Lewis v Sun Life Assurance Company Of Canada

On a second appeal, the Court of Appeal gives primacy to the first appeal court’s decision. Permission should be granted only where the proposed appeal raises a significant point of principle or practice affecting other cases, or where there is another compelling reason to hear it.

The application of the Civil Procedure Rules may require reconsideration of pre-existing approaches to striking out claims for delay. In particular, the court may need to examine the balance of prejudice between the parties, rather than treating fading memories as establishing prejudice by an automatic formula.

The claimant’s claim had been struck out by Master Ungley for delay. Rougier J dismissed the claimant’s appeal and upheld that decision.

The claimant sought permission for a further appeal to the Court of Appeal. The proposed issue concerned the effect of the Civil Procedure Rules on the approach to delay, fading memories, prejudice and the fairness of trial. The court had to decide whether the second-tier appeal criteria were satisfied.

1. The application was a second-tier appeal. Under rule 52.3 and paragraph 2.19 of the Practice Direction, the first appeal court’s decision was to be given primacy unless the Court of Appeal considered that the proposed appeal raised a significant point of principle or practice, or that there was another compelling reason to hear it.

2. The Court of Appeal did not treat the word important, added in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, as imposing a substantially higher threshold. It meant a significant point capable of affecting a number of cases or otherwise important for disposal.

3. The claimant raised an arguable issue about the effect of the Civil Procedure Rules on the previous approach to delay. Pre-CPR decisions had treated the progressive fading of memories as a recognised consideration when assessing whether a fair trial remained possible. Under the new procedural regime, the court might instead need to give greater prominence to the balance of prejudice between the parties, including the responsibility of each party for the delay.

4. The point had sufficient significance and force to justify a further appeal, particularly because Rougier J appeared to have approached the matter on the basis of the old law without expressly addressing the competing CPR arguments. Permission to appeal was therefore granted. Costs were reserved.

• Court of Appeal (Civil Division): Permission granted for a second appeal from the decision of Rougier J.
• High Court, Queen’s Bench Division: Rougier J upheld Master Ungley’s order striking out the claim.
• Master Ungley: Claim struck out for delay by order dated 6 December 2000.