CIVIL PROCEDURE NEWS

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1 ISSUE 05/2004 MAY 20, 2004 CIVIL PROCEDURE NEWS Transfer order on court s own initiative Beginning proceedings for possession Documents on appeal Recent cases

2 IN BRIEF Cases HAGGIS v. DIRECTOR OF PUBLIC PROSECUTIONS (NOTE) [2003] EWHC 2481 (Admin); [2004] 2 All E.R. 382, DC (Brooke L.J. & Sullivan J.) CPR Pt 52, Practice Direction (Appeals) paras 5.9, 7.7 & in appeal to High Court by way of case stated from decision of a magistrates court, parties filing skeleton arguments and bundle of authorities but not complying with relevant directions in disposing of appeal, Brooke L.J. explaining how paras 5.9, 7.7 & apply to appeals by way of case stated and stressing that costs sanctions may be imposed if these provisions are not followed (see Civil Procedure 2004, Vol. 1, paras , 52PD.19 & 52PD.58) SALFORD CITY COUNCIL v. GARNER [2004] EWCA Civ 364; The Times, March 10, 2004, CA (Chadwick & Maurice Kay L.JJ.) CPR, r.7.2, Practice Direction (How to Start Proceedings The Claim Form) para. 5.1, Housing Act 1996, ss.125 to 130 on November 7, 2002, local authority landlord (C) requesting a county court to issue claim form for possession against tenant (D) holding introductory tenancy claim form issued on November 11, 2002 on C s appeal from district judge, circuit judge allowing appeal and making possession order held, allowing D s appeal, (1) D became a secure tenant on November 9, 2002, and (2) C had not begun proceedings within the meaning of s.130(1) until November 11, 2002 (see Civil Procedure 2004, Vol. 1, paras & 7PD.5, and Vol. 2, para. 3A 993) SHAWTON ENGINEERING LTD v. DGP INTERNATIONAL LTD [2003] EWCA Civ 1956; December 19, 2003, CA, unrep. (Peter Gibson & Latham L.JJ. and Sir Martin Nourse) CPR, rr.3.3, 30.2 & 60.4, Practice Direction (Technology and Construction Court) paras 5.1 & 11.2, Technology and Construction Court Guide para. 4.5 claim issued as TCC claim in district registry of High Court (Liverpool) court acting on own initiative under r.3.3(4) and making order under r.30.2(4) transferring case to TCC sitting in London judge dismissing D s application under r.3.3(5)(a) to set aside transfer order held, allowing D s appeal, the judge erred in not giving proper attention to the criteria to which he was required to have regard as stated in r.30.3(2) (see Civil Procedure 2004, Vol. 1, paras 3.1.9, & , and Vol. 2, paras 2C 15, 2C 26, 2C 29 & 2C 32) CONFETTI RECORDS v. WARNER MUSIC (UK) LTD [2004] EWCA Civ 1748; November 26, 2003, unrep. (Pill L.J.) CPR, rr.1.1, 3.1(2)(a), 3.9, & 40.6 in May 2003, trial judge dismissing claimants (C) copyright infringement claim but giving C permission to appeal judge ordering C to pay defendant s (D) costs and making interim order for costs in sum of 40,000 payable by July 3, 2003 C failing to comply with interim costs order on October 14, 2003, at hearing of D s application for security for costs of appeal, single lord justice making consent order that order providing that (1) by November 11, 2003, C would (a) satisfy the judge s interim order for costs, (b) provide security of 7,500 for the appeal, and (c) pay the costs of D s application ( 1,200), and (2) in the event of C s failure to comply, his appeal would stand dismissed without further order appeal listed for hearing on December 17, 2003 on November 12, 2003, C applying to Court under r.3.1(2)(a) for 14-day extension of time for complying with consent order (D having previously declined to agree to C s request for an extension) held, (1) having regard to all the circumstances (including C s solicitor s misunderstanding of the effect of the interim order for costs) and bearing in mind the overriding objective, the application should be refused, (2) C s explanations as to the source of funds had been inconsistent and now differed from those given when the consent order was made, (3) the fact that the order was a consent order was an important consideration Ropac Ltd v. Inntrepeneur Pub Co. [2001] C.P. Rep. 31; Ferrotex Industrial Ltd v. Banque Francaise de l Orient [2001] EWCA Civ 1387; August 30, 2001, CA, unrep., ref d to (see Civil Procedure 2004, Vol. 1, paras 3.1.2, & ) DRURY v. SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS [2004] EWCA Civ 200; February 26, 2004, CA, unrep. (Ward & Mummery L.JJ. and Wilson J.) CPR, rr.55.1 & 55.6, Sched.1, RSC O.113, r.7, Sched.2, CCR O.24, r.6, Practice Direction (Possession Claims) para. 2.6, Form N26 landowner (C) bringing possession claim against unknown trespassers (D) seeking order for possession of land (X acre) and also of neighbouring 2

