(In this YAWS version a few editorial alterations have been made to the description of the CPR and Practice Directions, eg references to Part 3.8 have been changed to Rule 3.8, to ensure consistency with the remainder of the site.)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE HEPPEL QC)
Royal Courts of Justice
Strand,
London, WC2 A 2LL
5 April 2004
LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE CLARKE
and
LORD JUSTICE JACOB
Flaxman-Binns
Appellant
- and -
Lincolnshire County Council
Respondent
| Lord Phillips, MR : | |||||||||||||||||||||||||||
| This is the judgment of the court. | |||||||||||||||||||||||||||
| 1. | Before the introduction of Lord Woolf's reforms, the speed with which an action proceeded towards trial was, to a large extent, in the hands of the claimant. This is no longer so. Under the new Civil Procedure Rules ("CPR") the judge controls the progress of proceedings. The CPR include a transitional measure designed to bring under judicial control actions commenced prior to the imposition of the Rules. CPR 51.1 provides:- | ||||||||||||||||||||||||||
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| PD 51.19 provides:- | |||||||||||||||||||||||||||
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| 2. | This appeal relates to an action subject to an automatic stay under PD 51.19. The action was commenced as long ago as 18 January 1993, by the claimant's mother, as a Next Friend, when the claimant was 13 years of age. The claimant alleges that he has suffered damage as a result of the defendant's negligence in the performance of its duties towards him as his Local Education Authority. He has a serious speech impediment, which has, on the evidence, blighted his life. He contends that, had he received appropriate therapy as a child, this would have enabled him to learn to speak normally, or at least more normally. | ||||||||||||||||||||||||||
| 3. | On 22 September 2003 the claimant applied to lift the automatic stay on his action. On 28 October 2003, in a reserved judgment, HH Judge Heppel QC dismissed his application and, in consequence, dismissed his claim. He now appeals against that judgment with permission given by Ward and Jonathan Parker LJJ on 27 February 2004. | ||||||||||||||||||||||||||
| The facts | |||||||||||||||||||||||||||
| 4. | We shall adopt the earlier part of the summary of the material facts of Judge Heppel, correcting some errors which are not significant. | ||||||||||||||||||||||||||
| 5. | The claimant was born on 7 March 1979. In 1984, when he was five, concerns were first expressed about his lack of educational progress and his behaviour, and he was referred to experts; that is to say a psychologist and a speech therapist. Over subsequent years he was entered into and withdrawn from several schools. His education was a matter of running concern between his parents and officers of the defendant authority. | ||||||||||||||||||||||||||
| 6. | In 1989, his parents complained to the ombudsman about the way in which the defendant was approaching the claimant's education. On 27 September 1990, the ombudsman reported that there had been maladministration on the part of the defendant in relation to the exercise of its duty to the claimant in respect of the claimant's educational needs and, in particular, considered that a further report from a Mr Dew, a psychologist, should have been made available in time for a suitable school to be found for the claimant in the autumn term of 1987. | ||||||||||||||||||||||||||
| 7. | Meanwhile, on 18 January 1990, a final statement of educational needs was issued confirming Holly House in Sussex as an appropriate school. Mr Flaxman-Binns attended there for a time. In July 1991, the panel considered that Marshall College would have been better for him, and he was admitted to that establishment in September 1991, but withdrawn by his parents in July 1992. | ||||||||||||||||||||||||||
| 8. | For the next academic year he was taught at home by his mother, attending a comprehensive school on a part-time basis. On 18 January 1993, the writ in these proceedings was issued and on 8 March of that year an acknowledgement of service was filed by the defendant. At that time, | ||||||||||||||||||||||||||
| 9. | On 29 June 1995, the speeches of the House of Lords in | ||||||||||||||||||||||||||
| 10. | On 30 January 1998, a defence was served, again drafted by leading and junior counsel. It ran to no fewer than 38 paragraphs, and referred to a number of reports compiled in respect of the claimant over the years. Also in January 1998, a request for further and better particulars of the statement of the claim was served. This was a pleading running to some 15 pages and, essentially, asked the claimant to clarify what his case was on who should have done what and when so far as the defendant and its servants or agents were concerned. | ||||||||||||||||||||||||||
