Click here to reload this page into top frame

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PLYMOUTH COUNTY COURT

(His Honour Judge S Overend)

Royal Courts of Justice

Strand

London WC2

Tuesday, 11th July 2000

Before:

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE BROOKE and

MR JUSTICE GAGE

SUSAN CAROL KEITH

Claimant/Respondent

-v-

C P M FIELD MARKETING LIMITED

Defendant/Appellant

Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited

190 Fleet Street London EC4 A 2AG

Tel: 020 7421 4040 Fax: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr S Snowden (instructed by Messrs Berrymans Lace Mawer, London EC2) appeared on behalf of the Appellant Defendant.

Mr R Mawhinney (instructed by Messrs Wolferstans, Plymouth) appeared on behalf of the Respondent Claimant.

JUDGMENT

(As Approved by the Court)

©Crown Copyright

1.	LORD JUSTICE SWINTON THOMAS: Lord Justice Brooke will give the first judgment.
2.	LORD JUSTICE BROOKE: This is an appeal by the defendants, C P M Field Marketing Limited, against an order made by Judge Overend at a case management conference at the Plymouth County Court on 29th February 2000, when he refused the defendants' application to extend their time for compliance with an unless order made by District Judge Corrigan on 16th November 1999 (as amended on 12th January 2000) and directed that the defence be struck out and that judgment be entered for the claimant for damages to be assessed. The judge directed that the trial of the assessment of damages should take place on 16th October 2000. One day was set aside for it. He permitted the claimant to file an amended schedule of special damages and updated medical evidence by 20th April 2000, and he also granted her permission to call expert evidence from a consultant orthopaedic surgeon and a consultant ergonomics expert, as well as adducing a written accountant's report. Apart from permitting the defendants to file a counter-schedule of special damages by 7th May 2000 and to attend the trial of the assessment of damages and cross-examine, the defendants were not permitted by the judge's order to take any further part in the proceedings.
3.	The summons in this matter was originally issued out of the Plymouth County Court on 30th January 1998, and the particulars of claim were served with the summons. They showed that the claimant was employed by the defendants and their predecessors as a sales adviser between 1st September 1987 and 27th October 1995. During the course of her employment she was required to visit retail outlets in the Plymouth area for the purpose of promoting the sales of Mars confectionery. She worked from 9.00am to 3.00pm four days a week, and she had to visit at least 16 retail outlets each day. She says that she had to carry three items on each visit to a retail unit. The first was a presenter, which is a large folder containing documents, which weighed up to 4.5 kilograms. The second was a briefcase containing further documentation, which weighed 8 kilograms. The third was a box or boxes of stock, namely confectionery. Each box of stock weighed 3 kilograms. She also said that once every four weeks she attended a meeting at which she would be given stock and samples for the following four weeks. These would normally consist of boxes each containing 48 Mars bars and a box and gifts for retailers. After each meeting she carried the boxes in cases containing four boxes each to her car, and then from her car into her home for storage. Each case weighed 12 kilograms.
4.	Unfortunately, during 1995 she suffered injuries to her back, including a prolapsed disc, which she attributes to the defendants' negligence and breach of the Manual Handling Operations Regulations 1992. She claimed damages in excess of £100,000 but limited to £150,000.
5.	The defence, served on 13th March 1998, was singularly uninformative. No admissions were made as to any of the factual averments, and all allegations relating to negligence, breach of statutory duty, pain, injury, loss and damage were denied. On 14th April 1998 the defendants' list of documents was served. On 1st July 1998 the claimant's solicitors identified three additional categories of documents which they said were relevant. On 14th August 1998 the defendants' solicitors told them that loss adjusters had now been instructed on their side who had been asked to obtain these documents. They were not forthcoming, and on 13th October 1998 the claimant's solicitors agreed with the defendants' solicitors that they would be entitled to an order for specific discovery in this respect at a forthcoming hearing, when directions for the timetable for the exchange of lay witness evidence and medical and non-medical expert evidence would be given. An order to this effect was made the same day. On 10th November 1998 the defendants served a supplemental list of documents in pursuance of that order. On 8th March 1999 a further order was made in relation to the timetable for an updated schedule and counter-schedule of special damages. This timetable embraced the next 11 weeks, and the pre-trial review was adjourned to the first open date after 10 weeks.
