Cockerill v Tambrands Ltd (Jackson v Pinchbeck, Prolaw Ltd v Adams (trading as Nigel Adams & Co))

Under CCR Order 17 Rule 11, automatic directions are not ousted merely because a party applies for manual directions or for a declaration that proceedings have been struck out. Application-based ouster remains confined in principle to the categories identified in Bannister, such as applications whose determination or appeal would divert the action from the automatic timetable. A strike-out application does not suspend the timetable before determination. An invalid defence delivered during a stay is not automatically validated when the stay is lifted; the court left open whether conduct could ever suffice, but cautioned against relying on the earlier dictum. The court reaffirmed the narrow scope of Ferreira on implied requests to fix a hearing date.

The Court of Appeal heard three conjoined appeals concerning the operation of CCR Order 17 Rule 11. In Cockerill, a claimant in complex personal injury litigation applied shortly before the guillotine date for manual directions, but the action was declared struck out. In Jackson, a defence had been delivered while the action was stayed and the lower courts treated it as effective when the stay was lifted. In Prolaw, defendants sought a declaration of automatic strike-out while uncertainty about the applicable trigger date was being litigated.

The central issues were whether those applications or the stay displaced automatic directions, whether the defence could acquire validity without redelivery or an express order, and what applications carry an implied request to fix a hearing date.

1. Disposition. Lord Justice Brooke delivered the judgment of the court. All three appeals were allowed.
2. Ouster of automatic directions. Once pleadings are deemed closed, automatic directions continue unless displaced by a manual direction which is repugnant to, or cannot coexist with, the automatic regime, or by an event or application which diverts the action from its intended progression to trial. The court applied and reaffirmed the principles in Bannister v SGB plc [1997] 4 All ER 129.
3. Applications for manual directions or strike-out declarations. A party cannot escape the timetable merely by applying for an order disapplying automatic directions. The proper course is to seek manual directions in good time. A declaration that an action has been automatically struck out likewise does not itself oust the timetable. It continues until the application is determined. If strike-out is upheld, the timetable stops thereafter. If the application fails and the defendant appeals, the claimant should seek an ex parte stay. Failure to obtain such a stay should not ordinarily count against diligence on reinstatement or attract sympathetic consideration of the unsuccessful defendant’s costs application.
4. Stays and invalid defences. A stay may be inconsistent with automatic directions where those directions are already running, but a stay imposed before the regime has been triggered does not necessarily have that effect. A defence delivered during a stay did not become effective merely because the stay was later lifted. The court rejected the lower court’s reliance on deemed effective delivery, while leaving the possible effect of subsequent conduct unresolved. The dictum in Baker v Waltham Forest LBC (unreported, CAT 14th January 1998) was to be treated with very great caution.
5. Implied requests for a hearing date. The court reaffirmed Bannister on the limited circumstances in which an application implies a request to fix a hearing date. An application to extend time for requesting a hearing date or the guillotine date has that implication; other applications do not. Ferreira v American Embassy Employees Association [1996] 1 WLR 536 was not to be given a wider field than that recognised in Bannister.
6. Orders. The Cockerill appeal was remitted for consideration of reinstatement; the Jackson appeal was remitted for consideration of the alternative argument under Order 9 Rule 10; and Prolaw was left to pursue reinstatement. Costs and legal aid taxation were ordered as stated in the schedule.

• Court of Appeal: Allowed all three appeals. The court remitted the matters for reinstatement or further consideration as appropriate.
• County courts: In Cockerill, District Judge Collier dismissed the application for manual directions and granted the strike-out application; Judge Howe held that the application had ousted automatic directions. In Jackson, the district judge and Judge Wood treated the defence as effective when the stay was lifted. In Prolaw, District Judge Samuels and Judge Byrt QC rejected the strike-out declaration, although leave to appeal was granted.