Binning Bros Ltd v Thomas Eggar Verrall Bowles (A Firm) [1997] EWCA Civ 2688 (11th November, 1997)

LORD JUSTICE HUTCHISON: This is an appeal by the plaintiff company, which is in insolvent liquidation, against an order made by Astill J. on 30th October 1996 setting aside service of the writ and allowing the defendants' appeal from the decision of Deputy District Judge Gayle of 30th May 1996 dismissing the defendant's application to set aside the ex parte order of another district judge dated 21st April 1995 extending the validity of the writ by 56 days.

The action was begun by generally endorsed writ dated 22nd December 1994. The defendants are solicitors. The endorsement is remarkable for the fact that it mentions no dates. In summary the claims contained in the four numbered paragraphs are (1) a claim for an account of monies received or which ought but for the defendants' wilful neglect or default to have been received as the plaintiff's agent or for its account and payment of any sum due; alternatively, (2) payment of monies misapplied by the defendants; alternatively, (3) payment of monies received by the defendants as constructive trustees and misapplied; and (4) interest.

By virtue of the provisions of Ord. 6 r. 8 (1) of the Rules of the Supreme Court the writ was valid for service until 21st April 1995 but it was not served within that period. Instead the plaintiff on 18th April issued an ex parte application, which on 21st April came before a district judge, for an extension of the validity of the writ pursuant to Ord. 6 r. 8 (2); and the district judge granted an extension of 56 days. Because the general endorsement mentioned no dates and because the affidavit of 18th April sworn by the plaintiff's solicitor in support of the application did not mention the fact, the district judge was unaware of what is now known - namely that by 21st April 1995 eight of the forty one causes of action on which the plaintiff relies for its claim were already statute-barred. I shall comment later on this omission.

The burden of the affidavit was that the investigation into the matters said to found the claims had been lengthy and complex; that the defendants had not been co-operative in providing documents; and that counsel, to whom the available information had by then been submitted to enable her to draft a statement of claim, had asked "that further information be obtained if possible and it is for that reason this application is made to extend the life of the writ".

On 14th June the writ was served, to be followed on 28th June by a statement of claim. Time for defence was extended by agreement. I shall have to refer in due course to the correspondence leading to the extension. On 27th September 1995 the defendants applied to discharge the order of 21st April and have service of the writ set aside. That application came before District Judge Gayle on 30th May 1996 and was dismissed. It was with an appeal from that decision that Astill J. dealt when on 30th October 1996 he set aside service of the writ.

Astill J. did not give a formal reasoned judgment, but instead indicated that the appeal would be allowed for reasons which were apparent from the exchanges between himself and counsel for the plaintiff in the course of her argument. For the substance of those exchanges we have to turn to the helpful attendance note of Mr. Brockman, the plaintiff's solicitor. I would summarize the relevant parts of that as follows:

The judge made it clear to counsel for the defendants (who were the appellants before him) that he accepted counsel's submission that the crucial period was the four months following the issue of the writ and that he wanted to know what the reasons were for not serving it during that period. Counsel for the plaintiff then addressed him. She said that since 1992 the plaintiff had been dragging information out of the defendants. She explained that "matters had not been investigated to the full" and referred to the liquidator's obligation to other parties to acquire and preserve funds. When the judge pointed out that, a decision having been taken to issue the writ, shortage of information should not stop service, counsel responded that once the writ was served costs would be incurred by the other side which could be recoverable. That, she said, was one reason.

There was further discussion, the judge indicating that if the liquidator was able to launch proceedings there was no reason why he should not also be able to serve the writ. He again asked why the proceedings had not been served and counsel replied that service "started the costs ball rolling". She went on to refer again to the need for the liquidator to establish that there was sufficient funding.

The note on which I have been drawing records that at one stage counsel said that she could not expand arguments beyond those set out in her written skeleton submission. In the course of the hearing of this appeal we were provided with copies of that skeleton, from which it is clear that no reasons additional to those noted in the attendance note were relied on. On the law, counsel made reference to Kleinwort Benson Ltd. v Barbrack Ltd [1987] AC 597, Waddon v Whitecroft Scovell Ltd. [1988] 1 WLR 309 and Lewis v Harwood The Times 11th March 1996.

