Peter Limb v Union Jack Removals Ltd & Anor [1998] EWCA Civ 200 (10 February 1998)

2. A rule of this type was first introduced into the County Court Rules in 1920 (see the new Rule 36 added by amendment to Order VII of the County Court Rules 1903 by SR&O 1920 No 393). The purpose of the rule, when first introduced, was to limit the time in which a default judgment could be entered. In actions commenced by default summons or special default summons, if the defendant did not respond at all to the summons, the rule proscribed the entry of judgment, and provided that the action should be struck out, after the expiry of two months from the date of service of the summons notwithstanding anything contained in Order LIV Rule 12 (which related to extensions of time). After a minor amendment in 1930 designed to mitigate the extreme rigours of this rule, the two-month period was increased to 12 months in 1936, with the original rigidity reintroduced. See Order X Rule 2(1)(b) of the rewritten County Court Rules 1936, which still related to default actions only, and was expressed in terms that are almost identical to the present Order 9 Rule 10(i). On the other hand Order X Rule 4 of the 1936 Rules, which was concerned with interlocutory judgment on admissions, prescribed a procedure quite different from the present Order 9 Rule 10(ii).

3. It was not until 1952 that a provision was introduced which prescribed that an action would be struck out after 12 months not only in the circumstances provided for in the present Order 9 Rule 10(i) but also where a plaintiff had failed to serve notice of acceptance or non-acceptance in response to an admission by the defendant (see the new Rule 7 added by amendment to Order X of the 1936 Rules by SI 1952 No 2198). Until 1981 only liquidated money claims could be brought by default action, and there is no reason to suppose that the practical application of the rule created any difficulty. As Sir Thomas Bingham MR suggested in Heer v Tutton [1995] 1 WLR 1336 the rule is a response to the administrative burden which would be caused to county court offices if plaintiffs, having issued default summonses, failed to take further action, whether because they decided it was not worth doing so or because the debtor settled the debt out of court, with the result that inactive files would continue to accumulate. It has nothing to do with the modern case-management principles which gave birth to the ill-starred Order 17 Rule 11 of the same Rules (for which see Bannister v SGB plc [1997] 4 All ER 129).

4. When the County Court Rules were redrafted in 1981 the scope of the default summons was widened to include unliquidated claims for the first time, and the provisions concerned with admissions in response to default summonses (formerly contained in Order X of the 1936 Rules) were joined with those for fixed date summonses in Order 9. The new rules also allowed a request to be made for a default judgment in the circumstances still provided for by Order 9 Rule 6(1)(b) (where the defendant has delivered an admission of the whole of the plaintiff’s claim unaccompanied by a counterclaim or request for time for payment), and what had now become Order 9 Rule 10 was extended to cover cases in which a plaintiff had failed to make a request for such a judgment (when it was available to him) in addition to those cases where he had failed to serve a notice of acceptance or non-acceptance of an admission.

5. None of these changes appear to have given rise to any great difficulties in practice, and problems only began to emerge for the first time after 1991. In the course of that year the county court’s jurisdiction over personal injuries actions was greatly increased (see Article 5(1) of the High Court and County Court Jurisdiction Order 1991), and significant changes were also made to the early part of Order 9 to facilitate the entry of judgment on admissions by administrative officers on the staff of the court in appropriate cases (see the County Court (Amendment No 2) Rules 1991). A spate of appeals and applications on different aspects of the rule then started coming to this court for determination. In May 1995 three such appeals were determined in Heer v Tutton [1995] 1 WLR 1336, by a court presided over by the then Master of the Rolls, Sir Thomas Bingham, and during the next two years there were 11 further decisions on the rule, only one of which has found its way into the general law reports: two others appear in specialist reports.

6. Eight more such cases were originally listed before us for hearing in the final week of the Michaelmas Term, although in the event two of them were disposed of by agreement and a further one added. In the event five of these cases were concerned with a single aspect of the rule. This relates to the application of the second strand of Rule 10 to actions for unliquidated damages in which a defendant admits liability but not quantum. The sixth case was concerned with the application of the rule in a case where there is more than one defendant, and the seventh was sui generis and is the subject of a quite separate judgment. In the present judgment, therefore, we are concerned with the first six of these cases. We will set out the existing law on the topics covered by these cases, so that judges and practitioners will not have to search for the relevant law in a number of different places, not all of them very easy to find. We would, however, advocate that consideration should be given to reporting, if only in a Note to this judgment, the unreported decision of this court, headed by Lord Woolf MR, in Watkins v Toms (CAT 31 July 1996) to which we will be devoting a good deal of attention in our present judgment. When we have set out the relevant principles in the main text of the judgment, we will then apply them to the six cases with which we are now concerned. Our decisions in these cases will be found in the Appendix to this judgment.

7. Order 9 is headed “Admission, Defence, Counterclaim and Answer”, and Rule 1 provides that “except as otherwise provided, the provisions of this Order relating to actions shall apply to both default and fixed date actions”. A fixed date action is an action in which a claim is made for any relief other than the payment of money. Every other action is a default action, except as otherwise provided for by the Rules (Order 3 Rule 2(2)). We are only concerned with the effects of this rule in default actions, in relation to those cases where the defendant does not deliver an admission, defence, counterclaim or answer when served with a summons or, alternatively, where he serves an admission of some kind.

