TROUBLES WITH THE COURT: REFUSING TO ISSUE AND STRIKING OUT BECAUSE OF ALLEGED LIMITATION ISSUES: MORE EXAMPLES AND CASE LAW THAT MAY HELP
Hot on the heels of the complaint about the court wrongfully striking out an action came another, remarkable story about the court refusing to issue proceedings because of alleged limitation issues.
THE REMARKABLE STORY
Here it is in its original form.
“Nothing new. Infant case. Issued at about 3 years post accident. Well within limitation period for an infant. Court refused to issue court proceedings arguing with us it was time barred & they received papers for issue 3 years and 1 or 2 days post accident. Yep. Had to have a row with ccmc to get them to issue this infant case.”
SO THE ADMINISTRATIVE STAFF AT COURT GET TO DECIDE ISSUES OF LIMITATION?
I do not know of any authority or rule that allows court staff to refuse to issue proceedings on the basis that they are allegedly limitation barred. Apparently it is quite common, “nothing new” the solicitor reports. It is notable that in the last Supreme Court case on limitation and date of knowledge the finest legal minds in the land were divided 4:3 on the question of date of knowledge. It is comforting that even greater minds can pre-determine the matter prior to issue. Further comfort can be obtained from the obvious point that these matters are being determined without the advantage of argument and, presumably, by someone without knowledge of some of the basic points of the law of limitation.
MORE COMPLAINTS ABOUT EX-PARTE STRIKING OUT
Whilst on the subject on limitation and continuing the earlier post of striking out without notice I should mention a case I was instructed in. The scenario is bizarre, but not, apparently unusual.
- The claimant issued proceedings a week or so outside the limitation period (in a personal injury case).
- The defendant wrote asking the claimant what they are going to do about limitation.
- Claimant replied stating they will rely on Section 33.
- Defendant responded, you can’t rely on Section 33 until we file a defence.
- Then (and this is the remarkable part) the defendant wrote to the Court stating that the action has been issued out of time and should be struck out.
- The Court duly struck out the action, with no reference to the claimant.
I was instructed on the application to reinstate which was combined with an application under Section 33.
- The action was transferred to a county court several hundred miles from Yorkshire.
- After two train journeys, a hotel stay and a long taxi ride I arrive at court to find that the defendant did not turn up for the application which was listed for 2 ½ hours..
- The district judge, bristling with common sense, turned down my offer to telephone the defendant. The notices had clearly been sent out and the defendant should be in court and was not.
- The action was reinstated, the section 33 application granted and costs awarded against the defendant.
- (The action itself later settled shortly before trial).
WRITING TO THE COURT ASKING FOR ORDERS (WITHOUT TELLING YOUR OPPONENT)
I never got the chance to ask the defendant to explain its conduct. However it is worth noting that the practice of writing to the court is one that has been specifically deprecated by the Court of Appeal in Ryder Plc -v- Dominic James Beever  EWCA Civ 1737. This was a consideration of the discretion being exercised under the old CPR 3.9, however Smith L.J. observed that an order had been made by a party writing to the court. This informal practice was no acceptable. Further, unless orders, should rarely be made on an ex parte basis. Smith L.J. observed:-
“In addition to the factors which have been considered under CPR 3.9, it is in my view, germane to consider the circumstances in which the ‘unless’ order came to be made. When Mr Finneran failed to serve the costs schedule by 5 July 2011, Ms Taggar wrote to the court on 11 August but did not copy her letter to Mr Finneran. That was wrong; Mr Finneran did not know that the court was about to consider making an order which might result in the claim being struck out. I recognise of course that the court has the power to make an order of its own motion but, particularly where there is a possibility of a ‘strike-out unless’ order, it is far preferable for an application to be taken out, in which case notice of the application must be served on the opposing party. The saving of costs is not a good reason for adopting the informal process used in this case. True, costs would be incurred but the claimant would be ordered to pay them and almost certainly to pay them immediately. If, contrary to the view I have expressed, a court regards it desirable to make an ‘unless’ order without the issue of an application, the court should surely be slow to make such an order without giving the party affected the opportunity to be heard, as happened here. In short, I deprecate the practice followed here. The CPR are intended to make solicitors comply with orders or to face the consequences with their eyes open. They are not intended to create traps for the unwary or slightly incompetent. In my view, these circumstances are highly relevant to the exercise of the court’s discretion on the grant of relief.”
RELIEF FROM SANCTIONS WHERE AN ORDER IS MADE WITHOUT NOTICE
It may help to remember the observations made in the earlier post on without notice orders and in particular the observations of the Court of Appeal in Tombstone –v- Raja  EWCA Civ 1444 about exercising a discretion where an order is made without notice to the party affected.
“They are determined by the court exercising the discretion given by that rule in accordance with the overriding objective. Where the order is one which affects the rights of the affected party in an important respect (a judgment is the most obvious example), it will only be in the most exceptional circumstances that the discretion will not be exercised to set aside the order.” (paragraph 84).