Price v Price (t/a Poppyland Headware) [2003] EWCA Civ 888

Case No B1/2002/2205

[2003] EWCA Civ 888

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NORWICH COUNTY COURT

Judge O’Brien

Deputy District Judge Pugh

Venue Royal Courts of Justice

Date Thursday 26 th June 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE BROOKE

LORD JUSTICE SEDLEY

LADY JUSTICE HALE

Between

PAUL TERENCE PRICEClaimant/

ROSALIND PRICEDefendant/Respondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Anne Studd (instructed by Hansells) for Claimant

Nicholas Heathcote Williams (instructed by Plexus Law) for Respondent

Judgment

As Approved by the Court

[1]This is an appeal by the claimant Paul Terence Price against an order by Judge O’Brien at the Norwich County Court on 19th October 2002 whereby he allowed the defendant’s appeal against an order of Deputy District Judge Pugh on 15th August 2002. The deputy district judge had granted the claimant an extension of time for serving the particulars of claim in this personal injuries action. In allowing the defendant’s appeal, the judge struck out the action. Permission was granted for this second appeal on the grounds that it gave rise to an important point of practice.

[2]The accident which gave rise to these proceedings is said to have taken place on 5th May 1998. The claimant and the defendant are husband and wife, and at the material time the defendant was employing the claimant as a shop assistant in her hat shop in Cromer at a salary of £60 per week. The claim form was issued on 4th April 2001, without any accompanying particulars of claim, medical report or schedule of loss. It was served on 14th April 2001.

(b) which provides, so far as is material, that:

“(1) Particulars of claim must – (b) … be served on the defendant by the claimant within 14 days after service of the claim form.” (b) … be served on the defendant by the claimant within 14 days after service of the claim form.”

[3]At that time there was an unresolved dispute as to whether a court had power in any circumstances to extend the time for serving particulars of claim pursuant to the general power to extend time which is contained in CPR 3.1. In Totty v Snowden

[2001] EWCA Civ 1402

;

[2001] 4 All ER 577

it was held that this power did exist. However, CPR 7.4(1)(b) contains the mandatory word “must”, from which it can readily be inferred that the longer the period a claimant allows to elapse before he/she applies for an extension of time, the slower a court may be to exercise a favourable discretion. In the event no application for an extension of time was made until 16th July 2002, over 14 months out of time.

[4]By this time this court had made it clear in Sayers v Clarke Walker (a firm)

[2002] EWCA 645

;

[2002] 3 All ER 490

that in a case of any complexity, when a court was considering an application for an extension of time made after the time prescribed for the taking of a step in proceedings had expired, the court should follow the checklist given in CPR 3.9. Although the present case is concerned with an extension of time for serving particulars of claim, and not with an extension of time for appealing, the underlying logic is the same. If the court is not willing to extend time, the action will be at an end because the claimant will not be able to proceed with it any further.

[5]Although this judgment had been fully reported in the All England Law Reports on 17th July 2002, the deputy district judge did not, as this court had adjured, approach his task within the structured framework set out in CPR 3.9. He seems to have thought that it was sufficient for him to consider whether there was an adequate explanation of the delay and whether the defendant had been significantly prejudiced by the delay. His approach was reminiscent of the approach forced on the courts in pre-CPR days when an application was made to strike out a claim for want of prosecution. He appears, among other things, to have been influenced by a dictum of Chadwick LJ in Totty v Snowden

[2001] EWCA Civ 1402

at [46] to the effect that once a defendant had been served with a claim form he would be in a position to invoke the assistance of the court if particulars of claim were not forthcoming within due time.

[6]On the defendant’s appeal Judge O’Brien, too, did not adopt the CPR 3.9 framework. He overruled the deputy district judge because he took the view that this was plainly a claim where there had been disgraceful, long delay all the way through it. He said that a great deal of the delay was unexplained, and insofar as it was explained it was in circumstances where the conduct of the claimant’s solicitors was reprehensible. He therefore found that the delay was deliberate, long and without explanation.

[7]When he came to consider matters of prejudice, he considered what Sir Thomas Bingham MR had said in a pre-CPR context in Costellow v Somerset County Council

[1993] 1 WLR 256

, 264H:

“Save in special cases or exceptional circumstances it can rarely be appropriate on an overall assessment of what justice requires to deny the plaintiff an extension where the denial will stifle his action because of a procedural default, which even if unjustifiable, had caused the defendant no prejudice for which he cannot be compensated by an order for costs.”

