Price v Price (t/a Poppyland Headware)

An application made after expiry of time to serve particulars of claim must be determined within the structured checklist in Civil Procedure Rules r 3.9. The court must balance the serious consequences of refusing relief for the claimant against prejudice to the defendant and the interests of the administration of justice.

Persistent and deliberate procedural defaults, breaches of the pre-action protocol, and conduct that prevents timely investigation may justify stringent relief. However, where outright refusal would disproportionately prevent a viable claim, the court may extend time subject to conditions that confine the claim to evidence available when particulars should have been served.

Price v Price was a personal-injury claim by an employee against his wife, trading as Poppyland Headware. The claimant served a claim form but did not serve particulars of claim within the 14 days required by the rules. He sought an extension more than 14 months after the deadline.

The Deputy District Judge granted relief. On the defendant's appeal, Judge O'Brien set that order aside and struck out the action, principally because of the claimant's prolonged and unexplained defaults. The claimant brought a second appeal on an important point of practice.

The central issue was whether relief should be refused outright, or granted on terms, after serious failures to comply with the rules and the pre-action protocol had impaired the defendant's ability to investigate an enlarged claim.

1. Appeal allowed conditionally. The Deputy District Judge had failed to use the structured framework in Civil Procedure Rules r 3.9. Judge O'Brien was also wrong to strike out the claim without properly weighing the effect of refusal on the claimant. The Court of Appeal therefore exercised the discretion afresh.

2. Where an application for an extension is made after expiry and refusal would end the action, the r 3.9 checklist governs the exercise. The court must give particular weight to the effects of granting relief on both parties, as well as the administration of justice. The claimant's loss of access to a court, and the proportionality required by Article 6(1), were material but not decisive.

3. The claimant's case involved a deliberate and exceptionally late failure to serve particulars, no good explanation, and flagrant breaches of the pre-action protocol. The conduct had prevented the defendant's insurers from investigating the nature and scale of the claim while evidence was fresh. It had also prevented active case management. Those considerations strongly favoured the defendant.

4. Nevertheless, an unconditional refusal would have been disproportionate because it would bar the claimant from pursuing even the claim that could have been advanced when particulars were due. Following the conditional case-management approach in Walsh v Misseldine, the court used the power in Civil Procedure Rules r 3.1 to grant a limited extension.

5. The claimant could serve particulars only for injury substantiated by Dr Gaffney's written medical evidence received before April 2001, and consequential losses. He had to file and serve particulars, that evidence, and a schedule of loss by 22 July 2003. The circuit judge's costs order stood, and the claimant was ordered to pay the respondent's appeal costs subject to the stated public-funding arrangements.

• Court of Appeal (Civil Division): Allowed the claimant's second appeal to a limited extent in [2003] EWCA Civ 888. It replaced the strike-out outcome with a conditional extension for service of particulars of claim.
• Norwich County Court, Judge O'Brien: On 19 October 2002, allowed the defendant's appeal from the Deputy District Judge and struck out the action.
• Norwich County Court, Deputy District Judge Pugh: On 15 August 2002, granted the claimant an extension of time to serve particulars of claim.