Appeal Ref: QB/2010/0641
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE SILBER
Between :
JAMES WIEMER | Appellant |
- and - | |
(1) NIGEL ZONE (2) SUNETTE ZONE (3) S & N PROPERTY DEVELOPMENTS LIMITED | Respondents |
Graeme Kirk (who did not appear below)andinstructed directly by the Appellant
Roderick Abbott (who did not appear below) and instructed by Segens Blount Petre) for the SecondRespondent
The First and the Third Respondent were neither present nor represented
Hearing date: 20 January 2012
Judgment
MR JUSTICE SILBER:
I.Introduction
James Wiemer (“the appellant”) appeals with permission granted by Edwards-Stuart J from the order of Master Eyre made on 8 October 2010 dismissing the appellant’s application dated 18 August 2010 for an extension of time for serving his particulars of the claim.
The appeal is opposed by Mrs Sunette Zone (“the second respondent”) but the other respondents Mr Nigel Zone and S & N Property Developments Limited (which is now in liquidation) have not taken any part in the appeal.
The case for the appellant is that the Master erred in that he held (a) that he did not have any jurisdiction to grant the extension of time and (b) that even if he had exercised his discretion correctly, he would have been bound to have acceded to the appellant’s application and have granted an extension of time for serving his particulars of the claim. The second respondent contends that the Master was “unsure” whether he had such jurisdiction, but that his decision was correct.
II The Facts
The background to this case is that the claimant is claiming damages for a breach of fiduciary duty, breach of trust, breach of contract, wrongful threats, and fraudulent misrepresentation in relation to the arrangements by which businesses between the parties were split in April 2004.
The claim for damages in the region of £2.325 million was issued on 19 April 2010. The particulars were not served and by an application issued on 19 August 2010, the appellant sought an extension of time to serve the particulars of claim because first he needed to obtain further information from third parties fully to particularise his claim; second he had not been able to serve the particulars earlier because as a result of financial difficulties caused in part by the conduct of the defendants, the claimant had until recently been acting in person; and third that the particulars needed to be drafted by counsel but because of their complexity, this could not be done at short notice.
The relevant provisions in CPR 7.4 and 7.5 relating to the service of particulars provide that:-
“7.4(1)Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.
(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.
(Rule 7.5 sets out the latest time for serving a claim form)…
7.5 (1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.”
It is common ground that the effect of CPR 7.4 and 7.5 was that the particulars of the appellant’s claim should have been supplied by 19 August 2010 and therefore the application for an extension of time for serving his particulars of the claim was made in the prescribed four-month period.
III. The Decision of the Master
As I explained when outlining the issues, there is a dispute between the parties as to whether the Master considered that he had discretion to extend time for service of the particulars. The case for the appellant is that the Master found that he did not have that power whereas the case for the second respondent is that the Master was “unsure” whether he had such jurisdiction. Unfortunately, he did not give any reasons for his decision to dismiss the application and the only way in which his reasons can be ascertained is by construing comments made by him during submissions.
It is clear that the Master stated at the outset that he was wondering whether he had jurisdiction, but he proceeded to say that having looked at the rule, he did not think he had jurisdiction (page 41A) and that the appellant “will need a new action”. He then said “I do not think I have got jurisdiction” (page 41F).
There was then a discussion with the Master asking if the pre-action protocol has been complied with and he was then told that it had not been because the appellant who was in person was not aware of it (page 43).
The Master also proceeded to listen to a submission from the appellant’s counsel based on the application of the overriding objective, but the Master then pointed out that he would have expected there to be particulars and there were not any. When he was told there was some available, he said that he had not seen them. He finally said “application refused”.
IV. Discussion
In my view it does not really matter if the Master refused the order on the ground that he thought he did not have jurisdiction or whether, as counsel for the second respondent says is the case, he was not sure if he had jurisdiction. It is common ground now that the Master did have jurisdiction to extend time for the service of the particulars of claim in the light of the decision of the Court of Appeal in Totty v Snowden [2002] 1 WLR 1984, which surprisingly was not drawn to the Master’s attention by those acting who are not appearing on the present appeal.
It therefore follows that the Master erred and I will have to consider how the discretion should have been exercised as the issue was how the Master should have applied his discretion was argued in front of me and it was not suggested that further information was required.
The parties agreed that in Robert v Momentum Services Limited [2003] 1 WLR 1577 it was established that the check list set out in CPR 3.9(1) in relation to granting relief from sanctions was not imported by implication into CPR 3.1(2)(a) when an application for an extension of time is made before the expiry of the relevant time limits and second that such a discretion:-
“should be exercised by having regard to the overriding objective of enabling the court to deal with cases justly, including, so far as is practicable, the matters set out in CPR 1.1(2)” per Dyson LJ in Robert v Momentum Services Limited at page 1587).
As is well known, CPR 1.1 (2), which deals with the overriding objectives provides that:-
“(2) Dealing with a case justly 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; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”.
The basis on which a judge can allow an appeal was explained by Lord Woolf M.R. in Phonographic Performance Limited v AEI Redifusion Music [1999] 1WLR 1507 at 1523 in a passage, which has subsequently been applied by the Court of Appeal in Price v Price [2003] 3 All ER 911, when he stated that:-
“The conventional approach of this Court is conveniently summarised by Stuart-Smith LJ in Roache v News Group [1998] EMLR 161 at p.172 in these terms:
‘Before the Court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the Court is forced to the conclusion that he has not balanced the various factors fairly in the scale. See per Griffiths LJ in Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 at 403G of the latter report’”
It is worthwhile setting out some of the relevant facts in this case which to my mind are of critical importance and which should have been considered in deciding how the Master should have reached a decision in compliance with the overriding objective of dealing with the present case justly. Those facts are that:-
The particulars should have been served by 19 August 2010, and if that had occurred, the second respondent would have had no cause to complain. Significantly, the appellant was only seeking an extension according to the term of his summons until 30 October 2010 which would have meant that there was a delay of just over 10 weeks;
There is no evidence whatsoever that the second respondent would have been or indeed was prejudiced by the delay either during the period between 18 August 2010 and 31 October 2010 or at any time prior to those dates. It is true that Mr. David Pritchard, the second respondent’s solicitor in his detailed witness statement of 12 January 2012 does assert that to accede to the appellant’s application “would occasion significant prejudice to the second respondent”. What is important and telling is that he does not give any details of what he means by “significant prejudice” and no doubt they would have been particularised if they could have been identified. It is noteworthy that it was not suggested by Mr. Pritchard or the second respondent that, for example, some witnesses were now dead or would no longer be available or that significant documents had disappeared during either of those periods; and that
If the application was not to be granted, the appellant would have lost the benefit of his claim and it would be time barred. No cogent argument has been put forward on behalf of the second respondent to show that there was or could have been no merit in it and indeed I was not asked to consider the particulars in the bundle. The Master did not avail himself of the opportunity to look at the pleading and I heard no submissions on them.
In my view, these factors were of great importance and they should have been, but were not, considered by the Master. In consequence, in Lord Woolf’s words, I am “forced to the conclusion that [the Master] has not balanced the various factors fairly in the scale”. In reaching that conclusion, I have not overlooked the fact that the Master attached importance to the facts that the appellant had not complied with the pre-action protocol and had not served particulars, but these matters do not deal with the fundamental issue of the application of the overriding objective of ensuring that the matter was disposed of justly.
In those circumstances I allow the appeal and would be grateful for submissions on the appropriate order, which should be made.