3 land (Y acre) statement of C s witness making clear that D occupied X acre but not Y acre C s case for order as to Y acre founded on concern that, upon departure from X acre, D would move to Y acre judge making possession orders for both pieces of land subsequently, at her own request Z named as a defendant to claim and appealing against possession order as to Y acre held, allowing appeal, (1) as C was entitled to an order for possession of X acre, the court had jurisdiction to grant him a pre-emptive order for possession of Y acre provided he would have been entitled to a quia timet prohibitory injunction against D in relation to Y acre, (2) this jurisdiction to grant an extended possession order should be exercised only in exceptional circumstances, (3) propinquity and proximity of the several properties are relevant, (4) the factors to be considered include (a) the imminence of the threat to move, (b) the history of former illegal occupations of the several sites and (c) the frequency and timings of those occupations, (5) there should also be evidence that the same or some of the same people are involved in the moves from one site to another, (6) in this case the evidence was insufficient to convince a court that there was a real danger that D would decamp to Y acre University of Essex v. Djemal [1980] 1 W.L.R. 1301, CA; Ministry of Agriculture, Fisheries and Food v. Heyman (1990) 59 P. & C.R. 48; The Times, April 4, 1989, ref d to (see Civil Procedure 2004, Vol. 1, paras , & 55PD.5) GABRIEL v. KIRKLEES METROPOLITAN COUNCIL [2004] EWCA Civ 345; The Times, April 12, 2004, CA (Ward & Jonathan Parker L.JJ. & Moses J.) CPR, r.52.11, County Courts Act 1984, s.81 child (C) walking past building site owned by local authority (D) stone thrown by another child playing on the site injuring (C) C bringing claim against D for negligence at trial, judge dismissing claim held, allowing C s appeal and ordering new trial, (1) the claim raised important issues as to duty of care and breach, (2) the judge fell into error in failing (a) to find sufficient facts to determine whether duty of care owed and (b) to identify facts relied on for conclusion that there was no foreseeable risk of injury (see Civil Procedure 2004, Vol. 1, para , and Vol. 2, para. 9A 662) KASTOR NAVIGATION CO. LTD v. AGF M.A.T. [2004] EWCA Civ 277; The Times, April 29, 2004, CA (Rix, Tuckey & Neuberger L.JJ.) CPR, rr.36.2, 36.10, & 44.3 owners (C) bringing claim against insurers (D) under fire policy to recover actual total cost for loss of ship by amendment, C claiming US$3.49m as indemnity for constructive total loss C s offer to settle of US$2.8m made under Pt 36 not accepted by D at trial, judge giving judgment for C on the amended claim judgment exceeding C s offer on grounds that (1) C s making and pursuit of the original claim substantially lengthened the proceedings and increased the costs, and (2) only a small part of the trial was concerned with the amended claim on which C obtained judgment, judge making issues-based costs order requiring D to pay 15 per cent of C s costs and C to pay 85 per cent of D s costs ([2003] EWHC 472 (Comm); The Times, March 29, 2003 (Tomlinson J.)) held, (1) dismissing D s substantive appeal, but (2) allowing C s cross-appeal against the costs order (a) C lost on one major issue but recovered the full amount they had claimed and in doing so beat their Pt 36 offer, (b) the judge was right to hold that his costs in r.36.21(3)(a) does not mean all his costs, and he therefore had a discretion to exercise in accordance with r.44.3, however (c) by making orders on discrete issues, the judge adopted too mechanistic approach and erred in principle, (d) a