Huscroft v P & O Ferries Ltd

This is a renewed application for permission to appeal against an order made by His Honour Judge Bullimore in Sheffield County Court on 26 October 2009 refusing permission to adduce further evidence and dismissing an appeal against an order made by District Judge Babbington in Barnsley County Court on 13 February 2009. Save to the extent that the application seeks permission to appeal against Judge Bullimore’s refusal of permission to adduce further evidence, it seeks permission to make a second appeal. Sir Richard Buxton refused permission on the papers on 2 February 2010 on the grounds that the proposed second appeal does not cross either of the second appeal thresholds prescribed by CPR Part 52.13 and that the challenge to the refusal to admit fresh evidence was hopeless.

The applicant is Bryan Huscroft, the claimant, represented on the application by Mr Crouch who addressed the court via a video-link. The respondent, P&O Ferries Limited, was represented by Mr Boyle. Mr Huscroft’s claim against P&O, commenced on 22 May 2007, is for damages for an injury he suffered on 27 May 2005, whilst working on a P&O ship. I reserved judgment because at the conclusion of the argument I was undecided as to whether to give permission on any ground.

Judge Babbington’s order was made pursuant to the court’s case management orders under CPR Part 3.1 and was so made on the combined hearing of P&O’s application notice dated 17 September 2008 and a case management conference. Paragraph (1) of the application notice read:

Paragraph 1 of Judge Babbington’s order ordered Mr Huscroft to pay £5,000 into court ‘as security for costs by 4 pm on 17 April 2009.’ Paragraph 2 provided that if he failed to do so, his claim should be struck out forthwith. The remaining paragraphs were interim directions by way of preparation for a trial fixed to take place within a window opening on 28 September 2009. Whilst the first two directions required compliance before 17 April 2009, the remainder required compliance by later dates. They would, by necessary inference, only come into play if Mr Huscroft’s claim had not in the meantime been struck out under paragraph 2 for want of compliance with paragraph 1.

I have a transcript of the proceedings before Judge Babbington and of his judgment. The latter explains that the application was one by P&O for security for costs. P&O conceded that there was no case for such security against Mr Huscroft under CPR Part 25 because the conditions required by Part 25.13 could not be satisfied. They relied instead on Part 3.1(3) and/or 3.1(5). Part 3.1 empowers the court to make a wide variety of case management orders. Part 3.1(3) to (6A) provide:

The judge was not persuaded that any case was made out for an order under Part 3.1(5) and said that any order for payment into court could only be under Part 3.1(3). He held that Mr Huscroft’s conduct of the litigation had left much to be desired, saying that Mr Huscroft had played ‘fast and loose’ with orders and was not doing what he should to get the case to trial. He rejected the submission that it would be sufficient to impose control on Mr Huscroft’s future conduct of the claim by making ‘unless orders’.

P&O had asked for security of £20,000. Mr Huscroft’s evidence in response to the application of 17 September 2008 was contained in a witness statement of 3 February 2009 by his solicitor, Mr Clarke, which was largely, and inappropriately, devoted to legal argument and said only this about Mr Huscroft’s ability to pay money into court:

The judge had regard to that and recognised that if he ordered security of £20,000, it would be likely to deprive Mr Huscroft of his Article 6 rights to a fair trial of his claim. Since, however, Mr Huscroft said nothing more about his financial circumstances, the judge considered that he could, in the circumstances he mentioned, draw certain inferences as to them and concluded that he could, as he did, require £5,000 to be paid into court.

Judge Bullimore gave permission to appeal against that order, including permission to Mr Huscroft to apply to adduce fresh evidence as to any claimed inability to pay the £5,000. Permission to adduce such evidence was sought, but was then refused by Judge Bullimore. He pointed out that Mr Huscroft had known for some five months of P&O’s security application and had failed to put in evidence as to his alleged lack of means. He had done no more than assert what he did via Mr Clarke. Judge Bullimore said of that evidence in paragraph 9 of his judgment:

The proposed appeal seeks the reversal of Judge Bullimore’s decision refusing permission to adduce additional evidence as to Mr Huscroft’s means. That decision was pre-eminently a matter within Judge Bullimore’s discretion and I can see no arguable fault in the way he exercised it. I consider that an appeal against his decision in that respect would have no real prospect of success and I refuse permission to pursue one.

The remaining grounds of appeal are for the purpose of a second appeal and I ought only to give permission in relation to any ground that satisfies one or other of the limbs of Part 52.13. The first point sought to be argued is that it is said that Judge Babbington’s order requiring the payment into court of the £5,000 was not ‘an order … subject to … a condition to pay a sum of money into court’ (see again Part 3.1(3)(a)), and so it is said that he did not lawfully exercise his jurisdiction under that rule.

