Cockeril v Tambrands Ltd & Ors [1998] EWCA Civ 882 (21 May 1998)

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Last April and May a division of this court (Saville, Brooke and Waller LJJ) was given the task of determining over a seven-week period more than 100 appeals and applications concerned with different aspects of CCR Order 17 Rule 11. This troublesome rule had been causing difficulties to practitioners and judges up and down the country ever since it was first introduced in 1991. The editors of the All England Law Reports have now reported the whole of the two substantive judgments of a three-judge court which were given during the course of those seven weeks ( Bannister v SGB plc [1997] 4 All ER 129; Greig Middleton & Co Ltd v Denderowicz [1997] 4 All ER 181), complete with the appendix to the Bannister judgment which sets out the decisions in the 21 different cases determined on that occasion.

Copies of these judgments were immediately disseminated in hard copy and electronic form to every county court in England and Wales. The very welcome result of this exercise has been the virtual disappearance of Order 17 Rule 11 appeals from the business of this court. Since July 1997 a handful of further decisions have been given on different aspects of the rule not expressly covered in the Bannister judgment, and on 6-7 May we heard four more appeals or applications concerned with different aspects of the rule. One other case was compromised and another was well on the way to being compromised as soon as they were listed for hearing before us. Only one further Order 17 Rule 11 appeal, for which leave has been granted, is still awaiting determination by the court.

In the present judgment we are concerned with three of these cases, which raise new issues not covered in Bannister . The other appeal merely illustrated a practical application of the guidelines (for reinstatement and extensions of time for appealing) set out in Bannister and Greig Middleton, and has been the subject of a separate judgment. In the present judgment we will be referring to the paragraph numbering in the Bannister and Greig Middleton judgments without full citation.

The three cases we are now deciding are mainly concerned with issues arising from the guidelines relating to the ouster of automatic directions (see Bannister, paras 14.1-19.1). They deal, respectively, with the status of a defence delivered invalidly during a period when an action is stayed following the service of particulars of claim ( Jackson); with the effect of an application, in an action proceeding alongside others concerned with a similar issue, for a direction that the automatic directions regime should be replaced with manual directions ( Cockerill); and the effect of an application for a declaration that an action has been automatically struck out ( Prolaw). We also have to consider an argument that the rule stated in Bannister para 12.8(ii) for identifying applications which bear an implied request to fix a hearing date is not as rigid as it appears to be, and an argument that a defence delivered invalidly can be transformed, in the absence of redelivery or an order giving it validity, into a defence delivered validly by the operation of principles akin to estoppel. The facts of the individual cases and the results of those cases are set out in the appendix to the judgment.

In Bannister (paras 14.1-14.3) the court restated the principle that once the pleadings are deemed to be closed in an action to which Order 17 Rule 11 applies, automatic directions will apply unless they are ousted. It added, however, that it was clear that the automatic directions ceased to apply in two situations:

These principles were then extended ( Bannister paras 14A.1-17.5) to situations in which it was not a direction given by the court, but an event (such as an interlocutory judgment) or an application for an order (such as the trial of a preliminary issue) which diverted the proceedings from the orderly progression to a full trial for which Order 17 Rule 11 was designed. After a further section (paras 18.1-18.3) of practical guidance on the consequences of ouster, the court made it clear (para 19.1) that one reason why it would, in its view, be unfair if automatic directions continued to apply, even though an application had been made for summary judgment or an order for the trial of a preliminary issue, was that appeals from any such orders might take matters well beyond the guillotine date. It distinguished such cases from cases in which appeals in other interlocutory matters, such as discovery, were pursued in an action to which the automatic directions would otherwise apply. Other litigants have now sought to capitalise on the extensions identified in Bannister, and the present appeals provide us with the opportunity to consider the possible extension of the ouster concept to situations not expressly covered by that judgment.

In Bannister, it was recalled at para 15.1 that a different division of the court had recently held that automatic directions were ousted if an order was made staying the action, even if it was likely that the stay would only be a temporary one ( Whitehead v Avon County Council (1997) Times, 17 March). The rationale underlying the ouster of automatic directions in such a case was that the stay of an action, pending the examination of the plaintiff by a psychiatrist, was inconsistent with the continuance of automatic directions.