judge must have regard to all the circumstances and stand back from the mathematical result and ask himself in the light of those circumstances whether it was a right result, (e) both parties costs were the same and the right order was to make no order for costs either way (see Civil Procedure 2004, Vol. 1, paras & ) LOVERIDGE v. HEALEY [2004] EWCA Civ 173; February 20, 2004, CA, unrep. (Lord Phillips MR, Buxton & Thomas L.JJ.) CPR, rr.1.1 & 16.5, Practice Direction (Statements of Case) para. 13.3(1), Mobile Homes Act 1993, Sched.1 site owners (C) bringing county claim against homeowner (D) for declaration of breach of licence agreement affected by 1993 Act and order for possession in statement of claim, C alleging that they had served on D notice to remedy breach required by statute, and in his defence D apparently admitting this however, at early stage of trial, C conceding that proper notice had not been served recorder (1) finding that D s defence was not a plain or express admission, and (2) giving D summary judgment on that part of C s claim based on alleged breaches of the agreement High Court judge dismissing C s appeal Court of Appeal giving C permission to make second appeal held, allowing the appeal (1) D s pleaded defence constituted an admission of the subject-matter of the notice, (2) the court was bound by D s admission because, until his defence was properly amended, the issue whether the notice required by statute had not been served did not arise, (3) in any event, C s allegation as to service of notice was an allegation of fact (a) which D was required to deal with in his defence, 3

4 4 and (b) which, had he failed to do so (as the recorder found), he would be taken to have admitted (r.16.5(5)), (4) in the circumstances, the recorder should have insisted that D apply to amend his defence, (5) it could not be assumed that such late application would succeed, (6) the overriding objective did not require that, because D was at risk of losing his home, his pleaded admission should be disregarded observations by Buxton L.J. on referring to points of law in pleadings (para. 13.3(1)) McPhilemy v. Times Newspapers Ltd [1999] 3 All E.R. 775, CA, ref d to (see Civil Procedure 2004, Vol. 1, paras 1.3.2, & 16PD.13) MALSKI v. ST ALBANS CITY AND DISTRICT COUNCIL [2004] EWCA Civ 61; January 15, 2004, CA (Thomas L.J.) CPR, rr.52.3, & 52.17, Practice Direction (Appeals) paras 12 & 25.1 claimant (C) bringing proceedings against council (D) for misfeasance in public office in connection with application by him for planning permission at trial (in January 2001), on basis of D s no case to answer application, judge dismissing C s claim judge refusing C s application for permission to appeal shortly after trial, C s legal aid discontinued in February 2001, C applying to Court of Appeal for permission to appeal in June 2001, on basis that C did not wish to pursue it, Deputy-Master dismissing C s application in December 2002, C (now acting in person) filing notice to have his application re-instated C not attending hearing of this application single judge, after considering the merits, dismissing application in November 2003, C applying to have the application re-instated on basis that he was prevented by illness from attending the hearing held, by single lord justice, dismissing the application (1) the Court has jurisdiction to set aside its order for dismissal of an appeal, whether made after a hearing or on the merits, however (2) that discretion is to be exercised only in extraordinary or exceptional circumstances Taylor v. Lawrence [2003] EWCA Civ 90; [2002] 3 W.L.R. 640, CA; Matlaszek v. Bloom Camillin [2003] EWCA Civ 154, ref d to (see Civil Procedure 2004, Vol. 1, paras 52PD.46 & 52PD.113) RECKITT BENKISER (UK) LTD v. HOME PAIR- FUM LTD [2004] EWHC 302 (Pat); February 13, 2004, unrep. (Laddie J.) CPR, rr.1.1, 3.1(2) & 3.4(2)(b), Trade Marks Act 1994, s.21 consumer products company (C) bringing claim against similar company (D) for infringement of UK and EC trade marks and registered designs, and for passing off and breach of confidence D defending and counterclaiming (1) to invalidate trade marks