order of His Honour Judge Reynolds QC of 20th August 2002 set aside; case remitted back to the Central London County Court for a case management conference; costs orders below set aside; the claimant to pay the defendant £4,000 by way of costs within 21 days. (Order not part of approved judgment)