9. It is clear that one of the purposes of the 1991 amendments was to make it easier for the administrative staff of a court to enter judgment on admissions without the cost and delay involved in seeking a ruling from a district judge. For this reason, although Rule 17 remained unchanged, there was now inserted into Rule 2 a new Rule 2(2) which contained special meanings for the expressions “a request for time for payment”, “admission”, “a statement of means”, and “defence”, in Rules 2, 3 and 6, which are the rules that contain the procedures for the administrative entry of default judgments and judgments on admissions. That the purpose of this new definitional sub-rule was to ease the task of court staff is signalled up by the fact that it also contains a special meaning for the word “proper officer”, an expression which for the purposes of these three rules is not to include the district judge (contrast, for a wider definition of the term, Order 1 Rule 3).

10. Rule 2(1) provides that two of the situations in which Rule 2 applies are where a defendant in any action admits his liability for the whole or part of the plaintiff’s claim or where he desires time for payment of any sum admitted by him. Rule 2(2), first introduced in 1991, provides, in effect, that in Rules 2, 3 and 6 “admission” means the relevant form appended to the summons completed according to the circumstances of the case. By Rule 2 of the County Court (Forms) Rules 1982 as amended, the relevant form in an action where the plaintiff’s claim is not for a fixed amount is Prescribed Form N9 (see pp 1760-1 of the County Court Practice 1997 for the present version of this form). The definition of “defence” in Rule 2(2) is rather more generous and includes “a defence otherwise than on that form”. As we have said, a special meaning is also given to the words “a request for time for payment” and “a statement of means”. The former means “a request containing a proposal as to the date of payment or, if it is proposed to pay by instalments, the frequency and amount of the instalments”. The latter (like the word “admission”) means “the relevant form appended to the summons completed according to the circumstances of the case”.

11. Form N9 is described as a Form for Replying to a Summons. The description of the form which follows is of its amended form as it appears in the current County Court Practice. In some of the cases with which we are now concerned parts of it were expressed at the material time in slightly different terms. One of the early questions on the form reads “How much of the claim do you admit?” If a defendant ticks the box against the words “All of it” he is directed to complete only Sections 1 and 2 of the Form, which are headed “Offer of Payment” and “Income and Outgoings”. If he ticks the box “Part of it”, he has to say what amount he admits, and is directed to complete all five sections of the form. If he ticks the box “None of it”, he is directed to Sections 3, 4 and 5 only. Sections 3, 4 and 5 are headed, respectively, “Defending the claim: defence” (“Fill in this part of the form only if you wish to defend the claim or part of the claim”), “Making a claim against the plaintiff: Counterclaim” and “Arbitration under the small claims procedure”. In the present judgment we are not concerned with Sections 4 and 5.

12. Before 1991 Rule 2 was in quite simple terms. Rule 2(1) provided that a defendant in any action who, inter alia, admitted his liability for the whole or part of the plaintiff’s claim, desired time for payment of any sum admitted by him, or disputed his liability for the whole or part of the plaintiff’s claim, should within 14 days after the service of the summons on him, deliver at the court office either the form appended to the summons completed according to the circumstances of the case or an admission, request for time for payment (an expression defined in Rule 2(4)) or defence otherwise than on that form, together with a copy for the plaintiff. Rule 2(2) required the proper officer to send a copy of such document to the plaintiff, and Rule 2(3) permitted the court at any time to allow a defendant to amend or withdraw an admission made by him under Rule 2 on such terms as might be just. In other words, an admission in any form contained in any type of document was acceptable, and the court had jurisdiction to allow a defendant to amend or withdraw such an admission, whether or not it was on a prescribed form.

13. Since 1991 the amended Rule 2 contains much more detailed provisions telling a defendant what he is to do in different circumstances. Unless the plaintiff is under a disability (for which see Rule 2(5)(a)), a defendant in an action for liquidated sum who admits his liability for the whole of the plaintiff’s claim, and desires time for payment of the admitted sum, is required within 14 days after the service of the summons upon him to deliver to the plaintiff a form of admission together with a statement of his means and a request for time for payment (Rule 2(3)). Since the admission must be on Form N9, such a defendant will tick the box “All of it” in response to the question “How much of the claim do you admit?” If he does so, does not ask for time for payment, and does not counterclaim, the plaintiff will be entitled to enter judgment administratively under Rule 6(1)(b).

14. In an action for a liquidated sum, if the defendant admits liability for part of the plaintiff’s claim, he is required within the same period to deliver at the court office (not, in this case, to the plaintiff) an admission of liability, together with, if he so wishes, a request for time for payment, and, where such a request is made, a statement of his means (Rule 2(5)(c)). In this case he will tick the box “Part of it” in response to the question “How much of the claim do you admit?” and state the amount he admits. In Section 3 of Form N9 he will again tick the box “Part of it”, this time in response to the question “How much of the plaintiff’s question do you dispute?”. He will then deduct the amount he admits from the total liquidated claim in order to identify the amount he disputes, and write that figure down on the form..

16. If, like all the defendants in the actions with which we are at present concerned, the defendant is only willing to admit liability, but not quantum (on the basis that he admits negligence and some resulting loss, as to the amount of which he makes no admissions), he will tick the box “None of it” in response to the question “How much of the plaintiff’s claim do you admit?” in Section 1 of Form N9, and the box “All of it” in response to the question “How much of the plaintiff’s claim do you dispute” in Section 3 where he will go on to make it clear that he admits liability but puts quantum in all respects in issue.