(2) In particular, he was of the view that neither past difficulties in obtaining information from the defendant, nor concerns about costs, nor the fact that the plaintiff company was in insolvent liquidation, nor the fact that the plaintiffs might have wanted to have further information, constituted acceptable reasons for refraining from serving the writ.

It is quite clear from this that the judge never reached the stage of considering whether to exercise his discretion to extend the validity of the writ: his conclusion was that the plaintiff had not shown a good ground for granting an extension, and that the question of discretion did not therefore arise. Mr. Peto, appearing for the appellant in this court, takes issue with that in his first ground of appeal where he asserts that the judge erred in that he treated as decisive the question whether it had been shown that there was good reason for not serving the writ during the original period whereas he should have directed himself in accordance with Kleinwort Benson v Barbrack Ltd. and Waddon v Whitecroft and asked whether there was good reason for extending the validity of the writ. However in argument Mr. Peto did not press this ground strongly and I consider that he was right not to do so. It is true that the judge's view as expressed in argument was that no good ground for failing to serve had been shown. However I am quite satisfied that the present was a case in which the establishment of a good ground for failing to serve was a necessary step on the way to establishing a good ground for an extension. In Waddon's case at 314 G Lord Brandon of Oakbrook said:

The second ground of appeal was that what a plaintiff had to show was good reason for an extension of the original period of validity of the writ, and not good reason for failure to serve it during that original period, and that Michael Davies J. had wrongly confused these two different matters. While it may be possible to visualise a case in which establishment of the second matter is not a necessary step to establishment of the first, I do not find it easy to do so. In the present case at any rate it seems to me that the two matters are inextricably bound together. That is the approach which Michael Davies J. appears to have adopted and I cannot see that he erred in doing so.

1(a) The requirement that an applicant for an extension under Ord. 6 r. 8 (2) should establish a good reason for the extension did not apply to applications in cases where at the date on which the application was determined (a) the original period for service had not expired and (b) the plaintiff's claim was not statute-barred. Statements in the notes to Ord. 6 r. 8 to the effect that there must always be a good reason for an extension were accordingly wrong.

Category (1) cases are where the application for extension is made at the time when the writ is still valid and before the relevant period of limitation has expired. Category (2) cases are where the application for extension is made at a time when the writ is still valid but the relevant limitation period has expired. Category (3) cases are where the application is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired.

It is true, as Mr. Peto points out, that refusal of an application to extend in a category (1) case leaves the plaintiff free to issue a fresh writ, and that from one point of view it might be thought that all that was achieved by such a refusal would be the waste of the £500 fee. Mr. Peto was almost but not quite prepared to pursue that argument to its logical conclusion by boldly submitting that in practice no reason need be established in such a case. However, his submission was that, given the requirements of the rule, some reason had to be shown: but perhaps the consequence that refusal would occasion needless expenditure of £500 was such a reason, or if more was required it was very little more and overall a much less cogent or convincing reason would suffice in category (1) than was required in categories (2) or (3).

(1) In Kleinwort Benson the House of Lords concluded that there must be implied in Ord. 6 r. 8 (2), "as a matter of construction, a condition that the power to extend shall only be exercised for good reason" (per Lord Brandon at 622 C). Moreover, Kleinwort Benson concerned a category (1) as well as a category (2) case, and there was no suggestion that a distinction should be drawn between them in the matter of reasons.

