Hawkins v Keppe Shaw Solicitors (A Firm)

Automatic directions remain applicable unless the court has clearly imposed a different procedural regime. They are ousted where new directions are repugnant to the automatic timetable or cannot sensibly coexist with it, particularly the requirement to request a hearing date and the resulting automatic strike-out sanction.

Composite directions covering third-party proceedings do not, merely because they are composite, disapply automatic directions in the main action. Directions concerning expert evidence may coexist with the regime where they do not prevent the action from progressing towards trial. A withdrawn application for a preliminary issue may be treated as a procedural nullity and therefore need not affect the continuing operation of automatic directions.

The appellant brought a personal injury action after suffering injury as a pillion passenger in a road traffic accident. The action involved the estate of the deceased motorcyclist, the driver of the car and third-party proceedings. Directions were given concerning pleadings, discovery, inspection, experts and participation in the trial.

The appellant later applied for a split trial and for an interim payment. The split-trial application was withdrawn, and an interim payment was made. The action was subsequently treated as having been automatically struck out under Ord. 17 r. 11(9). In professional negligence proceedings against the solicitors, the preliminary issue was whether the procedural steps had ousted the automatic directions regime. The judge below held that they had. The central issue on appeal was whether the automatic directions continued to apply.

Appeal allowed. Lord Justice Latham delivered the leading judgment, with Lord Justice Waller and Mr Justice Astill agreeing.

1. The governing approach was taken from Bannister v SGB plc and Others [1998] 1 WLR 1123; [1997] 4 All ER 129. Automatic directions continue unless the court has imposed directions which are repugnant to the automatic timetable or which cannot coexist with it.
2. The directions made by District Judge Child were composite because they addressed the third-party proceedings as well as the main action. That fact did not itself oust automatic directions. The discovery and inspection variations were compatible with the rules, and the third party’s participation at trial caused no incompatibility.
3. The direction allowing expert reports to be disclosed 28 days before trial also did not oust the regime. Under Ashworth v McKay Foods Ltd [1996] 1 WLR 542, a request for a hearing date could remain valid even where evidence had not been disclosed. The expert direction therefore did not prevent the action progressing within the automatic timetable.
4. The judge below treated the application for a split trial as automatically ousting the directions, relying on observations in Bannister concerning applications for preliminary issues. Those observations had not been necessary to the decisions in the cases before that court. In any event, the application here was withdrawn and the withdrawal was formally recorded. The court was entitled to treat the withdrawn application as a nullity for procedural purposes.
5. The automatic directions therefore continued, subject to the permitted variations. The action was automatically struck out under Ord. 17 r. 11(9) on 7 May 1993. The appeal was allowed.

The court noted that the application of the former rules had caused substantial delay and uncertainty, but those observations did not alter the operative conclusion.

• Court of Appeal (Civil Division): appeal from the preliminary-issue decision of HHJ Overend in the Queen’s Bench Division, Plymouth Registry, allowed. The Court of Appeal held that the automatic directions had continued to apply and that the original action had been struck out under Ord. 17 r. 11(9).