17. A defendant in any type of action who disputes his liability for the whole or part of the plaintiff’s claim, or desires to set up a counterclaim, is required during the same 14 day period, to deliver at the court office, in addition to any documents he may provide pursuant to Rule 2(5), a defence defending the whole or part of the claim, or, as the case may be, making a counterclaim (Rule 2(6)). In an action to which Order 17 Rule 11 applies, the delivery of a defence in accordance with Order 9 Rule 2 will trigger off the start of automatic directions 14 days later, and once an administrative officer of the court has recognised the document delivered by the defendant as a defence, he will send out Form N450 to the parties (see Bannister v SGB plc , paragraph 8.1).

18. It is therefore clear that three different types of admission of liability are allowed for by Rule 2: an admission of liability for the whole claim (Rule 2(3(a)), an admission of liability for part of the claim (Rule 2(5)(c)), and an admission of liability in an action for an unliquidated sum (Rule 2(5)(b)). In every case Form N9 must be used, since this will make it much easier for the court staff to enter judgment on such admissions where this is provided for in Rules 3 and 6.

19. On receipt of the admission or defence, the proper officer is required to send a copy of it to the plaintiff. If the defendant states in his defence that he has paid the amount claimed, the proper officer will request the plaintiff to confirm in writing that he wishes the proceedings to continue. In a case to which Rule 3(1) applies, the proper officer is also to send the plaintiff a notice of the requirements set out there (Rule 2(7)).

20. Rule 3 is headed “Admission of part or request for time in default action.” Rule 3(1) is concerned with a case in which the defendant admits part of the plaintiff’s claim, or admits the whole or part of the plaintiff’s claim and makes a request for time for payment. If the plaintiff accepts the amount admitted, sub-rules 3(1)(a), (b) and (c) set out his possible courses of action. Sub-rules 3(2) - (6) then prescribe different procedures depending on the course the plaintiff chooses to adopt.

22. Except in the situation allowed for under sub-rule (7)(a), the matter is now placed in the hands of the district judge, as opposed to an administrative officer of the court, and if the contents of Form N9 lead the district judge to conclude that the plaintiff is entitled to some money judgment in addition to an interlocutory judgment for damages to be assessed, the rule gives him power to make an appropriate order. This is clearly a judicial as opposed to an administrative function.

26. In an action for unliquidated damages, the only relevant requirement in Rule 6(1A) is that the plaintiff is to file a request for judgment. Where the action is for a liquidated sum, he has to certify that the defendant has not sent to him any reply to the summons, and in this context a written reply of a similar kind to a reply set out in Form N9 is expressed to be included in the meaning of the words “reply to the summons”.

27. Rules 2, 3 and 6 form, therefore, a self-contained code prescribing the occasions on which in a default action judgment may be entered administratively, on default of pleadings or on admissions, without any reference to a judge of the court, and a “judgment under Rule 6(1)”, being an expression which features in Rule 10(ii), is an expression which refers to such a judgment. There are, of course, other rules which provide for the entry of an interlocutory judgment on the direction of a judge. Examples are to be found in Order 9 Rules 3(7) and 14, and Order 17 Rules 6, 7(1) and 8.

28. This part of Rule 10 relates to circumstances in which an action may be struck out after 12 months where the defendant has taken no action in the case following the service of a default summons on him, and the plaintiff has taken no steps to have judgment entered against him. It has been considered on a number of occasions by this court, most notably in Heer v Tutton [1995] 1 WLR 1336 and Webster v Ellison Circlips Group Ltd [1995] 1 WLR 1447. The word “judgment” is not limited to judgments entered under Order 10 Rule 6(1), and the word “admission” is not restricted to the narrower meaning assigned to it by Rule 2(2), since there are other rules which permit a judge to direct that judgment be entered when no admission has been served, and the rule-makers were concerned to limit the striking out provision to those cases in which, although the defendant had made no response of any kind in the action, the plaintiff had likewise taken no steps of any kind to obtain any form of judgment.

29. There was only one new point we had to decide on the meaning and effect of this part of the rule. In one of the appeals a judge had directed that an action should be struck out as against both the defendants, although one of them had in fact delivered a defence. It was conceded that this order was wrong, but it was argued that the court nevertheless had power to declare in such circumstances that the action has been struck out as against one of the defendants.

30. In our judgment this submission is misconceived. There are other rules which give the court power to strike out an action as against one party without striking out the entire action (for example, Order 5 Rule 12(1) and Order 15 Rule 1(1)(b)). To strike out one out of two defendants in an action would not achieve the purpose of the rule, which is to clear the court files completely of actions in which the plaintiff has delayed for an unacceptable length of time in taking the administrative steps open to him to have judgment entered in the absence of any effective response to the summons by the defendant. In other words, effect must be given to the clear meaning of the rule, and if one of a number of defendants have delivered an admission, defence or counterclaim, there can be no question of the action being struck out under Order 9 Rule 10(i).

31. Rule 10(ii) is concerned with default actions in which an admission has been delivered. In this context it mentions two situations in which an action may be struck out where 12 months have expired from the date of service of a default summons. One is when an admission has been delivered, but no judgment has been entered under Rule 6(1). The other is when an admission has been delivered but no notice of acceptance or non-acceptance has been received by the proper officer. Notices of acceptance or non-acceptance are provided for in Rule 3(1) - (3) and (6). Both sub-sets of Rule 10(ii), therefore, are concerned with cases falling within Rules 3 and 6, where the word “admission” is defined to mean, in effect, an admission on Form N9.