(2) To accept Mr. Peto's approach would be significantly to dilute the provisions of Ord. 6 r. 8 (1) by treating it as having no or only insignificant force in relation to a large class of cases to which it plainly applies. There is no warrant for that approach either in the wording of the rule or in the cases. In Battersby v Anglo-american Oil Co. Ltd. [1945] KB 23, 32, Lord Goddard said:

This is, it seems to me, an important consideration. Someone who is unaware of an impending claim may well alter his position in a way in which he would not alter it with knowledge of that claim, and may suffer serious detriment as a result. It seems to me significant that the period of validity of a writ was, in 1990, reduced from 12 to 4 months, following recommendations in the Civil Justice Review which suggested that then current periods were unnecessarily long for all but special cases. That, combined with the growing recognition that the courts have a duty to participate in the management of proceedings and an interest in securing their convenient and expeditious disposal all militate against Mr. Peto's approach.

The only respect in which I am persuaded by the appellant's arguments under this first head is in regard to Mr. Peto's contention that the court may be somewhat more ready to find good reason in a category 1 case. I certainly would not subscribe to the approach which would treat the expenditure involved in issuing the new writ that a refusal would necessitate as capable of amounting to good reason. However, it does seem to me unrealistic to require that exactly the same rigour should be exercised in scrutinising the matters relied on as good reason in a case where, for example, the writ was issued within a year of the accrual of the case of action, as would be exercised in a category (2) or (3) case. In saying this I am not in any way intending to question the well-established distinction between the two stages of the enquiry that the court has to undertake (see in this connection The "A1 Tabith" [1995] 2 Lloyd's Rep. 336 at 342). I do, however, have in mind the decision in Lewis v Harewood where Waite L.J. in a judgment with which Morritt L.J. agreed, while reaffirming the necessity for a two stage approach, said that matters relevant at stage two were not irrelevant at stage one; that there was a degree of overlap; and that a judge addressing the enquiry at stage one was entitled and bound to take into account any matters which appeared to him to be relevant to the issues of good reason and satisfactory explanation notwithstanding that the same matters would also be relevant, assuming it arose at all, to the exercise of his discretion at stage two. This approach is consistent with what Lord Brandon said in Kleinwort Benson (p. 622 H):

Whether there is or is not good reason in any particular case must depend on all the circumstances of that case, and must therefore be left to the judgement of the judge who deals either with an ex parte application by a plaintiff for the grant of an extension, or with an inter partes application by a defendant to set aside an extension previously granted ex parte.

None of this, however, detracts from the requirement that good or potentially good reason for an extension must as the first stage be shown in every case; and that in the ordinary case (of which this is one) a necessary first step in showing good reason for an extension is to show that there was good reason for not serving the writ within the initial period.

It may be asked why it is material to consider Mr. Peto's argument that category 1 cases are to be regarded differently when the present is a category 2 case. The answer is that he seeks to distinguish between those parts of the claim which were and those which were not statute-barred on 21st April 1995. I shall return to this distinction later.

I have not yet made any detailed reference to the evidence. Before the district judge on 21st April 1995 was a short affidavit from the plaintiffs' solicitor, Mr. Brockman, in which, having referred in a few sentences to the difficulties that the liquidator had had in investigating matters, he advanced as the reason for the application that counsel, to whom instructions had been submitted to draft the statement of claim, had requested that further information be obtained if possible. From this it appears that the view was being taken that the statement of claim needed to be drafted before the writ could be served. I have already mentioned that this affidavit did not disclose that by 21st April 1995 eight of the heads of claim would be statute-barred (or, incidentally, that all would be by 13th June). This was a very serious omission, amounting in my view to a failure to comply with the duty of making full disclosure on an ex parte application. In Waddon's Case Lord Brandon, at 312, said:

I feel bound to observe that this affidavit was seriously defective in that it made no mention whatever of the fact that the primary period of limitation applicable to the appellant's claim would expire shortly. It is the duty of solicitors acting for a party on an ex parte application to the court to make a full and frank disclosure of all matters relevant to such application. The fact to which I have referred was, having regard to long-established authority on the extension of the validity of writs where questions of limitation are involved, not just a relevant matter but a crucial one.

