Practice and Procedure


PUBLISHED June 26, 2003

Whilst the court had been deprived of the opportunity of managing the case actively in pursuance of the overriding objective by reason of the claimant's defaults, to bar him from pursuing his claim as it stood when the particulars of claim should have been served was a disproportionate response and would have given the defendant's insurers an unjustified windfall.Appeal by the claimant ('C') from the order of O'Brien J at Norwich County Court on 19 October 2002 allowing an appeal by the defendant ('D') from the order of Deputy District Judge Pugh dated 15 August 2002. The deputy district judge granted C an extension of time for serving the particulars of claim in his personal injuries action. The accident which gave rise to the proceedings occurred on 5 May 1998. The claim form was issued on 4 April 2001, without any accompanying particulars of claim, medical report or schedule of loss and was served on 14 April 2001. The particulars of claim ought to have been served on 28 April 2001 pursuant to CPR 7.4(1)(b). Upon service of the claim form D's insurers were made aware of the fact that the claim was expected to exceed ?50k. Four years and three months after the relevant accident was the first notification to D that C was saying that he sustained a chronic and disabling back injury, that he had obtained an additional expert's report which supported his claim, and that he was claiming for future loss of earnings in the region of £60k per annum rather than £60 per week. It was with that background that C applied for an extension of time to serve the particulars of claim. O'Brien J held that: (i) the delay was deliberate, long and without explanation; (ii) to have permitted an extension of time would have been an affront to civil justice and an affront to the administration of justice under the Civil Procedure Rules 1998 SI 1998/3132, which he was not going to permit; and (iii) the deputy district judge was wrong to allow the relief sought.HELD: (1) The defect in the deputy district judge's approach was that he did not address his mind to a number of the most important considerations set out in the checklist in CPR 3.9, so that he exercised his discretion without taking very material matters into account. O'Brien J was correct, therefore, to set aside that decision, but his approach was flawed in the sense that he failed to take into account the fact that C would be barred from prosecuting what was represented as a valid claim for over £500k if he denied him the relief sought. Although the judge weighed in the balance the prejudice to D, he did not clearly weigh in the balance the prejudice to C. In those circumstances, he left out of account an important feature of the case which he ought to have considered. It was appropriate, therefore, to exercise the discretion afresh. (2) On most of the factors enumerated in the CPR 3.9 checklist, the argument tended to be strongly in favour of D, but not sufficiently to warrant C being denied access to the court completely if this was his first default following institution of proceedings. The real tension was between the interests of the administration of justice and the effect which the granting of relief would have had on each party. (3) A refusal of an extension of time in the instant case would be a proportionate response to C's failure to state clearly what he was claiming and the reasons underlying his claim. His Convention rights would not be imperilled because the concept of a fair trial betokened fairness to both parties. The instant case was one in which the court had to say "enough was enough" and, like the judge, albeit for different reasons, to refuse the extension of time sought. It was not now possible to deal with the case in a manner that was fair to both parties if time was extended unconditionally. (4) However, to bar C 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 D's insurers an unjustified windfall. Accordingly, C's appeal was allowed by extending the time for service of the particulars of claim on condition that no claim was made for special or general damages other than what might be substantiated by any pre-April 2001 medical report.Appeal allowed.

[2003] EWCA Civ 888