6.	It appears that the claimant had a conference with counsel and an ergonomics expert in about June 1999, and on 2nd July 1999 her solicitors told the defendants' solicitors that they required, by way of further discovery, a full set of the equipment provided to their client at the time of her employment and a full set of the enclosed documentation. They said that the reason for this was to give their engineer an opportunity to weigh the equipment. The equipment was not particularised in any way.
7.	By a reply dated 20th July 1999 the defendants' solicitors told the claimant's solicitors that they were authorised to admit the breach of statutory duty pleaded against their clients, but that causation and quantum remained in dispute. They proffered a signed consent order to this effect. I understand that the parties' solicitors were unable to agree on the precise wording of that consent order, and that matter remains outstanding to this day.
8.	On 23rd July 1999 District Judge Tromans gave further directions leading up to a pre-trial review on 16th November. He ordered that the defendants' solicitors, by way of further disclosure, should present to the claimant's solicitors what was described as the "information referred to in the correspondence of 2nd July 1999". Permission was given to the parties' engineers to provide addendum reports once this was done, such reports to be exchanged on or before 30th October.
9.	On 29th July 1999 the claimant's solicitors asked the defendants' solicitors if they would provide them with a list of the equipment that was available for their engineer to weigh. They now said they would also require sample stock. On the same day the defendants' solicitors appear to have written to their clients for the first time about the matters requested on 2nd July. They listed ten items of equipment and asked if they could be sent to them in time for a conference on 15th August.
10.	Mars apparently raised objections about the confidential nature of the information held within the briefcase and the presenter, and on 6th August the defendants told their solicitors that all the objects described by them would be available for them to see at their offices in Thame during the week commencing 14th August. The confidentiality problem seems to have been sorted out, and on 26th August the defendants' solicitors told the claimant's solicitors that they now had the equipment in their possession. Shortly afterwards they sent it to the claimant's solicitors. This appears to have consisted of a briefcase packed with documents.
11.	On 8th September 1999 the claimant's solicitors said that they had examined the briefcase and its contents, but they still required a lot of items which were missing from the briefcase. They also said that in the summer their client had to carry further equipment, including wire baskets for freezers, which does not appear to have been mentioned before. They made a new request for the supply of five further items of equipment in this context so that their engineer could weigh them. On 13th September the defendants' solicitors forwarded this request to their clients. On 23rd September the defendants sent their solicitors a letter enclosing their detailed comments on the claimant's solicitors' list. Against some of the items they said that the item in question had been ordered from Mars. Against some of them they said that that item was no longer available or was no longer made. Against some of them they made comments like "should not be carried in bag" or "would only be kept in car".
12.	On 13th October the defendants' solicitors sent the claimant's solicitors a copy of their clients' comments. They said that the equipment requisitioned from Mars would be sent by their clients to the claimant's solicitors direct, and they asked if it could be returned to them once the claimant's solicitors had finished with it.
13.	On 11th November 1999 the claimant's solicitors sent a listing questionnaire to the court in preparation for the scheduled pre-trial review. They asserted that a large amount of equipment was missing from the briefcase supplied to them on 30th August 1999 and that, although they had written about this topic on 8th and 24th September, none of the outstanding equipment had been provided, notwithstanding the terms of the defendants' solicitors' letter dated 13th October. They therefore sought an order to the effect that, unless the defendants served the outstanding equipment requested in these two letters within seven days, the defence should be struck out. On the listing questionnaire they said that the evidence of the parties' medical experts were poles apart. The defendants' solicitors agreed most of the directions sought, but suggested that the defendants should be ordered to serve the outstanding equipment within 21 days of the hearing.
14.	The defendants' solicitors instructed local agents at Plymouth to attend the pre-trial review, which was conducted by District Judge Corrigan on 16th November. His order set a timetable of the events which were to take place in preparation for a pre-trial review on 29th February before the circuit judge who was to hear the case. He did not fix a trial date at the express request of the claimant's solicitors. In other words, no arrangements for fixing a date for a trial involving a number of experts on each side were now to be made until the matter came before the prospective trial judge on 29th February.