32. In Watkins v Toms (CAT 31 July 1996) this court said that in the language of Order 9 Rule 17 the context seemed to require that the narrow definition of “admission” in Order 9 Rule 2(2) should be applied when Order 9 Rule 10(ii) was under consideration. In Perrin v Short [1997] PIQR 426 the court applied Watkins v Toms and rejected a contention that that decision was made per incuriam . We have been strongly pressed to hold that both these decisions were made per incuriam. .

33. Before considering the arguments which were addressed to us, it is necessary to say something about the doctrine of precedent, in so far as it relates to decisions of different divisions of the Court of Appeal. Different aspects of the doctrine have been considered by this court in Young v British Aeroplane Co Ltd [1944] KB 718; Morelle Ltd v Wakeling [1955] 2QB 379; Boys v Chaplin [1968] 2 QB 1; Williams v Fawcett [1986] QB 604; Duke v Reliance Systems Ltd [1988] QB 108; Langley v North West Water Authority [1991] 1 WLR 697; and Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1422.

(3) The doctrine of per incuriam applies only where another division of the court has reached a decision in ignorance or forgetfulness of a decision binding upon it or of an inconsistent statutory provision, and in either case it must be shown that if the court had had this material in mind it must have reached a contrary decision.

(5) Any departure from a previous decision of the court is in principle undesirable and should only be considered if the previous decision is manifestly wrong. Even then it will be necessary to take account of whether the decision purports to be one of general application and whether there is any other way of remedying the error, for example by encouraging an appeal to the House of Lords.

37. In Parrott v Jackson [1996] PIQR 394 Hirst and Pill LJJ held that a defence which admitted negligence but did not admit resulting damage did not constitute an admission within the terms of Rule 10(ii). Both members of the court went on to say, obiter, that for there to be an admission of the whole of a claim for the purposes of Order 9 Rule 6(1)(b) there did not have to be an admission of every item and every sum claimed in a personal injury action.

38. In Watkins v Toms (CAT, 31 July 1996) Judge LJ, with whom Lord Woolf MR and Saville LJJ agreed, made the observations to which we have referred in paragraph 32 above. The ratio decidendi of that case, however, was that if a defendant admitted liability in an action for unliquidated damages but did not admit the amount of the damages, the plaintiff’s entitlement to interlocutory judgment was governed by Order 9 Rule 3(7) which is not referred to in Order 9 Rule 10(ii).

39. In Perrin v Short [1997] PIQR 426 Hirst, Swinton Thomas and Phillips LJJ held that a defence which admitted negligence and some resulting damage, the nature and extent of which was not admitted, but otherwise denied the allegations in the Particulars of Claim, did not constitute an admission of the whole of the Plaintiff’s claim for the purposes of Order 9 Rule 6(1)(b) so as to permit interlocutory judgment to be entered under Rule 6(1).

42. It is evident that in each case the plaintiff would have been entitled to apply to the court for interlocutory judgment for damages to be assessed pursuant to Order 9 Rule 3(7) if the defendant’s solicitors had used Form N9, since the defendant had admitted negligence and some resulting damage. Since the “admission” was not on Form N9, they would have had to apply for summary judgment for damages to be assessed under Order 9 Rule 14.

43. If the defendant’s advisers had used Form N9, they certainly would not have ticked the box “All of it” when asked “How much of the claim do you admit?” The boxes in Form N9 do not make it easy for a defendant to say how much of an unliquidated claim he is disposed to admit, but no doubt he could get this message across under Section 3b “What are your reasons for disputing the claim?” If he wished to say that he admitted that he was liable for certain sums against certain specific heads of damage he would be able to do so, and the total sum would be the figure he would put in the answer to the question at the start of the form “How much of the defence do you admit? Part of it [box ticked] Amount £...”. As it is, all these defendants have made no admissions at all. In those circumstances, although they have delivered an admission of liability for the claim (see Order 9 Rule 3(7)) they have not delivered an admission of the whole of the plaintiff’s claim (see Order 9 Rule 6(1)(b)) any more than the Defendant did in Perrin v Short .

44. As we have said, in Parrott v Jackson Hirst and Pill LJJ suggested, obiter, that Order 9 Rule 6(1)(b) did not require an admission of the whole of the claim, including the quantum of damages claimed, in an action for an unliquidated sum, There is no evidence, however, that they had their attention drawn to the different definitions of “admission” in Order 9, or to the paramountcy of an admission in the prescribed form in Rules 2, 3 and 6. Since these were in any event obiter observations, they are not binding on us. They are clearly wrong, and should not be followed.

45. Five substantial reasons were advanced in support of the proposition that the decision of this court in Watkins v Toms was made per incuriam . We can disregard the contention that it was decided wrongly because Judge LJ, by a slip, referred to the forms of Notice of Acceptance and Non-Acceptance as prescribed forms whereas they are in fact practice forms (see Form N225 on page 1956 of the County Court Practice 1997), and the contention that the County Court Procedural Tables (and in particular Table 4 notes b and c on page 523 of the County Court Practice 1997) are more consistent with a situation in which the Rule 17 definition of “admission” applies concurrently with the Rule 2(2) definition. It does not matter in the present context whether the procedure prescribed by Rule 3 was taken forward by a prescribed form or a practice form, and the contents of the informal commentary in a Procedural Table composed by the editors of the County Court Practice cannot govern the proper interpretation of the rules. We turn, therefore, to the more substantial arguments.