In Whitehead automatic directions were already running at the time the stay of proceedings was ordered. In one of the present appeals we have been concerned with a different factual situation in which two adults and two children (P1-4) commenced an action for damages for personal injuries in a road traffic accident. The particulars of claim contained particulars of the special damage claimed by P2 (the father of one of the children), and P3 and P4 (the two children) were not pursuing any such claim. The court made an order to the effect that the action would be stayed unless a statement of special damage was delivered within 56 days. In due course, when no such statement was delivered within the time prescribed, the action was stayed. Three months later the defendants purported to deliver a defence, and shortly thereafter the court made an order declaring that its earlier order referred only to the claim brought by P1 (the mother of the other child). Five months afterwards P1 delivered a statement of special damage to the court office, and the stay was then expressly lifted. The action then proceeded, and we will consider a quite different issue which arose on this appeal in Section 6 below.

In Cashmore v Blue Circle Plumbing Fixtures Ltd (unreported, CAT 30th July 1996) this court held that time did not run for the purposes of CCR Order 9 Rule 10 during a period when the action was stayed pursuant to an order for a stay made under CCR Order 6 Rule 1(6) pending the filing of a medical report in support of a claim for damages for personal injuries.

By the time the appeal reached this court it was common ground that in an action where automatic directions have never been triggered at the time a stay is ordered, and where the lifting of the stay leads to the delivery of defences by all the defendants (or an order is made to the effect that invalid defences may stand as valid defences without redelivery), automatic directions will then run from the appropriate trigger date in the usual way. In Whitehead counsel for the plaintiffs did not seek to argue that an order directing a stay would in all circumstances displace automatic directions in an action in which they would otherwise run, and in his judgment Waller LJ expressly recognised that there might be cases in which automatic directions might not be ousted altogether simply because a stay had been granted. This is indeed the case, and the present appeal provides a good example of the kind of situation Waller LJ will have had in mind.

A number of women had suffered unwelcome symptoms after using tampons supplied by two major UK manufacturers. A single firm of solicitors acted for nine of these claimants, three of whom had issued proceedings in the United States against US parent companies, and three of whom were pursuing separate proceedings in this country, under the protection of limited legal aid certificates.

So far as the UK litigants were concerned, a county court summons had to be issued and served in order to protect their position under the Limitation Act, but under the terms of the claimants’ legal aid certificates they were precluded from pursuing any of their actions towards trial until evidence of a generic nature had been obtained from experts, not all of whom were based in this country. Each claimant, including those who had not issued proceedings, had to contribute, pro rata and subject to the financial protection afforded by legal aid certificates, towards the cost of obtaining this evidence, and delays were caused to the progress of these generic investigations by efforts made by one of the defendants to have the legal aid certificates discharged. It was in these circumstances that the solicitor who was acting for these plaintiffs issued an interlocutory summons in one of the English actions three weeks before the guillotine date seeking, inter alia, a direction that the provisions of Order 17 Rule 11 should not apply to the action. She had taken no steps in the action since the delivery of the defence, and she had not told the defendants’ solicitor about the difficulties she faced under the legal aid certificate. Her application was not heard until after the guillotine fell.

This situation was not expressly covered by the judgment in Bannister, and it was submitted on behalf of the defendants that automatic directions would be deprived of their effect of compelling parties to litigate to a tight timetable, controlled by the court, if a party could simply disapply them simply by making an application of this kind, whether or not it ever came before a judge.

To contrary effect was the argument that if the order sought were eventually to be granted it would be inconsistent with the continuing application of automatic directions to any part of the action. It would therefore be unfair to expect a party to go on preparing for trial in accordance with the original automatic directions timetable until the fate of the application was known. It was suggested that this court should state a new ouster principle to the effect that when the order sought by either party, if eventually made, would be inconsistent with the continuing application of automatic directions to any part of the action, then it is the making of the application itself which ousts the automatic directions, whether the application itself is successful or not.

