Note: This file does not form part of the Ministry of Justice or CS sites. The files on those sites are the only official versions of the CPRs and related material. Please also note that the cross-references are not claimed to be comprehensive.

(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.)

Click here to reload this page into top frame


This Report is referred to in: Cank v Broadyard Associates [18], [18], Keith v CPM Field [36], [37], Robert v Momentum Services Ltd [14], Woodhouse v Consignia [38], [40], [40].
IN THE SUPREME COURT OF JUDICATURE
CCRT1 99/1245/B1

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

(HIS HONOUR JUDGE WAKEFIELD)

Royal Courts of Justice Strand London WC2 A 2LL

Thursday 2 March 2000

Before:

LORD JUSTICE ROCH

LORD JUSTICE BROOKE

MR JUSTICE FERRIS

HARDIAL SINGH BANSAL

Claimant/Appellant

- v -

DARBARA SINGH CHEEMA

Defendant/Respondent

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street, London EC4 A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

   MR I LAMACRAFT (Instructed by Messrs Aslam & Co, Gravesend, Kent, DA1 2RG) appeared on behalf of the Appellant
   MR T SEWELL (Instructed by Messrs Jennings Son & Ash, London, EC1 N 2ST) appeared on behalf of the Respondent
  
  
JUDGMENT
(As approved by the Court)
  
  
© Crown Copyright
1.   LORD JUSTICE ROCH: I will ask Lord Justice Brooke to give the first judgment.

2.   LORD JUSTICE BROOKE: This is an appeal by the claimant, Hardial Singh Bansal, from an order of Judge Wakefield at the Central London County Court on 27 August 1999, when he dismissed an application by the claimant for an extension of time for the exchange of witness statements from 3 August 1999 until 10 September 1999 and struck the claim out on the basis that it must fail if the claimant could not adduce any evidence at the trial.

3.   The writ in this matter was issued in the High Court on 12 December 1997. The claimant alleged in the original statement of claim that the defendant, Darbara Singh Cheema, did not honour his obligations under an agreement made by way of settlement of earlier court proceedings whereby, in consideration of the claimant withdrawing his claim in those proceedings, the defendant was obliged to transfer property in Gravesend and to pay £8,000 to him within seven days with ancillary default provisions at the end of the seven days and also at the end of 28 days.

4.   A defence was served on 26 January 1998. On 3 March 1998 Master Winegarten gave directions, one of which entailed the parties exchanging witness statements by 2 June 1998. Both parties defaulted on that order. On 27 October 1998 the claimant's solicitors stated that they would not be in a position to exchange statements for some time. The defendant's solicitors told them on 29 October that they were then ready to exchange.

5.   The action was transferred to the Central London County Court, after a considerable delay on the part of the defendant's solicitors, on 4 March 1999. The claimant amended his pleadings on 18 May 1999. On 17 June 1999 District Judge Langley conducted a case management conference. He directed that witness statements be exchanged by 4 August 1999, that the joint experts' report be delivered by 18 August, and that the trial of the action should take place on 15 November. The defendant's solicitors duly served their witness statements on 4 August 1999, but the claimant's solicitors did not.

6.   On 10 August 1999 the claimant's solicitors applied to the court for an extension of time for filing witness statements until 10 September and for permission to be granted for those witnesses to give evidence at the trial. The grounds for this application were that the claimant had had to leave the country urgently on 2 August and it was believed that he would be away for four weeks. In a supporting statement the claimant's solicitor explained that his client had failed to attend an appointment fixed in his office at 12 noon on Saturday 31 July. It had been arranged that he would approve or amend his statement which had been prepared for him before signing it and that he would also bring with him a witness, Mr Heer, so that a statement could be taken from him, too. There would also be a discussion whether a statement should be taken from a Mr Chokkar, a solicitor who was requiring payment at an hourly rate for any statement he contributed.

7.   On 2 August 1999 the claimant left a message with his solicitor's receptionist which simply stated that he had to leave this country that day in order to travel to India and that he would be there for three to four weeks. It was averred that if the application for an extension of time was granted, this would not prejudice the defendant or delay the trial date of 15 November.

8.   When the matter came before Judge Wakefield, the defendant's solicitor opposed the application. She said, however, that if the judge was minded to grant it, he should make it a condition of his order that if witness statements were not supplied by 10 September the claimant should be debarred from calling any evidence at the trial. She told the judge that witness statements should have been exchanged on 2 June 1998 and that there had been a number of delays on both sides.

9.   The claimant's solicitor told the judge that she did not know why her client had to leave for India, but she could only assume that the circumstances which had caused him to leave must be very urgent. She had not heard from her client since then and she was making this application in the hope that he would return.