46. First, it is said that since failure to enter judgment under Order 9 Rule 10(i) is a failure to enter judgment under Order 9 Rule 6(1)(c), “admission” should have the same meaning in both Rule 10(i) and (ii). In his judgment in Watkins v Toms Judge LJ had said that it was a surprising conclusion that Order 9 Rule 10 might have the effect that the word attracted a wider meaning in paragraph (i) but a narrower meaning in paragraph (ii) It is therefore argued that since both paragraphs lead back to Rule 6(1), the word should have the same, wider, meaning throughout Rule 10.

47. The answer to this point is that we are not at all surprised that the word “admission” has a wider meaning in Rule 10(i) than it has in Rule 10(ii), in the light of the much greater opportunity afforded to us to consider these rules in their full context. As we have said in paragraph 28 above, Rule 10(i) is concerned with cases in which a plaintiff has taken no steps to enter any form of judgment (whether under Rule 6(1) or otherwise) in the face of complete inaction by a defendant. There would be no reason to limit the word “admission” to an admission on Form N9 when drafting a rule concerned with total inactivity of any kind.

48. Next, it is said that Judge LJ failed to consider the repercussions of attaching a narrow definition to the word “admission” in Rule 6(i). For instance, it is said to be illogical and absurd that the court cannot use its power under Rule 2(4) to allow a defendant to amend or withdraw an admission which is not contained on a Form N9 on such terms as it thinks just, even though it could do so prior to the introduction of the Rule 2(2) definition (by the County Court Amendment (No 2) Rules 1991) in 1991. Similar alleged illogicalities are said to derive from the fact that the obligation of the proper officer to send a copy of an admission to the plaintiff would be limited to Form N9 admissions, and from the fact that the whole machinery of interlocutory judgments on full or partial admissions since 1991 could only be brought into play in relation to admissions on Form N9 if Judge LJ is right.

49. In our judgment Judge LJ was clearly correct in his belief that a narrow definition should be afforded to the word “admission” in Rule 6(1). As we have already observed, the 1991 amendments were designed to facilitate the entry of judgments administratively. Even if the court no longer has the power under Rule 2 to allow a defendant to amend or withdraw an admission which is not contained on Form N9, appropriate powers are contained elsewhere in the rules: see Order 15 Rule 1 and, more generally, Gale v Superdrug Stores plc [1996] 3 All ER 468. It is certainly surprising that the previous regime for seeking interlocutory judgments from a district judge on admissions (see Order 9 Rule 3(11) as it was prior to the 1991 amendments, which provided a regime similar to that afforded in the High Court by Order 27 Rule 3) is now restricted in actions for unliquidated damages to cases in which an admission of liability has been delivered in Form N9. We can, however, see no way of escaping from the clear logic of the 1991 rule-change, and if in future a plaintiff is confronted with an informal admission of liability in such an action we see no reason why recourse may not be had, pursuant to Section 76 of the County Courts Act 1984, to a procedure analogous to that provided in the High Court by Order 27 Rule 3, if for any reason recourse to Order 9 Rule 14 is considered inappropriate.

50. The third criticism of Watkins v Toms was that Judge LJ failed to consider the impact of his decision on Order 9 Rule 9, to which the Rule 17 definition of “admission” is said to apply. It is argued that the words “and if time permits the same procedure shall be followed as if the admission ... had been delivered within the said period of 14 days” effectively equate an admission other than on form N9 with an admission on Form N9.

51. The trouble with this argument is that it attaches a rigidity to the Rule 17 definition which it does not possess. In the circumstances provided for by Rule 9(1), the rule assimilates the procedure to be followed where there has been delivery of an admission out of time to the procedure to be followed where there has been delivery of an admission within 14 days under Order 9 Rule 2, by the adoption of the expression “ as if the admission... had been delivered within the said period of 14 days.” This context therefore requires that the word “admission” should be accorded the meaning afforded to it by Rule 2, so that it is wrong to suggest that the Rule 17 definition must be applied here. No anomaly will therefore arise.

53. Whatever may have been the position between 1951 and 1991, it is completely clear, in our judgment, that in 1991 the rule-makers decided to create a new scheme to facilitate the entry of judgments administratively, wherever this was appropriate, and to that extent from that year onwards they intended that the two definitions should work alongside each other, although the Rule 2 definition would hold sway within the Rules for which it was expressly prescribed.

54. Finally, it was said that, if the 1991 amendment rules were to create a new regime where form was to triumph over substance, then this would have been expressly spelt out. In particular it was argued that the new narrow definition of “admission” would have also applied to Rules 9 and 10; that there would have been new rules to deal with the disposal of admissions otherwise than on form N9; that there would have been a new rule giving the court power to amend or withdraw admissions which were not on Form N9; and that the 1991 Rules would have contained transitional provisions to save a plaintiff from being struck out where it would have been unjust to allow this to happen.

55. It is true that the rule-makers would have avoided the present difficulties if they had explained clearly what their intention was in 1991, but this court has been able to identify that intention six years after the new rules came into effect and it is misleading to use the pejorative expression that form is now being allowed to triumph over substance. It is in the interests of all litigants that the administrative costs of running the courts should be reduced, and that the time of district judges should not be taken up with deciding matters judicially when the nature of a defendant’s response to a default summons leaves nothing on which an adjudication has to be given. The purpose of the 1991 amendments was to reduce court costs (paid by litigants through court fees) and to reduce court delays. The rule-makers appreciated that it would only be safe to allow the “narrow” Rule 2 meaning of “admission” to be given exclusively to the activities covered by Rules 2, 3 and 6. They must have realised that in other parts of Order 9 allowance would have to be made for cases in which an informal admission (which could lead to the entry of interlocutory judgment otherwise than under Rule 6) had been delivered, and that the language of Rule 17 would allow the attribution of the appropriate meaning to the word “admission” in other parts of the Rule, depending on the context. The fact that no transitional provisions were introduced, or that no other express rules were introduced to deal with admissions which a defendant chose to deliver otherwise than on Form N9, despite the directory requirements of Rule 2, cannot change the clear meaning of the rule.

