Perry v Wong (Jones v Roe Shopfitting Ltd, Sampson v Moon)

Under the County Court Rules, a plaintiff’s failure to request a hearing date within six months does not invalidate a later request made before the 15-month automatic strike-out period expires. No prior application to extend the six-month period is required. The six-month requirement remains meaningful because a defendant may seek procedural directions and costs sanctions, and the court may impose a timetable. A general rule concerning procedural irregularities does not displace the specific code in Order 17, rule 11. A late request may nevertheless be vulnerable where the plaintiff’s conduct amounts to abuse of process.

Three conjoined appeals concerned the construction and application of Order 17, rule 11 of the County Court Rules. In Jones v Roe Shopfitting Ltd, the Recorder held that a request for a hearing date made after six months was ineffective without an extension. In Perry v Wong, the Recorder treated the request as implying an extension application and applied the principles in Rastin. In Sampson v Moon, the County Court allowed the action to proceed because the request was made within 15 months. The common issue was whether a request made between six and 15 months was valid without a preceding application for an extension.

1. Disposition. The Court of Appeal unanimously allowed the appeals in Jones v Roe Shopfitting Ltd and Perry v Wong, and dismissed the appeal in Sampson v Moon.
2. Construction of the timetable. Order 17, rule 11 of the County Court Rules establishes a specific procedural code. Read together, rule 11(3)(d) and rule 11(9) provide that a request for a hearing date made after the six-month period but before 15 months is valid and prevents automatic strike-out. The reference in rule 11(9) to a request made pursuant to rule 11(3)(d) refers to the nature of the request, rather than compliance with the six-month deadline.
3. Effect of the six-month requirement. The six-month duty retains practical force. A defendant may apply for a timetable, with possible costs consequences, and the court may summon the parties and impose procedural directions. The Court accepted the approach in Ashworth v McKay Foods Ltd [1996] 1 WLR 542, including the avoidance of routine investigations into the reasons for missing the six-month period. A request could potentially be set aside for contumacious disregard of the rules, bad faith or ulterior motives amounting to abuse of process.
4. No implied extension. A request made during the six-to-15-month period does not import or imply a retrospective application for an extension. The request is made to the proper officer, namely the Chief Clerk or an officer acting on the Chief Clerk’s behalf under Order 1, rule 3. Fixing the date is an administrative act and does not require an exercise of judicial discretion. The extension principles in Rastin v British Steel Plc [1994] 1 WLR 732 therefore did not arise.
5. Procedural irregularity. The Court questioned the application of one universal rule to every procedural irregularity. It agreed with the approach in Chapman v Chapman [1985] 1 WLR 599 and held that the general irregularity rule discussed in Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513 could not govern non-compliance with this specific Order 17 code. The orders followed accordingly, with costs awarded on the two successful appeals and against the appellant in Sampson v Moon.

1. Court of Appeal. On 25 November 1996, the Court of Appeal heard three conjoined appeals and delivered the judgment reported at [1996] EWCA Civ 1031. It allowed two appeals and dismissed one.
2. County Courts. The appeals arose from decisions of the Manchester, St Helens and Warrington County Courts. The lower courts had respectively allowed or dismissed applications concerning automatic strike-out under Order 17, rule 11.