I do not find that point easy to understand. It is true that the payment was not described as a condition of the order, but Sir Richard Buxton pointed out that that was plainly its effect, as Judge Bullimore had held. That is also my view about it. The order as a whole provided for various steps in the proceedings to be taken by way of preparation for the trial. It also opened with the provisions relating to the payment of the £5,000 and, in default, provided for the automatic striking out of the claim. Whatever may be said about the form of the order, its substance was that the making of the post-17 April 2009 orders leading to the trial that Mr Huscroft wanted was conditional on compliance by him with the order for the payment in of the £5,000. That is because if it was not paid in, his claim was to be struck out. It is plain that Judge Babbington understood that he was being asked to order the payment as a condition of the further case management orders he was also being asked to make (see pages 5 and 6 of his judgment). In my judgment, there is no substance in this first point and, therefore, no ground of appeal with a real prospect of success.

It is then said that Judge Babbington’s order was at fault in omitting to contain any provision that Mr Huscroft might have complied with so as to avoid the consequences of the condition that he pay £5,000 into court. I do not understand that. If, as I consider, the substantive effect of the order was to require the payment of the £5,000 as a condition of the case management orders, that was all that the order needed to provide so as to be compliant with Part 3.1(3).

Next it is said that there was no specific finding that Mr Huscroft was in breach of any pre-action protocol, practice direction, rule or order such as to justify the requirement to pay money into court. To the extent that that complaint mirrors the language of Part 3.1(5), Judge Babbington rejected the case made under that paragraph and focused on Part 3.1(3) alone. He explained that, and why, he regarded Mr Huscroft’s conduct of the litigation having left much to be desired, referring to how he played ‘fast and loose with orders.’ He plainly made an assessment that his conduct did merit the exercise of the Part 3.1(3) jurisdiction.

What, however, has caused me concern is whether his generalised criticism of Mr Huscroft’s conduct of the litigation was sufficient to justify the exercise of the Part 3.1(3) jurisdiction. There appears to be no guidance from this court focused on that jurisdiction. The only case to which I was referred dealing specifically with an application under Part 3.1(3) was, as it happens, my own decision at first instance in Halabi v. Fieldmore Holdings Limited & Others, 10 May 2006, unreported. If the approach that guided me in that case is correct, I have doubts as to whether it justified the order made by Judge Babbington. Judge Bullimore, at paragraph 23 of his judgment, however, expressed doubts about my approach. The point he fairly made was that I had treated Part 3.1(3) as effectively governed by like considerations as those applying in relation to Part 3.1(5), whereas he said that it may not be, albeit that there is an unanswered question as to the considerations that do govern the Part 3.1(3) jurisdiction.

I have concluded that since there is that question, it cannot be said that an appeal against Judge Babbington’s decision can have no real prospect of success, since that will depend upon the answer to it. Whilst I make clear my view that I do not regard an appeal as likely to succeed, I consider that it can be said that such an appeal would raise an important question of practice, namely the nature of the Part 3.1(3) jurisdiction. I therefore give permission to Mr Huscroft to appeal so as to raise a challenge to the exercise by Judge Babbington of the jurisdiction conferred by Part 3.1(3).

If Judge Babbington was entitled to exercise that jurisdiction, I am far from convinced that there is any sound basis for a challenge to his decision to order the £5,000 payment. It is, I consider, elementary that the court was not faced with a simple choice of ordering £20,000 or nothing, but that it could or might consider it appropriate to temper the amount of the claimed payment. That should have been foreseen by Mr Huscroft or his advisers and if his case was that he could not afford to pay anything into court, then I consider that it was his duty to put full and frank evidence before the court making that good: see M.V. Yorke Motors (a firm) v. Edwards [1982] 1 WLR 444, at 449B to E. Mr Huscroft’s evidence was, however, instead about as inadequate as Mr Edwards’s (see ibid, at 449H to 450A). I am not persuaded that, in all the circumstances to which he had express regard, Judge Babbington was not entitled to conclude that £5,000 was a fair figure to order.

Assuming, however, that Judge Babbington was entitled to exercise the Part 3.1(3) jurisdiction, I nevertheless do not propose to refuse permission to appeal also against the quantum of the order he made. As it seems to me, if this court is to be invited to review the basis of the jurisdiction he exercised, it ought, once it has decided upon the applicable principles, also to be able review the particular manner of its exercise.

I therefore give permission to Mr Huscroft to appeal but shall confine his grounds to the following: (i) that there was no factual basis justifying the exercise by Judge Babbington of the jurisdiction conferred by CPR Part 3.1(3), alternatively that he identified no such factual basis; and (ii) that for him to order the payment into court of £5,000 was anyway a wrongful exercise of such jurisdiction. I refuse permission on all other grounds.