56. A necessary concomitant to all these challenges to the authority of Watkins v Toms was the argument that, although the decision in Perrin v Short was correct on the facts of that case (and in particular the double-barrelled wording of the defence), the court was in error in that case when it concluded that the relevant part of Judge LJ’s judgment was a clear part of the ratio decidendi of Watkins v Toms . In this context reliance is placed on the fact that, after Judge LJ had expressed a provisional interpretation of the meaning of the word “admission” in Rule 10(i), he then went on to consider an alternative free-standing ground for his decision, namely that that case fell squarely within Order 9 Rule 3(7). It is pointed out that in that context he failed to observe that if the narrow definition of “admission” was to be applied exclusively in Rules 2 and 3, the case did not fall within Rule 3(7) at all, since no Form N9 admission had been delivered.

57. It is certainly correct that the court in Watkins v Toms failed to spot that judgment cannot be entered under Order 9 Rule 3(7) in the absence of an admission on Form N9, and to that extent its reasoning can be faulted. The underlying logic of the decision - that Rule 6(1)(b) has nothing to do with judgments in actions for unliquidated sums when quantum is put fully in issue - was, however, soundly based, and the court in Perrin v Short considered the matter de novo , in the context, it is true, of much stronger language in the defence than is present in our group of cases, and came to the same, correct, conclusion.

58. We have now had the opportunity to reconsider the matter afresh with the assistance of much wider argument than was available to the court in the two earlier cases we have mentioned. Even if there is nothing in those two decisions which is binding on us (since the first expression of view in Watkins v Toms was provisional, and Perrin v Short was concerned with a defence framed in rather different terms), we share the opinion of those two courts that the Rule 2 definition of “admission” prevails throughout Rules 2,3 and 6, as indeed Rule 2(2) expressly provides.

59. The effect of this judgment is that Order 9 Rule 10 has no application at all in cases in which a defendant to an action for an unliquidated sum does not admit both liability and the whole of the plaintiff’s money claim for damages against him. If the defendant makes no admissions as to quantum, as in all the five cases before us in which these points arose, he must take such alternative steps as may be available to him under the Rules if he wishes of his own motion to bring the proceedings to a premature end before trial.

2. A default summons was served on the first defendants, Union Jack Removals Limited, by the middle of January 1994. A summons had already been served on the second defendant, Mr Honess, on 21st November 1993. The solicitors for Union Jack Removals gave notice of acting on 11th January 1994. In a document called Defence, dated 7th February 1994, which was delivered by those solicitors who were then calling themselves “Solicitors for the Defendants” it was admitted that Union Jack Removals were the plaintiff’s employers and asserted that Mr Honess was only a director of the company. Negligence on the part of the defendants was denied, and contributory negligence was alleged.

3. On 13th April 1995 the plaintiff issued an application for an extension of time generally for setting down the action as against both defendants. On 27th April 1995 a deputy district judge made no order on this application as against Union Jack Removals, but ordered that the time for setting down as regards Mr Honess be extended to 30th September 1995.

4. Mr Honess’s appeal against this order was heard by Judge Wroath on 11th August 1995. The judge was satisfied that the summons was served on Union Jack Removals on 21st November 1993; that no admission, defence or counterclaim had been delivered by Mr Honess within 12 months of the date of service; and that no judgment had been entered against him within the same period. In those circumstances he held that the whole action was struck out as a consequence of Order 9 Rule 10.

5. Mr Limb now appeals to this court. He seeks an order rescinding the declaration that the action has been struck out. The main submission that was made on his behalf was that the situation provided for by Order 9 Rule 10(i) had not arisen.. A defence had been delivered on behalf of both defendants dated 7th February 1994. The judge had wrongly held that that was not a defence on behalf of Mr Honess, but at the very least the defence had been delivered on behalf of Union Jack Removals with the consequence that Order 9 Rule 10 was inapplicable. It was also argued that the judge was wrong to hold that the rule applied when a defence had been delivered by only one of two (or more) defendants, and that he had confused the power to strike out an action under Order 9 Rule 10 with the power to strike out a party. He had also acted wrongly in striking out the whole action when the complaint was only made on behalf of and only affected Mr Honess.

(1) The defence in the action was served by solicitors acting only for Union Jack Removals. This is clearly stated in the notice of acting served on Mr Limb, and that does not constitute the service of a defence by Mr Honess. Order 9 Rule 10 applies to the claim against Mr Honess. (It was conceded that the judge was wrong to strike out the whole action).

(2) Order 9 Rule 10 applies to individual defendants in a multi-defendant action,which was in substance a collection of separate actions joined together and which should be treated as separate as long as they proceed. Mr Honess was a separate defendant and was served with the default summons. He did not enter a defence. Mr Limb did not enter judgment within 12 months of the date of the service of the summons. Order 9 Rule 10 applied in such a case. The action was correctly declared to have been struck out.