pleaded against them and (2) for injunctive and compensatory relief for unjustified threats C applying to have counterclaim, so far as it related to threats, struck out held, dismissing the application (1) the court has power to strike out a prima facie valid claim where there is abuse of process, (2) there has to be an abuse, and striking out has to be supportive of the overriding objective, (3) it does not follow from this that in all cases of abuse the correct response is to strike out the claim, (4) the striking out of a valid claim should be the last option, (5) if the abuse can be addressed by a less draconian course, it should be, (6) in this case, (a) the potential benefits to D of pursuing their counterclaim against C were small, but that was no justification for striking out for abuse, further (b) the cost and time implications of allowing the counterclaim to stand would be very small indeed observations on tension between CPR talk first policy and sue first practice dictated by threats legislation Wallis v. Valentine [2002] EWCA Civ 1034; [2003] EMLR 8, CA; The Times, August 8, 2002, CA; Broxton v. McClelland [1995] EMLR 485, CA, ref d to judge also dismissing D s application to join C s solicitors as Pt 20 defendants (see Civil Procedure 2004, Vol. 1, paras & 3.4.3) REED EXECUTIVE PLC v. REED BUSINESS INFORMATION LTD [2004] EWCA Civ 159; March 3, 2004, CA, unrep. (Auld, Rix & Jacob L.JJ.) CPR Pt 63 Trade Marks Act 1994, Trade Marks Directive (89/104) art.5.1 employment agency (C) bringing claim against business publishers (D) for passing off and infringement of registered trade mark trial judge (1) giving judgment for C on both grounds and granting declaration accordingly, and (2) ordering inquiry as to damages on appeal, D contending (1) that the declaration should be restricted so as not to limit their freedom to use their own copyright notice, (2) that the scope of the inquiry as to damages should be modified accordingly, (3) that the judge should have assessed damages on a summary basis held, allowing D s appeal, (1) the copyright notice did not fall within art.5.1, (2) where damages are likely to be small or negligible, the judge should not assess damages summarily, but (3) should use the court s case management powers to stop the inquiry getting out of hand by (a) by requiring claimant to prepare statement of case and supporting evidence before requiring defendant to do anything, (b) ordering trial of quantum to be on paper unless case for cross-examination made out, (c) restricting or doing away with disclosure, (d) imposing time limit for hearing observations (1) on

5 whether damages should be awarded on a user basis, and (2) significance as to costs of D s reluctance to go to mediation McDonald s Hamburgers Ltd v. Burger King (UK) Ltd [1987] F.S.R. 112, CA; Hurst v. Leeming [2002] EWHC 1051 (Ch); [2003] 1 Lloyd s Rep. 379, ref d to (see Civil Procedure 2004, Vol. 1, paras & , Vol. 2, para. 2F 1) ROSE v. LYNX EXPRESS LTD [2004] EWCA Civ 447; The Times, April 22, 2004, CA (Peter Gibson, Mance & Keene L.JJ.) CPR, r applicant (C) proposing to bring claim against company (D) question of construction of D s articles of association main issue arising in anticipated claim C applying under r for disclosure by D before starting proceedings against them at hearing of application, on ground that it was central to question whether pre-action disclosure should be granted, judge considering construction point as preliminary issue judge (1) determining point in favour of D, (2) holding that paras (c) and (d) of r were not satisfied, and (3) dismissing C s application held, allowing C s appeal and ordering limited pre-action disclosure, (1) when hearing an application under r the court (for various practical reasons) should be hesitant about determining any of the substantive issues arising in the anticipated proceedings, (2) C had a properly arguable case (see Civil Procedure 2004, Vol. 1, para ) USP STRATEGIES PLC v. LONDON GENERAL HOLDINGS LTD [2004] EWHC 373 (Ch); The Times, April 30, 2004 (Mann J.) CPR, rr.3.4, 32.1 & 32.4 claimants (C) bringing claim against business rivals (D) for damages for