10.   In a brief judgment the judge noted that there had already been considerable delay before District Judge Langley made his order. He had to assume that the client knew of the final date for exchange of witness statements and the importance of it, but he appeared to have removed himself to India for a period of time without signing his witness statement. In the circumstances, the judge said that he was afraid that he could see no good reason for extending time and dismissed the application.

11.   In the event, as appears from an affidavit which is before this court, the claimant was back in this country on 31 August when he approved and signed his witness statement. Mr Heer signed his witness statement on 10 September, so that if the judge had granted the extension sought, both witness statements would have been ready for exchange by that date. In his affidavit the claimant's solicitor has said that his client told him when he returned from India on 30 August that on Friday 27 July he had received news from India that his wife, whom he had recently married, was very ill there. He had applied for permission for her to join him permanently in the United Kingdom, and he was worried about her condition. It was as a consequence of this message that he had to arrange tickets and was unable to attend the appointment on the Saturday. He thought he had told the receptionist on the following Monday that his wife was ill, but he could not be sure about that.

12.   In submitting that the judge's order should be upheld, Mr Sewell has argued that, although the case was started under the previous rules, the claimant's application on 27 August fell to be decided under the Civil Procedure Rules. He has shown us CPR 32.10 which reads:

   "If a witness statement....for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission."

13.   Mr Lamacraft accepted that this constituted a sanction within the meaning of CPR 3.8 which provides that:

   "Where a party has failed to comply with a rule .... or court order, any sanction for failure to comply imposed by the rule .... or court order has effect unless the party in default applies for and obtains relief from the sanction."

14.   The matter is then governed by CPR 3.9 which I will read in full, so far as is material:

"(1)   On an application for relief from any sanction imposed for a failure to comply with any .... court order the court will consider all the circumstances including -

(a)   the interests of the administration of justice;
(b)   whether the application for relief has been made promptly;
(c)   whether the failure to comply was intentional;

(d)   whether there is a good explanation for the failure;
(e)   the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
(f)   whether the failure to comply was caused by the party or his legal representative;
(g)   whether the trial date or likely date can still be met if relief is granted;
(h)   the effect which the failure to comply had on each party; and
(i)   the effect which the granting of relief would have on each party.

(2)   An application for relief must be supported by evidence."

15.   Mr Sewell has shown us that the only evidence put forward by the claimant was the statement by the solicitor supporting the application he made to the court. It was fairly threadbare in relation to the reasons why his client had failed to comply with the court order, and was even more threadbare on the question whether he would comply with any extension of time that might be granted. The solicitor quite frankly admitted to the judge that she could only hope that her client would be back from India by 10 September, which was the extension she was requesting.

16.   In those circumstances Mr Sewell submits that the judge correctly exercised his discretion in refusing relief. He found that the claimant's default was intentional under (c); that no step was taken by the claimant to deal with the witness statement during the period prior or after the departure to India; that there was no good explanation for the failure under (d); and that the failure to comply was caused by the claimant himself under (f). He argues that, if an extension had been granted to the claimant, it would have disadvantaged the defendant who would have incurred further costs in preparing for a trial which might not take place. As the claimant was an assisted person, the prospect of recovering any costs from him was remote. It was urged upon us that we should not interfere with the discretion of the judge.

17.   It is well known that this court will not interfere unless the judge is clearly wrong, has misdirected himself in law or has failed to take into account some material matter which he ought to have taken into account. In the face of an unexplained and deliberate flouting of a court order, without any assurance that the default would actually be corrected within the period of any extension granted, Mr Sewell submitted that it was inevitable that the judge would refuse the application and, as a result, strike out the action because the claimant would not be allowed to adduce any evidence. He submitted that, in the circumstances, the possible alternative course of imposing a costs sanction was not realistic.

18.   In his submissions Mr Lamacraft initially sought to refer us to the well known case of Mortgage Corporation Ltd v Sandoes [1997] PNLR 263 in which Millett LJ and Sir Christopher Slade made certain observations about the way the court should set about considering an application of this kind under the old rules. In my judgment there is no value in going back to look at cases decided under the old rules. The new Civil Procedure Rules set out in a clear form the matters which a judge should take into account in exercising his discretion on an occasion like this. One of the virtues of the new rules is that he does not have to go back again and again to substantial authorities decided under the old rules.

19.   Mr Lamacraft submits that the judge's order was very nearly the harshest order that he could have made. There had been no previous serious or persistent default by the applicant. a matter to which Lord Woolf referred in Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926. The judge should not have acted so peremptorily. The order that he should have made was an order to the effect that if the witness statement was not delivered and served by 10 September 1999, the action should be struck out.

