APPEALS, TIME, SERVICE, VENUE: A REAL PROCEDURAL HOTCHPOTCH – EVEN BEFORE THE MAIN ISSUE IS CONSIDERED

The judgment of Mr Justice Jay in Enniful -v- Motor Insurers Bureau [2017] EWHC 1086 (QB) is a procedural hotchpotch. It relates to service, delay, dates of compliance, venue for appeals and relief from sanctions. All of this occurred before the main issue in the appeal have even been considered.

THE CASE

• The claimant was injured in a road traffic accident on the 10th September 2013.
• The defendant driver was uninsured.
• The district judge struck out the claim the claim on the basis it was not properly served. The judge observed “I simply do not understand the basis for the District Judge’s decision. In my judgment it was plainly wrong…”
• The decision was appealed and an order made by the circuit judge that the claimant lodge amended grounds of appeal and a transcript within six weeks of receipt of that order.
• The claimant filed the documents on what, it was believed, was the last date. However a circuit judge stated it was sent out of time and the claimant needed relief from sanctions.
• It transpired that the documents had been sent by email but not logged into the court system. The solicitor sought confirmation that the order had been complied with.
• Nothing happened for a period. The claimant then made an application for an order that the order had been complied with.
• A recorder dismissed the application on the papers on the 28th September 2016.
• The claimant then appealed against that order lodging an appeal in the county court on the 19th October 2016.
• However that appeal should have been lodged at the High Court and the court informed the claimant’s solicitors that this was the wrong court.
• The claimant’s solicitor then lodged an appeal at the High Court nine days later.

THE JUDGE’S OBSERVATIONS: THE CLAIMANT’S BREACHES

The judge observed that the claimant’s solicitors had left matters until the last minute.  They waited nine days after being told that they had filed the appeal notice at the wrong court.

• The appeal was initially lodged electronically some 4 minutes before the deadline expired, but in the wrong court.
• Further there was a cheaper application that the claimant could have made. The order was made without notice and an application could have been made, within seven days, to set aside the order.
• The judge held that there had been serious and significant breaches of the rules that should not have happened.

RELIEF FROM SANCTIONS : EXTENSION OF TIME FOR APPEALING

The judge considered the Denton criteria:

“I have to consider of course all the circumstances of the case and I take into account the
following: that there has been significant delay and there has been a failure to comply
with and properly understand the relevant rules. The failure in relation to choosing the
wrong court is more venial in my judgment, since it is a failure which is often made by
litigants (and, indeed, even professionally advised litigants) who fail to read the rules.
The rules, of course, are there to be read. The failure is not one which can be ignored
in any practical sense because as I have already pointed out, there were considerable
delays even after the mistake was pointed out.

The circumstances of the case include the overall justice of the matter and the
underlying merits of the appeal and as will be soon apparent, I consider that the appeal
does have merit and I also consider that there is an underlying justified grievance here
in relation to what happened on 1 July when the County Court was told and agreed that
the documents had been efiled on the correct day. No reply was given to the solicitors’
email. It is true that maybe that should have been chased up, but there were mistakes
within the court system which were unfortunate and regrettable mistakes. So I take that into account.

I also take into account the fact that it would have been cheaper to
make a timeous application to set aside in the County Court, but that cannot be
decisive. It is a factor which can be reflected when it comes to consider the overall
cost of these applications. But having regard to all the circumstances of the case, I
consider that it is just to extend time.”

THE APPEAL AGAINST THE DECISION STRIKING OUT THE APPEAL

“So I move to consider the merits of the appeal and really the application for permission
to appeal and the underlying appeal should be considered simultaneously. The
Recorder thought that service was effected on 11 April and that therefore time ran out
for compliance by 23 May. That must be implicit in the reasons she has given. There
are difficulties with that analysis. First of all, paragraph 2 of the order of His Honour
Judge Mitchell — in my view should not have been drafted in these terms, but we are
where we are – speaks of six weeks “after receiving this order”. It does not refer to
service or deemed service; it refers to receipt. In my judgment that means on its
natural and ordinary meaning the day of actual receipt by the claimant’s solicitors
which was not until 14 April. On that basis, therefore, they were in time on 26 May,
but only just. It does not matter that it is only just; they were in time.

16. In any event, even if that is wrong and in some way one should meld paragraph 2 of the
order of His Honour Judge Mitchell with rule 6.26 of Part 6 of the CPR and read
“receipt” as being synonymous with service, the following analysis should be
undertaken. One does not, in fact, know when there was deemed service in this case
for this straightforward reason; we cannot infer that the court served this order on 7
April 2016. That is not what the rule deems to have occurred. We do not know when
service took place and on that basis, therefore, we do not know when there was deemed
service for the purposes of the CPR.”

THE JUDGE’S COMMENTS ON THE DRAFTING OF ORDERS

“17. In my judgment these orders should not be drafted in this way; there should be greater
clarity so that the court knows and the parties know when documents are received or
served – I would prefer the use of the word “served” frankly – such that there cannot be
any doubt as to when time runs. Indeed, it would be better in my judgment if the court
stipulated, as I always do when drafting my orders, a particular date and time. It
should say it has by 4.00pm on a particular date and in this case it could have said
4.00pm on 23 May or 4.00pm on 26 May or whatever other date His Honour Judge
Mitchell thought appropriate, but the dubiety has arisen because of the wording of the
order.
18. Now on the twin bases I have outlined, Ms Recorder Genn’s decision is incorrect.
There was compliance with the order, the claimant’s solicitors were not late and the
appeal should be allowed to proceed. It is the appeal, therefore, against the underlying
order of District Judge Kemp. I have expressed my view about that. Of course that
does not bind the defendant, but the defendant will doubtless listen to what I have said
and decide whether to oppose the appeal.
19. So I grant the extension of time; I grant permission to appeal and I allow the appeal.”

THE REASON WHY THE ORDER WAS DRAFTED THE WAY IT WAS

I suspect that the order giving a date from “receipt” is a practical response to delays that can occur in the county court.  There can be considerable delays between the date a judge makes an order and the time when it is drawn up and sent to the parties.  I have been involved in cases where peremptory orders have been made but not sent out to the parties until after the date given for compliance.  How this practical problem is solved remains a difficult issue.