[8]The judge said that for the reasons he had given he did not regard what had been going on, on the claimant’s side of the action, as being capable of the description of “a procedural default”. Having regard to the degree, extent and gravity of the delay in this case and the real reason for that delay he thought it was right that justice did not require the defendant to prove an enormous amount of prejudice to her. It seemed to him that there was prejudice, and that the deputy district judge had somewhat underrated it. He also founded his decision on matters relating to the administration of justice. He said that to permit an extension of time in all the circumstances of this case would be an affront to civil justice and an affront to the administration of justice under the Civil Procedure Rules, which he was not going to permit. He therefore held that the deputy district judge was wrong.

[9]The claimant is legally aided, and it is noteworthy that the deputy district judge and the judge in turn directed that the claimant’s solicitors should show cause why they should not pay the defendant’s costs of the original application for an extension and the defendant’s appeal.

[10]The reasons why the two judges took such a jaundiced view of the behaviour of the claimant’s solicitors are not difficult to seek. The first notification the defendant’s insurers received about the claimant’s accident was when they received a letter on 9th April 1999, 11 months after the accident. A period of six months then elapsed before they agreed to provide indemnity in principle for this claim. On 5th November 1999 they obtained a short statement from the defendant, and on the same day the claimant’s solicitors wrote to them for the first time. This letter did not comply with the Pre-Action Protocol for Personal Injury Cases in that it did not contain a clear summary of the facts on which the claim was based, nor any indication of the nature of any injuries suffered nor, most importantly, of any financial loss incurred (Protocol, para 3.2). In these circumstances there was nothing within the letter to enable the insurers to put a broad valuation on the “risk” (Protocol para 3.5). Instead, the solicitors merely said that they were acting for Mr Price, identified the date of his injury at work, and referred to their understanding that the insurers already had full details of the circumstances of the accident from Mr Price and that an identified firm of loss adjusters had been investigating the circumstances of the accident. At this stage the insurers had received no notice of any claim for loss of earnings. Their initial investigation had revealed that Mr Price had returned to work after the accident and had suffered no loss of earnings as a result of it.

[11]On 17th November 1999 a legal aid certificate was granted to Mr Price, limited to obtaining further evidence and counsel’s opinion thereafter.

[12]On 4th January 2000 the claimant’s solicitors particularised their allegations of negligence for the first time. They also told the insurers that they wished to instruct a local consultant rheumatologist, Dr Gaffney, to prepare a medical report. Their letter was phrased in such a way as to make it clear that they were familiar with the provisions of the Pre-Action Protocol relating to the instruction of experts (Protocol, paras 3.14 to 3.19). The defendant’s insurers agreed to Dr Gaffney being instructed, and on 2nd February 2000 they wrote to the effect that negligence was accepted “subject to the sight of medical evidence which will confirm causation”. In the ordinary course of things it would have been expected that this admission of liability would have resulted in the disclosure of Dr Gaffney’s medical report, once it was ready (Protocol para 3.21). The defendant’s solicitor has said that at this stage up to £10,000 was being allowed by the insurers for the cost of a claim for a moderate back injury, and that their belief that there was no loss of earnings claim influenced their decision on the value of the claim and the extent of any investigations that were required.

[13]The defendant’s insurers knew nothing more about the matter for over 14 months, when the claim form, issued on 4th April 2001, was served by the court. This stated, unexpectedly, that the value of the claim was expected to exceed £50,000. As I have already said, the particulars of claim were not served with the claim form. Nor were they served 14 days afterwards, as required by CPR 7.4(1)(b). It now appears that the claimant’s legal aid certificate had not been extended to cover the issue of proceedings, and that his solicitors had no medical evidence to substantiate a claim by their client on the scale which he wished to present. On 8th May 2001 the defendant’s insurers wrote to the claimant’s solicitors in the following terms:

“I note that medical evidence was being obtained by Dr Carl Gaffney, Consultant Rheumatologist, and await this report by return now please. If the report is still not available, please confirm when you anticipate being in a position to disclose it, and please provide us with an update as to the Claimant’s recovery from his injuries. We would also be grateful if you could detail without prejudice if necessary, what Special Damages are being claimed in respect of this claim, although we note that you have issued proceedings on this case. What is the situation regarding your Client’s employment? If still off work, when is a return to employment likely? From the enquiries we were able to undertake via our insured, it appears that your Client was earning £60 per week, and if this is indeed the case we cannot see how we are concerned with a claim where losses are likely to exceed £50,000 as per your Claim Form, but would appreciate clarification. We look forward to hearing from you as soon as possible please.”

