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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Aldridge v Edwards [2000] EWCA Civ 78 (16 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/78.html
Cite as: [2000] EWCA Civ 78

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Case No: CCRTI 99/1230/B1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HH Judge Boggis QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 16th March 2000
B e f o r e :
LORD JUSTICE ROCH
LORD JUSTICE BROOKE
and
MR JUSTICE FERRIS
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WENDY ALDRIDGE

Claimant/
Respondent


- and -


HUBERT NEVILLE EDWARDS

Defendant/
Appellant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Philip Capon (instructed by Carvill & Johnson for the Appellant)
Richard Lee (instructed by Bailey Wright & Co for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©


LORD JUSTICE BROOKE:
1. This is an appeal by the defendant Hubert Edwards against an order of Judge Boggis QC made in the Birmingham County Court on 18th October 1999 when he allowed an appeal by the claimant Wendy Aldridge against an order made by District Judge Dowling in the same court on 28th January 1999 who had directed that the claimant's summons in this action should be set aside and that she should pay the defendant's costs of the action.
2. The action arises from an incident on 13th October 1991 when the claimant says that the defendant, who was a taxi-driver, wrongfully imprisoned her in his taxi in a lay-by in a country road, and then wrongfully and indecently assaulted and raped her. Although the incident was reported to the police, the defendant was not charged with any offence.
3. The summons was issued on 10th October 1997. It was accompanied by the report of a consultant psychiatrist, and under the heading "Particulars of Loss" the words "to follow" appear. The claimant's solicitors sent an explanatory letter to the court, saying that they had not been able to set out the claim for special damages because further investigations, involving a consultant physician, had to be carried out to establish whether there was any link between the events complained of and the claimant's disabling asthma which had got infinitely worse since the assault. They sought an order staying the proceedings, once issued, pending the filing and service of the schedule of special damages.
4. On 10th October District Judge Ellery made an order in these terms:
"It is ordered that issue but stay pending filing of schedule of special damages."
5. This order was not drawn up until 17th October, and there is a note bearing that date on the court file which reads: "Rang Sols. They confirmed that they did not require service at this stage."
6. On 30th January 1998 Deputy District Judge Minshaw made an ex parte order extending the time for service of the summons until 9th June 1998. The claimant's solicitor had sworn an affidavit in which she explained the difficulties that her firm was encountering in trying to ascertain the defendant's whereabouts.
7. On 11th June 1998 Deputy District Judge Kesterton made a further ex parte order extending the validity of the summons until 9th October 1998. The claimant's solicitor described the continuing difficulties her firm was experiencing in trying to trace the defendant. By this time she had obtained a report from a consultant physician, which she exhibited to her affidavit.
8. On 12th August 1998 the defendant was served with the proceedings, and on 2nd October 1998 a defence was delivered without prejudice to the defendant's contention that the service of the summons should be set aside as irregular. On 21st October 1998 he applied for an order setting aside service of the summons, which was duly granted by the district judge. I have read his careful reserved judgment. He was critical of the efforts made by the claimant's solicitor in attempting to effect service, and held that good reason for extending the validity of the summons was not shown on either occasion when an extension was sought. Counsel for the claimant had conceded that District Judge Ellery must have intended to permit service of the summons and that this implied permission should be read into the order staying the proceedings.
9. The claimant appealed, and in due course Judge Boggis QC allowed the appeal. His written judgment is in two parts, because the hearing was reconstituted after he was asked to take into account the effect of an unreported judgment of this court which had not previously been drawn to his attention. He did not, however, change his mind. The combined effect of his two written judgments, dated 27th May and 21st October 1999, was that he considered that District Judge Ellery ought not to have made his original order in the way he did, but since he had made his order in that form, it had the effect of staying the proceedings for all purposes and the claimant's solicitors were not obliged to serve the summons on the defendant until the stay had been removed. Before the judge, counsel had withdrawn the concession made by his predecessor before the district judge.
