Huscroft v P & O Ferries Ltd

Under the Civil Procedure Rules, Part 3.1(3) permits a conditional case-management order requiring payment into court and prescribing a consequence for non-compliance. The substance of the order controls; payment need not be labelled a condition. The jurisdiction under Part 3.1(3) is distinct from the power under Part 3.1(5), and the judgment leaves open what considerations govern it. A proposed second appeal raising that important question of practice may receive permission even where the appeal appears unlikely to succeed. Refusal of permission to adduce fresh evidence will stand absent arguable error in the first appellate discretion. If the jurisdiction is available, the court may order less than the sum sought, but a claimant alleging inability to pay must provide full and frank evidence.

This was a renewed application for permission to appeal against an order made by His Honour Judge Bullimore in Sheffield County Court. The underlying dispute concerned a claim for damages arising from an injury suffered while the claimant was working on a P&O ship.

District Judge Babbington had ordered the claimant to pay £5,000 into court as security for costs, with the claim to be struck out on default. Judge Bullimore refused permission to adduce further evidence about the claimant’s means and dismissed the appeal. The central issues were whether the order was lawfully made under Part 3.1(3), what factual basis was required for that jurisdiction, and whether the amount ordered was permissible.

Disposition. Permission to appeal was refused in relation to the proposed fresh evidence challenge but granted on limited grounds concerning the exercise and amount of the payment-in jurisdiction.

1. Judge Bullimore’s refusal to admit further evidence was a discretionary case-management decision. The Court of Appeal identified no arguable error in its exercise and considered that an appeal on that issue had no real prospect of success.
2. The order’s substance, rather than its form, controlled. Although it did not describe payment as a condition, its effect was that the further case-management directions leading to trial depended on payment of £5,000. Failure to pay resulted in automatic strike-out. That was capable of falling within Part 3.1(3)(a) and the related power to specify the consequence of non-compliance.
3. Judge Babbington had rejected the application under Part 3.1(5) and proceeded under Part 3.1(3), relying on his assessment of the claimant’s conduct of the litigation. The Court of Appeal was concerned whether a generalised criticism of conduct supplied a sufficient factual basis for exercising the latter jurisdiction. It noted that there was no Court of Appeal guidance focused on the nature of that jurisdiction.
4. The court’s earlier approach in Halabi v Fieldmore Holdings Limited & Others had treated Part 3.1(3) as effectively governed by considerations similar to those under Part 3.1(5). Lord Justice Rimer expressed doubts about that approach. The issue therefore raised an important unresolved question of practice, so the proposed second appeal could not be said to have no real prospect of success, despite appearing unlikely to succeed.
5. On the assumed validity of the jurisdiction, the court was not confined to choosing between the £20,000 sought and no order. It could require a lower sum. A claimant asserting inability to pay any security had a duty to provide full and frank evidence. The claimant’s evidence was inadequate, and the £5,000 figure appeared defensible. Nevertheless, permission was granted to challenge both the jurisdictional basis and the quantum, since determination of the jurisdiction should permit review of its particular exercise.

Permission was confined to the two grounds stated in paragraph 19; permission was refused on all other grounds.

1. Court of Appeal (Civil Division) — On the renewed application, refused permission concerning fresh evidence and granted permission for a second appeal on two limited grounds concerning Part 3.1(3) and the £5,000 payment.
2. Sheffield County Court — Judge Bullimore refused permission to adduce further evidence and dismissed the appeal against District Judge Babbington’s order.
3. Barnsley County Court — District Judge Babbington ordered payment of £5,000 into court as security for costs, with strike-out for non-compliance.