15.	Paragraph 1 of District Judge Corrigan's order was originally ineptly drafted, so that it omitted the word "unless". It had to be amended under the slip rule on 12th January 2000. It then read: "Unless the Defendants do serve the outstanding equipment requested in the Claimant's Solicitor's letters of 8 September 1999 and 24 September 1999 within 21 days, the Defence be struck out. The Director of the Defendant company do provide a statement to confirm the discovery given by the Defendant is complete."
16.	It is notable that the expression "within 21 days" was used without making it clear when time was to start running, and no requirement was set out as to the date by which the defendants' director should provide the requisite statement. It is within the knowledge of this court that sloppy preparation of county court orders is sometimes liable to give rise to difficulties when one of the parties seeks to enforce the order.
17.	On 18th November 1999 the defendants wrote direct to the claimant's solicitors purporting to enclose all the outstanding items, along with a list detailing those items. They apologised for the delay. They appear to have received from Mars all the items they had ordered from them, with the exception of a single sheet of Malteser labels which were said to be missing.
18.	On 3rd December 1999 the claimant's solicitors complained that the defendants appeared to be unprepared to disclose items of equipment because they thought that they were not relevant or that they should not have been carried. The full inter-party correspondence that took place in December is not before the court. On 8th December 1999 the defendants' solicitors wrote a letter to their clients' insurance representatives, Property and Casualty Services, asking them to liaise directly with their clients with a view to obtaining the outstanding equipment as soon as possible, and in any event no later than 15th December. They also sent the claimant's solicitors a copy of this letter. It appears that some further items were provided on 6th December.
19.	On 10th January 2000, after the Christmas break, the claimant's solicitors wrote to the defendants' solicitors acknowledging the obvious efforts that they, the solicitors, had undertaken to obtain full discovery from their clients. They said that they would now take instructions from their client with respect to the contents of the further discovery. On 31st January 2000 they wrote again (this was nearly two months after the items sent on 6th December had been supplied), saying that, in addition to the equipment which the defendants had listed as unavailable, nine items were still missing.
20.	On 3rd February 2000 the defendants' solicitors responded to that letter. Their response could be divided under a number of headings:
	(1)   Items which had been sent to the claimant's solicitors in November 1999 but which had been returned because someone in the claimant's solicitors' office did not recognise the reference and thought that the items had been sent in error; (2)   Items not made by Mars, which referred to specific promotions that had been in operation at the time when the claimant was employed by the defendants; (3)   Items which were no longer made; (4)   Items, such as wire baskets for freezers and ancillary equipment, which would not be made until the summer months; (5)   Items, such as a feature box for stock, which were only supplied to retailers when there was a specific promotion in operation.
21.	We have been shown a further list of items that were sent to the claimant's solicitors on 2nd February 2000, 21 days after the day when the redrafted order was drawn.
22.	At the end of their letter the defendants' solicitors said that they understood that the claimant's solicitors had received a number of these items (this was clearly a reference to what was delivered on 2nd February), and they asked them to confirm in writing as soon as possible which items they had received. They said they wished by this means to establish if any were outstanding, and to draft the necessary statement confirming that all the equipment requested had been supplied. It appears that they drafted a statement for a director of their client company, Mr Nicholas Jones, on 2nd February dealing with all the items which were being sent, but the statement was left unsigned until they received a response to their letter of 3rd February.