No reply was received, and on 3rd July 2001 the insurers sent a chasing letter. We look forward to hearing from you as soon as possible please.”

[14]It now appears that all the necessary notes and records had been made available to Dr Gaffney by 24th May 2000. He then asked for further records, and in September 2000 he recommended a MRI scan, which was performed in November 2000. The claimant’s solicitor has said that he did not receive a copy of the scan until January 2001, and, without giving any details at all, he asserts that there followed a further lengthy delay because of the doctor’s failure to respond to a request for further comment. The procedure envisaged by the Pre-Action Protocol had completely broken down, presumably because Dr Gaffney was giving unwelcome advice. The claimant’s solicitors did not tell the defendant’s insurers (or their solicitors, who were first instructed when the claim was served) what was going on. Instead, they told them, by a letter dated 11th July 2001, that counsel had now been instructed to advise the Legal Services Commission as a preliminary to receiving authority to settle particulars of claim. It appears that they had received this advice by 2nd August, because they told the defendant’s solicitors by a letter of that date that they were now seeking authority for the extension of the legal aid certificate.

[15]There followed a short exchange of correspondence in which the defendant’s solicitors were contending, wrongly as it turned out, that it was not possible to obtain an extension of time for service of particulars of claim. This dispute had been cleared up by mid-October, however, and they certainly did not at any time agree expressly or impliedly to any extension. The judge was extremely critical, moreover, of the contents of a letter from the claimant’s solicitors dated 4th September 2001 in which they said:

“Having protected the position for limitation purposes we are not yet in a position to serve particulars containing medical evidence and a schedule but we are working towards that end.”

The judge said:

“… it seems to me that giving that reason was not consistent with the present requirements of being open and above board in conducting litigation. The main reason, of course, the reason behind the delay was seeking a second medical opinion. That was not communicated to the other side. In my judgment it plainly should have been. If they were seeking to instruct another doctor, consistent with the way the protocol operates (and I appreciate that the action has now started), it would seem to be the proper course would be to notify the other side, and to notify the name of the doctor and possibly as well give some explanation as to why a second doctor was being instructed, but certainly to provide the name of the doctor proposed to be instructed. That was not done.”

[17]In my judgment, the judge’s comments were justified. His thinking coincided with the approach of this court in Carlson v Townsend

[2001] EWCA Civ 511

;

[2001] 3 All ER 663

, another case in which a claimant’s solicitor did not like the advice given by a medical expert whose identity had been agreed with the other side and then sought to instruct a different expert without obtaining the other side’s agreement first.

[18]On 12th October 2001 the claimant’s solicitors told the defendant’s solicitors that as soon as they received the necessary authority from the Legal Services Commission they would issue an application for an extension of time to serve the particulars of claim. After further correspondence the defendant’s solicitors inquired on 13th November 2001 why particulars of claim had not been served with the claim form and whether the claimant’s solicitors were still attempting to obtain legal aid to cover their application. They received no reply, and had to send a chasing letter five weeks later. This chasing letter appears, at long last, to have prompted the claimant’s solicitors to make the requisite application to the Legal Services Commission on 20th December 2001, and the necessary extension of the certificate was granted eight days later. The certificate was formally amended to cover all steps up to trial on 21st January 2002.

[19]At some unspecified date counsel advised in consultation that “it was deemed essential to commission an up to date medical report”. On 24th January 2002 the claimant’s solicitors wrote:

“Our client now has legal aid to enable him to commission a full up to date medical report. Particulars of claim were not served with the claim form because of the absence of medical evidence, and we intend to ask the court to give permission for service of the particulars out of time with medical evidence to be served at a later stage when the reports become available. We confirm we have instructed Counsel to draft the particulars. Your clients have not been prejudiced in any way. There has been a provisional admission of liability subject only to proof of causation, and your clients have been well aware of the circumstances at an early stage.”

The judge commented in these terms:

“Although there is reference to a medical report and medical evidence, and the application being made for medical evidence apparently to be served even later than the particulars, there is not a breath of a hint that what is really going on is that they are not satisfied with the evidence of the doctor whom the defendants have agreed should be instructed, but are in fact instructing another doctor; indeed, the letter would tend to suggest that the delay is that they simply require a further report – an up-to-date report – presumably from Dr Gaffney, if that is the only doctor that was known about.”