10. These proceedings were initiated when the regime of the County Court Rules was still in force, and this judgment is concerned only with the effect of those rules. As was well known, a plaintiff in a personal injuries action had to file with the particulars of claim a medical report and a statement of the special damages claimed, together with a copy of those documents for each defendant (CCR Order 6 Rule 1(5)). If this was not done, the court might specify the period of time within which they were to be provided or "make such other order as it thinks fit (including an order dispensing with the requirements of paragraph (5) or staying the proceedings" (CCR Order 6 Rule 1(6)). On the present occasion, as I have observed, District Judge Ellery ordered that the summons might be issued (which was necessary to prevent the action from being statute-barred) but that otherwise the proceedings should be stayed pending the filing of the schedule of special damages. I do not consider that any additional implied term allowing service of the summons can be read into his order.
11. The stay he imposed has never been expressly lifted. The question at the heart of this appeal is whether, as the judge thought, the order for a stay stopped time running for the service of the summons, (four months unless extended pursuant to the provisions of CCR Order 7 Rule 20), or whether the plaintiff was still bound to comply with the requirements of Order 7 Rule 20, notwithstanding the order for a stay.
12. The judge, and the plaintiff, relied on the decision of this court in Cashmore v Blue Circle Plumbing Fixtures Ltd (CAT 30th July 1996). The facts of that case were similar to the present, except that the district judge had ordered that the action should be stayed "save for the purpose of service". The stay remained in place for the next 12 months, because the plaintiff's solicitors experienced delays in procuring the necessary medical report, and after the 12 months had expired with no step having been taken in the proceedings, the defendant's solicitors applied for a declaration that the action had been automatically struck out pursuant to CCR Order 9 Rule 10.
13. Lord Woolf MR, with whom the two other members of the court agreed, said:
"The effect of Order 6 Rule 1(6) where there is a stay, is to prevent further steps in the proceedings being taken so long as that stay remains. It was open to the plaintiff, under the terms of the stay, to serve the summons but thereafter no further action was required to be taken by either party so long as the stay continued. That being so it seems to me wholly inappropriate to regard a situation of the type described in Order 9 Rule 10 as arising so as to cause the 12 month period referred to therein to start running."
14. The judge considered that the effect of that decision was that the stay imposed by District Judge Ellery prevented time from starting to run for the purpose of CCR Order 7 Rule 20. This rule read, so far as is material:
"20(1) The time within which a summons may be served shall, unless extended under the following provisions of this rule, be limited -
(c) ... to a period of 4 months,
beginning with the date of issue of the summons.
(2) Subject to paragraph (3) the court may extend the period of service for a summons from time to time for such period, not exceeding 4 months at any one time ... as the court may specify ...
(3) Where the court is satisfied on an application under paragraph (2) that, despite the making of all reasonable efforts, it may not be possible to serve the summons within 4 months, the court may, if it thinks fit, extend the period for service for such period, not exceeding 12 months, as the court may specify."
15. Although we were not cited any of the many authorities whose effect is summarised in the notes to this rule on pp 177-8 of the 1998 County Court Practice it is well known that this rule was interpreted as containing a compendious code requiring a plaintiff to serve his summons promptly and to show good reason why it could not have been served during the period of time whose extension he might be seeking. On the face of it it would appear to be extraordinary if the plaintiff could escape all these obligations simply by obtaining, without notice, an order for a stay under CCR Order 6 Rule 1(6) because he has not got all his tackle in order in a personal injuries action, on an application which makes no reference to any potential problems about locating the defendant for the purposes of service.
16. In a decision of this court, in which Cashmore does not appear to have been cited, an argument along these lines received such scant notice that the other side was not called upon to answer it. In Hillier v London Borough of Hammersmith and Fulham (CAT 15th May 1997) the order made by the district judge under CCR Order 6 Rule 1(6) was in these terms:
"Proceedings stayed pending service and filing with the Court of the schedule of special damages and medical report.
Proceedings struck out if the schedule of special damages and medical report are not filed and served before the 31st August 1995."
17. The summons was issued, with the Particulars of Claim attached, on 15th February, and had been served on all the defendants by 8th August.
