Wednesday Law Report: Appeal from master lay to Court of Appeal

25 November 1998 Pavey v Ministry of Defence Court of Appeal (Lord Justice Beldam, Lord Justice Swinton Thomas and Lord Justice Pill) 19 November 1998
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WHERE AN issue had, with the consent of the parties, been tried by a master, an appeal against his decision lay to the Court of Appeal and not to the judge in chambers.

The Court of Appeal dismissed the plaintiff's appeal against the finding of the master that his claim in negligence against the defendant was statute barred.

The plaintiff claimed damages against the defendant for treatment which he had received at a military hospital when he was aged about 14. The defendant asserted that any cause of action against it had arisen more than 11 years before the issue of the writ and was accordingly barred by the Limitation Act 1980, and that if the plaintiff sought to rely upon the provisions of section 33 of the Act, it would not be just or equitable for the court to disapply the provisions of section 11.

The master gave directions for the trial of an issue under section 33. With the agreement of the parties, he first tried the issue of the date of the plaintiff's knowledge for the purposes of section 14 of the Act, and concluded that by 1986 the plaintiff had known that he had sustained the injuries complained of, and had had the requisite knowledge that they were capable of being attributed to the acts or omissions of the defendant's doctors. He refused to make a direction under section 33 that the provisions of section 11 should not apply, having found that there was clearly prejudice to the defendant as a result of the delay.

The plaintiff sought leave to appeal, and the master held that an appeal from his finding of the date of knowledge and from his refusal to exercise his discretion under section 33 lay to the Court of Appeal.

Christopher Williams (Close Thornton, Darlington) for the plaintiff; Alison Hewitt (Treasury Solicitor) for the defendant.

Lord Justice Beldam said that the plaintiff contended that on the issue of date of knowledge he had a right of appeal to the judge in chambers, and a further right of appeal to the Court of Appeal should the judge uphold the master's decision.

He also argued that the master's finding of the date of knowledge should be reversed, or, if it was correct, that the court should review the exercise of his discretion and disapply the provisions of section 11.

He had further developed his argument at the hearing of the appeal to contend that the master had had no jurisdiction to try the issue of his date of knowledge, such an issue only being triable by a judge unless permitted by rules of the court.

Whilst under the present rules the court had no general power to order the trial of an issue by the master without the consent of the parties, there was no rule which excluded the power of a master to try an issue with consent. RSC Order 33 rule 2 clearly gave the master the power to try the issue of date of knowledge. Since the parties in the present case had consented, the validity of the proceedings could not be impugned on the grounds of jurisdiction.

Where an issue had been tried by a master with consent, his jurisdiction and any right of appeal from his decision depended upon the intention of the parties who had agreed to his trying the issue rather than the judge. In the absence of any reservation, the reasonable inference was that they intended that an appeal from his decision would be that which would have been available had the issue been tried by a judge.

The suggestion that there should first be an appeal to the judge in chambers would be incompatible with the agreement to refer the issue to be decided by the master. The order made by the master was a final order, from which an appeal lay to the Court of Appeal, not to the judge in chambers.

In the present case the master's finding on date of knowledge had been correct, and there was no ground on which it would be right for the court to interfere with his decision not to disapply the provisions of section 11.