EVANS -v- WOLVERHAMPTON: PART 36: SERVICE OF NOTICE TO APPEAL AND RELIEF FROM SANCTIONS: IN THE REPORTS AGAIN

The case of Evans -v- The Royal Wolverhampton Hospital Trust [2014] EWHC 3185 (QB) has been examined before in this blog. It was the case where the defendant made an ex parte application for permission to withdraw a Part 36 offer and also that the information it relied upon not be disclosed to the claimant. The defendant then made a subsequent application, after disclosure of the information, but served the notice of appeal late. The defendant’s application throws some light on the matter. (This was a preliminary application reported at [2014] EWCA Civ 1782. The substantive decision in the appeal has not yet been given.)

WHAT HAPPENED AFTER THE FIRST HEARING

There was a subsequent hearing after the reported case in which the defendant disclosed the evidence upon which it relied. An anonymous letter was written to the Trust stating that none of the injuries were caused by its negligence.

KEY POINTS ON APPEAL

1. A judge had power to vary the time for service of an appellant’s notice to state that it must be served by a specific date.

2. However such a power should be exercised sparingly, the judge should address specifically the reason for varying the rules.

3. The defendant was in breach of the order and required relief from sanctions under the Denton criteria.

4. On the facts of this case it was appropriate to grant relief from sanctions.

DEVELOPMENTS AFTER THE DEFENDANT WAS REFUSED PERMISSION TO RELY UPON “SECRET” INFORMATION

8.     Leggatt J heard the application and by his main judgment, delivered on 8 October 2013,Evans -v- The Royal Wolverhampton Hospital Trust [2014] EWHC 3185 (QB) , held that the Trust should not have applied for permission to withdraw its Part 36 order without notice to the claimant and that therefore the without notice order made by HHJ McKenna should be set aside; and that unless the Trust immediately served the relevant evidence, in particular the anonymous letter, and the arguments on which it wished to rely in support of its application for permission to withdraw its Part 36 offer, Ms Evans would be entitled to enter judgment based on the accepted offer.
9.     The Trust did then disclose the evidence and arguments on which it wished to rely in support of its application for permission to withdraw the part 36 offer, which it now sought to make inter partes on notice.
8.     There was a further hearing before Leggatt J on 16 October 2014 at which he gave his supplementary judgment. In that judgment, the judge refused to grant permission for the Trust to withdraw its Part 36 offer. He considered that the anonymous letter was an insufficient foundation on which it would be just to permit the Trust to do so. However, there was no binding authority on the test to be applied and he did not regard it as a straightforward matter, so he granted the Trust permission to appeal. The judge noted the claimant’s case that she had urgent need of the settlement monies so, while granting a stay of execution in favour of the Trust, he made it clear that the notice of appeal should be issued promptly within an abridged time of 14 days and certified the appeal as fit for expedition.
9.     The transcript of the hearing on this point, which was available to us though not to Tomlinson LJ, shows that the focus of the debate with the judge was in relation to the time to issue any notice of appeal. There no discussion at all about the question of service of any notice of appeal on the claimant.
10.     However, the order eventually made by Leggatt J stated at paragraph 6:
“The time for the lodging of any notice of appeal by the Defendant shall be abridged to 14 days, that is, by 4pm on 30th October and shall be served upon the Claimant at the same time”

THE DEFENDANT’S SUBSEQUENT DEFAULT

The defendant failed to serve the Notice of Appeal on the claimant’s solicitors in accordance with the order It was necessary for the defendant to apply for an extension/relief from sanctions.

 THE ISSUES

There were two issues:

1. Did the High Court judge have power to order that the notice of appeal be served on a certain date? (The Court of Appeal found that he did).