breach of confidentiality and infringement of copyright C succeeding in claim and court ordering inquiry as to damages D applying for certain evidence to be redacted and parts of the particulars of claim and witness statements to be struck out application based on D s contention that material referred to (1) consisted of communications between them and a third party, and (2) were, or referred to, privileged advice given to D by their lawyers held, where privileged advice is disclosed to a third party the privilege (1) is capable of attaching to the third party communication, and (2) attaches not only (a) where that communication consists of the whole of the advice, but also (b) where it is merely a paraphrase of or extract from the advice Three Rivers District Council v. Governor and Company of the Bank of England (No.5) [2003] EWCA Civ 474; [2003] 3 W.L.R. 667, CA, ref d to (see Civil Procedure 2004, Vol. 1, paras 3.4.1, & ) Statutory Instruments CIVIL PROCEDURE (MODIFICATION OF SUPREME COURT ACT 1981) ORDER 2004 (S.I No. 1033) Civil Procedure Act 1997, s.4(1), Supreme Court Act 1981, ss.29, 31, 43 & 81 amends s.29 (Orders for mandamus, prohibition and certiorari), s.31 (Application for judicial review), s.43 (Power of High Court to vary sentence on certiorari) and s.81 (Bail) of 1981 Act provides that, in these provisions and in any statutory provision extending to England and Wales, orders of mandamus prohibition and certiorari are to be known, respectively, as mandatory, prohibiting and quashing orders also provides, by amendment to s.31(4), that the High Court, on an application for judicial review, shall have power to award restitution or the recovery of a sum due, in addition to the existing power to award damages for related amendments to CPR, rr.54.1 & 54.3, see Civil Procedure (Amendment No.5) Rules 2003 (S.I No. 3361) rr.12 & 13 (CP News Issue 03/04) in force May 1, 2004 (see Civil Procedure 2004, Vol. 2, paras 9A 80, 9A 84, 9A 136 & 9A 349) COMMUNITY LEGAL SERVICES (SCOPE) REGULATIONS 2004 (S.I No. 1055) Access to Justice Act 1999, Sched.2 exclude from the scope of the Community Legal Service (subject to any directions made under s.6(8) of the 1999 Act) help in relation to attending an interview conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum in force April 1, 2004 HIGH COURT ENFORCEMENT OFFICERS REGULATIONS 2004 (S.I No. 400) Courts Act 2003, ss.99 & 108(6) and Sched.7 provide for the enforcement of writs of execution issued by the High Court by enforcement officers enforcement officers (EOs) are to execute writs in districts to which they are assigned these Regulations set out (in particular) (1) the districts to which EOs may be assigned, (2) the conditions to be satisfied by individuals seeking to be authorised to act as EOs, (3) the procedures to be followed in relation to the assignment of EOs and changes in their assignments, (4) the circumstances in which authorisations may be terminated, and (5) the fees that may be charged by EOs in force March 15, 2004 a minor amendment (coming into effect on March 31, 2004) was made to these Regulations by the High Court Enforcement Officers (Amendment) Regulations 2004 (S.I No. 673) 5

6 6 IN DETAIL Transfer order on court s own initiative In Shawton Engineering Ltd v. DGP International Ltd [2003] EWCA Civ 1956; December 19, 2003, CA, unrep., the facts were that, in May 2001, one company (C) brought a large claim against another company (D) for breach of contract and negligence. The claim was issued as a TCC claim in a district registry of the High Court (Liverpool). Throughout, the case was managed by a circuit judge authorised to deal with TCC business arising in that registry. A trial date in February 2002 was set, but this had to be abandoned because C were not ready. Further, a trial in November 2002 had to be adjourned partheard because of C s failure to disclose documents and this trial was subsequently abandoned. In December 2002, a new trial date of June 23, 2003 was fixed. In May 2003, the judge (1) granted C permission (a) to amend their particulars of claim, and (b) to rely on new expert evidence, and (2) vacated the new