Bhatt v Chelsea & Westminster Healthcare NHS Trust [1998] EWCA Civ 1243 (20 July 1998)

LORD JUSTICE PETER GIBSON: This is an application by the plaintiff, Dr. Bhatt, for an extension of time for appealing from the order of Sir Maurice Drake sitting as a judge of the High Court. By his judgment, delivered on 16th October 1997, the judge dismissed the plaintiff's appeal from the order of Master Trench on 25th July 1997. The Master had refused to strike out the plea of qualified privilege in the defence of the defendant, Chelsea and Westminster Healthcare NHS Trust. The judge gave the defendant leave to re-amend its already amended defence. The judge gave leave to appeal on the basis that it was an interesting and novel point to some extent.

The case in which this application is brought is one for libel. The plaintiff is a physician specialising in the treatment of neurological disorders in children caused by a deficiency of Vitamin B12. He was for a time the joint director of the Vitamin B12 unit in the Chelsea and Westminster Medical School in the hospital of the same name. The defendant runs that hospital. The plaintiff had an honorary contract with the hospital. The defendant became concerned that the plaintiff was instrumental in providing information to the press, with the intention of generating favourable publicity for the unit, thereby raising the hopes and expectations of parents of children with neurological disorders. The defendant decided to close the unit during January 1996. The defendant received various inquiries from the press. It prepared press releases to give its reasons for the closure. The plaintiff complains that three press releases were libellous. He commenced this action on 8th October 1996. The defendant pleaded in paragraph 7 of the defence qualified privilege in respect of the press releases. The plaintiff applied to strike out that paragraph. The master and the judge refused to do so, the judge holding that the releases were the subject of that privilege if the facts could be made out. There then followed the delay in perfecting the judge's order and in applying for an extension of time in which to serve the notice of appeal.

The plaintiff has sworn an affidavit in which he claims that the delay is not inordinate in the circumstances which he there explains. He said that immediately after the hearing on 16th October 1997, he instructed his former solicitors, Messrs Peter Carter-Ruck & Partners ("Carter-Ruck"), to prepare a notice of appeal. His chronology in fact shows that counsel also was instructed at that time. He says that Carter-Ruck confirmed in the middle of November that steps were being taken to prepare the notice of appeal. The next event to which the plaintiff deposes is his absence from this country between 20th December 1997 and 16th January 1998. On his return he received a copy of the sealed order of the judge from Carter-Ruck and a notice of change of solicitors. Carter-Ruck were ceasing to act as his solicitors. He says that, despite several attempts to obtain from Carter-Ruck a transcript of the judge's judgment, his new solicitors, whom he obtained about the middle of February 1998, did not receive the transcript until 5th March. Counsel's opinion was received on 23rd March. Counsel was instructed to draft the notice of appeal. That was received on 23rd April. The plaintiff's solicitors then wrote to the defendant's solicitors, seeking consent to filing the notice of appeal out of time. That was refused on 29th April, and then on 15th May the plaintiff himself took the application which is now before me to this court to file it.

The plaintiff also deposes in his affidavit to his financial problems. A bankruptcy petition was issued on 27th October 1997. A voluntary arrangement was proposed and approved on 20th January 1998. I have been told by Mr. Holmes-Milner, appearing for the plaintiff, that the supervisor under the voluntary arrangement in effect controls all his expenditure, and that it is his impecuniosity that is the key ingredient in the delay. The plaintiff also deposes to other matters which have commanded his attention, such as the other proceedings in which he has been involved, and also to the work which he has been doing in connection with his speciality of treating children with neurological disorders.

For the defendant, Mr. Woolhouse, the defendant's solicitor, has deposed to the reasons why the defendant opposes the application. He points out that the application was not served on the defendant until it accompanied a letter of 5th June of this year, that before the order was sealed the plaintiff had 11 weeks to prepare a notice of appeal, and that the difficulties which the plaintiff has experienced over his change of solicitors and in obtaining documents from Carter-Ruck have nothing to do with the defendant. He points to the financial disadvantage to the defendant, a National Health Service Trust, of being involved in proceedings against an admittedly impecunious litigant who has already lost in front of the master and the judge.

