Vincent v South East London Health Authority

On 6^th February 2006 I refused, without a hearing, the application made on paper by the claimant, Dr Vincent, for permission to appeal from a decision of Master Whittaker made on 14^th July 2005. This judgment follows an oral hearing which took place before myself at which the Claimant applied for the decision to be reconsidered. At this hearing the Claimant was represented by counsel.

On 14th July 2005 the Master had before him two applications. One of these was by the claimant dated 20^th December 2004, for relief from the sanction of striking out, which had occurred automatically upon the claimant failing to comply with the requirement of an unless order made on 18^th June 2004. The way that that order came to be made is as follows. In paragraph 8 of an order made on 13^th December 2002, Master Whittaker had ordered the claimant to pay the defendant £1000 on account of the costs of a hearing which had taken place on 26^th November 2002. The claimant did not make that payment and disputed the interpretation of the order. On 20^th June 2003 he issued an application notice for an order that paragraph 8 of the order of 13^th December 2002 be varied, on the ground that he did not have the means to settle the payment. On 25^th June 2003 the defendant issued an application notice for an order that the claim be stayed because the claimant had not paid the £1000. On the same day the defendant issued a second application notice for summary judgment pursuant to CPR 24.2. That application related to the whole of the claim.

These applications came before Master Whittaker on 10^th July 2003. He granted the defendant summary judgment on the Defendant’s application, but not in respect of the whole of the claim. He directed that the other applications, respectively to vary the order for payment of £1000 and for a stay of proceedings, be re-listed. They came before the court nearly a year later on the 18^th June 2004. On that occasion Master Whittaker did vary the order for payment of £1000. He ordered:

“1.

The claimant to pay the sum of £200 each calendar month for five months to the defendant’s solicitors, the first such payment to be made by 4.30pm on 28^th June 2004 in satisfaction of the order for payment of £1000 costs made by the courts order dated 3^rd January 2003.

2.

If the claimant fails to pay in full the sum of £1000 referred to in paragraph 1 above to the defendants solicitors by 4pm on 28^th October 2004, the action be struck out and the claimant to pay the defendants costs of the action…

5.

The matter be listed for a case management conference on 15^th December 2004”.

Four of the five instalments were paid, and receipt acknowledged without complaint. The fifth and last was tendered by a cheque dated 28^th October which was enclosed in a letter from the claimant’s solicitors to the defendant’s solicitors dated 2^nd November 2004 and sent by special delivery. 28^th October that year was a Thursday and 2^nd November was the following Tuesday. It is plain, and there is no dispute, that the payment was late.

The matter came again before the court on 15^th December 2004. On this occasion it came before Master Rose. He ordered that unless by 4pm on 21^st December the claimant issued an application for relief from sanctions by failing to comply with the order of Master Whittaker made on 6^th June 2004 the claim stood struck out. He directed that the matter be listed before Master Whittaker. It was not until July that it could be heard by Master Whittaker.

The dispute between the parties goes back to 1993. The defendant to these proceedings is the successor to what was then the Lambeth Southwark and Lewisham Family Health Service. The claimant was suspended by the General Medical Counsel in January 1995 until March 1995 for a period of three months. The gist of the complaint when these proceedings were issued as long ago as 1999 was that the defendant’s predecessor had failed to arrange a locum to attend his patients and had deliberately dispersed his patients to other surgeries. The original statement of claim was dated February 1999. It was amended on 16^th January 2002. There was an application by the defendants in May 2002 to strike the claim out on grounds of delay and failure to comply with the rules and practice directions. On 16^th July 2002 Master Trench declined to strike the action out, but held that there had been culpable delay for which the appropriate sanction was to deprive the claimant of any interest on any damages over the period of ten months for which delay had built up at that stage.

On 20^th August 2002 the amended Statement of Claim was served, purportedly in compliance with the order of Master Trench. On 27^th November 2002 the defendants issued an application notice applying for an order that the claimant provide information and clarification requested in correspondence. They complained of non compliance with CPR Part 18. That is the application that was the subject of the substantive order of Master Whittaker made on 13^th December 2002. The defendant was partially successful in striking out certain passages of the Amended Statement of Case dated 20^th August 2002.

In early 2003 the defendants became concerned at the non payment of the £1000. In addition, by that time the claimant’s then solicitors had been suspended from practice by the Law Society. New Solicitors, now representing the claimant, were instructed and they embarked on a dispute as to the meaning of the order of 26^th November 2002, paragraph 8, about which Master Whittaker has subsequently been highly critical. That eventually led to the application to vary which was made on 20^th June 2003.

The judgment of Master Whittaker of 14^th July 2005 is long and carefully prepared. He recites the history of the matter identifying four periods of what he describes as culpable delay amounting to a total of three to three and a half years. In addition, in paragraphs 13 and 16 of his judgment he is critical of the drafting of the amendments to the Statement of Claim. In the remainder of his judgment from paragraph 26 onwards he considers each of the subparagraphs to CPR 3.9.

In considering this judgement on paper I could see no error. At the oral hearing I had the benefit of submissions from counsel who took me through the documentation in some detail. He submits that the Master ought not to have taken into consideration the defects, as he saw them, of the pleading, in circumstances where he was considering only non compliance with an unless order and the defendant was not developing the points. He also submits that the delay was not as long overall as Master Whittaker found, and that, insofar as it was long, it was less culpable or not culpable because of the impecuniosity of the claimant and the difficulties he suffered from the loss of his first firm of solicitors. In the end, he submits that the non compliance with the unless order was limited to a payment made a very few days late of the last of five instalments. He drew my attention to the decision of the Court of Appeal in RC Residuals Ltd v. Linton Fuel Oils Ltd [2002] EWCA Civ 911: [2002] 1WLR 2782. I have also had regard to the helpful written submissions of 14^th March submitted on behalf of the Defendant.

This is a large claim and one of great importance to the claimant. Having heard the oral submissions, I am just persuaded that there is sufficient prospect of success in an appeal to merit the permission sought. I therefore give permission to appeal.

I do this with considerable misgivings, given the lamentable delays in this action (whatever the reason for these may be). Nothing in this judgment should be taken as indicating a view on my part as to whether the appeal should succeed or not.

The matter should be resolved as soon as possible.