[21]The letter dated 24th January provoked an understandable response on 30th January 2002:

“According to our client’s file you were proposing to instruct Dr Gaffney to prepare a medical report as long ago as January 2000. Our clients confirmed that they had no objections to you instructing that expert on 6 January 2000. Was a report obtained? If not, why not? We note that you state that our clients have not been prejudiced in any way. Please confirm how you know that to be the case. You will be aware that if this is a multi-track case that our clients are entitled to retract an admission of liability. In view of the close relationship between the owner of the business and the employee, that may well be the case. You should not therefore rely on the pre-proceedings admission when drafting the particulars of claim. Mr Price appears to have been in all respects a joint owner of the business and would therefore be as responsible for safety as Mrs Price. We note that you are preparing an application for permission for service of the particulars of claim out of time. We are not prepared to deal with that permission ex parte. Please ask for a hearing date with a time estimate of at least one hour.”

[22]The letter received no response. A chasing letter ten weeks later received the following terse reply on 16th April:

“We confirm a report was obtained from Dr Gaffney but our medical evidence is not yet finalised and for that reason we are still not ready to proceed. We note your observations regarding liability and the time to be allowed for a hearing of any application.”

[23]On 22nd March 2002, nearly three months after receiving the extension to the legal aid certificate and without notifying the defendant’s solicitors, the claimant’s solicitors had instructed a different consultant rheumatologist (Dr Hazleman) in place of Dr Gaffney. Against this background

the judge made the following comment on their letter dated 16th April:

“I am afraid I have to say that that letter comes as close to a blatant lie as one would ever fear to see in litigation correspondence.”

[24]On 29th April Dr Hazleman issued his report, in which he attributed the claimant’s continuing back problem, which he described as chronic and disabling, to the accident four years earlier. The claimant’s solicitors did not serve his report on the defendant’s solicitors when they received it. Instead the latter had to write a further chasing letter on 28th May. This received a stalling reply on 6th June 2002. Eventually on 29th July 2002 the defendant’s solicitors accepted service of an application for an extension of time to serve the particulars of claim, accompanied by a witness statement, Dr Hazleman’s medical report and a schedule of special damages, which revealed a claim for £548,170.

[25]The service of these documents, four years and three months after the relevant accident, constituted the first notification that the defendant’s solicitors had received:(i) That the claimant was saying that he had sustained a chronic and disabling back problem as a result of the accident;

(ii) That he had obtained a report from Dr Hazleman in addition to Dr Gaffney;

(iii) That Dr Hazleman supported the claimant’s claim;

(iv) That the claimant was maintaining that but for the accident he would have returned to the kind of management consultancy work he was doing up to 1994 (when he had moved to Cromer with his wife at the age of 40) and would probably have earned at a gross rate of £60,000 a year (instead of £60 a week) for the rest of his working life.

[26]This, then, was the material round which the claimant’s application for an extension of time was centred. In my judgment Judge O’Brien was correct to take the view that the order of the deputy district judge should not stand, even if not for the reasons he gave. It is not sufficient for an appeal court in a case of this kind simply to say that the order made in a lower court was wrong, if the case turned on the exercise of a discretion. I explained the governing principles in my judgment in Tanfern Ltd v Cameron-MacDonald

[2000] 1 WLR 1311

at paras 32-33. Another helpful way of describing the appellate function in relation to judicial discretion is to be found in the judgment of Lord Woolf MR in AEI Ltd v PPL

[1999] 1 WLR 1507

, 1523C-D:

“Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”

[27]The defect in the approach of the deputy district judge was that he did not address his mind to a number of the most important considerations set out in the check-list in CPR 3.9, so that he exercised his discretion without taking very material matters into account.

[28]Mr Heathcote Williams, who appeared for the defendant, sought to show us that Judge O’Brien did take a lot of the matters set out in CPR 3.9 into account, although he did not structure his judgment, which was given immediately the hearing ended, around that framework. In my judgment, however, there was considerable force in the submission made by Miss Studd, who appeared for the claimant, that his approach to items (h) and (i) on the checklist was either superficial or plainly wrong. These items read:

“(h) the effect which the failure to comply has on each party; and (i) the effect which the granting of relief would have on each party.”