trial date. In June 2003, the judge fixed yet another trial date of March 15, 2004, for a trial expected to last nine weeks. On November 17, 2003, apparently exercising the Court s power under CPR, r.3.3(4) to make an order of its own initiative without giving the parties an opportunity to make representations, the judge made an order under r.30.2(4) transferring the case from the district registry to the Technology and Construction Court sitting in London (hereinafter the transfer order ). D applied to the judge to have the transfer order set aside (r.3.3(5)(a)). The application was heard on the telephone and after hearing the submissions of both parties the judge dismissed D s application. The Court of Appeal (Peter Gibson & Latham L.JJ. and Sir Martin Nourse) allowed D s appeal and discharged the transfer order. CPR, r.3.3(4) states that, where the court proposes to make an order of its own initiative it may do so without hearing the parties or giving them an opportunity to make representations. However, r.3.3(5) provides that, in that event (a) a party affected by the order may apply to have it set aside, varied or stayed, and (b) the order must contain a statement of the right to make such an application. An application by a party to set aside etc. must be made (a) within such period as may be specified by the court, or (b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application (r.3.3(6)). In the Court of Appeal, Peter Gibson L.J. said (para. 16) that, before exercising its powers under r.3.3(4) to make an order without hearing the parties or giving them an opportunity to make representations, the court must be very certain that it has all the material which it needs in order to make such an order fairly and in compliance with the overriding objective (r.1.1). If the court is to act under r.3.3(4) for the purposes of transferring a case under r.30.2, the matters to which the judge must have regard under r.30.3(2) must be such that he needs no help from the parties on them (para. 15). His lordship noted that the transfer order did not comply with the provisions of r.3.3 in that it did not contain a statement of the right of a party affected by the order to apply to have it set aside. CPR, r.30.2(4)(b) states that the High Court may, having regard to the criteria in r.30.3, order proceedings in a district registry to be transferred from a district registry to the Royal Courts of Justice. Rule 30.3(2) states that the matters to which the court must have regard include (amongst others) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court (sub-para. (b)), and the availability of a judge specialising in the type of claim in question (sub-para. (c)). Para. 5.1 of Practice Direction (Technology and Construction Court) states that, where no TCC judge is available to deal with a claim which has been issued in a High Court District Registry, the claim may be transferred, if it has been issued in a District Registry, to another District Registry or to the High Court in London. Para. 5.2 states that this provision is without prejudice to the court s general powers to transfer proceedings under Part 30. (The effects of r.30.3 and para. 5.1 are summarised in para. 4 of the Technology and Construction Court Guide; see White Book, Vol. 2, para. 2C 32.) In the Court of Appeal, Latham L.J. said it appeared that the reason behind the judge s deciding (on November 17, 2003) that the case should be transferred administratively was that it had become apparent that, because of his other commitments, it would not be possible for him to start the trial on March 15, In his short oral judgment dismissing D s application the judge expressed the view that the overriding consideration was to keep to the trial date. (It seems to have been assumed that, were the transfer made, the trial date would be kept.) The Court of Appeal came to the conclusion that the judge had erred in not giving proper attention to the criteria to which he was required to have regard as stated in r.30.3(2); in particular, the issue whether it would be more convenient or fair for the trial hearing to be heard in some other court (r.30.3(2)(b)).

