Judgment of the Court of Appeal (Henry L.J. & Hidden J) on 12th February 1999
CASE REPORT
The Plaintiffs, who live in Australia, were injured in a car crash whilst on a trip to England. Mr O'Hara's whiplash injury turned out to be one of those more serious ones which has prolonged and serious effects, and he continued to undergo treatment for some years: the accident happened in 1993 and he underwent a spinal fusion in 1997. In 1996 the defence solicitors were pressing for information on the claim for financial loss, and were asking for a "fully pleaded" Schedule setting out that loss. It may be worth noting that, at this stage, there had been no exchange of lay evidence, medical evidence or non-medical evidence. The Plaintiffs' solicitors told the Defence solicitors that they were waiting for information from the Australian lawyers, and in May 1997 they told them that they were having considerable difficulty in obtaining medical and special damage information from Australia. Some documents were served in May 1997, but they were incomplete. In July 1997 the defence solicitors asked for a detailed Schedule within 6 weeks, which was not forthcoming, and so in September they sought an order for a fully pleaded Schedule giving full particulars of all items claimed, to be served within 21 days. The Plaintiffs' solicitors consented to an order that a full Schedule should be served by the 3rd November 1997.
The Court of Appeal held that, realistically, the 3rd November was not a date that could be met, and that consenting to an unrealistic timetable put the Plaintiffs on a slippery slope. The defence solicitors then applied for an "unless" order: the Plaintiffs' solicitors wrote at length explaining the difficulty they were having, pointing out that Mr O'Hara had undergone a serious operation and enclosing a medical report, suggesting an alternative (less adversarial) approach to the problem, and pointing out that they had started the process of instructing Australian accountants. The defence solicitors continued to insist on an unless order, and submitted a draft, to which the Plaintiffs' solicitors responded that they obviously could not comply with the timetable, and would attend court to argue for a more realistic one. That letter was faxed to the defence solicitors on Friday, the application for the unless order being heard the following Monday. On that hearing, the Plaintiffs' solicitor failed to appear (giving no advance notification), and so the defence solicitor obtained the unless order (apparently without producing to the Deputy District Judge the letter which had been faxed through on the previous Friday). Unfortunately, the Plaintiffs' solicitor wrote saying that he would comply with the order so far as he could. Not surprisingly, bearing in mind that this was an exceptionally complicated personal injury claim amounting to several million Australian dollars, compliance was impossible, and so the defence solicitors issued an application to strike out the claim for non-compliance with the unless order. Both Deputy District Judge and Circuit Judge refused to do so, and so the Defendant appealed to the Court of Appeal.
The importance of this case is that it puts a very significant gloss on Hytec Information Systems Limited v Coventry City Council [1997] 1 WLR 1666. Lord Justice Ward set out in that case the seven guiding principles to the philosophy underlying unless orders, emphasising that such an order is one of last resort, not made unless there is a history of failure to comply with other orders, and, because it represents a last chance, failure to comply will ordinarily result in the sanction being imposed. Those principles were emphasised and upheld in Lownes v Babcock Power Limited [1998] P.I.Q.R. P253 and Hird v Milner Court of Appeal 5.10.98 (transcript).
Lord Justice Henry said in O'Hara that the Court in Hytec never intended or imagined that they were laying down the law for all factual situations, and he emphasised that the assumption underpinning Hytec is that the fact of an unless order shows that the judicially exercised patience of the managing Court has been exhausted, and that the Court, having considered the defaulting party's conduct, has concluded that the time has come for a final warning. That was not the case in O'Hara, because the judicial input into the making of the consent order and the unless order was marginal, and not properly informed (because the Plaintiffs' solicitor had not alerted the Court to the potential difficulties facing him).
Lord Justice Henry commended the Circuit Judge's approach as being entirely appropriate, and reflecting the spirit of the Civil Procedure Rules, saying that the philosophy reflected in them represents good practice. 23rd February 1999
BILL BRAITHWAITE Q.C.
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