[29]It is unnecessary to examine too rigorously the question whether “the effect of the failure to comply” refers narrowly to the immediate effect of failing to serve particulars of claim within 14 days. The main point which Miss Studd made was that the effect of granting relief would be to allow her client to have access to the court for the trial of his very large claim, which would otherwise be denied to him, whereas the effect on the defendant’s side would merely be that her insurers would have the inconvenience of mounting a defence to the claim on issues which were still susceptible of a fair trial, notwithstanding the huge delay. She also argued that any prejudice which might face the defendant’s advisers in having to defend this claim once they knew its details would not be significantly greater than those that would have faced them if they had received these details 15 months earlier.

[30]In my judgment the judge’s approach was indeed flawed in this respect. He does not appear to have taken into account the fact that the claimant would be barred from prosecuting what was represented as a valid claim for over £½ million if he denied him the relief he sought. Although he weighed in the balance the prejudice to the defendant, he did not clearly weigh in the balance the prejudice to the claimant. In these circumstances he left out of account an important feature of the case which he ought to have considered. In the circumstances this court will have to exercise its discretion afresh.

[31]On most of the factors enumerated in the CPR 3.9 checklist, the argument tends strongly in favour of the defendant but not sufficiently to warrant the claimant being denied access to the court completely if this was his first default following the institution of proceedings. Thus: (b) The application for relief was not made promptly. It was made disgracefully late; (c) The failure to serve particulars of claim within the prescribed time was intentional: it was not an inadvertent oversight; (d) There was no good reason for the failure to serve particulars of claim within the prescribed time. The claimant’s solicitor told the deputy district judge that the trouble with Dr Gaffney’s report was not that it did not support a claim for damages for personal injuries but that it did not support a claim on the scale the claimant wished to present; (e) There had been two flagrant breaches of the pre-action protocol. No particulars of the financial loss nor the claimant’s injuries were notified in the letter before action, and the claimant’s solicitor entirely departed from the protocol once he or his client were dissatisfied by Dr Gaffney’s report; (f) We do not know the extent to which the failure to comply was dictated to the claimant’s solicitor by his client.

[32]No point arises about the trial date (g), and I have already explained why it is item (i) rather than item (h) on which our attention should really be focussed. So far as item (h) is concerned, the failure to comply meant that the claimant could no longer proceed with his claim without obtaining the defendant’s agreement or a ruling of the court granting him an extension of time, while the defendant was in the converse position that the claim could not proceed against her unless one or other of these events (in reality the second of them) occurred. This is why it is item (i) which is so much more important.

[33]The real tension here, therefore, is between the interests of the administration of justice and the effect which the granting of relief would have on each party. Other relevant considerations tend strongly in favour of the defendant. Can the fact that the claimant is being denied access to the court (with all its

ECHR Article 6(1)

implications) drive the balance down the other way?

[34]I summarised the effect of relevant Strasbourg jurisprudence in this area when delivering the judgment of the court in Woodhouse v Consignia plc

[2002] EWCA Civ 275

at [43] – [44];

[2002] 1 WLR 2558

, 2559. I said:

“43. Provided that judges make their decisions in these cases within the general framework provided by CPR 3.9 and 1.1, they are unlikely to fall foul of the ECHR in this regard. In Ashingdane v United Kingdom (1985) 7 EHRR 528 at [57], the European Court of Human Rights said: ‘Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’.’ 44. More recently the court emphasised the need for proportionality when it said in Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR at [72]: ‘… a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’” ‘Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’.’ ‘… a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’”

[35]It follows that if this court considers that a refusal of an extension of time in this case would be a proportionate response to the claimant’s failure to state clearly what he is claiming and the reasons underlying his claim, despite so many requests by the defendant’s insurers, his Convention rights would not thereby be imperilled because the concept of a fair trial betokens fairness to both sides.

[36]The interests of the administration of justice can best be identified in the present context by reference to CPR Part 1. CPR 1.1(2) carries within it the ideas that justice will best be achieved if:(a) the parties are on an equal footing;

(b) unnecessary expense is avoided;

(d) a case is dealt with expeditiously and fairly;

(e) an appropriate share of the court’s resources is allocated to it.

[37]By CPR 1.3 a claimant is required to help the court to further the overriding objective of being able to deal with his case justly. By CPR 1.4 the court is under a duty to further the overriding objective by managing the case actively.