In our judgment, it would be quite wrong to allow a plaintiff to escape from the discipline of the automatic directions timetable simply by issuing an application seeking an order that the timetable be disapplied. Order 17 Rule 11(1)(n) makes an express exception for representative proceedings, and if a judge or a district judge is expressly appointed to hear all the applications in group proceedings, properly so called (see the note to Order 5 Rule 5 in the 1998 County Court Practice, p 150), we would expect him or her to make a direction at the outset that the automatic directions timetable does not apply to the group litigation, for which it is clearly inapt. In the present context, however, there was no good reason why the plaintiff’s solicitor should not have applied much earlier than she did for appropriate manual directions, and the court would then have been able to control the timetable of the litigation. Instead, she unilaterally turned a blind eye to the requirements of the timetable prescribed by Order 17 Rule 11(3), and her client’s present plight was caused because the guillotine fell before her application for an order disapplying automatic directions could be heard. If the solicitor has been pursuing her client’s claim with appropriate diligence, and if she believes that the other conditions for reinstatement may have been satisfied, her client’s appropriate course is to pursue her application for “ Bannister Category 1 ” reinstatement.

In one of the appeals with which we are concerned there was a prolonged bout of ancillary litigation which was ultimately resolved when this court in Bannister (paras 7.10-7.11) definitively identified the correct trigger date in actions transferred from the high court to the county court. Immediately that issue was resolved, the defendants sought a further declaration from the county court to the effect that the action had been automatically struck out because the newly identified guillotine date had come and gone while the original dispute was still awaiting resolution in this court, and the plaintiffs had taken no steps to protect themselves in the meantime by obtaining an appropriate manual direction.

In order to obtain the just result the situation obviously demanded, both the district judge and the judge in the courts below held that the making of an application for such a declaration in itself ousted automatic directions. The judge said that there was no jurisprudential principle involved, and that Order 17 Rule 11 had in many cases been interpreted with a healthy injection of pragmatism for what in fact produced both justice in the instant case and administrative sense. He rejected the contention that if such an application is made by defendants a plaintiff should always be astute to protect himself by issuing a cross-summons seeking a stay on the passage of the automatic directions timetable until the defendant’s application is finally resolved, perhaps after two appeals to higher courts. He said that an application for a declaration that an action has been automatically struck out has an air of finality about it (he compared the first category of cases mentioned in Bannister, para 19.1) and that until it was determined it appeared to him that it would be inconsistent or repugnant for the action to continue as if there was no such application or appeal pending.

This decision was challenged on the basis that to extend the grounds for ouster to include other, less specific, grounds would serve to increase uncertainty and the incidence of satellite litigation, twin evils which the judgment in Bannister was structured to dispel. It was argued that an application for such a declaration is akin to a construction summons as to the interpretation of the court’s own rules in the factual situation that had arisen, and that the immediate response of a prudent plaintiff would be to request a hearing date or the suspension of automatic directions pending an appeal. It was suggested that if a plaintiff took no steps to protect its own interests there was no reason at all why the ouster rules in Bannister should be extended to protect an errant plaintiff from the consequence of its own failures.

We share the judge’s total lack of sympathy with the contention raised by the defendant. As he pointed out, it would mean, if it were correct, that a plaintiff who had successfully beaten off an application for a direction that his/her action had been struck out would be obliged to seek an order from a court staying the passage of the automatic directions timetable pending an appeal by the defendant. Many appeals and applications by defendants spent a long time waiting for a hearing in this court before the Bannister judgment was delivered, but we are not aware of any previous suggestion that the timetable was continuing to run remorselessly against the plaintiffs from the time of the decision in the lower courts.

This is, however, yet another example of the inflexibility of Order 17 Rule 11, and we do not consider that it would be appropriate to uphold the judge’s ruling that this is another instance in which ouster principles can be called in aid to produce a just solution. The occasions on which automatic directions can be ousted by a mere application by one of the parties should, in principle, be limited to those identified in Bannister. In our judgment, a more appropriate solution to this dilemma is along the following lines:

(ii) If it is determined (whether by a district judge, or subsequently by a circuit judge) that an action has indeed been automatically struck out, then the automatic directions timetable will not run thereafter, because it has been judicially decided that the action is at an end. In the event of a successful appeal by the plaintiff, manual directions will be required for the future timetable of the action.