7. For the reasons given in the main judgment, although we accept that Mr Honess had not delivered a defence, we consider that the judge was wrong to hold that the action was struck out in consequence of Order 9 Rule 10. Mr Limb's appeal should be allowed. Mr Honess is ordered to pay the costs of this appeal and the costs below (scale 2), but, as he is legally aided, the costs orders against him are not to be enforced without the leave of the court. There will be a legal aid taxation of Mr Honess’s costs. Application for further directions in the action should be made to the district judge as soon as possible..

“For the purposes of this action only it is admitted that the Defendant is liable to compensate the Plaintiff in respect of some loss and damage arising as a result of the Defendant’s negligent driving on 17th August 1992 but the Defendant denies that the Plaintiff has suffered personal injury, loss or damage to the extent set out in the Particulars of Claim.

2. On receipt of the Defence in this form, the Court Office sent out Form N450 to the parties, presaging the start of automatic directions. On 21st January 1994 the district judge made a consent order for the payment of £2,500 interim damages. On 8th December 1994 another district judge made an order extending the time for setting the action down for trial until 20th March 1995, and a further such order, extending the time to 20th June 1995, was made by consent on 10th March 1995. On 8th June 1995 judgment was entered for the Plaintiff for damages to be assessed. Although the court nominated 5th October 1995 for the assessment of damages, this date was not convenient for the Defendant’s consultant witness, and 25th February 1997 was eventually refixed as the date for the assessment. Just before that date, when both parties were preparing their evidence for the hearing, the Defendant’s solicitors raised for the first time the question whether the action had been struck out pursuant to Order 9 Rule 10 in about September 1994. The hearing of the assessment was accordingly vacated, and on 29th May 1997 District Judge Beattie made a declaration that the action was indeed struck out. Judge Phipps allowed the Plaintiffs’ appeal against this order. He did not give a reasoned judgment, but said that he was bound by authority to hold that since the Defence was not on Form N9, the provisions of Order 9 Rule 6 (and hence Rule 10(ii)) did not apply.

3. The Defendants made a renewed application for leave to appeal to this court, leave having been refused by Sir Anthony McCowan on the basis that the judge’s decision was in line with authority, the Rules and the justice of the case. The application was listed for hearing inter partes with the other appeals which raised the same issue, with the appeal to follow if leave was granted.

4. For the reasons set out in our main judgment the judge was correct in holding that the provisions of Order 9 Rule 10(ii) did not apply in this case. It is therefore unnecessary for us to consider the other interesting contentions put forward by counsel for the plaintiff in resisting this application. The renewed application for leave to appeal will therefore be dismissed with costs.

"For the purpose of this action only it is admitted that the Defendant is liable to compensate the Plaintiff in respect of some loss or damage as a result of the Defendant's negligence and/or breach of statutory duty, but the Defendant denies that the Plaintiff has suffered injury, loss or damage to the extent set out in the Particulars of Claim”.

4. On 18th April 1997, over a year and a half after the consent judgment, the defendants issued an application for an order that the sum of £9,000 held in court be paid out, together with accrued interest, to the defendants' solicitors; that the plaintiff repay to the defendants the sum of £3,000 paid by way of interim payment; and that the plaintiff should pay the defendants' costs of the action, including the costs of the application. The application was made on the basis of the defendants' contention that the action should have been struck out as at 8th June 1995 under Order 9 Rule 10.

(4) The agreement made between the plaintiff's solicitors and the defendants' solicitors to interlocutory judgment being entered on 1st August 1995 was a contract between the parties. The defendants had not made an application for rectification of that contract or to have it set aside on the ground of mutual or some other kind of mistake or for other reasons. That was a binding contract and, consistently with it, the defendants had paid into court the sum of £9,000 on 17th November 1995.

(1) The plaintiff's action was automatically struck out at the conclusion of the 12 month period on 8th June 1995. The interlocutory judgment entered on 1st August 1995 had no effect, as the action in which it was entered no longer subsisted after it had been automatically struck out. The consent judgment was an irrelevance to Order 9 Rule 10, as it had been entered after the expiration of the 12 month period.

8. By a respondent's notice the plaintiff seeks to have the judge’s decision affirmed on the additional grounds that the defendants did not deliver an admission in Form N9. Arguments were advanced in support of this submission along the lines we have set out in the main judgment, and the defendants riposted with the counter-arguments we have also set out there.

9. For the reasons set out in the main judgment, Order 9 Rule 10 does not apply to this case. A defence was delivered within 12 months of the service of the default summons, but no "admission" was delivered within the meaning of Rule 10(ii). The defendants were not entitled to the return of the £12,000. The district judge rightly dismissed the defendants' application. The appeal in this court fails on the admission point raised by the respondent's notice. The action was not automatically struck out and it is not liable to be struck out by order of the court under Order 9 Rule 10. The consent judgment point raised on the appeal does not arise for decision. This appeal is dismissed with costs. There will be a legal aid taxation of the plaintiff's costs.

10. We have set out the judge’s reasons, and the arguments on the appeal, in this case quite fully just to show how much expense and delay is still being caused to litigants because the rule-makers did not signal up their intentions more clearly when they made the 1991 rule changes. A completely new set of Civil Procedure Rules is due to come into force next year, and it will be most important that lawyers and judges will be able to discern the purpose of the new rules with greater ease than was possible in the case of this particular rule change, which has given rise to a large amount of wholly avoidable litigation.