| 11. | On 6 May 1998 the Master made an order striking out a paragraph in the statement of claim in which the claimant sought to rely on the favourable determination of the ombudsman, to which we referred earlier. He also gave directions, which included an order that the claimant serve the further and better particulars of his statement of claim, as requested by the defendant, by 22 May 1998. | ||||||||||||||||||||||||||
| 12. | On 16 June the claimant, having attained the age of 18, adopted the action as his own. On 23 July 1998 the claimant's legal aid certificate was withdrawn. An appeal to the Legal Aid authorities against that decision was dismissed on 27 August 1998. The claimant then obtained permission to seek judicial review of the Legal Aid authorities' decision. A number of extensions of time for filing further and better particulars of the statement of claim were granted, but the claimant failed to comply with these, with the consequence that, on 9 November 1998 the action was struck out. | ||||||||||||||||||||||||||
| 13. | The claimant appealed against the strike-out and, on 16 December 1998, Garland J allowed his appeal. | ||||||||||||||||||||||||||
| 14. | After he had given judgment Garland J considered what directions it was appropriate to give. He was told of the claimant's application for judicial review of the decision to withdraw his legal aid. He directed that the action be stayed pending the outcome of the judicial review proceedings. | ||||||||||||||||||||||||||
| 15. | On 19 February 1999 the claimant reached an agreement with the Legal Aid authorities under which he withdrew his application for judicial review on terms that his claim for legal aid would receive fresh consideration. By that time the Court of Appeal had allowed the defendant's appeal in | ||||||||||||||||||||||||||
| 16. | The claimant did not inform the defendant of these developments and took no further action at this stage. On 25 April 2000 the action was automatically stayed pursuant to PD 51.19. The claimant was not aware of this practice direction or of its effect. On 27 July 2000 the House of Lords allowed the claimant's appeal in | ||||||||||||||||||||||||||
| 17. | On 23 January 2001 solicitors for the defendant wrote to the claimant, saying that as nothing had been heard from him since December 1998 they assumed that he had abandoned his action and that an application would be made to have it dismissed. This led the claimant to instruct his present solicitors, Messrs McKinnels of Lincoln. On 25 January Mr Hardy of that firm wrote to the defendant saying that they were seeking public funding and transfer of the documents from the claimant's previous solicitors. On 30 August 2001 public funding was restored, subject to McKinnels lodging contract documents as it was recognised that this was going to be a high costs case. On 20 December the defendant's solicitors were informed that legal aid had been restored, subject to contract, but it was not until 6 November 2002 that Mr Hardy lodged the necessary contract documents with the Legal Services Commission. On 20 February 2003 legal aid was authorised and the defendant's solicitors were informed of this. After further, somewhat desultory, correspondence between the respective solicitors, the claimant's application to lift the stay was issued on 10 September 2003. | ||||||||||||||||||||||||||
| Legal principles | |||||||||||||||||||||||||||
| 18. | CPR 3.9 provides:- | ||||||||||||||||||||||||||
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| 19. | In | ||||||||||||||||||||||||||
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| 20. | We would endorse this guidance, adding only the comment of Mance LJ in | ||||||||||||||||||||||||||
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| These transitional cases, where the court has to weigh up the effect of inactivity, are, we would hope, nearing their end. Each case involves consideration of its own particular facts. In each case the court is faced with finding the most just, or least unjust, solution in the light of what is likely to have been an unsatisfactory procedural history. We turn to consider the approach of the judge in the present case. | |||||||||||||||||||||||||||
| The judgment | |||||||||||||||||||||||||||
| 21. | The judge was scrupulous in following the approach recommended by Brooke LJ. He dealt at the outset with sub-paragraph (a) of Part 3.9:- | ||||||||||||||||||||||||||
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| 22. | The judge returned to the question of whether there could be a fair trial towards the end of his judgment. His conclusions were as follows:- | ||||||||||||||||||||||||||
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| 23. | In dealing with sub-paragraph (b) the judge had no difficulty in reaching the conclusion that the application for relief had not been made promptly. As for sub-paragraph (c) he concluded that the failure to take steps to avoid the automatic stay had not been deliberate but that the explanation for it was 'sheer inactivity'. Thus, turning to sub-paragraph (d), he concluded that there was no good explanation for the delay. Sub-paragraph (e) did not arise. | ||||||||||||||||||||||||||