2. Should the defendant be granted an extension of time? (The Court of Appeal found that it should).

THE JUDGMENT OF THE COURT OF APPEAL ON THESE ISSUES

14.     The claimant understandably declined to waive this failure by the Trust to comply with the judge’s order, despite being invited to do so by the Trust. The effect of this was to oblige the Trust to apply for an extension of time for service and continuation of the stay, by way of an application notice eventually issued in this court on 10 November 2014. That is the application now before us.
15.     CPR Part 52.4 contains provision in relation to an appellant’s notice. Paragraph (3) provides:
“Subject to paragraph (4) and unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent –
(a) as soon as practicable; and
(b) in any event not later than 7 days
after it is filed.”
16.     That provision, although it creates an obligation on an appellant to do something by way of service of a notice of appeal, does not make the continuation of the appeal dependent upon the taking of that step. The rule itself does not make compliance with that obligation a condition precedent or condition subsequent which determines whether a valid appeal may continue or not, despite the fact that, as is clear, the Court of Appeal which is then seized of an appeal may make case management directions and may impose sanctions if there is a failure to comply with that rule.
17.     The first submission by Mr de Navarro QC for the Trust is that in fact, although no one appreciated it at the time, the judge had no jurisdiction to make the order he did for service in paragraph 6 of his order, as distinct from an order requiring the filing of the notice of appeal by a certain time. Only the Court of Appeal could have made such an order, he says, pointing to the terms of CPR Part 52.4(3).
18.     I do not accept this. Although it is the case that once an appeal is lodged the Court of Appeal is seized of the matter and it is therefore to be expected that it is that court which will ordinarily control the proceedings before it (a basic point which is reflected in CPR Part 52.4(3) and other provisions of the CPR), it does not follow that a judge of the High Court is without jurisdiction to make any order controlling or abridging time for service of the notice of appeal. It would be odd if that were the case since, it is clear that the High Court has jurisdiction to control the timetable according to which an appeal is brought so far as concerns the main act required of an appellant, namely filing a notice of appeal. It would also be odd in light of CPR Part 52.3(7), which provides that:
“An order giving permission may –
(a) limit the issues to be heard; and.
(b) be made subject to conditions.”
19.     In my view, the jurisdiction of the High Court in relation to the timetable for the service of a notice of appeal is the same as in relation to the timing provisions in all the other Civil Procedure Rules, namely that set out in CPR Part 3.1(2). This provides, in relevant part:
“Except where these Rules provide otherwise, the court may –
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)…”
20.     I do not accept the submission made by Mr de Navarro that this general provision is excluded in relation to service of an appellant’s notice, such as in the case before us, by the phrase in CPR Part 52.4(3), “unless the appeal court orders otherwise”. In my view, it would require a much clearer indication in the Rules themselves that the general power of variation conferred on the High Court by CPR Part 3.1(2) was to be excluded in relation to a particular matter than appears in CPR Part 52.4(3). There is good reason to interpret the Rules so that the general power to vary also covers the timetable for service of a notice of appeal. It may sometimes be the case that the High Court, seized of a matter at first instance and fully informed about it, can see some special and urgent reason to make an order adjusting the timetable for service of a notice of appeal before the Court of Appeal can be informed about the case in order to take a decision on the point. It makes sense that the High Court should, in those circumstances, be able to adjust the timetable in the Rules to accommodate the needs of justice in the individual case. Therefore, I do not think it is at all surprising that CPR Part 3.1(2)(a), on a perfectly straightforward interpretation of its language, should enable that to be done. The language of CPR Part 3.1(2)(a) accurately sets out what the draftsman intended, and is not indirectly displaced by the reference to the appeal court in Part 52.4(3).
21.     One needs to be careful about what one means by jurisdiction here. As long ago as 1915, inGuaranty Trust Co of New York v Hannay (1915) 2 KB 536, at 563, Pickford LJ made these pertinent observations about the meaning of jurisdiction (in a passage approved by the House of Lords in Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320 at paragraph [25]):
“The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that, although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.”
In my view, the judge in this case had jurisdiction within the first sense of the meaning of that term referred to there to make the order he did in relation to service of the notice of appeal.
22.     Of course, it will often not be sensible for a judge sitting at first instance in the High Court to seek to exercise that jurisdictional power which he or she has. Ordinarily, once an appeal is on foot before the Court of Appeal it is this court which should control all procedural matters in relation to the appeal, and one would expect a judge sitting at first instance to be alert to ensure that he or she did not seek to intervene in procedural matters in relation to an appeal except where there is good reason to do so.
23.     If there is to be an intervention by a judge sitting at first instance in the procedural framework for an appeal by means of the order that he or she makes, that should be on a considered basis and should be properly explained by the judge. With the benefit of the transcript of the hearing and the explanation by counsel, it can be seen that this did not happen here. The question of abridgement of time for service of the notice of appeal was not debated at the hearing. The matter went by default in the drafting of what became paragraph 6 that was done by counsel after the hearing on 16 October, and the final form of the order was presented to the judge for approval without his attention being drawn to the point.
24.     The second submission by Mr de Navarro is that this court, on the Trust’s present application, should exercise its discretion to extend the time for compliance with paragraph 6 of the order made by the judge with respect to service of the notice of appeal, and should correspondingly adjust paragraph 8 of the order to allow for the continuation of the stay while the Trust’s appeal proceeds. Mr de Navarro contends that such an exercise of discretion would give best effect overall to the Overriding Objective. There is no significant detriment to the claimant in the delay before the notice of appeal was served on her, he says. The delay was very short. It would be disproportionate and contrary to the interests of justice between the parties that the Trust should be deprived of its right to appeal by reason of this trivial error as to service when it had achieved the main objective required by the judge, which was to ensure that the appeal itself was brought quickly. The action required to achieve that objective was the filing of the notice of appeal, which was done within the truncated time provided for in the order.
25.     The Overriding Objective is set out in CPR Part 1.1(1), as follows:
“(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.”
