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Price v Price, Court of Appeal, 26 June 2003

1 July 2003
The issues

Particulars of Claim – extension of time for service – CPR Part 3 Rule 9.

The facts

The Claimant had an accident, which occurred on the 5th May 1998. In January 2000 a Specialist was instructed to prepare a medical report in agreement with the Defendant’s. The Defendant heard no more until April 2001 when the Claim Form was served by the Court, but without Particulars of Claim, medical report or Schedule of Loss. When the Claim Form was served, the Defendant’s Insurers were told that the claim was expected to exceed £50,000.00. The Defendants repeatedly but unsuccessfully asked to see the medical report. In March 2002, without telling the Defendants, the Claimant’s Solicitors instructed a new medical expert whose report was served at the end of July 2002 with a Schedule of Special Damage revealing a claim for £548,170.00. This was the first notification to the Defendant that the Claimant had sustained a chronic and disabling back injury and that there was a future loss claim in the region of £60,000.00 rather than £60.00 per week. The Claimant applied for an extension of time to serve Particulars of Claim. The District Judge granted the extension. On Appeal to the Judge, the District Judge’s decision was set aside on the grounds that the delay had been deliberate, long and without explanation and that an extension of time in these circumstances would amount to an affront to civil justice. The Claimant appealed to the Court of Appeal.

The decision

1. The Judge had been correct to set aside the District Judge’s decision because the District Judge had failed to deal with the matters set out in Part 3 Rule 9 of the CPR.

2. The Judge’s approach was flawed however because he had failed to give sufficient weight to the fact that the Claimant would be barred from bringing a claim worth over half a million pounds to him. Although the Judge weighed in the balance the prejudice to the Defendant, he did not apply an equal weighing exercise in respect of the prejudice to the Claimant.
3. Running through the checklist in Part 3 Rule 9, most of the matters appeared to be in favour of the Defendant. However, they were not sufficiently strong to deny the Claimant access to the Court completely, since this was his first default following institution of proceedings.

4. It would be proportionate to refuse an extension of time in these circumstances. The Claimant’s convention rights would not be prejudiced because it was necessary to ensure a fair Trial to both parties and it would not now be possible to deal with a case in a manner that was fair to both parties if an extension of time was granted unconditionally.

5. However, to bar the Claimant from pursuing the claim as it stood in April 2001, would be disproportionate and give the Insurers an unjustified windfall. Accordingly, the Appeal would be allowed to the extent that the Claimant would be permitted to serve Particulars of Claim out of time on condition that no claim was made for special or general damages other than might be substantiated by any medical report pre April 2001.

6. It was very important that the Court should not relax the disciplinary framework created by the Civil Procedural Rules.

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