| 24. | The judge devoted a substantial part of his analysis to sub-paragraph (f). He found that the claimant bore substantial personal responsibility for the delay that had occurred. He held that the claimant's conduct had to be viewed against the background of a case in which there had already been very significant delay and where Garland J's decision to allow the claimant's appeal against the striking out of his action had been a marginal one. | ||||||||||||||||||||||||||
| 25. | The judge held that, having got his action re-instated, the onus was on the claimant to 'get on with it'. His failure to bring the case before the court in the 12 months before 25 April 2000 led to the automatic stay. 'It cannot be said that anyone else was to blame'. The judge further held that the claimant was responsible for the period of inertia that followed up to the receipt of the letter of the 23 January 2001 from the defendant's solicitors. | ||||||||||||||||||||||||||
| 26. | Turning to the period between August 2001 and September 2003, the judge accepted that Mr Hardy was at fault in relation to most of this delay. He did not, however, absolve the claimant himself from blame in respect of this period. His conclusions appear in the following passage from his judgment:- | ||||||||||||||||||||||||||
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| 27. | The period to which these observations related was August 2001 to November 2002, but the judge went on to comment in respect of the 7 months up to the application to lift the stay: | ||||||||||||||||||||||||||
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| 28. | Dealing with sub-paragraph (h), the judge held that he could not evaluate the effect that the delay had had on the parties. The issue was very similar to the question of whether there could be a fair trial. As to sub-paragraph (i), the judge simply remarked that being deprived of the opportunity to litigate his claim to a conclusion would be a considerable disappointment to the claimant. | ||||||||||||||||||||||||||
| The issues | |||||||||||||||||||||||||||
| 29. | For the claimant, Mr ter Haar QC attacked the judgment on three fronts. First he submitted that the judge's finding that the claimant himself was personally responsible for the delay after December 1998 was unsustainable. Secondly, he submitted that the judge should have found that, to the extent that there was any impediment to a fair trial, this could not be attributed to this period of delay. Finally Mr ter Haar submitted that the judge had taken no account of the fact that his order was likely to result in undesirable satellite litigation, in the form of an action for professional negligence against the claimant's solicitors. | ||||||||||||||||||||||||||
| 30. | For the defendant, Mr Norman submitted that the court should be very slow to interfere with the exercise of discretion on the part of a judge responsible for case management. So far as sub-paragraph (f) was concerned, Mr Norman submitted that the judge had clearly appreciated the distinction between fault on the part of the claimant and fault on the part of his lawyer and could not be criticised for the weight that he gave to each. As for the prospect of a fair trial, it had been for the claimant to show that this had not been damaged by the delay. He had failed to do so. The judge's approach to that issue was not open to criticism. As for the judge's failure to advert to the likelihood of satellite litigation in the form of a claim against the claimant's solicitors, it was rarely appropriate for the judge to fuel further litigation by criticising the lawyers. | ||||||||||||||||||||||||||
| Conclusions | |||||||||||||||||||||||||||
| Fault on the part of the claimant | |||||||||||||||||||||||||||
| 31. | We do not think that any criticism should attach to the claimant for taking no step to prevent the operation of the automatic stay on 25 April 2000. At this stage he was a litigant in person and could not reasonably have been expected to be aware of the transitional provisions of the CPR. It was, moreover, reasonable to take no action until the decision of the House of Lords in | ||||||||||||||||||||||||||
| 32. | There followed a few months of unexplained delay before the claimant instructed McKinnels in January 2001. This could properly be laid at the door of the claimant. | ||||||||||||||||||||||||||
| 33. | The major period of delay occurred after Mr Hardy had begun to act on behalf of the claimant. The basis upon which the judge found the claimant to blame for delay during this period was that he had done nothing to press Mr Hardy to progress his claim. The judge held that he and Mr Hardy were preoccupied with a disability discrimination claim that the claimant was bringing against a potential employer. | ||||||||||||||||||||||||||
