Order 17 Litigation/Libel. The trigger for reform

DURING the last four working days before Christmas 1995 the Master of the Rolls, together with Lord Justice Waite and Lord Justice Otton, clarified some of the most litigated aspects of Order 17, rule 11 of the County Court Rules. Judgments were given immediately after each group of cases. The Court of Appeal held that:

Form N450 was not a direction of the court and did not override the timetable set by rule 11. However, the court recognised that dates set out on the form could mislead litigants and their representatives. If a litigant had relied upon dates set out in the form with the result that his action had been struck out, then the fact that the form had misled the litigant was a ground for reinstatement. In cases where a form N450 date had misled, the Rastin test would not apply and reinstatement would be ordered on satisfying the court that the N450 date had been taken as setting the strike-out date or guillotine date, as the court termed it. The court was careful to exclude from its decision cases where the N450 had been issued by judicial action of a district judge. Here the assumption must be that the directions contained in the form constitute directions that override the Order 17 timetable, but no specific ruling was made on this point. (Williams v Globe Coaches, 18 December 1995.)

Second actions started within the limitation period were not an abuse of the court. The fact that an action had been automatically struck out did not raise a presumption that a litigant was guilty of contumelious conduct and thus it was not an abuse of process to commence a second action. (Gardener v Southwark LBC No 2, 18 December 1995.)

The date of delivery of a defence for the purpose of calculating the start of the automatic directions timetable, termed the trigger date by the court, was the date on which it was received at the court office. The argument that the defence could only be delivered by the proper officer of the court sending a copy to the plaintiff (as required by Order 9, rule 7) found no favour with the Court of Appeal. Thus the trigger date for automatic directions is now settled. This decision may cause some concern to practitioners who relied upon several decisions by circuit judges, holding that automatic directions only took effect from the date that the defence was sent by the court to the plaintiff.

Where there are two or more defendants named on issue of the summonses, the trigger date for automatic directions is the date of the last defence, not the first. The court accepted that this was not a perfect answer and could cause problems. Nevertheless, it was preferable to other suggestions, including setting the timetable from the date of the first defence or having more than one timetable for each defendant. (Peters v Winfield and Martelette, 21 December 1995.)

The Rastin test for reinstatement was confirmed and reinforced in a series of cases heard by the court. Any idea that the test would be relaxed or modified to make reinstatement easier to obtain after an automatic strike is unrealistic.

The court reserved judgment on the application of automatic directions under Order 17 to cases started in the High Court but transferred to the County Court.

The Court of Appeal confirmed that where directions have been given for a case to be listed upon the filing of a certificate of readiness, such directions create an open-ended timetable without any automatic strike-out date. For this reason the Court of Appeal said courts should be careful to set dates by which steps should be carried out in an action and avoid making orders that created an open-ended timetable.

The Court of Appeal has previously given a simple answer to arguments about requests for a hearing date. In Ashworth v McKay Foods, the Court of Appeal held that to avoid an automatic strike-out it was sufficient for the plaintiff to ask for a hearing date. In making a request the plaintiff did not have to demonstrate that automatic directions had been complied with and the defendant could not seek to have the request for a hearing date set aside as an abuse of process.

Until Ashworth defendants had increasingly been applying, often successfully, to set aside requests for a hearing on the grounds that the request was defective or the case not ready for hearing. This should now be a thing of the past.

Finally, Ferreria v American Embassy Employers Association, decided by the Court of Appeal on 23 June 1995, established that an application made before the strike-out date for an extension of time constituted a request for a hearing date if the extension was refused.

Hopefully 1996 will see the swift demise of the Order 17 litigation industry. More than one circuit judge has asked whether the cure for delay in litigation, as provided by Order 17, has proved worse than the disease. A December 1995 survey of members of the Motor Accident Solicitors Society and the Association of Personal Injury Lawyers revealed that 318 respondents have been involved in a total of 563 hearings before district judges on Order 17 points, 163 of which were appealed to circuit judges.

It remains to be seen whether Order 17 will be rewritten. If there is a new rule it should be written in simple, clear terms with dates that are easily ascertained and certain.

The timetables for strike-out dates should be fixed by reference to the issue date of a summons which is known to all parties. A simple rule could provide that the action will be automatically struck out within 12 months of the issue of a summons unless the plaintiff has: applied for judgment by default or upon admission; applied for a hearing date; or applied for directions other than those automatically applied to all defended cases.