LAW REPORT: Strike-out provision did not apply to stayed proceedings

Whitehead v Avon District Council; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Thorpe, Lord Justice Waller) 10 February 1997

Where proceedings were stayed by order of the court, the provisions of Order 17, rule 11(9), automatically striking out the action if no request for a hearing date were made within 15 months of the close of pleadings, ceased to apply unless expressly preserved by the order.

The Court of Appeal dismissed an appeal by the defendant, Avon County Council, against the decision of Judge Batterbury, sitting in Bath County Court on 24 March 1995, that an action by the plaintiff, Cynthia Whitehead, had not been struck out automatically under rule Order 17, rule 11(9).

The plaintiff's action was for damages for injuries to her back. Pleadings closed on 22 April 1992 and the 15-month period under Order 17, rule 11(9), was to have expired on 22 July 1993. But the time for requesting a hearing date was extended by the court until 30 September 1993, thus postponing the "guillotine date" to 30 June 1994. Then in September 1993 the proceedings were stayed pending examination of the plaintiff by the defendant's psychiatrist. The plaintiff appealed against the order because she wished to have a companion present when examined. The judge rejected her appeal and she appealed to the Court of Appeal but no appeal had been heard before 30 June 1994.

In January 1995 the defendant sought a declaration that the action had been automatically struck out. It contended that although a stay imposed a procedural bar on the taking of further steps in the action, the action still subsisted and rule 11(9) had the effect of automatically striking out the proceedings when the guillotine period expired. Alternatively, if the plaintiff was prevented from requesting a hearing date while the action was stayed, she could still apply for an extension of time for making such a request, in order to keep the action alive, and since she failed to do so, it was automatically struck out under the rule.

Andrew Collender QC and Christopher Russell (Collyer-Bristow, for Bennett Metcalfe, Bristol) for the defendant; Edwin Glasgow QC and Peter Langlois (Campbell Hooper, for Faulkners, Frome) for the plaintiff.

Lord Justice Waller said the question was one of construction of the particular order, in the context of the facts of the case, and of the rules. The philosophy of the rules appeared from Order 17, rule 11(2)(b) to be that the automatic directions were to have effect "subject to any directions by the court".

In construing the rules, the court would bear in mind that their aim was to take matters out of the parties' hands so far as time-keeping was concerned, because, as the Master of the Rolls said in Downer & Downer Ltd v Brough [1996] 1 WLR 575 at 582, they "cannot be relied to act with expedition". But as Downer showed, (a) if orders were inconsistent with the automatic directions, those directions might well cease to have effect, and (b) the aim of the rules could also be achieved by the court itself making appropriate orders.

With a draconian provision such as Order 17, rule 11(9) in the background it was critically important, where the court made an order outside the automatic directions, that the parties be clear as to whether the draconian rule applied or not.

If the order specified a time for the operation of the rule, the imposition of a stay could not prevent an application to extend such time.

Where the court made an order staying proceedings without words in the order preserving the date by which the plaintiff was obliged and able to request a hearing, an order for a stay was inconsistent with the automatic directions. It followed that on the proper construction of the rules and on the authority of Downer the automatic directions ceased to apply; therefore rule 11(9) must also cease to apply.

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