| 34. | When explaining why he had not refused permission to appeal when considering the case on the papers, Ward LJ said that what troubled him was a witness statement from the claimant's mother which explained that he was badgering the claimant's solicitor for his inactivity. Mr ter Haar very properly accepted that we should not have regard to this statement unless we gave him permission to adduce it as additional evidence. He submitted that he did not need this evidence, but asked us to admit it if we did not accept this submission. Mr Norman opposed the admission of this evidence. | ||||||||||||||||||||||||||
| 35. | The evidence adduced before the judge on behalf of the claimant consisted of a lengthy witness statement by Mr Hardy, together with exhibits. Mr Hardy took full responsibility for the delay that occurred after he had been instructed on 23 January 2001. He stated expressly that no blame could attach to the claimant for this delay and that the cause of the delay was entirely his own. In the light of this evidence we think that it is questionable whether it was open to the judge to make the assumption that the claimant was not 'chasing Mr Hardy' and to blame him for that. In her subsequent statement the claimant's mother stated that had she anticipated the need for it she would have provided Mr ter Haar with evidence of her efforts to get the claimant's case 'pushed forward'. We think that she and her son are not to be blamed for not anticipating the need for such evidence. In the circumstances it would be an injustice to prevent the claimant relying upon the additional evidence in order to demonstrate that the judge's assumption was unfounded and we shall have regard to it. | ||||||||||||||||||||||||||
| 36. | Mrs Flaxman-Binns' statement speaks of her efforts between August 2001 and August 2003 to get Mr Hardy to attend to her son's case, including frequent telephone calls and two meetings with his senior partner to complain about his lack of action. We are left in no doubt that the judge was wrong to assume that no efforts were being made by or on behalf of the claimant to chase Mr Hardy during the period of delay for which the latter has accepted full responsibility. | ||||||||||||||||||||||||||
| The consequences of the delay | |||||||||||||||||||||||||||
| 37. | We turn to the consequences of the delay that has occurred. The judge considered two separate, but overlapping questions: (1) Would a fair trial be possible? (2) What were the consequences of the delay that had occurred? He held that he was unable to answer either as the position would only become clear if and when the preparations for trial were much further advanced. | ||||||||||||||||||||||||||
| 38. | The definition of a 'fair trial' is by no means easy. It may be said that a trial will not be 'fair' if the evidence that is needed to make a confident resolution of some of the material issues is no longer available, and we suspect that this was the test that the judge had in mind when considering whether a fair trial would be possible. | ||||||||||||||||||||||||||
| 39. | This case raises difficult issues of liability, causation and measure of damage. It was likely to challenge the trial judge, whenever the hearing took place. Lengthy interruptions in preparation for trial were attributable to the fact that, in sequence, two test cases were making their way to the House of Lords. These delays will not have facilitated the task of assessing the evidence. It seems to us that the most material question in the present context is whether the unnecessary delay that has occurred since July 2000, when | ||||||||||||||||||||||||||
| Fresh exercise of discretion | |||||||||||||||||||||||||||
| 40. | The judge made it clear that the fault that he had found on the part of the claimant was a very material factor in his refusal to lift the stay on these proceedings. He observed:- | ||||||||||||||||||||||||||
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| 41. | With the assistance of the evidence from the claimant's mother, which was not before the judge, we have differed from his conclusion that the claimant was himself to blame for most of the unnecessary delay that occurred. The major fault lay fairly and squarely on his solicitor and on him alone. In these circumstances we have to exercise a fresh discretion. The fact that the delay was attributable to fault on the part of his solicitor rather than fault on the part of the claimant is a factor which weighs in the claimant's favour – see the comments of Mance LJ in | ||||||||||||||||||||||||||
| 42. | For these reasons we allow this appeal. | ||||||||||||||||||||||||||
| Order: Appeal allowed, that the Order of H.H. Judge Heppel QC dated 28th October 2003 be set aside and in lieu it is ordered: | |||||||||||||||||||||||||||
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| (Order does not form part of the approved judgment) |