DE PONTE NASCIMENTO v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant, Jose Manuel de Ponte Nascimento, is a Portuguese national, who was born in 1966, and lives in Madeira. He is represented before the Court by Mr Andrew Christodoulou, a solicitor, and Mr David Williams, counsel, both practising in London. The respondent Government are represented by their agent, Ms J Foakes of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 June 1994, the applicant was knocked off his bicycle by a car. He started proceedings against the driver of the car on 3 June 1997. The applicant returned to live in Madeira. On 22 October 1997, the Clerkenwell County Court ordered the applicant to file further medical evidence in support of his claim within 28 days, failing which any particulars of injury not substantiated by a medical report would be struck out. Further medical evidence was filed on behalf of the applicant, some within 28 days and some later. The defendant to the proceedings made an application that the particulars of injury be struck out for failure to comply with the order of 22 October 1997. The application was heard on 29 January 1998 by District Judge Southcombe, who struck out the particulars of injury. The practical effect of striking out the particulars of injury was that the applicant could no longer claim general damages or damages for loss of earnings, which represented by far the major part of his claim. The applicant appealed against the decision of District Judge Southcombe. On 19 June 1998, the appeal was heard by Recorder Knowles. She dismissed the appeal. The applicant applied to the Court of Appeal for leave to appeal. The hearing began on 15 April 1999 and continued on 22 April 1999. The Court of Appeal reserved its judgment. On 15 June 1999, the Court of Appeal handed down a judgment refusing permission to appeal. Each of the three Lord Justices of Appeal gave a separate judgment. Sir Iain Glidewell considered that the Recorder had applied the proper test and exercised her discretion correctly, and that permission to appeal should accordingly be refused. Lord Justice Clarke considered that the District Judge and the Recorder had failed to apply the relevant legal principles correctly, and that permission to appeal should be granted, because otherwise no court would have considered the exercise of its discretion on correct principles. Lord Justice Chadwick considered that the Recorder had identified the applicable principles but failed to apply them, but that this failure did not raise any question of principle within the terms of either paragraph 20 of the practice direction of 17 November 1998 or paragraph 2.19.1 of the consolidated practice direction of 26 April 1999 (see below). He further considered that the case was not one which for some other reason (practice direction of 17 November 1998), or some other compelling reason (consolidated practice direction of 26 April 1999), should be considered by the Court of Appeal. Lord Justice Chadwick stated at pp. 39-40: “Personal injury litigation should not be conducted on the basis that the rules peculiar to it can be treated as of no importance. To do so is to put at risk one of the objects which those rules are intended to promote; that is to say, that the medical evidence on which the plaintiff relies can be properly assessed by the defendant at as early a stage as possible. Failure to make early disclosure of the plaintiff’s medical condition puts a fair trial at risk. I can see no basis upon which to hold that justice demands that the defendant should suffer the risk that any trial which could now be held would be less than fair. On the contrary, it seems to me that the balance of justice lies in upholding the orders which have been made.” Lord Justice Chadwick concluded that permission to appeal should be refused. He declined to take a view on the merits which he regarded as finely balanced. On 17 November 1998, Lord Woolf, Master of the Rolls, issued a practice direction relating, inter alia, to leave to appeal to the Court of Appeal (reported at [1999] 1 Weekly Law Reports 2). Practice Directions do not have formal legal effect but are followed by the judiciary, representing as they do the collective view of senior judges and, in time, the terms of Practice Directions become embodied in decisions of the higher courts, which do have binding effect. Paragraph 10 of the practice direction provided, under the heading “The General Test for Leave”: “The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success.” Paragraph 20 of the practice direction contained new guidance, in the following terms (so far as material): “Where there has already been one unsuccessful appeal to a court ... against the decision being challenged, for example from a District Judge to a Circuit Judge or from a Master to a High Court Judge, and the application is for permission for a further appeal to the Court of Appeal, a more restrictive approach to the test for permission to appeal should be adopted. Permission should be granted only if the case raises an important point of principle or practice or the case is one which for some other compelling reason should be considered by the Court of Appeal.” On 26 April 1999, the Court of Appeal issued a practice direction consolidating, with some amendments, all of the principal practice directions which applied to proceedings in the Court of Appeal (Civil Division). Paragraphs 10 and 20 of the practice direction of 17 November 1998 were reproduced in similar terms in the consolidated practice direction, with one significant change: in paragraph 20 (new paragraph 2.19.1), the word “important” was omitted from the final sentence.