LAW REPORT: Action automatically struck out under rules

Webster v Ellison Circlips Ltd. Court of Appeal (Lord Justice Glidewell, Lord Justice Simon Brown and Lord Justice Peter Gibson) 16 June 1995

Order 9, rule 10 of the County Court Rules, which provided for an action to be struck out after 12 months if no further steps in the action had been taken by either party, was mandatory and applied automatically even if further steps were taken after the end of the 12-month period.

The Court of Appeal unanimously dismissed an appeal by the plaintiff, Stephen Webster, against the decision of Judge Kamil, sitting in Bradford County Court on 20 May 1994, that the plaintiff's action against the defendants, his employers Ellison Circlips Ltd, claiming damages for personal injury, had been struck out on or about 23 September 1992.

Order 9 rule 10 of the County Court Rules 1981 provided that: "Where 12 months have expired from the date of service of a default summons and (i) no admission, defence or counterclaim has been delivered and judgment has not been entered against the defendant, . . . the action shall be struck out . . ."

Christopher Dodd (Marsden & Cockshott, Bradford) for the plaintiff; Christopher Storey QC (Hammond Suddards, Bradford) for the defendant.

Lord Justice Glidewell said the injury concerned was said to have occurred on 15 September 1988. A default summons was issued by his solicitors on 13 September 1991, two days within the limitation period, containing brief particulars of the plaintiff's claim.

The records of the County Court showed that a summons was sent by post on 16 September 1991 addressed to the defendants, and that it was not returned as unserved. By Order 7, rule 10(3) of the Rules it was accordingly deemed to have been served seven days after it was posted, i.e. on 23 September 1991.

It was common ground that the action was a default action. Accordingly, by Order 9, rule 2(6), the defendants were required to deliver a defence within 14 days after service of the summons on them. In the event, no further pleadings were served by either party, nor was any other step taken in the action, until 18 months later. On 18 March 1993, the plaintiff's solicitors delivered detailed particulars of claim to the County Court, and served a copy on the defendants.

On 20 May 1993, the defendants, who said they had no record of the proceedings, delivered a defence based on the Limitation Act 1980 contending that the action had been brought out of time. However, on being told the default summons was posted on 16 September 1991, the defendants took the point under Order 9, rule 10, that since their defence was not served until 20 May 1993 and no default judgment had been entered in the meantime, the action should have been struck out automatically after 12 months. They applied for an order striking it out forthwith.

The judge took the view that Order 9, rule 10 was mandatory, and did not depend on an application being made by the defendant, and that the action was struck out at the end of September 1992.

The plaintiff relied on the wording of Order 17, rule 11(9) which provided that, in the circumstances to which it applied, "the action shall be automatically struck out" and contrasted that with Order 9, rule 10, which did not use the word "automatically".

But his Lordship did not regard the difference in wording between the two rules, introduced at different times, as conclusive. Nor was the fact that the defendants had subsequently delivered a defence enough to prevent Order 9, rule 10 applying.

It would require implying into the rule words making it clear that the relevant factors were to be determined as at the later date of any application relying on the rule. His Lordship could see no justification for implying such words.

The words of the rule were clear. If at the end of the 12-month period no admission, defence or counterclaim had been served, and if there had been no order or agreement extending time for delivery of defence and if no judgment had been entered against the defendant, the action at that time should be struck out.

Lord Justice Simon Brown and Lord Justice Peter Gibson agreed.

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