23.	No response was ever received. We have been told by counsel today that, although the letter of 3rd February was an express answer to the claimant's solicitors' letter of 31st January and although it appears from the letter of 3rd February that there was a telephone conversation between the two solicitors on 3rd February, the claimant's solicitors seem to have taken the view that they had set out their stall in their letter of 31st January, and that this was a good reason why they should not answer the defendants' solicitors' letter of 3rd February. If they had responded as requested, no doubt many of the later difficulties could have been avoided. It could have been established by mid-February at the very latest which items had still not been supplied and which items the claimant's solicitors were still demanding, notwithstanding the fact that they had been told that they were not available, or would not be available until the summer. The defendants' director's statement, for which no time had been set by the district judge's order, could also have been settled on an agreed basis, if it had become clear that all the equipment requested had been supplied, in so far as it was available to be supplied.
24.	In the meantime, the defendants' solicitors made an application to the court for an extension of time under the order of the district judge, as amended. Their application for an extension of time was dated 27th January, so that it was made within the time which was running under the amended order. They said that they intended to apply for an order extending the time because:
20.	"1..   A lot of the equipment the Defendant was ordered to disclose to the Claimant is not in the custody, power or possession of the Defendant but is in the possession of Mars UK Ltd; (2)   The Defendants require an examination of all the equipment disclosed to the Claimant with enough time for their ergonomics expert to produce a thorough and detailed report."
25.	In Part C of their application they said:
	"We wish to rely on the following evidence in support of this application:       Much of the equipment that the Claimant's solicitors have requested is not in the custody, power or protection of the Defendants. Instead, it is in the possession of one of the Defendant's clients, Mars UK Ltd. In this way, it takes some time for any equipment to be requested and for it to be forwarded to the Claimant's solicitors.    The Defendants' solicitors obviously require a full viewing of all the equipment that has been disclosed to the Claimant's solicitors enabling their ergonomics expert to examine the equipment and produce a detailed and thorough report. It is felt that the tight time constraints provided in the court order drawn on 12th January are insufficient for this purpose."
26.	None of the relevant correspondence was exhibited to that statement.
27.	On 23rd February 2000 the claimant's solicitors submitted a listing questionnaire to the court. They estimated that the trial would last four days. They said that the defendants had failed to provide discovery within the time set, and that they had not received the statement from the defendants' director confirming that discovery was complete. They said that the engineering evidence was not complete due to the defendants' delay in providing discovery, and that the ergonomics report had been delayed by delay in discovery.
28.	In their covering letter to the court, a copy of which they sent to the defendants' solicitors, they said that as at 31st January 2000 there was still equipment (covered by the earlier court orders) which was missing, and that what they called "final discovery" was served by the defendants on 2nd February 2000. They referred to the absence of a witness statement confirming on oath that no discovery was available other than that provided to date.
29.	In these circumstances the first direction they sought was that the defence should be struck out and that there should be judgment for the claimant with damages and costs to be assessed. Their reasons for requiring this order were expressed in these terms:
	"The Defendants have been in breach of orders for discovery throughout the conduct of this litigation. This is despite the best efforts of the Defendant's Solicitor, who has, we believe, made every effort to ensure the Defendants provided discovery in accordance with the Court rules. There seems to be a complete disregard by the Defendant concerning their obligation to provide a full set of equipment that was carried by the Claimant in the course of her employment, in order that it could be weighed. They are, in particular, in breach of the Unless Order of District Judge Corrigan of 16/11/99, as amended on 12/1/2000."
30.	We do not have a transcript of the judgment (we have been informed that the tape recording system at the County Court that day had broken down), but we have an agreed note of the hearing, which has been signed by the judge, and this contains what appears to be a verbatim record of the judge's ruling. We also have the claimant's solicitor's notes, which are taken to be reasonably accurate, setting out the submissions which had been made by the local agent who appeared for the defendants' solicitors at that hearing and the reply made by the claimant's solicitor, so that we can see what was being said to the judge. At one stage the defendants' solicitors' agent referred the judge to rule 3(9) of the CPR, and the words appear:
	"... no intention in delay, not slowed down the hearing of this case and not delayed the Trial, case not yet listed."
31.	The judgment is in these terms:
	"I have an application before me by the Defendant's Solicitors for an extension of time to comply with the Unless Order of District Judge Corrigan of 16/11/99 in which he stated that unless the Defendant provided outstanding equipment, the defence be struck out. He also ordered the Director of the Defendant Company to provide a Witness Statement to confirm equipment supplied. The order was technically incorrect and amended on 12/1/00, however, the Defendant's Solicitors were present at the hearing of 16/11/99 and were aware what order was made.    The Claimant's case involves a back injury. As a former employee of the Defendants, whose business it was to display confectionery and perform marketing for a large company, it was clearly a very relevant question as to whether Mrs Keith had to carry heavy materials and thereby suffered a back problem. It is entirely relevant for the Defendants to disclose the weight of equipment she was required to carry in the course of her occupation and clearly the discovery going back to April 1998 in the first List of Documents was defective. The Claimant's Solicitors requested a full set of equipment and I have seen 2 letters of 8/9/99 and 24/9/99. These letters identify precisely the documents and equipment which should be provided so the engineers could weigh the equipment and I am told that by 31/1/00 all but 4 items had been supplied. The Defendants have therefore had an additional period of grace in which they have supplied a further 5 items, but 4 items are still outstanding, these include 2 wire baskets, an order book, and retention labels.    The wire baskets might be of significant weight and therefore are clearly relevant and the importance of this order was that it required also the Defendant's Director to provide a statement. I am aware that an unsigned document has been handed to the Claimant's Solicitor outside of this morning's hearing.    I conclude there has been no compliance with the order of District Judge Corrigan on 16/11/99.    Mr Panton [the defendants' solicitors' agent] seeks leave for a further 21 days stating the fault is not his clients but that of customers and that as a Trial date has not yet been fixed, he applies for relief from the express sanction.    It is plain to me from the chronology provided the Defendants have not complied with the spirit of the new reforms, or satisfied the order of the Court, despite the fact they have already had a further extension of time caused by the amendment of the Order. Even when they appeared before me today, they are still in breach of the order, the wire baskets may be heavy, they have not provided a signed statement. They must now therefore proceed in the absence of their defence, I refuse to extend time for compliance.    It is hereby ordered that the Claimant's case proceed to a Trial on damages only, which cannot be heard by me as I have been shown a letter which indicated without prejudice offers made."
32.	It will be noted that the four items which were said to be still outstanding were two wire baskets, an order book and retention labels. The defendants had already said very clearly that they did not have any wire baskets and that none would become available until the summer. They said that the pad for the order book had been replaced by a brand new form, but that Mars was now out of stock of these forms, and there was nothing else like them. The three missing retention labels consisted of three A4 sheets of labels in respect of three Mars products which were no longer made. It should also be noted that the wire baskets were not covered by the order made on 23rd July 1999 because they were not requested for the first time until 8th September, and no complaint has ever been made about them in the claimant's pleaded case.
33.	That is the history of the matter, and the appellants now appeal against Judge Overend's order by permission of the judge. The way that the appeal has been put is that the judge failed to take any proper account of the overriding objective of dealing with the case justly (see CPR 1.1) and failed to take any proper account (under CPR 3.9) of a number of the matters set out in that rule.
34.	Since the application for an extension of time was made while time was still running, it was made pursuant to the provisions of CPR 3.1(2)(a), which gives the court power to extend or shorten the time for compliance with any court order, even if an application for extension is made after the time for compliance has expired. It is well-known that, in exercising any of its powers under the Rules, the court is bound to take into account the overriding objective set out in CPR 1.1.
35.	In the context of the application before Judge Overend, it became quite clear during the course of argument that the defendants' solicitors' agent was seeking relief from the sanction set out in District Judge Corrigan's order if an extension of time for some reason or other could not be granted. If a formal request had been made under rule 3.8 for relief from that sanction, then rule 3.9 sets out the obligation of the court to consider all the circumstances on an application for relief from a sanction imposed for failure to comply with a court order, including the matters listed under (a) to (i) of that rule.
