Defendant's appeal from the order of HH Judge Marr-Johnson sitting at the Clerkenwell County Court on 6 March 1998, whereby the court allowed the plaintiff's appeal from the order of District Judge Southcombe who had declared that the plaintiff's action be struck out pursuant to CCR O.17 r.11(9). The plaintiff worked for the defendant as a nightcare practitioner. On 13 February 1992, whilst working in one of the defendant's kitchens, the plaintiff slipped on some butter and sustained serious injuries. In consequence of those injuries, the plaintiff was unable to return to work and retired on medical grounds. The plaintiff brought an action for damages for negligence. Proceedings were issued on 29 September 1994 and a defence was filed on 8 August 1995. The trigger date for the purposes of CCR O.17 r.11 was 22 August 1995 and the guillotine date for time to apply to set the action down was therefore 22 November 1996. On 1 November 1996, the plaintiff's solicitors sent a letter to the chief clerk of the county court stating that the plaintiff did not want to fall foul of CCR O.17 r.11(9) and asked the court to accept the letter as a request pursuant to CCR O.17 r.11(3)(d). However, the plaintiff did not wish a date for trial to be fixed but requested that the matter be listed for further directions. With that letter, the plaintiff enclosed a cheque for #50 to cover the setting-down fee. The plaintiff's solicitors, on 14 November 1996, wrote to the county court again to clarify their earlier letter of the 1 November 1996. In that letter, the plaintiff's solicitors asserted that they wished the matter to be set-down, but in view of the current state of affairs, the trial date should be postponed and the matter listed for further directions. The county court banked the setting-down fee which was sent with the letter of 1 November 1996. On 7 April 1997, the defendant applied to the court for a declaration that the plaintiff's action had been struck out under CCR O.17 r.11. On 10 June 1997 the defendant's declaration was granted and the plaintiff's action was struck out. The plaintiff appealed to the circuit judge who allowed the appeal. The judge held that the letters of 1 and 14 November 1996, when read separately and together, did satisfy the requirements of CCR O.17 r.11(3)(d).
The defendant appealed.
(1) The judge had not approached the question of construction of the letters in the wrong way. It was clear from his considered judgment that he had adopted a purposive construction. Moreover, the purpose behind CCR O.17 r.11 was to encourage parties to get on with litigation and it was clear from the construction of the letter dated 1 November 1996 that the plaintiff's solicitors were trying to do just that. (2) The judge was entitled to look at the two letters together and it was evident that the second letter did clarify the first. In the court's opinion, the judge was entitled to reach the conclusion he reached. Furthermore, it was a matter for the judge to interpret the correspondence. Accordingly, the judge was right to interpret the letters in the way that he did and hold that the plaintiff had met the requirements of CCR O.17 r.11(3)(d).
The judge had been entitled to find that two letters sent by the plaintiff's solicitors had satisfied the requirements of CCR O.17 r.11(3)(d).
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