[38]In his seminal judgment in Biguzzi v Rank Leisure plc

[1999] 1 WLR 1926

Lord Woolf MR made it clear that the new Civil Procedure Rules had ushered in a new regime, and that it was no longer useful to look back at decisions under the pre-CPR regime because that was a different regime. We no longer have to succumb feebly to the argument that a defendant was already so prejudiced that any further prejudice caused by a further long delay could not be regarded as significant. On an occasion like this we have to look objectively at the extent to which the defendant would be prejudiced if the case was allowed to continue, whether on the enlarged basis for which the claimant is now contending or at all, and then consider whether and the extent to which the claimant’s cumulative defaults have caused that prejudice. Our final duty is to decide whether it would be a disproportionate response to stop the case now by refusing the extension of time outright, or whether it may be possible to fashion a more proportionate response.

[39]In her respondent’s notice the defendant (in reality her insurers) articulated clearly the ways in which they would be prejudiced if the claim would be allowed to proceed. They say that the claimant’s conduct has deprived them of the opportunity to investigate at an early stage matters where documents may well be incomplete, lost or inapplicable, and where the recollection of former employers, colleagues and administrators may be crucial. They split their arguments into two parts. In the first they identified not only the issue whether the claimant had complained of back trouble prior to the incident at work (bearing in mind that complaints are not always made to doctors) but also how successful he had been in his management consultancy type work, and why he had left it, allegedly to take a job as his wife’s shop assistant at £60 per week. In the second they identified questions relating to the conduct of the Poppyland Headwear business: who was its true proprietor (and the employer), why this business failed (if it did), and whether the claimant had ever expressed any intention or plan of returning to management consultancy type work in due course.

[40]It is obvious that the parties are not on an equal footing now. All these matters are within the knowledge of the claimant. The defendant’s insurers have to start investigating them now, long after the claimant should have explained his claim to them. It is also obvious that the case cannot now be dealt with expeditiously. Nor will it be so easy to deal with it fairly in the light of the delay that has occurred.

[41]The claimant is in serious default in relation to his duty to help the court to deal with his case fairly. He has also made it impossible for it to manage the case actively because until he served his particulars of claim and the defendant responded to it, there was nothing for the court to manage. Although it would have been open to the defendant’s solicitors to incur the expense of seeking directions from the court, as suggested by Chadwick LJ in Totty, they were certainly not obliged to incur this expense, especially where the claimant’s solicitors were holding them at bay with statements which turned out to be some way distant from the whole truth.

[42]In my judgment this is a case in which this court has to say “enough is enough”, and like the judge (though for different reasons) to refuse the extension of time sought, unless it were possible to impose conditions on any order for an extension. There are just too many considerations pointing in favour of the defendant to allow the claimant’s right of access to a court for the purpose of prosecuting his enlarged claim to trump those considerations on the facts of this case. It is not only that he (or his advisers) failed to comply with the pre-action protocol, and that he (or they) failed to serve the particulars of claim within the time prescribed by the rules or to answer the questions asked of them often more than once. It is also that the defendant’s insurers (and, in turn, their solicitors) acted impeccably throughout this history in seeking the information they needed to evaluate the claim properly with a view to resolving it, if possible, without the need for the expense of court proceedings at all. In other words, they complied with their CPR 1.3 duty: the claimant did not. The result was that the court was deprived of the opportunity of managing the case actively in pursuance of the overriding objective by reason of the claimant’s defaults, and it would not now be possible to deal with the case in a manner that is fair to both sides if the court simply extended time unconditionally.

[43]There is, however, a route available by which the court could do effective justice to both sides. The operation of CPR 3.1(2)(a) and 3.1(3)(a) give the court power to extend time for compliance with a rule subject to conditions. In Walsh v Misseldine (CAT 29th February 2000) this court made effective use of this power, which needs to be more widely used on appropriate occasions.