36.	In my judgment in Bansal v Cheema (unreported, CAT 2nd March 2000), with which Lord Justice Roch and Mr Justice Ferris agreed, I set out the need, when judges exercise their discretion on occasions like this, to consider each matter listed under CPR 3.9(1) systematically. On the present occasion there was no sign in the judge's brief extempore judgment that he took into account any of the matters which he was bound to take into account under the rules which are set out in Rule 3.9(1)(g),(h) and (i), and some of the other matters mentioned in that rule appear to have been overlooked.
37.	He had been confronted with an application to extend time for compliance with an unless order in a context in which, if time was not extended, relief would be sought from the sanction imposed by the order. In my judgment, it is obligatory for the court in such a situation, in pursuance of its obligation to deal with the case justly (see rules 1.1 and 1.2), to take into account the matters set out in rule 3.9. This rule sets out a very convenient list of many of the matters which a judge should take into account when considering whether to make an order as draconian as the order that Judge Overend made on 29th February. Of course, Bansal v Cheema was decided two days afterwards and this, strictly, was not a rule 3.9 case. But in my judgment, when he was exercising his discretion pursuant to the overriding objective, it should have been plain to the judge that he should take into account the matters set out in rule 3.9 in all the circumstances of the case.
38.	The way that Mr Snowden, who appears for the defendants, put the case was that the judge failed to take any proper account of the overriding objective of dealing with the case justly under CPR 1.1 for four reasons:
	(1)   His order deprived the defendants of any opportunity of dealing with the claim on an equal footing with the claimant. (2)   His order was wholly disproportionate to the nature of the breach of District Judge Corrigan's order. (3)   His order would lead to manifest unfairness in the future resolution of the claim in that good and genuine arguments (some of which, such as exaggeration or malingering, are of public interest importance) could not be advanced. (4)   (4)His order would lead to the future resolution of the claim being dealt with in a way which was not proportionate to the importance of the case and the issues raised in it.
39.	Then Mr Snowden says, with reference to CPR 3.9, that the judge failed to take any proper account of seven matters:
40.	(a)   Under 3.9(1)(a), the interests of the administration of justice. He makes four points. First, no trial date had by then been set, so that no adjournment would be necessary and no court time was being wasted. Secondly, the claimant's solicitors' correspondence expressed understanding for the defendants' position and suggested merely that an extension of time for ergonomists' reports would be necessary to accommodate the delay in providing the items. [In fact, they expressed understanding for the solicitors and not for their clients.] Thirdly, there were real issues of liability, causation and quantum to be tried. Fourthly, the case was one where allegations of exaggeration or malingering had been made.
41.	(b)   Under 3.9(1)(b), whether the application for relief had been made promptly. Mr Snowden submits that it had.
42.	(c)   Under 3.9(1)(c), whether the failure to comply was intentional. He submits that the defendants' failure to comply was not intentional or contumelious, but rather was caused by circumstances outside their control - the simple unavailability of the items.
43.	(d)   Under 3.9(1)(d), whether there was a good explanation for the failure to comply with the time limits. He submits that there was, namely the dialogue between the claimant's solicitors and the defendants and the defendants' solicitors as to precisely what items were and were not outstanding which only led to clarification in the exchange of correspondence of 31st January and 3rd February 2000. He might have added that, if only the claimant's solicitors had responded to the defendants' solicitors' letter of 3rd February, there would have been even greater clarification and the defendants' director's statement would have been signed as envisaged in that letter.
44.	(e)   Under 3.9(1)(e), the extent to which the party in default has complied with other rules, practice directions and court orders. He says that the defendants' obligations of disclosure and inspection had indeed been complied with, and it was only the strict wording of the first part of District Judge Corrigan's order which had not, and that was due to impossibility.
45.	(f)   Under 3.9(1)(f), whether the failure to comply was caused by the party or its legal representatives. There was no specific argument addressed. It was clearly caused by circumstances to a large extent outside the defendants' control, in that they had submitted to an order, very unwisely, when their power to comply with the order was in the hands of a third party, namely Mars.