7 Peter Gibson L.J. said (para. 15) that it was hard to see how the judge could properly have made the transfer, given the likely effect on both sides of such an order. Latham L.J. said (para. 8) that this was a case that required a decision which took account of any possible prejudice there may be to either party (para. 8). Inevitably, a nine-week trial at a venue any substantial distance from where the parties have their main place of either work or home would have a significant effect on the parties. The evidence before the judge, as embellished by that in the Court of Appeal, showed that D would not merely be inconvenienced but would be prejudiced by the transfer. D s business would be disrupted by the necessity for one or more senior members of D to be in attendance for large parts of the trial a long distance from D s place of business. No specific prejudice to C caused by the case not being transferred to London was identified by C. On exercising the discretion afresh, the Court of Appeal concluded, taking into account the r.30.3(2) criteria and bearing in mind the overriding objective, that the case should not be transferred from Liverpool to London, but instead should be transferred there to nearby Salford county court where, the Court understood, a hearing date in the week commencing October 14, 2004, before a different circuit judge was available. So, in the event, both parties suffered the prejudice of the trial being delayed for a further seven months. Doubtless, in D s case the further delay was balanced by the convenience of the prospect of having the case tried locally. C, as Latham L.J. pointed out, had been responsible for gross delay, leading to the vacating of two trial dates and the aborting of a trial and consequential expense. In the circumstances it was difficult for them to argue that they would be prejudiced by the further delay. It may be commented that one of the significant features of the modern law of English civil jurisdiction and procedure is the high degree of flexibility that exists in the provisions permitting the transfer of cases from court to court. However, as this case illustrates, although judges, lawyers and court staff may sometimes think in terms of cases being transferred administratively, it has to be remembered that the discretion is not unfettered. It may also be commented that the fact that a contested case can be started in May 2001 (and allocated to the multi-track) but not tried until October 2004 does not say much for the much-vaunted case management system introduced by the CPR. This is the kind of case processing delay which, though not uncommon before 1999, we were assured would not happen thereafter. Beginning proceedings for possession CPR, r.7.2(1) states that proceedings are started when the court issues a claim form at the request of a claimant, and r.7.2(2) states that a claim form is issued on the date entered on the form by the court. Para. 5.1 of Practice Direction (How to Start Proceedings The Claim Form) (supplementing CPR Pt 7) recites r.7.2(1), and then goes on to state: but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is brought for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date. In Salford City Council v. Garner [2004] EWCA Civ 364; The Times, March 10, 2004, CA, the facts were that, on June 20, 2002, on the ground that their tenant (D) had fallen into arrears, a local authority (C) gave notice for possession of D s flat under the Housing Act 1996, s.128. On November 7, 2002, C lodged the relevant documents with a county court for bringing possession proceedings against D. On November 11, 2002, the court issued a claim form. A district judge dismissed C s claim and C appealed to a circuit judge. On the appeal, C contended (1) that D held an introductory tenancy for trial period of one year ending on November 8, 2002 (s.125(2) of the 1996 Act), (2) that they began proceedings for possession on November 7, 2002 (s.130(1)), and (3) therefore, as the tenancy remained an introductory tenancy and the terms of s.128 had been complied with, they were entitled to an order for possession under s.127. D contended (1) that he became a secure tenant on November 9, 2002, and (2) that C had not begun proceedings within the meaning of s.130(1) until November 11, 2002, and (3) therefore C were not entitled to an order under the mandatory terms of s.127. The circuit judge found in favour of C, allowed their appeal and granted them a possession order. The Court of Appeal (Chadwick & Maurice Kay L.JJ.) allowed D s appeal and restored the district judge s order. Put briefly, the Court held (1) Parliament could not have intended any distinction between the date on which proceedings are begun for the purposes of s.128(5), and the date on which the landlord has begun proceedings for the purposes of s.130(1), (2) the beginning of proceedings under s.130 must bear the same meaning as the starting of proceedings as described in r.7.2, (3) by operation of CPR, r.7.2, the proceedings against D were begun on November 11, 2002, and on that date D was entitled to a secure tenancy, because the one-year trial period in relation to the introductory tenancy granted to him on November 9, 2001, had, by then, come to an end. In the course of argument, counsel for C drew the Court s attention to para. 5.1 of Practice Direction (How to Start Proceedings The Claim Form) quoted above. The Court said that there is no analogy between the beginning of proceedings under s.130 and a claim being brought for the purposes of the Limitation Act