[44]In that case the claimant was claiming damages for injuries suffered in 1989 in a very serious road traffic accident. His claim was pursued effectively, if very slowly, until 1994, but a four-year delay then ensued. The claimant then sought to enlarge his claim greatly by introducing a lot of new issues of which the defendant’s insurers had no notice when they calculated the value of the claim in the early 1990s for the purposes of a payment into court. Four paragraphs in my judgment (with which Stuart-Smith LJ agreed) are relevant in the present context:

“86. It is also quite clear that it would not be possible or fair to conduct a trial of the additional issues Mr Walsh’s advisers sought to introduce into his case in August 1999. Their predecessors had had their opportunity to set out his case in 1993 and early 1994, and they did not take it. It would be wrong to allow them to amend their schedule of loss now to include a whole lot of new issues dating back over the previous seven years. In my judgment the defendant’s insurers were entitled to say that it would be unjust to expose them now to an inquiry into the reasons why Mr Walsh was made redundant in June 1992 and to a claim that any loss of income he sustained after that time must be ascribed to the effects of his 1989 accident. 89. In deciding what order to make on the defendant’s application, we now apply a new procedural code which was designed with the overriding objective of enabling us to deal with the case justly. So far as practicable, we must ensure that it is dealt with fairly. 90. It would not be fair to expose the defendant now to a claim which incorporates all the additional items the claimant sought to introduce into it for the first time in August 1999. On the other hand, since his claim, as formulated at the time the court gave directions in January 1994, could still be justly assessed today, it would not be fair to dismiss his action altogether. This would entail permitting the negligent defendant to retrieve all the money his insurers paid into court, ordering repayment of the interim payments made between 1991 and 1993, and directing the claimant to pay the defendant his costs of the entire action, as District Judge Rhodes ordered on 22nd June 1999. This type of order had to be made under the former “all or nothing” regime. It is no longer obligatory to make such an order today, if it would be unjust to do so. 91. In my judgment, it would not be just to strike out this statement of case under CPR 3.4(2) in these circumstances. By the same token, it would not be just to allow the claimant to enlarge his pleading or his schedule of special damages in any way, or to allow him to serve a witness statement or to give any evidence which goes in any way beyond what he is reported to have told his doctors and the other medical experts in the reports which culminated in Mr Shepherd’s report in 1994 (if the defendant wishes to rely on that undisclosed report). He may of course rely on his pleaded case, which will sound in general damages, that by reason of his injuries he is at a disadvantage on the open labour market. The action should be allowed to proceed to trial on that basis, and subject to the condition, which will form part of the order of this court, that the judge assesses the compensation which would have been payable to Mr Walsh at a trial conducted on 15th March 1995 and that he is not entitled to any interest on those damages between that date and the date of this court’s order allowing his appeal.”

[45]It appears to me that it is possible to adopt a similar approach in the present case. It is very important that this court should not relax the disciplinary framework created by the Civil Procedure Rules in a case like this. On the other hand to bar the claimant from pursuing his claim as it stood in April 2001, when the particulars of claim should have been served, would be a disproportionate response and would give the defendant’s insurers an unjustified windfall.

[46]I would therefore allow this appeal by extending the time for the service of the particulars of claim on condition that no claim is made for special or general damages other than what may be substantiated by any pre-April 2001 written report by Dr Gaffney which the claimant may care to disclose in support of his claim. The court will hear counsel as to the precise wording of the requisite condition. The order for costs made by the circuit judge should stand, and I would direct that the claimant pay the defendant the costs of this appeal (on the usual public funding terms), such costs to be available for set off against any damages the claimant may recover in this action. If the claimant wishes to proceed with his claim on this condition, the particulars of claim must be filed by 24th July 2003 [28 days from the date this judgment is handed down].

[1]That the claimant may serve particulars of claim but only on condition:(a) That in this action the claimant may only claim such injury as is substantiated by the medical evidence received by the claimant’s solicitor from Dr Gasney prior to April 2001 and losses consequential on such injury; and

(b) That the claimant files and serves the particulars of claim claiming such injury and loss together with the said medical evidence and a schedule of such loss by 22nd July 2003.

[2]The costs order made by Judge O’Brien in the court below do stand.

[3]The claimant pay the defendant the costs of this appeal to be subject of detailed assessment if not agreed.

[4]Save that the defendant may set-off the amount of such costs against any damages or interest which the claimant may recover, the determination of the claimant’s liability to pay such costs and any application by the defendants for an order for payment of such costs by the legal services commission under section 18 of the legal Aid Act 1988, alternatively under Regulation 5 of the Community Legal Services (Cost Protection) Regulations 2000 be referred to a costs judge in accordance with regulation 10 of the community legal services (Costs) regulation 2000.

[5]The claimant’s cost of the appeal be the subject of detailed assessment in accordance with the community legal services (Costs) Regulations 2000. (Order does not form part of the approved judgment)

Order

The appeal is allowed to the following extent, namely:

Cited in 20 later judgments

and 11 more of the most senior