46.	(g)   Under 3.9(1)(g), whether the trial date or the likely trial date would still be met if relief was granted. He says that the defendants' failure to comply with the time limits would have no significant effect on the progress of the action because no trial date had been set.
47.	Then, when one came to 3.9(1)(h) and (i) (the effect which the failure to comply had on each party and the effect which the granting of relief would have on each party), Mr Snowden says that the defendants' failure to comply with the time limits would have no more than a minimal effect on the claimant, as evidenced by her solicitors' letter which suggested merely that an extension of time for ergonomists' reports would be necessary to accommodate the delay in providing the items.
48.	Mr Snowden submits that in those circumstances the order was one which the judge could not reasonably have made.
49.	Mr Mawhinney, who has made every point which he could possibly make in seeking to defend the judge's order, submits that the defendants acceded to both these orders, notwithstanding that he was disposed to accept that no great attention had been paid by anyone as to the district judge's jurisdiction to make the orders in question. They were being referred to as discovery orders under CPR Part 31, which refers to documents which are or have been in the control of the defendants, whereas what appears to have been sought was an order for the inspection of property under CPR Part 25. However that may be, Mr Mawhinney submits that the original order was made; that the defendants did not appeal against it; that they then submitted to the unless order; and that, if they have got themselves into a complete muddle because the relevant material was not available from Mars, they have only themselves to blame for submitting to orders in these circumstances.
50.	He drew attention to what he called a delay earlier in the proceedings, that is, the delay which I have mentioned in relation to the application for specific discovery, which need not have held the proceedings up very much. He submitted that the claimant was bringing this action on her own against a big company and it was being held up because the defendants were taking their time about complying with clear orders of the court, the second of those orders being supported by a sanction of which they were aware.
51.	Although the judge did not, when explaining how he was exercising his discretion, expressly refer to any of the matters set out in CPR 1.1 or CPR 3.9 (apart from the fact of the breach of the unless order and a very general statement that the defendants had not complied with the spirit of the new reforms), Mr Mawhinney submitted that we were entitled to take into account, from the way that the matter had been argued, that certain points were made to the judge which he would have had well in mind. He argued that we should not penalise his client by causing a further delay to the proceedings simply because the judge had not spelt out clearly the way that he was exercising his discretion.
52.	He also made submissions in response to a number of the detailed points which had been made by the defendants. In particular, he said that the judge's order envisaged that the claimant would be cross-examined at the trial and that, if they made progress in their cross-examination, any concerns about malingering or exaggeration could then be taken into account.
53.	In my judgment, this order should not have been made in the way that Judge Overend made it. It was the strongest order in the battery of orders available to a judge. There was no trial date fixed. I observed during the argument that it was unfortunate that District Judge Corrigan had not been invited to set a trial date some months in advance when he made his directions on 16th November, because experience has shown how much an approaching trial date concentrates the minds of the parties on each side into getting pre-trial matters well under control. As it was, Judge Overend was being presented on 29th February with a request by the solicitors to find a date for a four-day hearing which could have been found much earlier.
54.	However that may be, the history of this matter shows sloppiness on points of detail which led to a most unsatisfactory hearing before Judge Overend. In that connection, the original order which was made by District Judge Tromans lacked all particularity as to what was to be provided. It referred simply to the information contained in the defendants' solicitors' letter, whereas what was being sought was an order for the production of certain property in order that it might be weighed. The claimant's solicitors say that this does not really matter because everybody knew what was being required, but if parties are going to seek to enforce court orders in a draconian way, it obliges them to ensure that the relevant court orders are drawn up in clear and specific terms, so that the other side can see on the face of the court order what they are required to do.