20.   Mr Lamacraft also referred us to matters which were not before the judge. There was a linked action brought by a Mr Nerdev Singh Mangat against the claimant in this action which was connected with the same dispute. The dispute goes back to the arrangements by which a property in Gravesend was purchased a long time ago by the present claimant (who used to be a factory worker who dabbled in property development by refurbishing and selling houses) and the present defendant (who was an accountant who provided the finance) and Mr Mangat, a solicitor, who also provided a small amount of finance in connection with that venture.

21.   Two earlier sets of proceedings were compromised at about the same time. In the present proceedings allegations were made that in relation to Mr Mangat the present claimant for his part, and in relation to the present claimant, the present defendant for his part defaulted in their obligations under the compromise agreements. It is now said, although the judge was not aware of it, that a statement had been prepared for the present claimant in the Mangat action, which was virtually the same as that which was still in draft on 31 July in connection with this action. However that may be, those matters were not before the judge. The Mangat action did in fact go ahead and judgment was given for Mr Mangat in the sum of £3,000 plus interest in November 1999.

22.   The principal ground which is urged upon us by Mr Lamacraft today is that the judge failed to take into account all the matters which he was under an obligation to take into account under CPR 3.9(1). In my judgment Mr Lamacraft had made a good point. Although Judge Wakefield gave an ex tempore judgment, it is essential for courts, exercising their discretion on an occasion like this, to consider each matter listed under CPR 3.9(1) systematically in the same way as it is now well known that courts go systematically through the matters listed when an application is made for the exercise of the court's discretion under section 33 of the Limitation Act 1980Acts. In the present case there is no sign in the judge's brief ex tempore judgment that he took into account the matters which he was bound to take into account under the rules which are set out in CPR 3.9(1)(g), (h) and (i).

23.   So far as (g) was concerned, he had the option of making the order that he did make, or making an order of the type I have suggested, to the effect that unless a witness statement was served by the 10 September the action should stand struck out. If he had faced up to that choice, he would have seen that a trial date would still be met. It was not being suggested by the defendant's solicitor that it would not be met.

24.   Mr Sewell has argued that a disadvantage in taking this course was that Mr Lamacraft's client might have made a yet further application in the second week of September for a further extension, but that further application, even if legal aid had been appropriate, would have stood to be considered anew under CPR 3.9(l) and might well have received short shrift.

25.   Under CPR 3.9(1)(h), the effect which the failure to comply has had on each party, it has not been suggested that the failure to serve the witness statement by 4 August had any very serious effect on the defendant, or that it would make much difference if it was not served until 10 September.

26.   So far as the effect which the granting of relief would have on each party (CPR 3.9(1)(g)), if relief was not granted the defendant would have the unsolicited windfall that this substantial action against him would be dismissed. On the other hand, this would have been an unsolicited windfall, particularly as the judge did not know when he made the order why it was that the claimant had suddenly had to go to India. The effect of the refusal of relief would clearly have a catastrophic effect on the claimant whose action would have been struck out. He would also face the Mangat action without being able to compensate himself from any money that he might have succeeded in recovering from the defendant. There is no sign at all that the judge took that into consideration.

27.   I am always very reluctant for this court to interfere with a decision made by a judge in the exercise of his case managment powers under CPR Part 3. The responsibility for managing these actions is given fairly and squarely to the judge. The role of the Court of Appeal should only be seen as a longstop, to be called in aid when things appear to have gone seriously wrong. If the judge had systematically gone through the list of matters he had to take into account under CPR 3.9(1), and come to the conclusion that the order he was making was a just order, it would be very difficult for this court to interfere with it, because he would manifestly have taken into account all the matters he was obliged to take into account. A circuit judge in a busy court like the Central County Court would have much greater experience of the problems and difficulties of controlling litigation in that court than this court necessarily has.

This Paragraph is referred to in: Cank v Broadyard Associates [18].

28.   I am of the clear view, however, that on this occasion the judge did not do what the rules required of him, and that a substantial injustice was done as a result. Accordingly this court should interfere. Given that the witness statement has now been served, I would be disposed to allow the appeal and direct that the witness statements do stand as served and make any further directions counsel may consider is appropriate after my Lords have given judgment.

29.   MR JUSTICE FERRIS: I agree.

30.   LORD JUSTICE ROCH: I also agree.

Appeal allowed. Case to be referred back to the District Judge for directions. No order as to costs of the appeal. Legal Aid assessment.