Figgett v Davies

Under the County Court Rules, Order 17, rule 11, an order striking out a previously served Form N9 defence does not automatically cancel a period of automatic directions and restart it when a fully pleaded defence is later served. Where the order supplies no manual timetable and is inconsistent with automatic directions continuing, the action is left directionless apart from its express terms. The rule provides no mechanism for automatic directions to reappear, so automatic strike-out cannot be declared on that basis. Fresh manual directions are required.

This was a dental negligence action in which automatic directions had initially been issued after the defendant returned a Form N9 stating that a fully pleaded defence would follow. District Judge Hill later struck out that defence as inadequately pleaded and ordered service of a fully pleaded defence within two months, but gave no further directions. The defence was subsequently served, without a new Form N450 or manual timetable. Judge Davies allowed the defendant’s appeal from Deputy District Judge Wise, declared that the claim had been automatically struck out under Order 17, rule 11, and refused reinstatement. The plaintiff appealed against the strike-out declaration only. The central issue was whether automatic directions restarted when the fully pleaded defence was served.

Lord Justice Brooke delivered the leading judgment. Sir John Vinelott and Lord Justice Hobhouse agreed. The appeal was allowed unanimously.

1. Construction of the rule. The court held that the scheme of the County Court Rules, Order 17, rule 11, contains no mechanism by which automatic directions that have already run are cancelled by an order striking out a previously served Form N9 defence and then reappear when a fully pleaded defence is later served.
2. Effect of the order. District Judge Hill’s order struck out the existing defence and required a fully pleaded defence within two months. It did not give manual directions and said nothing about automatic directions. Its legal effect was therefore to leave the action directionless, apart from the express requirement to serve the fully pleaded defence.
3. Authority and application. The guidance discussed in Bannister v SGB plc [1997] 4 All ER 129, concerning orders inconsistent with the continuation of automatic directions and the need for express case-management provisions, supported that conclusion. The court rejected the contention that striking out the Form N9 defence meant that automatic directions could later be revived.
4. Disposition. Judge Davies was wrong to declare an automatic strike-out. It was declared that the plaintiff’s claim had not been automatically struck out. The matter was remitted to the district judge for fresh directions and an effective timetable. The appellant received the specified costs of the appeal and the hearing before Judge Davies; the earlier costs order remained in force.

• Court of Appeal (Civil Division): On 30 January 1998, allowed the appeal, declared that the claim had not been automatically struck out, and remitted the matter for further directions: [1998] EWCA Civ 113.
• Kingston-upon-Hull County Court, Judge Davies: On 16 July 1997, allowed the defendant’s appeal from Deputy District Judge Wise, declared that the action had been automatically struck out under Order 17, rule 11, and refused reinstatement.
• Kingston-upon-Hull County Court, Deputy District Judge Wise: On 24 February 1997, dismissed the defendant’s application for an automatic strike-out, gave directions for trial, and made an unless order concerning the defence.