(iii) If it is determined that an action has not been automatically struck out, and the defendant serves notice of appeal, then the plaintiff should apply to the court for an ex parte direction that the automatic directions timetable should not run until the appeal is decided. This can be done by way of an informal letter, and once the court staff has ascertained that the original judgment in an Order 17 rule 11 case has been decided in the plaintiff’s favour and that notice of appeal by the defendant has been served, the papers should be put before a judge who should as a matter of course grant a stay of the automatic directions timetable ex parte until the determination of the appeal or further order. The same procedure should be followed if, as in one of the appeals before us, a defendant does not take “no” for an answer, and pursues a further appeal to this court from the rejection of an appeal to a circuit judge. As soon as a plaintiff is aware that an application for leave to appeal is being made, he/she should seek an ex parte stay of the timetable.

(iv) If such a stay has not been ordered, then in the ordinary way a court hearing a reinstatement application should treat as wholly excusable, and in no way indicative of a lack of diligence, the failure of a plaintiff to pursue an action towards trial during any period when an appeal by a defendant against the rejection of such a declaration is running, and should not treat with sympathy any application for costs made by a defendant who unsuccessfully opposes reinstatement in such circumstances.

In one of the appeals the defendants had delivered their defence to the court office during a period when the proceedings were stayed and, once the stay was removed, took no steps to redeliver their defence, or to obtain an order to the effect that the defence delivered during the stay should stand as their defence. It is unclear whether and if so, in what circumstances, the defendants were told that the stay was lifted. They argued that since the plaintiff’s solicitors at all material times treated the defence as validly delivered, we should hold that automatic directions should begin to run two weeks after the stay was lifted. This point was not decided in Bannister, and has been the subject of an obiter dictum in this court on an appeal in which the court did not hear argument on the point.

That was the case of Baker v Waltham Forest LBC (unreported, CAT 14th January 1998). An invalid defence had been delivered during the period between the entry of a default judgment and the order setting it aside, and the order setting the judgment aside granted the plaintiff leave to amend her particulars of claim (to join new defendants and to tidy up her causes of action) and made no reference to the invalid defence which had already been delivered. This court (Millett and Brooke LJJ) rejected a submission by the defendants to the effect that once the default judgment had been set aside, the proceedings were deemed to be closed 14 days thereafter, the defence having already been delivered and served. Brooke LJ then continued:

"Of course, if on 4th February 1994, Judge Butter had directed that the document sent out to the court the previous November should stand as a defence of the first and second defendants without redelivery, or if the plaintiff is to be taken by her subsequent conduct as having treated that document as a valid defence, by raising a request for further and better particulars or proceeding to discovery on the basis that the pleadings were closed, the plaintiff could not disavow the validity of the November 1993 document as standing as the defence once the action was set in motion again on 4th February. But none of these events occurred ...” (Emphasis added).

We would not wish on this occasion to hold definitively that this obiter dictum, pronounced in an appeal in which the successful party (a litigant in person) was not present or represented, was wrong. On the other hand, there appears to be a great deal to be said for the argument that in the absence of an express court order bestowing validity on the delivery of a defence which was previously invalid, or of the formal redelivery of a defence to the court office at the end of a stay, the parties cannot by their conduct create a trigger date for automatic directions through processes akin to an estoppel.

As the court made clear in Bannister, the parties need to be able to identify both the trigger date and the guillotine date with certainty from the time automatic directions start running. A trigger date cannot be created retrospectively ( Bannister, para 6.10) . Nor can the parties by their conduct create a situation in which it would be inequitable for the defendant to assert in due course that an action has been struck out or to oppose reinstatement ( Bannister, para 21.26). It appears to us, as at present advised, that what is sauce for the goose is sauce for the gander, and if a defendant wishes to rely on an automatic strike-out, he/she should be able to point back with certainty to an event 15 months and two weeks earlier which could be identified at that time (and not as a result of subsequent events) as the date of the delivery of the defence from which the date of the close of pleadings could be ascertained. The adoption of this principle would bring home to courts the importance of paying attention to the need to incorporate in an order lifting a stay (or an order setting aside a default judgment) express provision conferring validity on any defence which has been delivered to the court office during a period when it could have no valid effect. By this means everyone would be able to identify the trigger date from the outset.

In the single appeal in which this point arose before us, there was no counter-notice raising this issue, which the judge did not mention in his judgment, and such evidence as existed was altogether too fragile to mount a successful argument by the defendants. We do not therefore have to decide the point finally. All we will say on this topic for the time being is that the obiter dictum of Brooke LJ in Baker v Waltham Forest LBC should be treated with very great caution.