26.     CPR Part 1.1(1) refers to the objective of dealing with cases justly, and Part 1.1(2) fleshes out what is meant by that, in particular, for present purposes, in paragraphs (d) and (f). Paragraph (f) is a recent amendment to the rule introduced to reinforce the importance of compliance in proper time with procedural requirements, including those in court orders.
27.     An application for an extension of time for compliance with an order after the time for compliance has elapsed is to be regarded as equivalent to an application for relief against sanctions under CPR Part 3.9: see Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633, especially at paragraph [36]. CPR Part 3.9 provides in paragraph (1) as follows:
“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.”
28.     This court has repeatedly emphasised, in the context in applications for relief from sanctions, that considerable weight is to be given to the importance of compliance with procedural timetables laid down in the Rules and in court orders: see, for example, Denton v TH White [2014] EWCA Civ 906; [2014] 1 WLR 3926, in particular, the explanation at paragraph [24] of the three stage test to be applied. A litigant who seeks an extension of time after the event, as the Trust now does, will have to show that there is a strong and compelling case why the interests of justice would be defeated if no such extension is granted. That onus will be all the heavier where, as here, there is no good explanation advanced why there was non-compliance with the procedural timetable for service of the notice of appeal set out in the order. In short, the Trust has to show that it would be clearly disproportionate to its own interest in seeking determination of its rights by this court on an appeal for the court to refuse to extend the time for service, as compared with (i) the competing interest of the claimant and (ii) the overall public interest in the efficient operation of the justice system through strict compliance with procedural timetables, so as to allow for prompt determination of disputes and the minimisation of delay throughout the system.
29.     In my judgment, although the onus on the Trust is a heavy one, it is one which the Trust can discharge in the exceptional and unusual circumstances of this case. The most important consideration leading me to that conclusion is that the Trust has here complied with the important operative part of the judge’s order, namely by filing its notice of appeal (that is to say, commencing its appeal) within the time allowed. There is, therefore, an effective appeal commenced according to the abbreviated timetable set by the judge. I do not consider that it would be just or appropriate somehow to disqualify the Trust from proceeding with that in-time appeal by refusing to extend time for service of the notice of appeal and then, presumably, proceeding to strike out the appeal itself.
30.     Against that background, the significance of the part of paragraph 6 of the order which refers to service of the notice of appeal can be put in context. As Mr Samuel, for the claimant, realistically accepted, it could not mean, as a matter of practical reality, that the filing and service of the notice of appeal had to take place at precisely the same moment. Those things would happen in different places and would be bound to be subject to some degree of difference in timing. If the notice of appeal was filed, for example, at 10.00 am on 29 October and then served at 10.30 am, that would constitute compliance with the order. Indeed, Mr Samuel accepted, in response to a scenario put to him by Lewison LJ, that if the notice of appeal had been filed on 20 October and then served on 25 October, that would have constituted compliance with the order as well.
31.     In either of these scenarios, a valid appeal would be on foot before the service of the notice of appeal took place. Paragraph 5 of the order, by which permission to appeal was granted, is freestanding from paragraph 6. As explained above, I do not think that the order can be construed as requiring actual service of the notice of appeal as a condition precedent for commencing an appeal, and nor is it a condition subsequent on which the validity of an appeal depends. In my view, the effect of the part of paragraph 6 which deals with service of the notice of appeal was simply to adjust the timetable otherwise provided for in CPR Part 52.4(3) which, as already pointed out, itself does not constitute a condition precedent or subsequent with respect to the validity of an appeal.
32.     In my view, the object of the limb of paragraph 6 which deals with service of the notice of appeal is to provide the claimant with a means of information about any appeal so that she can then check on and police the expedition with which the Trust pursues any appeal commenced within the time for filing the notice of appeal provided for in the order. That is not a procedural function which is as fundamental as the bringing of the appeal itself in proper time, which has been done.
33.     The breach of the order with respect to service for a very short period has not caused any significant harm to the claimant’s relevant interest which was intended to be protected by that part of the order. She has not been impeded in any significant way from being able to check that the Trust will indeed now proceed with its appeal with expedition.
34.     Nor was the speed and efficiency with which the appeal process is supposed to operate under the Rules placed in jeopardy by the failure of the Trust to serve the notice of appeal in accordance with the order. The appeal itself was brought in proper time and could proceed with expedition, as the judge intended: compare, in that regard, Hysaj at paragraph [51].
35.     On the other hand, I consider it would clearly be disproportionate, when weighed against an absence of any significant detriment to the countervailing interests at stake, for the Trust to be deprived of its right to appeal on the debatable point of law on which the judge thought it should have permission to appeal.
36.     The position might well have been different if the judge had directed his attention specifically to the issue of a timetable for service of the notice of appeal and given reasons why it was important for that particular step to be taken according to the timetable laid down. Then one might have said, in effect, that the court below had itself indicated specifically that time was to be of the essence for the taking of that particular step. But that is not the position here, as examination of the transcript and the explanation given us by counsel make clear. When he refused the application on the papers, Tomlinson LJ did not have the benefit of a transcript of the judge’s judgment or of the hearing before the judge. Understandably, he thought that the judge had deliberately crafted his order, including the direction about service of the notice of appeal, for particular and considered reasons. However, as has now been made clear at this hearing, that is not the case. Not only did the judge not consider the question of service of the notice of appeal in the course of his judgment, it was not even mentioned in the course of the hearing. Accordingly, this court is not concerned with any question of overriding a considered exercise of judicial discretion.
37.     For these reasons, I would extend the time for service stipulated in paragraph 6 of the order until 5 November 2014, when the notice of appeal was in fact served.
38.     That leaves the question of what should happen in relation to the provision for a stay in paragraph 8 of the order. In my view, since a valid appeal is on foot, and since the delay in service of the notice of appeal that has occurred has not occasioned any harm to any relevant interests protected by the order or the Rules, it is just and appropriate for the stay provision to be adjusted in line with the ruling I would make on paragraph 6 of the order. Accordingly, the Trust’s appeal should be allowed to proceed with the benefit of the stay set out in paragraph 8 of the order.

