Bijlani v Unum Ltd

The trial of this claim was listed to be heard before His Honour Judge Davis QC sitting as a Deputy High Court Judge at 10.30am 14 January 2014. The claimant is aggrieved that the matter has not been listed to be heard in front of a High Court Judge and seeks to persuade this court that the case should be re-assigned accordingly.

The claimant is a barrister although she has not practised for some years. Her claim is against the defendant insurance company for payment under a policy of income protection.

Proceedings were commenced in February 2012 but, by agreement between the parties, the service of proceedings was delayed and the Particulars of Claim are dated 24 September 2012 to which a Defence dated 19 October 2012 has been served.

The matter came before Master Leslie on paper on 10 December 2012. A case management conference was listed to be heard on 12 February 2013 with both parties in attendance. The defendant was represented by counsel. The claimant attended in person. On this occasion, after hearing submissions from both parties, the Master gave directions covering the usual ground relating to mediation, disclosure, exchange of witness statements and expert evidence. With respect to the trial he ordered:

“Trial – London: Judge alone, Category “B”, fit for a High Court Judge if available: time estimate 7-10 days.”

The consequences of this order are as set out in paragraph 29.2.6 in the notes to CPR 29 in the White Book which provide:

“Listing arrangements in the Royal Courts of Justice

When giving trial directions, the practice in the Queen's Bench Division is to give the case a Listing Category. Category A applies to claims of great substance and/or difficulty and/or of public importance, which will be heard only by a High Court judge. Category B applies to claims of substance and/or difficulty, which will be heard by either a High Court judge or a Deputy High Court judge. Category C applies to other claims, which will generally be heard by a Deputy High Court judge.”

The three categories are thus very broadly defined and much is inevitably left to the judgment and experience of the Master as to which is the appropriate category to which any given case should be assigned.

Subsequently, an issue arose between the parties as to the adequacy of the claimant’s disclosure and the matter came back before Master Leslie on 8 May 2013 on which occasion he made an unless order providing that in the event of the claimant’s default the sanction would be that her claim would be struck out. The claimant had invited the court to order the hearing of preliminary issues but the Master had declined so to do.

On 20 May 2013, the claimant applied for permission to appeal the master’s decision contending that he was wrong not to order the hearing of preliminary issues. She was unsuccessful.

On 24 October 2013, the claimant applied for summary judgment and other orders the precise scope of which it is unnecessary for me to explore for the purposes of this judgment. On 13 December 2013, Cranston J. ordered that these applications should be heard by the trial judge. I pause merely to remark upon the novelty of the timing of a summary judgment application listed to be heard on the morning of the first day of trial.

As the trial date approached, the issue of allocating the case to a particular judge fell to be resolved. In the event, Leveson L.J. (as the Presiding Judge of the Queen’s Bench Division) authorised the matter to be listed before The Recorder of Birmingham, His Honour Judge Davis QC sitting as a Deputy High Court Judge. This decision was entirely consistent with Master Leslie’s order that the case was assigned to Category B.

When the claimant discovered that the matter had been listed to be heard before a Deputy Judge she sent an email to the court on the day before the hearing was listed to commence in which she stated:

“Pls note I do not consent to any deputy trying the £multi-million insurance claim. There is an outstanding application for Master Leslie orders against me to be set aside, for damages to include fraud and wasted costs orders against … [the defendant’s counsel and solicitors respectively]…I have therefore applied to vacate until we are appointed a category A High Court Judge. I will attend once someone from listing has called me to confirm tomorrow.”

The court responded on the same day:

“The PQBD appointed the Recorder of Birmingham to hear this category B case. The email in which you requested a HCJ was put before him but he has not acceded to this request”

The claimant replied within the hour:

“Am sorry but in my allocation Q it was clearly stated category A only - it is a £multi-million insurance claim and turns on a construction point of the insurance policy

Am concerned you allege it is category B - who is PQBD pls?

I will not attend until someone from listing calls me to confirm Category A appointed, as am only online intermittently.”

This email was sent at 7.22pm and so it is unsurprising that there was no further response from the court on that day.

On 14 January 2014, the claimant did not attend court but instead sent the following mail to the court at 11.04am:

“Am concerned that no one has called me or responded, and the matter is still listed before a Deputy against my consent.

To further assist you, pls see oustanding application of 24.10.13 expressly stated to be before a Category A High Court Judge (as indeed all my applications have stipulated), and which has been reserved to the trial judge by Cranston J at the PTR on 13.12.13. Every QC I have spoken to (eg see enclosed) advises this application is cast-iron and summary judgment for the full sum is inevitable by any credible High Court judge (and therefore to appeal if unsuccessful, and the QC will represent me on this discrete point of insurance law)

I understand the PQBD does not have authority to put before a criminal county court circuit judge against my consent in all the circumstances, and I doubt any claimant issuing in the High Court of London for the maximum issue fee of £1685 for a £multi-million insurance claim, would consent to a county court judge.

