Heer v Tutton and Another [1995]
- Reported: [1995] 4 All ER 547
- Year: 1995
- Court: Court of Appeal
FACTS:
Mr Heer was injured in a road accident on 6 November 1989. In an open letter dated 6 March 1990 insurers acting for the employers of the other driver accepted liability on their behalf. On 4 November 1992, just within the three-year limitation period, proceedings were issued on behalf of Mr Heer against the other driver and his employers. These proceedings were served by Mr Heer’s solicitors on the employers, with a copy to their insurers, on 14 December 1992. The proceedings were not served on the other driver, and he plays no part in the story. On 4 January 1993 there was a telephone conversation between Mr Heer’s solicitor and the solicitor for the second defendant, Argos Distributors Ltd. The latter requested an extension of time for service of the defence. The two solicitors agreed that time for service of the defence should be extended generally subject to 28 days’ notice on either side. On the following day this agreement was confirmed in writing. Over the ensuing months there were exchanges between the parties concerning medical evidence. There was substantial agreement on Mr Heer’s orthopaedic injuries, but some difference concerning his continuing psychological problems. In May 1993 the second defendant’s insurers made a contribution towards Mr Heer’s medical disbursements.
On 13 December 1993 the period of 12 months from the service of the default summons expired. At that stage, no admission, defence or counterclaim had been delivered and judgment had not been entered against the second defendant. In early February 1994 Mr Heer’s solicitors requested an interim payment. At the end of April 1994 the second defendant’s insurers asked Mr Heer’s solicitors to deal with the second defendant’s solicitors. On 1 June 1994 the second defendant’s solicitors wrote to the court and to Mr Heer’s solicitors observing that the action appeared to have been struck out under Ord 9, r 10.
Mr Heer’s solicitors then applied to enter a default judgment. The application came before a district judge on 14 September 1994 it was dismissed. Mr Heer’s solicitors appealed and the appeal was dismissed by Judge Heald on 31 October 1994. Judge Heald considered that the merits were entirely on the side of Mr Heer, but held that the meaning of the rule was clear and that the remedy for a litigant must lie in a change in the wording of the rule. He gave leave to appeal to this court.
HELD:
The appeal was allowed.
Sir Thomas Bingham MR found that the parties did not in terms agree that the action should not be struck out after 12 months under Ord 9, r 10. Sir Thomas Bingham found “When a plaintiff agrees to extend a defendant’s time for serving a defence, whether indefinitely or indefinitely subject to notice, or for a definite period, he is in effect agreeing not to enter judgment in default of defence during whatever period is agreed. Such agreement necessarily imports an undertaking on the part of the defendant not to exploit to the prejudice of the plaintiff any rule which might otherwise penalise the plaintiff for not entering judgment”.
Bingham further held that the practice of delaying litigious procedures and final settlement until a plaintiff’s medical condition has clarified or stabilised, while sensible, cost effective and beneficial to the plaintiff in many cases, is open to abuse. If an agreement at that time for the defence was generally extended has the effect of ousting Ord 9, r 10 and such agreements could be a source of unjustifiable delay beyond the control of the court under the rules. Whether abuse exists in practice, or whether there is a real risk of such abuse in future, the courts would not know. Bingham found that it would not be hard to frame a rule which would deny such agreements the effect which, on our construction, they now have, although thought Ord 9, r 10 was such a rule.
In this case there was an extension of time for service of the defence. Sir Thomas Bingham held that it may be doubtful whether anything short of consent would have sufficed, but since there was consent that question need not be answered and for these reasons the plaintiffs’ appeal was allowed.
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