Mr. Brockman swore a further affidavit in opposition to the defendants' application to set aside the extension. That gave a more detailed account of the liquidator's difficulties and in support of the contention that the defendants had been dilatory and obstructive about some correspondence. As to that, all I propose to say is (i) that this is strongly disputed by the defendants and that it is quite impossible for us on the material we have to determine the rights and wrongs of it and (ii) that I accept Mr. Nugee's submission that it is not material to do so because what is quite clear is that by August 1994 the liquidator had received from the defendants sufficient documents to enable his advisors not only to issue proceedings but to draft and serve a statement of claim. This is an obvious inference from the undisputed fact that after August 1994 the defendants provided no further documents or information.

(2) Having received instructions to proceed from the liquidator, Mr. Brockman issued the writ on 22nd December 1994. The liquidator's intention was that the writ should be served with the statement of claim within the 4 month period, but unfortunately this proved impossible because of the need to make further enquiries and do further work. "Still further information remained outstanding" when the summons for an extension was issued.

The commencement of these proceedings is something the liquidator needed to consider carefully and he did not take the decision lightly. He is aware that the Statement of Claim makes allegations of a very serious nature against a reputable firm of solicitors. Further, the sums involved are not small, and as he wished to ensure the damages claimed include all sums due to the plaintiff, it was necessary at every stage to ensure that proper consideration was given to the actions being taken.

This paragraph would seem to be harking back to decisions that had to be taken before the issue of the writ, but we were invited to construe it as making the point that, despite having issued a writ (something done, it is to be noted, just on four months before the expiry of the earliest of the relevant limitation periods) the liquidator wished to be assured that it was appropriate and prudent to serve the proceedings, thereby as it were setting them in motion and involving the defendants in expenditure for which he or the creditors were potentially liable.

Mr. Nugee's submission is that these assertions really came to no more than this - that the liquidator wished to have more time than the rules allowed to consider whether he should actively pursue the proceedings which he had started in December 1994; and that an ingredient in his reasoning was that he wished the statement of claim to be served with the writ. As to the latter point, I do not consider that on the facts of this case it was a good or potentially good reason to refrain from serving the writ that it was intended to serve a statement of claim with the writ. In reaching that conclusion I have not regarded The Birka [1996] 1 Lloyd's Rep. 31 to which Mr. Nugee referred us as deciding that the desire to serve a statement of claim cannot rank as a good reason, for that, like the present, was a case to be decided on its particular facts: I simply see nothing in the facts of the present case to indicate that service of the statement of claim with the writ was called for, or necessary. As to the first point, on the basis of the facts and dates that I have related, I cannot accept that any good ground had been shown for not serving the writ. Since August 1994 the plaintiff had had ample time to consider matters. The liquidator was confident enough to instruct solicitors to issue proceedings in December, four months before any limitation problems necessitated that step. What, it seems to me, is really being said is, as Mr. Nugee submits, that the liquidator desired to have the luxury of more time to consider whether to do that which the rules required him to do within four months.

My conclusion is that, on the material before him, the judge was correct to conclude that no good ground had been established for not serving the writ within four months - which in this case, as it would be in most, was an essential ingredient in establishing good reason for an extension. If and insofar as it is permissible to distinguish between those parts of the claim which were statute-barred on 21st April 1994 and those that were not, I see no reason to do so. Mr. Peto's contention, which I would be disposed to accept, was that in an appropriate case it would be open to a judge to indicate that he was prepared to grant an extension conditionally on the plaintiff's striking out those parts of the claim that were statute-barred: and that in that sense the claim in this writ could be regarded as (in part) a category (1) claim. But even regarding it as such, and allowing that a somewhat less stringent approach to the establishment of good reasons might be appropriate in relation to it, the reasons relied upon do not in my judgment amount to good reasons in the circumstances of this case.