The points in issue in this case have been well argued by Mr. Holmes-Milner and by Mr. Crown for the defendant. The provisions of the Rules of the Supreme Court relevant to this application are clear. By O.59,r.4(1) every notice of appeal must be served not later than four weeks after the date on which the judgment or order of the court below was sealed or otherwise perfected. By O.59,r.15(1) the court below has power to extend time for serving notice of appeal under r.4, provided that the application is made before the expiration of the four-week period. However, by O.3,r.5 the court may, on such terms as it thinks just, by order extend the period within which a person is required by the rules to do any act in the proceedings.

The four factors which are normally taken into account by this court in exercising its discretion are (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appeal is extended; (4) the prejudice to the respondent if time is extended (see C.M. Van stillevoldt B.V. v E.L. Carriers Inc [1983] 1 WLR 207). That was a case relating to an extension of time for setting down an appeal, but the principles referred to by Griffiths LJ in that case are regularly followed on applications to extend time. They are not necessarily the only matters to which the court should have regard when considering an application such as that before me today. All relevant circumstances must be taken into account, and Mr. Holmes-Milner has suggested that there are other matters which are relevant. He points out that there is no plea of justification in the defence. If the paragraph relating to qualified privilege is struck out, he says that it could be determinative of the case. He says that the point in issue is of some importance. He accepts that it is right for this court, in accordance with the guidelines laid down by this court in Arbuthnot Latham Bank Ltd and Others v Trafalgar Holdings Ltd [1998] 2 All ER 181, to have regard to the effect of delay on other litigants and to the importance for the administration of justice that time limits should be observed, but he submits that in this case that should not be a determinative factor because this is the first time that the plaintiff has been guilty of a delay and the effect on other litigants and on the administration of justice is not great. I shall consider the various points in turn, though I do so against the background of a good deal of authority as to the approach of the court in relation to matters where there has been a failure to comply with time limits in the rules.

My attention has been drawn by Mr. Crown to what was said by Griffiths LJ in the Stillevoldt case at page 212, as to the importance for litigants to adhere to the timetable provided by the rules, that being, in the words of Griffiths LJ, essential to the orderly conduct of business in the Court of Appeal. The Lord Justice warned the profession that the attitude of the court to previous lax practices was hardening in order to ensure, for the benefit of all litigants, that the business of the Court of Appeal is conducted in an expeditious and orderly manner. My attention was also drawn to the guidelines laid down in Mortgage Corporation v Sandoes (Times Law Reports, December 27th, 1996). Millett L.J., in expressing those guidelines, said that he did so with the approval of the Master of the Rolls and the Vice Chancellor. Ten guidelines were set out as guidance on the future approach which litigants could expect the court to adopt to the failure to adhere to time limits contained in the rules or directions of the court. Of those I will read four:

Mr. Crown also referred to Finnegan v Parkside Health Authority [1998] 1 WLR 411. In that case this court had said that the judge in the court below had erred by simply looking at the delay in that case, which was considerable, together with the absence of an explanation. Among the matters which any court had to take into account were matters such as the prejudice to the respondent on an application for an extension of time. Mr. Crown relied in particular on what was said in the Arbuthnot Latham Bank case. Lord Woolf MR, delivering the judgment of the court which included Waller and Robert Walker L.JJ., at page 191 said:

"It is therefore in the interests of litigants as a whole, that the court's time is not unnecessarily absorbed in dealing with the satellite litigation which non-compliance with the timetables laid down in the rules creates.... From now on it is going to be a consideration of increasing significance. Litigants and their legal advisers, must therefore recognise that any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigant whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice. The existing rules do contain time limits which are designed to achieve the disposal of litigation within a reasonable time scale. Those rules should be observed."