3. The parties thereafter prepared for trial. On 20th March 1995 an order was made by consent for an interim payment of damages, and on 2nd May 1995 the district judge made an order by consent enlarging the number of medical experts the plaintiff might call. Interrogatories were served upon and answered by the defendants, lists of documents were exchanged, and on 13th December 1995 the plaintiff’s solicitors requested a date for trial, within the 15 months period permitted by Order 17 Rule 11. It was at the hearing of a pre-trial review on 2nd May 1996 that the defendants’ solicitors raised for the first time the question whether the action had been struck out the previous November pursuant to Order 9 Rule 10, and the district judge directed that this issue be determined by a circuit judge. It was in this way that the issue came before Judge Styler for decision on 22nd November 1996.

4. Judge Styler considered the obiter dicta of Hirst and Pill LJJ in Parrott v Jackson . Although he appreciated they were not binding on him, he said that he felt duty bound to apply them to the facts of this case. In these circumstances he was satisfied that the defence made an admission of liability in the sense of both breach of duty and damage, and that the admission of some damage amounted to an admission of the whole of the plaintiff’s claim for the purposes of Order 9 Rule 6(1)(b).

5. The judge’s decision predated Watkins v Toms and Perrin v Short , and he held that an admission for the purposes of Order 9 Rule 6 did not have to be on Form N9. He said he felt it alarming to believe that the intent of the rules could be torpedoed by the form as opposed to the content of a document purporting to be an admission.

6. For the reasons set out in our main judgment the judge was wrong in holding that the provisions of Order 9 Rule 10(ii) applied in this case, although we sympathise with him for applying the obiter dicta in Parrott v Jackson which we have now held to be wrong. We have explained in paragraph 54 of our main judgment why the form of an admission is so important in the regime introduced in 1991. The intent of the rule-makers in 1991 was to make it easier to detect the cases in which judgment on an admission could be entered administratively, and it is this intent which would be torpedoed if we were to uphold the decision of the judge in this case.

1. This personal injuries action was commenced by default summons in the Manchester County Court. The default summons, accompanied by the particulars of claim, was issued and served on 8th April 1994. No admission of defence in Form N9 was served, but on 29th April 1994 a defence in the following terms was delivered on behalf of the Defendants:

“For the purpose of this action only it is admitted that the Defendants are liable to compensate the Plaintiff in respect of loss or damage arising as a result of the Defendant’s negligence and/or breach of statutory duty but the Defendant denies that the Plaintiff has suffered injury loss and damage to the extent set out in the Particulars of claim.”

2. The court granted several extensions of time for requesting a trial date pursuant to Order 17, rule 11, the last extension expiring on 12th November 1996. The Plaintiff set the action down for trial on 11th November 1996. On 12th December 1996 the Defendants applied to strike out the action under Order 9, rule 10, and this application succeeded before the Deputy District Judge on 30th January 1997 and on appeal before Judge James on 12th May 1997. The learned judge gave a reserved judgment: (1) (purporting to follow the dicta of Hirst and Pill LJJ in Parrott v Jackson ) that the defence amounted to an admission of the whole of the Plaintiff’s claim; and (2) following the judgment of Judge Styler in Pyne-Edwards v Moore Large and Company (supra), that the failure to serve an admission in Form N9 was irrelevant. Leave to appeal to this court was given to the plaintiff by the single Lord Justice on 30th July 1997.

3. As there was no admission in Form N9, and since the defence delivered on behalf of the Defendants was not an admission of the whole of the Plaintiff’s claim, for the reasons we have given in the main judgment this appeal is allowed with costs here and below. There will be a declaration that the action as not been struck out pursuant to Order 9 Rule 10. The costs below will be on County Court Scale 2, with a certificate for counsel.

1. On 29th September 1994 the Plaintiff was injured, and her car was damaged, in a road traffic accident. The Defendant was the owner and driver of the other car involved in the accident. On 1st February 1995 a default summons against the Defendant was issued in the Altrincham County Court and this, with Particulars of Claim, was served on the Defendant on 13th February 1995. No admission or defence in Form N9 was served, but on 15th February 1995 a defence in the following terms was delivered on behalf of the Defendant:

“For the purpose of this action only, it is admitted that the Defendant is liable to compensate the Plaintiff in respect of some loss or damage, arising as a result of the Defendant’s negligence on 29th September 1994, but the Defendant denies the Plaintiff has suffered injury or loss and damage to the extent set out in the Particulars of Claim.”

2. On 15th February 1995 the court issued a notice that the automatic directions under Order 17, rule 11 were applicable to the proceedings. On 3rd March 1995 the Defence was amended to include an allegation that the Plaintiff had failed to mitigate her loss. On 9th December 1996 the Defendant applied for a declaration that the Plaintiff’s claim was struck out under Order 9 rule 10. The Deputy District Judge dismissed the application on 14th January 1997 and on 25th April 1997 Judge Eaglestone dismissed the Defendant’s appeal. The judge held: (1) that the Defence delivered did amount to an admission of the whole of the Plaintiff’s claim; but (2) the failure by the Defendant to complete Form N9 was fatal to her claim that the action had been struck out under Order 9 rule 10. The judge’s reasoning on the second point anticipated with some prescience our own judgment on this issue.

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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 >> Peter Limb v Union Jack Removals Ltd & Anor [1998] EWCA Civ 200 (10 February 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/200.html Cite as: [1998] EWCA Civ 200, [1998] WLR 1354, [1998] 2 All ER 513, [1999] PIQR P16, [1998] 1 WLR 1354

England and Wales Court of Appeal (Civil Division) Decisions