Before turning to the issue of waiver I must mention an argument contained in the grounds of appeal and advanced, in the end I think without much conviction, by Mr. Peto. As I understand his submission, it was that, while at the time of the ex parte order only eight of forty nine claims were already statue-barred, the granting of that order and the plaintiff's consequent reliance on it led to the whole forty nine being allowed to become statute-barred (as the latest one did on 13th June 1995) by the time service occurred on the 14th June. Had the court refused the order on the ex parte hearing, a fresh writ could have been issued forthwith in respect of all the then unbarred claims. Therefore, it was said, in setting aside the renewal on 30th October 1996, the judge was giving the defendants a windfall: and what he should have done was to vary the district judge's order to make the grant of an extension conditional, as discussed above.

There are - as I think in the end Mr. Peto accepted - great difficulties about this submission. It involves contending that the plaintiff, who on the basis of the judge's findings (and incidently without making proper disclosure) had persuaded the district judge to make an order which it was wrong for him to make, should in some way be protected against the adverse consequences of its choosing to rely on that order; and that this should be so notwithstanding (i) that the plaintiff must be taken to have known that the ex parte order was subject to challenge inter partes and (ii) that the plaintiff could have protected itself by issuing a further writ as a safeguard against that eventuality. I cannot accept that there is any substance in this ground.

In the light of my conclusions so far, the only other issue that arises is that of waiver. The contention now advanced for the first time is that two letters written by the defendants' solicitors after service of the writ on 14th June and the statement of claim on 28th June 1995 amounted to a waiver by the defendant of any entitlement to contend that the extension of the time for service should be set aside. Despite its late emergence, Mr. Nugee did not argue that this court should not entertain the point.

By Ord. 12 r. 8 (1) (a) and (d) a defendant's application to set aside an ex parte order extending the validity of a writ and setting aside service must be made within the time limited for service of a defence - that is to say fourteen days after service of the statement of claim or such longer time as the court may allow or the parties agree to allow: see in this connection Lawson v Midland Travellers Ltd. [1993] 1 WLR 735. Since the defendants' application to set aside the extension and service was dated 27th September 1995, it was only by virtue of the extension of time for service of defence to which I am about to refer that it was within the time limit imposed by this rule.

In order that we may take instructions, we would be grateful if an extension of time for the service of a Defence could be agreed. The counsel we intend instructing has detailed knowledge of background matters which may be relevant to this claim. As we are now into the peak holiday period it is going to be difficult for full instructions to be taken and a Defence to be settled and agreed before the end of September. That is a realistic time estimate rather than our asking for a number of short extensions of a number of weeks on each occasion. We will, of course, be endeavouring to serve a Defence as soon as reasonably possible.

We will now be reviewing the contents for the Writ and Statement for Claim. As the Statement of Claim clarifies, to a certain extent, the time period during which the alleged cause of action arises, a further Acknowledgment or Acknowledgments of Service may be necessary in respect of individuals who were partners of the defendant firm at that time. We would be grateful for your confirmation that there be a general extension of time for the service of any additional Acknowledgements of Service that may be necessary whilst we clarify the position. This will not, of course, delay the obtaining of instructions on the Statement of Claim as the individuals referred to in the Statement of Claim are, we believe, still with the defendant firm.

These two letters were in evidence before the judge but as I have said no point was taken on waiver. I should also refer to a letter of 20th September 1995 written by the defendants' solicitors which was not before the judge but which, at the instance of Mr. Nugee and with the agreement of Mr. Peto, was included in the papers once the plea of waiver was raised. It reads as follows:

If this action proceeds, then our client is clearly entitled to security for costs. The issue is the amount of that security and, at this stage, the time period of the action over which the security should apply. We invite your confirmation that your client agrees to provide security for costs up to and including any trial. We can then provide you with a calculation of those costs for agreement or determination by the court.

We would be grateful if you could provide us with full details of the grounds upon which the extension of the validity of the writ was granted and a copy of any of the affidavit or other evidence provided to the court in support of that application. In the absence of a satisfactory answer we reserve the right to make an application to the court for these details and to set aside the extension.