In one of the appeals it was suggested that the range of cases in which the court might be willing to identify an implied request for a hearing date, such as would satisfy the requirements of Order 17 Rule 11(9), should be extended to any application whose purpose is to extend the time for requesting a hearing date and/or otherwise to postpone the guillotine date. It would follow, if this argument is soundly based, that an application for directions as to discovery, coupled with an order that automatic directions should not apply to the action, should be interpreted as containing within it an implied request for a hearing date. It was recognised that a difficulty in the way of this submission lay in the uncompromising language of Saville LJ in Bannister, at para 12.8(ii):

"An application for an extension of time for requesting a hearing date (or an extensions to the guillotine date) by implication contains a request to fix a hearing date ... No other applications, eg to extend the other or automatic directions or to appeal against interlocutory orders while the timetable is running, carry with them any such implied request .” (Emphasis added)

In the Bannister series of cases this court received repeated submissions by counsel acting for defendants to the effect that the decisions of this court in Ferreira v American Embassy Employees Association [1996] 1 WLR 536 and the cases which followed it (see Bannister para 12.6) were arrived at per incuriam because the court in Ferreira had failed to make a clear distinction between the functions conferred by the rules on administrative officers of the court and those conferred on judicial officers. This is, incidentally, a distinction which was even more clearly delineated in the context of CCR Order 9 Rule 10 cases in the later judgment of this court in Limb v Union Jack Removals Ltd (unreported, CAT 10th February 1998), for example at paras 9, 17-18 and 22.

In Bannister at paras 12.2-12.3 and 12.6 this court showed itself sympathetic to an argument along these lines, but it concluded that there had already been sufficient chaos in this area of the law over the last six years to dissuade it from adding to the chaos by being willing to consider afresh whether a stricter test of what constituted a request for hearing date might not be appropriate. It confined its attention, therefore, to considering in para 12.7 just how far loyalty to the decision in Ferreira’s case constrained it to go as a matter of logic. This led it to restate the position in para 12.8, which included the passage we have cited above.

This action for personal injuries was commenced in the Chelmsford County Court on 9th August 1995. On 8th December 1995 the summons and particulars of claim were served, together with a schedule of special damage and a medical report. A defence on Form N9 was delivered on 16th December 1995, so that the trigger date for automatic directions was 30th December 1995 and the guillotine date 30th March 1997. The plaintiff claims that she suffered toxic shock syndrome as a result of using Tampax tampons manufactured by the defendants.

The only simple aspect of her claim is quantum. The defendants are the UK subsidiary of an American corporation, Tambrands Inc, and all aspects of liability, causation, injury, loss and damage are in dispute. To succeed in her claim the plaintiff will have to prove that the relevant tampon was defective within the meaning of Section 3 of the Consumer Protection Act 1987 and/or that given the state of scientific knowledge at the relevant time the defendants should have discovered the defect. Limitation is also in issue.

The plaintiff’s legal aid certificate is linked informally with legal aid certificates granted to two other women who are bringing similar claims against Smith & Nephew Consumer Products Ltd, the other main manufacturer of tampons in this country, and her action cannot therefore proceed any faster than the actions against these two defendants. As is common in actions of this complexity, a range of generic evidence has had to be sought from a number of experts, some of whom are not in the United Kingdom. Her solicitor also acts for three women who are bringing similar proceedings in the United States (which may possibly be stayed on the basis that this country is a more appropriate venue) and for three other women who have not yet issued proceedings of a similar nature. We were told that the cost of the generic investigations was being shared between all these clients, subject, where relevant, to the protection afforded by the legal aid certificates.

The plaintiff’s solicitor took no steps in the action following the delivery of the defence. Her time was occupied in seeking and marshalling the generic evidence to be adduced in support of her client’s claim, and this activity was delayed for about five months while the defendants in the other action (Smith and Nephew) unsuccessfully sought the discharge of the legal aid certificates granted to the plaintiffs in that other action. The solicitors for Tambrands Ltd were not told of the plaintiff’s solicitor’s problems, and the first sign of movement in the action, so far as they were concerned, took place on 10th March 1997, three weeks before the guillotine date, when the plaintiff applied for directions to the effect that the automatic directions regime should be displaced and substituted by manual directions. On 8th May 1997 the defendants applied in turn for a declaration that the action had been automatically struck out. On 19th June 1997 District Judge Collier dismissed the plaintiff’s application and granted the defendant’s cross-application.

