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May 22, 2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
Judgment
Sir David Eady :
The nature of the Defendant’s appeal
The Defendant in this personal injury claim wishes to appeal the first paragraph of an order made on 8 November 2013 by District Judge Clarke in the Bow County Court, whereby at the outset of the trial he refused him permission to amend his defence in order to plead formally a case in contributory negligence.
Other orders were made on the same occasion including, at paragraph 4, that judgment be entered against the Defendant on a full liability basis. Applications for permission to appeal in that respect are to be dealt with by the Court of Appeal and those issues are accordingly to be postponed until the outcome of the present applications has been determined in the High Court. The reason for this distinction, as I understand it, is that the decision on the application to amend was considered to be an interlocutory decision even though made by the trial judge at the commencement of the trial itself.
At a hearing before me on 2 May 2013, Ms Hobhouse sought, first, an extension of time for serving an appellant’s notice. This arose in the light of some confusion as to the correct route of appeal. At first, it was thought that the matter should be dealt with wholly in the Court of Appeal. Later, it was considered that the decision on the proposed amendment should be referred to a circuit judge. Finally, it was determined that the matter should come before the High Court. The confusion was by no means confined to the Defendant’s solicitors and various court officials were uncertain as to the position. This is unfortunate, but it was not through any fault on the part of the Defendant or his solicitors. It is regrettable that, after 15 years, there should still be confusion over the correct channels of appeal under the CPR, but it seems to happen from time to time. I grant permission for that extension.
The next application is for permission to appeal the District Judge’s refusal of permission. If that succeeds, then the next issue to be determined is the appeal itself. An order was made by Cranston J on 14 April 2014 that the appeal was to be heard on the same occasion if the court granted permission. All matters were, therefore, argued together.
The principles to be applied
The merits of the proposed appeal have to be determined not only in the light of the amendments to the CPR in April 2013 but also with the benefit of guidance contained in later appellate decisions, such as Mitchell v Ne
AI Generated Summary
Sir David Eady in the High Court addressed an appeal arising from the Bow County Court, where District Judge Clarke had refused the defendant permission to amend his defence to plead contributory negligence at the outset of a split liability trial and then entered judgment on a full liability basis. Guided by CPR policy and appellate decisions including Mitchell, Durrant and Chartwell, the court balanced fairness to the parties against efficiency and resource considerations. It found the refusal caused clear prejudice to the defendant by precluding a potential reduction in liability, while no adjournment or additional evidence was required and the claimant faced no countervailing prejudice. The amendment text was standard and consistent with the defence and witness statement. Emphasizing that courts should not enforce discipline for its own sake, Sir David Eady granted permission and allowed the appeal, leaving any retrial question (due to the district judges obiter on contribution) to the Court of Appeal.