Biguzzi v Rank Leisure plc

Under the transitional arrangements, conduct before the commencement of the Civil Procedure Rules must be assessed against the former rules, but a later decision is generally governed by the new procedural code. Earlier procedural authorities therefore cease generally to govern once the new rules apply.

A failure to comply with a rule, practice direction or court order gives the court a wide discretion to strike out. Strike-out is not the automatic or initial response. The court must apply the overriding objective, consider the administration of justice as well as the parties’ positions, and select a just sanction. Defaults should not go unmarked, but costs, interest sanctions, payment into court or firm case management may produce a more proportionate result.

The claimant sought damages from his employer following serious injuries sustained during a fight at the employer’s nightclub. The proceedings, begun almost two years after the injury, then progressed slowly. Both parties failed to comply fully with directions, and an order requiring certificates of readiness did not receive effective court supervision.

A deputy district judge found no substantial risk that a fair trial was impossible and no serious prejudice to the defendant. Nevertheless, he struck out the statement of case as an abuse of process because the claimant’s defaults cumulatively amounted to wholesale disregard of the rules. His Honour Judge Kennedy QC allowed the claimant’s appeal after the Civil Procedure Rules had commenced. He concluded that both sides had proceeded without sufficient expedition and that the claim should instead be brought promptly to trial.

The defendant appealed. The central issues concerned the transitional application of the new rules, the relevance of pre-existing authorities on delay and the proper exercise of the discretion to strike out.

1. Disposition and appellate approach. The appeal was dismissed unanimously, with costs. Lord Woolf MR delivered the leading judgment. Brooke LJ agreed and gave additional reasons, while Robert Walker LJ agreed with both judgments. A county court judge hearing an appeal from a deputy district judge had to rehear the issue. On the further appeal, the Court of Appeal could interfere with the resulting discretionary decision only for a misdirection in law or a plainly wrong conclusion.
2. Transitional proceedings. The Practice Direction (transitional arrangements), made through the process anticipated by Part 51 of the Civil Procedure Rules, gave a judge discretion over the application of the new rules to existing proceedings. Its general presumption was that the new rules applied after their commencement unless the judge directed otherwise. Earlier conduct still had to be assessed by reference to the rules applicable when that conduct occurred. The court deciding the later application was not, however, constrained to reach the result that the former regime would have required.
3. Earlier authorities. Lord Woolf MR approved Judge Kennedy’s refusal to treat former procedural authorities as controlling. Decisions such as Birkett v James [1978] AC 297 had unduly restricted the courts’ ability to control delay under the old regime. The new rules were intended as a self-contained procedural code. Earlier authorities were therefore no longer generally relevant once that code applied, although the court could not disregard the procedural regime under which the parties had previously acted.
4. Strike-out and alternative sanctions. Rule 3.4(2)(c) conferred an unqualified discretion to strike out where a party failed to comply with a rule, practice direction or court order. The existence of that power did not make strike-out the initial response. The court had to apply the overriding objective and consider both justice between the parties and the effect of default upon the administration of justice generally. Time limits had to be enforced and defaults could not be ignored. Nevertheless, the broader powers under the new code often permitted a more just response, including immediate or indemnity costs, interest sanctions, payment into court and firm directions for trial.
5. Application. Judge Kennedy had correctly recognised that both parties were responsible for the delay, that a fair trial remained possible and that the case should proceed promptly. He did not condone the defaults. He drew a line under conduct occurring within the old regime and applied the new approach. Brooke LJ additionally emphasised the failure of effective court control and the defendant’s prolonged pursuit of unavailable medical records. There was no legal misdirection or plainly wrong exercise of discretion.

1. Court of Appeal: In Biguzzi v Rank Leisure plc [1999] EWCA Civ 1972, the defendant’s appeal was dismissed unanimously. The decision permitting the claim to proceed was upheld.
2. Brighton County Court, His Honour Judge Kennedy QC: On 17 May 1999, the claimant’s appeal was allowed. The judge declined to strike out the claim and concluded that it should be brought promptly to trial.
3. Brighton County Court, Deputy District Judge Paul Radcliffe: On 20 March 1999, the claimant’s statement of case was struck out as an abuse of process based on wholesale disregard of the procedural rules.