The plaintiff appealed, and she also sought a direction that the action, if indeed automatically struck out, be reinstated. On 10th March 1997 Judge Howe found that even if, which he did not decide, the application of 10th March 1997 did not amount to an implied request to fix a hearing date, it nevertheless had the effect of ousting automatic directions. In the circumstances he did not have to consider whether to direct reinstatement.

This personal injuries action was commenced in the Newcastle-upon-Tyne County Court on 30th March 1994, nearly three years after the road traffic accident in which the plaintiffs, who are two adults and two children, sustained their injuries. No statement of special damages was served with the particulars of claim, and on 18th April 1994 a district judge made an “unless order” to the effect that unless within 56 days of service of the order the plaintiffs filed and served such a statement the proceedings would be stayed. It is common ground that this stay came into effect on about 18th June 1994 since no such statement was in fact served within the prescribed period.

Notwithstanding the stay, on 12th September 1994 the defendants delivered a defence to the Court Office, and on 14th September the court issued Form N450, with the purported effect that the trigger date was 28th September 1994 and the guillotine date 28th December 1995. On 20th September 1994 a deputy district judge made an order declaring that the stay of the action pursuant to the Order made on 18th April 1994 applied only to the first plaintiff (the mother of one of the children). The particulars of claim included a special damage claim by the father of the other child (the second plaintiff), and the two children made no claim for special damages. On 15th December 1994 a deputy district judge made an order by consent that the trial in respect of the second plaintiff be listed separately from the other three plaintiffs. In the event, however, we were only concerned on the appeal with the action in so far as it related to the first plaintiff.

It is not at all clear whether the order lifting the stay (which we have seen in the form of a manuscript note “OK: stay removed” on an internal memo to a district judge) was ever communicated to the defendants. Because the “defence” made no admissions as to any loss resulting from the admitted negligence, liability remained formally in issue, but the real dispute related to quantum, and for this purpose the plaintiff’s solicitors were permitted to negotiate directly with the defendants’ insurers. The only events which were in any way referable to the court proceedings prior to August 1996 were a request by the defendants’ solicitors in June 1995 for “copy documentation to assist their forensic accountant” and an order by a deputy district judge on 16th August 1995 that the first plaintiff should file and serve a list of documents, and make and file an affidavit relating to specific documents, and that she should pay the costs of that application in any event. After a further 12 months of negotiations the defendants’ solicitors suddenly contended on 21st August 1996 that the action had been automatically struck out.

The plaintiff’s solicitors did not agree, and on 8th October 1996 they applied for a hearing date. They were told by the court office that the action had been automatically struck out. They therefore applied for a declaration that the action, so far as it related to the first plaintiff’s claim, had not been automatically struck out, alternatively for a direction that it be reinstated. On 6th March 1997 the district judge granted this declaration and refused to reinstate the action, since he ruled that the defence was effective as from the date when the stay was lifted. On 13th June 1997 Judge Wood dismissed the first plaintiff’s appeal. He distinguished the decision of this court in Avon County Council v Whitehead ((1997) The Times, 17 March), and held that in the circumstances of the present action the defence, which was delivered during the period when the action was stayed, became effectively delivered when the stay was lifted on 2nd March 1995, so that the trigger date was 16th March 1995 and the guillotine date 15th June 1996. He also refused the application to reinstate the action, but did not give a ruling on an alternative contention that in the absence of any defence the action was automatically struck out under Order 9 Rule 10.

For the reasons given in our main judgment, the judge was wrong, because there is no known principle of “deemed effective delivery”. In the absence of a defendants’ cross-notice or of any satisfactory evidence to support an argument that the plaintiff should not be permitted to say now that her defence should not be treated as validly delivered, we do not have the material on which we could possibly adjudicate in favour of the defendants on such a contention. We will therefore allow the appeal and remit the matter to the judge so that he can consider the defendants’ alternative argument based on Order 9 Rule 10. Although we have not received any detailed submissions on the point, we feel bound to comment that we do not regard that argument with any great enthusiasm, particularly as there is no evidence before us as to when the claims brought by the other plaintiffs were compromised (for the problems created by multi-party actions see Limb v Union Jack Removals Ltd (1998) The Times, 17th February).