 THE JUDGMENT OF LORD JUSTICE LEWISON

There is a short judgment from Lord Justice Lewison which contains some interesting observations.

39. I agree. There are simply two short points which I wish to add. The first is that although I agree with Sales LJ that a judge in the lower court has power to abridge the time of service of an appeal notice by reason of CPR part 3, CPR 52.4(3) gives a clear steer to the lower court judge that questions of service should normally be left to the Court of Appeal. If there is to be any departure from that default position, then that must be by way of a considered and clearly explained distinction. As Sales LJ has explained, the question of abridging service was not considered by the judge in the course of his judgment, nor was it mentioned at the hearing with the consequence that the basis upon which Tomlinson LJ approached the case on the papers turns out to have been wrong.
40.     The second point is that although Mr Samuel made submissions to us about the prejudice that would be caused to his client, on analysis the prejudice that he relied on almost all arises from factors not connected with the default in compliance by the Trust, but arise either from the contingency that the appeal will be allowed on the substantive point or that the action will have to go to trial. While the case of Denton & TH White Ltd [2014] EWCA Civ 906, [2014] WLR 3926 requires the court to have regard to all of the circumstances of the case, in my judgment, factors which are only remotely connected with the failure for which relief against sanctions is sought cannot be given substantial weight. Accordingly, I agree with Sales LJ for the reasons that he gives that the appeal should be allowed and that the stay should continue.

 OTHER POSTS ON PART 36

POSTS ON THE NEW PART 36 RULES COMING INTO FORCE IN APRIL 2015

Post 1

Deals with the new 36. 1 – 13.

  • The scope of Part 36.
  • Offers can still be made outside Part 36.
  • Definitions.
  • The application of Part 36 to appeals.
  • Form and contents of a Part 36 offer.
  • Pre-action offers and the date when an offer is made.
  • Clarifying, withdrawing and changing the terms of an offer.
  • Withdrawing or changing an offer before the expiry of the relevant offer period.
  • Acceptance of a Part 36 offer.
  • Acceptance of a Part 36 offer in a split trial case.
  • Costs consequences of a Part 36 offer.

Post 2

Deals with the offer effects of making a Part 36 offer

  • The main terms if an offer is accepted.
  • What to do if payment is note made.
  • If the offer is not for a sum of money.

Post 3

Deals with unaccepted offers and the increased restriction on the disclosure of offers after split trials

  • Restrictions on disclosure of a Part 36 offer.
  • Disclosure after a split trial.

Post 4

Deals with the new rule as to recoverability of costs after a Part 36 offer where the party making the offer has had their costs budget assessed at nil.

  • The issue
  • The new rule.
  • The consequences in relation to costs.
  • Costs budgeting when a nil budget sanction is imposed.

Post 5

Deals with the new provision for costs consequences following judgment – was the offer a “genuine attempt to settle proceedings”?

  • The factors the court takes into account.
  • Does the section have any relevance.
  • The purpose of the new rule and pre-existing case law.

Post 6

Deals with personal injury cases

  • The structure of Part 36 on personal injury cases.
  • The new rules

Post 7

Deals with the second section of the new Part 36 governing offers under the RTA and EL/PL Protocol.

  • Summary of the rules governing Protocol offers.
  • The new rules.

Post 8

Deals with the structure of the new Part 36.

Post 9

Deals with how the new rules reflect and change the existing case law

 Post 10

Summarises the changes

 

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