With all that guidance in mind, I turn to the particulars factors in this case. First, the length of the delay. Mr. Holmes-Milner realistically accepted that the delay was serious. To my mind, that was sensible on his part. It is plain that the four-week time limit has been greatly exceeded, and that is made worse by the fact that the plaintiff had 11 weeks between the judgment being delivered and the perfection of the order. From the judgment to this application being made, seven months have elapsed. From the sealing of the order to 15th May, four months and seven days have elapsed.

Second, the reasons for the delay. Despite the plaintiff's best efforts to excuse the delay, in my judgment, he has not been able to explain satisfactorily the full extent of the delay. He had instructed Carter-Ruck, as well as counsel, to prepare a notice of appeal the day that judgment was given. Having been told in mid-November by Carter-Ruck that that was in hand, he appears to have done nothing about checking up on the production of a draft notice of appeal before he went abroad more than a month later. Time of course only starts to run with the sealing of the order, but there is really little explanation as to why it took from 16th January, when the plaintiff returned from India and found that Carter-Ruck were no longer acting for him, to mid-February, to obtain other solicitors. He had been involved in litigation. He was therefore not inexperienced. He should have been aware that the courts do have strict time limits, but yet the time for lodging a notice of appeal was allowed to expire. True, there was some delay which may not have been attributable to the plaintiff or his present solicitors in obtaining a transcript of the judgment, but that had been received on 5th March, and yet it took until 23rd April before a draft application was obtained from counsel, and yet further delay of 3 weeks before that application was presented to the court. In my judgment, therefore, the delay is not excusable. I say that, notwithstanding the fact that plainly the plaintiff had his problems and distractions, the problems being largely financial, but, nevertheless, if he wanted to pursue the appeal, he really should have done more and done it more speedily. The judgment is only nine pages long. It was a comparatively simple matter, one would have thought, in the light of that judgment which rehearses the arguments, to prepare a notice of appeal and to lodge it. The financial difficulties under which he labours and the distraction of the other proceedings have nothing to do with the defendant or the libel case with which I am concerned.

The third factor, however, is in the plaintiff's favour. On the merits the judge himself thought that the appeal was worthy of going ahead. It has not been argued that that was wrong. Also, the fourth factor, prejudice to the defendant, is favourable to him, given that the prejudice which is relevant is the prejudice caused by the delay. The defendant has not been able to point to any such prejudice resulting directly from the delay.

In addition to those four factors, I have taken into account other matters, including the points mentioned by Mr. Holmes-Milner, that if the defence is struck out that could be determinative of the case. However, as against that can be set the fact that, if the appeal is not allowed to go ahead, it will not prevent the plaintiff from arguing at the trial that the defence of qualified privilege is inapplicable. To my mind, it is an important point that this will not mean that the plaintiff's case is struck out or the action brought to an end. There will be another day on which he can fight the issue. Moreover, he has had two bites of the cherry, in the form of the unsuccessful applications before the master and the unsuccessful appeal before the judge. But, to my mind, what tips the scales against the plaintiff in favour of not extending time is the factor now brought out clearly by the Arbuthnot case. There is a new attitude to delay in the courts. It is important that the courts should generally insist on adherence to the rules because of the effect of delay on other litigants anxious to have their cases heard. Satellite litigation, such as this, is not to be encouraged. That is not to say that the interests of justice should ever be overlooked, and I recognise that the absence of prejudice to the respondent may in many cases be determinative of the application. But in this case the plaintiff is able to seek to establish at the trial that the defence of qualified privilege is inapplicable, and if there is an unsuccessful outcome at the trial he has the chance to come to this court on appeal. In my judgment, therefore, the factors in the plaintiff's favour do not outweigh those against extending time.

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bhatt v Chelsea & Westminster Healthcare NHS Trust [1998] EWCA Civ 1243 (20 July 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1243.html Cite as: [1998] EWCA Civ 1243

England and Wales Court of Appeal (Civil Division) Decisions