In this action the plaintiffs are claiming about £6,350, together with interest, for the cost of supplying temporary staff to the defendants, who are a firm of solicitors, in the closing months of 1993. The action was commenced by a writ issued in the High Court on 22nd March 1994. On 12th April 1994 the plaintiffs applied for summary judgment. In May 1994 Master Creightmore directed that final judgment be entered for the greater part of this claim, but on 5th July 1994, Mr Robert Englehart QC, sitting as a deputy high court judge, allowed an appeal by the defendants and granted them unconditional leave to defend. He also directed that the action should be transferred to the Mayor’s and City of London County Court. The defendants served a defence and counterclaim in the High Court on 1st August, and a reply and defence to counterclaim was served, also in the High Court, on 16th August 1994.

A delay of over a year then occurred before a notice was issued by the Mayor’s Court on 29th September 1995 to the effect that the action had been transferred to that court, that a defence had been filed and that automatic directions now applied. It is common ground that as a consequence of the decision of this court in Bannister (paras 7.10-7.12) the trigger date for automatic directions was 12th October 1995 and the guillotine date 12th January 1997.

During 1996, however, there was a good deal of uncertainty about the date which was relevant for the purposes of Order 17 Rule 11 for determining when automatic directions started to run when an action was transferred from the Hugh Court to the county court. The defendants therefore made an application on 21st March 1996 that the plaintiffs should show cause why the action had not been struck out on the basis that the automatic directions timetable started to run from 5th July 1994, the date of the High Court order directing transfer. This application was dismissed by a deputy district judge on 29th May 1996 and by Judge Byrt QC on 24th June 1996, both judges correctly presaging the decision of this court in paragraph 7.10 of Bannister. On 19th July 1996 the defendants, with the leave of the judge, served on the plaintiffs Notice of Appeal to this court. Their appeal was due to be heard in May 1997 by the division of the court which was hearing a very large number of Order 17 Rule 11 appeals and applications following its decision in Bannister, but in the light of that decision the defendants prudently withdrew their appeal. On 3rd June 1997 the Mayor’s Court of its own motion issued a direction that the parties should attend a listing officer on 26th June to fix a date for the trial.

By now, over 15 months had elapsed since the trigger date of 12th October 1995, and on 6th June 1997 the defendants applied for a new declaration that the action had been automatically struck out. This application was dismissed by District Judge Samuels on 15th July 1997, and on 18th August 1997 Judge Byrt QC dismissed the defendants’ appeal but granted leave to appeal to this court.

The judge found correctly that nothing that had occurred in the High Court could possibly have had any effect on an automatic directions regime which did not start until after the action had been transferred to the county court. He also found correctly that the deputy district judge’s direction on 29th May 1996 granting liberty to restore for further directions did not explicitly or implicitly oust automatic directions, because that order was not inconsistent with or repugnant to the continuance of automatic directions (see Bannister, para 14.5, for the relevant principles). He went on to hold, however, that the defendants’ application for a declaration that the action was automatically struck out did have the effect of ousting automatic directions. His reasoning was that the application was analogous to an application for summary judgment or the ordering of a preliminary issue, and that it therefore fell into the first category of matters referred to in paragraph 19.1 of Bannister. The judge said that whilst it might be said to be an interlocutory matter, the application for such a declaration had a finality about it, and until it was determined, it seemed to him that it would be inconsistent or repugnant for the action to continue as if no such application or appeal was pending.

The defendants sought leave to amend their Notice of Appeal at the hearing to include a challenge to the judge’s ruling if it should be interpreted as meaning that it was the appeal process rather than the original application which ousted automatic directions. This application was made because the judge referred in the alternative to the effect of the appeal process towards the end of his judgment. Although we did not formally grant leave to amend, we heard argument on this issue, and we have set out the relevant principles both in relation to original applications and to appeals in our main judgment.

	SUSAN JOY COCKERIL	Respondent
	- and -
	TAMBRANDS LIMITED and the two other appeals listed in the Schedule to this judgment	Appellant

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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 >> Cockeril v Tambrands Ltd & Ors [1998] EWCA Civ 882 (21 May 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/882.html Cite as: [1998] 3 All ER 97, [1998] EWCA Civ 882

England and Wales Court of Appeal (Civil Division) Decisions