Mr. Peto submitted that the July letters contain unequivocal indications of an intention to defend on the merits, and that that was a waiver by the defendants of their right to challenge the validity of the extension. He referred us to authorities. The first was Fry v Moore [1889] 23 QB D 395, a case which he accepts was decided at a time when the practice was different but which he contends shows that a waiver will arise where the defendant does something indicating an intention to defend on the merits. The act there relied on was the taking out by the defendant of a summons asking that a judgment in default of appearance might be set aside and the plaintiff be ordered to deliver a statement of claim. Reliance is placed on the following passage in the judgment of Lindley L.J. at page 398:

Has then the defendant waived the irregularity? He has since taken at least two steps in the action which could only be proper steps on the theory that the order for substituted service was a proper order. In the first place, the defendant took out the summons of the 28th of January, by which he asked that the judgment might be set aside, and that the plaintiff might be ordered to deliver a statement of claim. ..... Then on the 2nd of March another summons was taken out, after the defendant had been communicated with, and a solicitor had been properly retained to act for him, for the same purpose as the first summons. By this summons, again, the action was treated as a properly constituted action, the object being to enable the defendant to raise a defence on the merits. These two steps, as it appears to me, are so inconsistent with the notion that no action was in existence as to amount to a waiver of the irregularity in the procedure.

Mr. Peto also referred us to Sage v Double A Hydraulics Ltd. The Times, 2nd April 1992, a decision of the Court of Appeal. The plaintiff in that case served a writ the validity of which had expired. The defendants' solicitors issued a summons to set aside service but, on their failing to attend at the time fixed for hearing, that summons was dismissed. They then issued a summons for extension of the time for defence and later a further summons to reinstate the application to set aside service. The plaintiff asserted waiver. In the course of his judgment (from the transcript of which I cite) Farquharson L.J. said:

It is necessary in each case to determine whether any step taken, looked at objectively, falls into this category. A useful test is whether a disinterested bystander with knowledge of the case, would regard the acts of the defendant (or his solicitor) as inconsistent with the making and maintaining of a challenge to the validity of the writ or to the jurisdiction.

What in my judgment is conclusive against the defendants is the issue of the time summons on 22 March 1991 and its service. This was done at a time when the writ was not apparently being challenged as the application for reinstatement of the original summons to set aside was not made until 26 March 1991. It is appreciated that the steps taken to extend time were to protect the defendants' position in the event of the failure of the summons to set the writ aside, but as already observed the acts of the defendant and his solicitors must be regarded objectively. So regarded, in my judgment, the defendants did take a step in the action inconsistent with their challenge and thus waived their right to object to the writ.

However, in Lawson v Midland Travellers Ltd. , where one question arising was whether a defendant who did no more than ask the plaintiff to consent to an extension of the time for service of defence had waived his rights under Ord. 12 r. 8 (i), Stuart-Smith L.J. after citing from the transcript of Farquharson L.J.'s judgment the above passage, said:

In my judgment that case depends on its particular facts. The present argument was not addressed to the court. It is no authority for the proposition that if the defendant merely applies for an extension of time for service of the defence, which automatically carries with it the extension of time in which to apply under Ord. 12 r. 8 (1), that this is to be taken as a waiver.

In the light of these observations I must reject Mr. Peto's argument that the plaintiff can rely on the mere fact of an application for an extension alone as amounting to a waiver. Nevertheless he placed reliance on the more general remarks which preceded the passage quoted from Sage's case. He pointed to the general tenor of the long paragraph in the letter of 11th July - in particular the last sentence: and to the reference in the letter of 14th July to obtaining instructions on the statement of claim. He also placed some reliance on the terms of the defendant's solicitors' letter of 20th September 1995, suggesting that the penultimate sentence was indicative of a recognition that the July letters did, without some such stipulation, contain material indicative of an intention to waive the right to set aside.