18. One of the defendants promptly challenged the validity of the summons at the time it was served, and obtained an order striking out the proceedings on those grounds. Nine months later the plaintiff's solicitors sought a declaration that the proceedings against the remaining defendants remained extant, and those defendants then cross-applied for a declaration that the summonses were invalid at the date of the service.
19. This court held that this cross-application must be taken to have been made under CCR Order 37 Rule 5(2) and that it should be dismissed because it was not made within a reasonable time. Earlier in his judgment, however, Hutchison LJ (with whom Mummery LJ agreed) considered that the presence of the stay did not stop time running for the purposes of CCR Order 7 Rule 20: it merely prevented the plaintiff from serving the summons until she applied for the stay to be lifted. This is apparent from two passages in his judgment:
"It is contended that the Recorder erred in not accepting that the stay of 15th February absolutely prohibited the taking of any further step in the proceedings, including in particular the service of the summons, until the specified conditions had been complied with. That, of course, is right. But as was accepted by [counsel for the plaintiff] in the course of argument, it would have been open to the plaintiff to apply to the court for a variation or relaxation of the stay, and for provision that service might take place, notwithstanding the absence of the documents, if for any reason it had been impossible to provide them within the four months limited by Order 7 Rule 20."
"Here the plaintiff sought a declaration from this court that the stay ordered on 15th February had operated to displace or extend the time for service and prevent service until the medical report or statement of special damage had been served.
As to the ground involving a suggestion of an implicit extension of the time for service, by virtue of the order that was made on 15th February, though it has been fully argued by [counsel for the plaintiff] we have felt it unnecessary to trouble [counsel for the defendant] to address us. I propose to say no more than that we were quite unpersuaded by [counsel for the plaintiff's] submissions that there was any implied or necessary extension."
20 I have no hesitation in accepting that Hutchison LJ correctly stated the law and that there is nothing in his judgment inconsistent with what Lord Woolf MR said in Cashmore (or the cases to similar effect, like Whitehead v Avon County Council [1997] PIQR P 1408, under CCR Order 17 Rule 11).
21. The effect of a stay, as the meaning of the word "stay" suggests, is to halt the proceedings, so that the parties cannot take any step in them. It is therefore understandable, that once proceedings have been served it would be unjust to allow a plaintiff's claim to be struck out automatically (whether for failure to enter a default judgment or for failure to comply with the requirements of an automatic timetable) if there is an order of the court in place which prevents the plaintiff from taking the step which would have averted the automatic strike-out. CCR Order 13 Rule 4 provides wide scope for the extension of time in such circumstance, even on an application which sought retrospective extension.
22. What Hutchison LJ observed in Hillier, however, was that a stay granted to a plaintiff under CCR Order 6 Rule 1(6) prevented him from serving his summons unless, as in Cashmore, he asked for permission to serve it when applying for the stay, or made a later application to that effect. The purpose of the original application for a stay had nothing to do with any anticipated difficulty in locating the defendant. It was obtained in order to enable the summons to be issued even though the documents mentioned in Rule 1(5) were not filed with the particulars of claim (and if service had been permitted, to obviate any requirement for a defence until they had been filed). There was nothing, therefore, to stop the plaintiff's solicitors from applying for the terms of the stay to be varied once they encountered difficulties in locating the defendant for the purposes of service. They did not do so.
23. The judge, therefore, over-simplified matters when he said that the stay "stopped the proceedings for all purposes". It did not stop time from running under CCR Order 7 rule 20, and that rule contains its own strict self-contained code relating to the extension of the period of validity of the summons. By obtaining the stay in the first place, and by not applying for a variation of its terms once they encountered difficulties over service, the plaintiff's solicitors prevented themselves from taking any valid steps under CCR Order 7 Rule 20 before time ran out under that rule.
24. I would therefore allow this appeal.
25. Since the plaintiff's solicitors disinhibited themselves from applying for an extension of time for service (let alone two extensions) the issue raised in the second part of the appeal to the judge, which challenged the district judge's decision on the merits, falls away. The district judge's order must therefore be restored.
LORD JUSTICE ROCH: I agree.
MR JUSTICE FERRIS: I also agree.

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/78.html