55.	When they came to the second order, the parties were acquiescing in the making of an unless order with a 21-day sanction, when, in relation to some of the items being sought, no previous order had been made, and when it was already becoming apparent that there were going to be difficulties in compliance because (in so far as they still existed) items in question were not in the control of C P M Field Marketing Limited. Some of them no longer existed or were never likely to be made, and others would not be available to the defendants until Mars had supplied an order. This order was, however, made in these absolute terms, although, as I have said, in the event it was ineptly drawn by the court.
56.	What Judge Overend faced on 29th February 2000 was an attempt to understand (without any of the relevant correspondence having been put before him in clear terms exhibited to a statement) the previous history of the matter from a local agent who was doing his best to look after his clients' interests. It must have been very difficult for the judge to get on top of the nature of the outstanding complaint, and he eventually came to the conclusion that, just because four items were still outstanding at the date of the hearing, which, according to the defendants, would not be available until the following summer (if at all), he should strike out their defence completely.
57.	A lot of the blame for this situation must lie with the defendants' solicitors, who failed to make an application, supported by evidence, showing in clear terms the relief they wanted and why they wanted it. It was pointed out by Mr Mawhinney during the argument that, if they were saying they could not comply with the order because a lot of the items referred to in the order did not exist or were in the hands of a third party and they could not get at them, the appropriate relief they should have sought would have been an amendment of the order, so that they would be ordered to do what it was they were capable of doing, and not what they were not capable of doing. Even if the claimant's solicitors were at fault in not replying to the letter of 3rd February, basic prudence would require that some signed statement from the defendants' director was available before the hearing before Judge Overend. In the event, an unsigned statement was proffered to the other side outside court, and was never apparently seen by the judge himself.
58.	However that may be, and considerable though my sympathy is for the judge, who was presented with quite complicated material in a thoroughly informal way, it is clear to me that his order cannot stand. It would be totally disproportionate in these circumstances for the defendants to be debarred from defending the claim in the way that the judge has ordered. In my judgment, the matters which Mr Snowden argued, which the judge did not analyse at all in his judgment, show very clearly that this is an order which should never have been made.
59.	What the judge should have done, once he was on top of the facts, was to ensure that the defendants effectively indemnified the claimant for any costs to which she had been put by the delay in complying with the request which had first been made the previous July. He should have taken steps to order that those costs be assessed and paid forthwith and, if there was anything still outstanding (and by that stage there was very little outstanding), he should have enquired into the practicalities of it being produced by the defendants. If they simply could not get hold of the items, he could not make an order that they should do what they were incapable of doing. But in so far as he was properly satisfied that they could produce further items, he should have made a further order limited to those items, with time running during the ample period which still extended before a date could be found for a four-day trial. If there was any further difficulty, then no doubt the matter could have been restored to him for further directions.
60.	I have sympathy for the claimant, who has seen the date when this trial will take place being postponed. One of the difficulties, however, has been that in the summer of last year her counsel set in motion a course of action when asking for the sample equipment to be supplied and weighed, without either party properly appreciating the difficulties which the defendants might run into in providing appropriate samples, simply because the goods in question were not in their control (which is the language of CPR 31, if this case had been concerned with documents rather than equipment).
61.	Accordingly, I am satisfied that this order cannot stand. I would therefore set it aside and, if my Lords agree with me, we will then make appropriate orders for the continued timetable of this litigation.
62.	MR JUSTICE GAGE: I agree.
63.	LORD JUSTICE SWINTON THOMAS: I also agree.
	Order: appeal allowed and Judge Overend's order set aside; three costs orders made by the judges below to stand; costs of this appeal to be costs in the case; counsel either to agree details of order for future conduct of the litigation or matters to be argued between them subsequently before the district judge.
	[DOES NOT FORM PART OF APPROVED JUDGMENT]