8 F EATURE 8 DOCUMENTS ON APPEAL Part 52 of the CPR contains rules dealing with an appeal (1) to the civil division of the Court of Appeal, (2) to the High Court, and (3) to a county court. Rule 52.2 states that all parties to an appeal must comply with the relevant practice direction. The practice direction supplementing Part 52 is Practice Direction (Appeals) (see White Book, Vol. 1, para. 52PD.13 et seq.). Part 52 is divided into two sections. The first contains general rules about appeals (rr.52.1 to 52.12), and the second contains special provisions applying to the Court of Appeal (rr to 52.16). The Practice Direction is divided to three sections. The first contains general provisions about appeals (paras 2.1 to 15.14). The second contains general provisions about statutory appeals and appeals by way of case stated (paras 16.1 to 18.20). The third contains provisions about specific appeals (paras 20.1 to 24.2). A practitioner, faced with the problem of discovering just precisely which of the provisions referred to above apply to an appeal of a particular character has to have his wits about him. He has to be aware of the fact that provisions found in each of the sections of the Practice Direction may be relevant to his appeal in addition to particular rules in Part 52. Sometimes the terms of directions themselves alert him to this. For example, para of the Practice Direction, the paragraph introducing general provisions about statutory appeals in section II of the Practice Direction, says in part that those provisions are subject to any provision about a specific category of appeal in any enactment or section III of this practice direction. This interdependence and interrelationship was demonstrated in Haggis v. Director of Public Prosecutions (Note) [2003] EWHC 2481 (Admin); [2004] 2 All E.R. 382, DC, an appeal by way of case stated to the High Court from a magistrates court. In this case, Brooke L.J. explained the provisions setting out the Court s requirements in relation to the filing of skeleton arguments and bundles of authorities and showed why and how they apply to such an appeal. In the second section of the practice direction, paras 18.3 to 18.6 make special provision for appeals by way of case stated by the Crown Court or a magistrates court, and the other paragraphs in the section are concerned with appeals by way of case stated by a Minister, government department tribunal or other person. Para states that the appellant must EDITOR: Professor I. R. Scott, University of Birmingham. Published by Sweet & Maxwell Ltd, 100 Avenue Road, London NW3 3PF. ISSN Sweet & Maxwell Ltd 2004 All rights reserved lodge the following documents with his appellant s notice: (1) the case stated, (2) a copy of the judgment, order or decision in respect of which the case has been stated, and (3) where the judgment, order or decision in respect of which the case has been stated was itself given or made on appeal, a copy of the judgment, order or decision appealed from. But that does not exhaust the matter. Para states that, where any of the provisions in the second section of the Practice Direction provide for documents to be filed at the appeal court (e.g. para. 18.5), these documents are in addition to any documents required under Part 52 or section I of this practice direction. This brings into play, so far as the filing of skeleton arguments are concerned, paras 5.9 to 5.11 and paras 7.6 to 7.8, and so far as the filing of bundles of authorities, para All of these provisions are found amongst the provisions found in Section I of the Practice Direction that apply to appeals generally. In the Haggis case, the provisions as to the filing of skeleton arguments had not been complied with. Brooke L.J. said (para. 30) the judges of the High Court and the Court of Appeal are likely in future to be very much less forbearing in relation to the late service of skeleton arguments. Their lack of forbearance may well lead to disagreeable orders in relation to costs if this is the only way in which discipline can be achieved. In relation to the filing of bundles of authorities, Brooke L.J. drew attention to the terms of para (see White Book, Vol. 1, para. 52PD.5) and commented on this provision. His lordship again commented on para (but not in exactly the same terms) in Harvey Shop Fitters Ltd v. A.D.I. Ltd [2003] EWCA Civ 1757; The Times, November 26, 2003, CA, a case decided by the Court of Appeal less than a month after the Haggis case and involving an ordinary civil appeal (see CP News Issue 10/2003). A week later, in Jennings v. Cairns [2003] EWCA Civ 1935; The Times, November 26, 2003, CA, a differently constituted Court of Appeal (including the Master of the Rolls) again stressed the importance of para (see CP News 10/2003). In the Haggis case, Brooke L.J. concluded his judgment as follows (para. 34): I mention all these matters because it is now high time that practice in this respect is tightened up so that unnecessary time is not wasted either by the parties waiting for the other side to file skeleton arguments in accordance with the rules, or by the court in being bombarded at a very late stage, sometimes after it has already done its pre-reading, with the late arrival of skeleton arguments and important authorities. Typeset by Matthew Marley, desk top publishing and design matthew.marley@btinternet.com Printed by St Austell Printing Company, St Austell, Cornwall