Mr. Peto argued that there is an important distinction between the present case and that of Lawson, which is that in Lawson no indication was given by the defendants' solicitors as to why they were seeking an extension of time for defence. I cannot accept this contention, since the relevant letter in the latter case referred to the omission (in breach of Ord. 18 r. 12) to serve with the statement of claim a medical report and schedule of special damage, and continued:

Mr. Nugee relied strongly on Lawson's case, in which one of the submissions made by counsel for the plaintiff was that the letter from which I have just quoted a passage constituted a step in the action and therefore a waiver. She submitted that by asking for service of the documents the defendants were inviting the plaintiffs to incur further expense in the belief that the matter would be defended on the merits. Stuart-Smith L.J. gave three reasons for rejecting this argument. The first was that the letter did not ask for the documents to be served, but merely for an extension until they were served. The second was that there was no evidence that the plaintiff had incurred expense after the letter. Both those reasons were peculiar to that case, he said, and continued:

But the real objection in my opinion is that the service of the statement of claim was defective (although not a nullity) because it did not comply with Ord 18, r.12 (1A). This did not prevent time for service of the defence running. But, having regard to the policy to which I have earlier referred, I do not think the defendant should be taken to have waived his right to apply under Ord. 12 r. 8 (1) simply because he has invited the plaintiff or the court to extend time for service of the defence until the plaintiff has made good the defective service of the statement of claim.

As to the indication of an intention to serve a defence as soon as possible, Mr. Nugee asked us to consider the July letters as a whole. The first, he argued amounted to no more than an indication that the defendants wished to have time to consider the matter and the reference to a defence did not amount, expressly or by implication, to a promise not to apply to set the writ aside. The second simply made it clear that the writ and statement of claim had not yet been reviewed, and that there was a problem as to ascertaining the identify of the partners taken to be sued in the firm's name. He also relied on the fact that there was no evidence of the plaintiffs or their advisors thinking that no point was to be taken as to the validity of the writ.

There is, I cannot help feeling, an air of unreality about this issue and the arguments to which it gives rise. The reason I say this is that the requirement that the question of waiver should be considered on an objective basis, regard being had only to what the defendants or their advisors have said or done, makes irrelevant the undoubted facts, as I confidently infer them to be (1) that when the July letters were written no one on the defendants' side had noticed that the writ had been extended and (2) that until sometime after the hearing before Astill J. it had not occurred to anyone on the plaintiff's side to assert that there had been a waiver. The enquiry is one which requires the court to decide whether the defendants, by writing in the terms they employed, are to be taken to have intended to surrender a right which they did not realize they had to plaintiffs who did not appreciate what was being given to them.

The argument before us proceeded, however, on the basis first, that the question of waiver was to be determined on an objective basis, and secondly that it was unnecessary for the plaintiff to establish any detriment. It should not be assumed, from the fact that I put matters in this way, that I am questioning the validity of either of these propositions, which I take to be based on the consideration that Ord. 12 r. 8 (1) treats all the matters there listed on going to "the jurisdiction of the court in the proceeding". I am simply recording that it is on that basis that I have approached the resolution of the question whether the July letters waived the defendant's entitlement to apply to set aside.

The conclusion I have reached is that Mr. Nugee is essentially correct when he submits that (i) the request for an extension of time for service of the defence was not in this case of itself a waiver, and (ii) the fact that it was accompanied by an expression of intention to serve a defence did not make it so. Nor do I consider that, viewed separately, this expression of intention amounted to a waiver. I am persuaded by Mr. Nugee that the overall import of the letters is that the defendants wished to have more time to consider matters and decide how to proceed. I accept that the decision of this court in Lawson's case provides useful support for his case, involving as it does a letter which inferentially foreshadowed the service of a defence on the merits. I accordingly accept that there is nothing in the July letters that can be said to constitute a waiver of the defendants' rights.

England and Wales Court of Appeal (Civil Division) Decisions

BINNING BROS LIMITED (IN LIQUIDATION) v. THOMAS EGGAR VERRALL BOWLES (A FIRM) [1997] EWCA Civ 2688 (11th November, 1997)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Binning Bros Ltd v Thomas Eggar Verrall Bowles (A Firm) [1997] EWCA Civ 2688 (11th November, 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2688.html Cite as: [1997] EWCA Civ 2688, [1998] 1 All ER 409