I am a senior barrister and doctor, and am concerned at the persistent discrimination and my dignity being continually undermined. None of my emails have been responded to, and no assistance provided. It is stressful enough being forced to litigate against a £billion dollar insurance company that has no credible defence …

Pls confirm category A when available, and reiterate my request to call me as only online intermittently.”

At 11.57 am on the same day the claimant emailed further:

“Pls put before the deputy to illustrate yr failure to call me or respond to my emails yesterday

Pls regard this as complaint for which I must be compensated.”

Meanwhile, His Honour Judge Davis QC was ready to hear the case but the claimant had not attended court. Accordingly, he made an unless order requiring the claimant to attend court by 2pm that day failing which her claim would be struck out.

When the claimant was informed about the unless order she emailed the court at 12.07pm in the following terms:

“How do I complain about you and the Deputy who has made an unless order without merit in the circumstances, discriminating against me and undermining my dignity 

After 2pm will appear before Turner J court 37 to dis-bar the Deputy - pls inform the Deputy in Ct 64.”

In the event, the claimant appeared before the Deputy in the early afternoon of that day and he revoked his unless order and adjourned the substantive hearing until the following morning at 10.30am. Shortly thereafter, the claimant appeared before this court in accordance with her stated intention seeking an order requiring the matter to be removed from the Deputy’s list and to be re-listed before a High Court Judge.

The Claimant’s application before this court was unheralded by any procedural formality. Indeed, it was not entirely clear whether the matter was intended to be by way of application under CPR 23 or appeal under CPR 52. In any event, the formalities of neither Part had been complied with and the claimant’s stated intent in her most recent email to invite me to “dis-bar” the Deputy Judge shed no further light upon the issue.

On any analysis, however, the starting point must be the order of Master Leslie of 12 February 2013 that the case was to be assigned to Category B. It was, thereafter, inevitable that whoever in due course was to take the listing decision would do so in the comfort of the knowledge that the Master, having reviewed the case and heard argument, had exercised his case management powers with a view, at least, to leaving open the option that the hearing would be listed before a Deputy.

The claimant’s case in that the importance and value of her claim are such that there should never have been any risk that the matter would be listed before any judge other than a High Court Judge. She did not seek to contend that there had been any material change in circumstances since 12 February 2013. She did not argue that her claim was any less deserving of an assignment to Category A in February 2013 than it is now.

It follows from this, in my view, that the only course procedurally open to the claimant lies by way of appeal from the order of Master Leslie and not by way of applying to me to re-exercise a first instance discretion on the issue of assignment to the appropriate category. In J (A Child) v Smith (Deceased) [2001] EWCA Civ 1264 the Court of Appeal considered the position where a party had attempted to persuade a court at first instance to give case management directions which were inconsistent with the directions which had been made by a different court at an earlier stage in the litigation. Laws L.J. held at paragraph 22:

“There are, as was submitted in the respondent's skeleton, clear and detailed procedures for bringing appeals against interlocutory orders. These are not mere technicalities. They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action were sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course if there were a true change of circumstances then in my judgment the flexibility which the CPR commend would plainly allow a change of view as to the procedural orders which should be made.”

In this case, no “true change of circumstances” having been relied upon, the question arises as to whether it is open to the claimant to appeal the order of Master Leslie to this court.

It would have been open to the claimant to seek to appeal the order of Master Leslie to assign this case to Category B. However, the following factors must be considered:

The claimant relies primarily upon her poor state of health and lack of formal legal representation to explain her inactivity in the period following the order of Master Leslie. I do not ignore these factors but they are weakened by the following features:

Ultimately, this court must be guided by the terms of the overriding objective in their present from:

“1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2)

Dealing with a case justly and at proportionate cost 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;

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f)

enforcing compliance with rules, practice directions and orders.

Fresh emphasis has, since the introduction of the Jackson reforms, been placed upon the importance of compliance with procedural rules and orders of the court from the perspective not only of the parties but from that of the court itself. Reference can be made generally to the observations made by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.

In the present case, there was no objective justification for the lengthy delay in challenging the decision of Master Leslie. The delay was rendered more serious by the fact that the claimant’s challenge was raised on the afternoon of the day before that upon which the hearing was to commence. In consequence, a day of court time has already been wasted. The court’s resources are both precious and scarce and will not readily be expended to alleviate a party of the consequences of serious and unjustified procedural default. It is clear from her emails that the claimant has been working under the mistaken impression that she is entitled to dictate to the court which level of judge should hear her claim. On the contrary, that decision is one for the court and in this case the decision was made ten months ago and has not been challenged until the eve of the date of hearing.

Applying the balancing act required by the overriding objective and taking into account the factors to which I have referred in this judgment, I am left in no doubt whatsoever that I should not interfere with the categorisation of this case or the fact that it has been listed before the Deputy Judge. Indeed, even if the matter had fallen to be determined under the older and more indulgent procedural regime I would have come to the same conclusion. In the circumstances, I decline to make any substantive order in response to the claimant’s application. The matter thus remains listed to be heard before the Deputy Judge today at 10.30am.