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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 >> Braunstein v Mostazafan And Janbazan Foundation [2000] EWCA Civ 123 (12 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/123.html
Cite as: [2000] EWCA Civ 123
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Case No.:QBENI 99/0264/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Nicholas Chambers Q.C.
(sitting as a deputy Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 12 April 2000
LORD JUSTICE MANCE
and
MR JUSTICE HARRISON
LEON BRAUNSTEIN |
Respondent/Plaintiff | |
and |
||
MOSTAZAFAN & JANBAZAN FOUNDATION |
Appellant/ |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - -- - - - - - - - - -
Miss G Andrews (instructed by Messrs. Yusaf & Baker) appeared for the Appellants
Mr R Tager Q.C. (instructed by Braunstein & Co.) appeared for the Respondent
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE HARRISON:
1. This appeal relates to the defendant's application to strike out the plaintiff's action for want of prosecution. On 15 July 1998 Master Tennant acceded to that application and dismissed the plaintiff's application. On 30 November 1998 Mr Nicholas Chambers, QC, as he then was, sitting as a Deputy High Court Judge, allowed the plaintiff's appeal against that decision. He held that, although there had been inordinate and inexcusable delay on the part of the plaintiff, there was insufficient prejudice to warrant striking out the action. Permission to appeal against the judge's decision was granted after an oral hearing by Peter Gibson LJ on 18 March 1999.
2. The defendant is a substantial Iranian foundation, known as the Bonyad, which manages commercial and charitable interests. The plaintiff is a solicitor practising in London. His claim, as amended, is for £205,000 for work carried out as the defendant's solicitor between 15 July 1991 and the end of December 1991 in connection with negotiations for a contract between the defendant and the Rover Group ("Rover") for the distribution of motor vehicles in Iran.
3. The defendant denies that the plaintiff was acting as its solicitor. Its case is that the plaintiff was acting together with Mr Jafari, the owner of a company called Irco International Ltd ("Irco") and Mr A.A. Mokhberi, the managing director of a company called Samin Yadak, as a team of brokers liaising both with Rover and the defendant to negotiate the conclusion of the distribution agreement between Rover and the defendant.
4. The plaintiff's case is that in July 1991 the defendant took over the negotiations with Rover and that Mr M.B. Mokhberi, the head of the defendant's commercial organisation, confirmed to him orally that he was now to act as the defendant's lawyer and that the defendant had taken over responsibility for his fees, both those in the future and those incurred in the past on behalf of Irco and Samin Yadak.
5. On 4 September 1991 the plaintiff wrote to Mr M.B. Mokhberi confirming his understanding that he was to act as the defendant's international legal counsel, setting out his hourly charging rate and asking for Mr Mokhberi to sign a copy of the letter to signify his agreement to the plaintiff's appointment. The letter was not signed by Mr Mokhberi.
6. On 11 September 1991 an agreement was reached between the defendant and Rover for the distribution of motor vehicles in Iran. The plaintiff says that he carried out a great deal of work on behalf of the defendant in order to help achieve that result. He relies on two letters dated 12 September 1991 as confirming that he was retained by the defendant as its legal adviser. Both letters are purportedly signed by Mr M.B. Mokhberi. The first letter, which has been referred to as "the legal fees letter", contains the terms and conditions of the plaintiff's alleged retainer by the defendant, and the second letter, which has been referred to as "the page 167 letter" and which purports to have been written by Mr Mokhberi, confirms the terms of the retainer. The defendant's case is that both of those letters are forgeries.
7. On 14 October 1991 the plaintiff wrote to the defendant saying that he had been working flat out on the Rover project for 3 1/2 months on behalf of the defendant and suggesting that, instead of submitting a bill for at least £200,000, the defendant should pay him such sum as it thought appropriate for the work that he had done.
8. On 4 November 1991 Mr Mokhberi sent a fax in reply to the plaintiff's letter, denying that the defendant had retained him as its legal adviser, denying any liability for his fees and making the point that it had considered the plaintiff to be acting for Irco. The plaintiff says that Mr Mokhberi later told him that he had taken that stance for political reasons. That is denied by Mr Mokhberi.
9. In his draft witness statement Mr Jafari says that, on a date which is not clear from his witness statement but which was either in July or August 1991, the plaintiff told him that he could no longer represent Irco because there was a material conflict of interest between Irco and the defendant. Mr Jafari says that from that point the plaintiff ceased to act for Irco.
10. There is, however, correspondence in September, October and November 1991 between the plaintiff and Rover, as well as with Rover's parent company British Aerospace, in which the plaintiff purports to be acting on behalf of Irco. Indeed, there is a letter from Mr Jafari himself, written on behalf of Irco, to Rover dated 10 September 1991 in which he describes the plaintiff as "our legal adviser." In the plaintiff's written report of a meeting held with Rover on 11 October 1991, the plaintiff describes himself as "wearing two hats, one as legal adviser and representative for Bonyad and the other as legal adviser to Irco International, the consultant to the Rover Group for Iranian affairs." Of particular importance is a letter dated 20 November 1991 from the plaintiff to Rover, plainly written on behalf of Irco. It describes how the plaintiff, together with Mr Jafari and Mr A.A. Mokhberi, had acted as personnel liaison to facilitate discussions between Rover and the defendant. The letter describes Irco as Rover's consultants and it refers to an agreement for Rover to pay Irco's consultancy fees to Irco, but that they would then be transferred to Lion Group plc, a company of which the plaintiff described himself as being the secretary and director of legal affairs. The letter refers to the plaintiff accompanying a Rover party to Iran where he attended the Tehran International Trade Fair and had several meetings with Mr M.B. Mokhberi and it also describes work done on behalf of Irco which would have arguably involved a conflict of interest with the plaintiff acting on behalf of the defendant at the same time.
11. In his draft witness statement, the plaintiff maintains that Mr M.B. Mokhberi agreed that the defendant would pay the plaintiff's legal fees incurred on behalf of Irco on the Rover project as well as its own legal fees. Indeed, it is said that the defendant was to share Irco's consultancy fees.
12. The plaintiff's pleaded case was based on a bill of costs dated 23 March 1992. The defendant denied receiving such a bill. It was subsequently accepted by the plaintiff that there was no such document. The judge granted the plaintiff leave to amend the Statement of Claim to substitute an alleged bill of costs dated 2 March 1992. The defendant denies receiving that bill of costs together with its accompanying letter.
13. The writ in this case was issued on 8 October 1992. On 22 December 1992 judgment in default of acknowledgment of service was entered. The defendant claims that it only became aware of the action when it received a garnishee order nisi from its bankers. It thereupon applied to set aside the judgment. On 24 March 1994 a consent order was made setting aside the judgment conditionally upon security being provided by the defendant. On that date, directions were given, including a direction for discovery. The defence was served on 13 April 1994. On 16 June 1994 judgment was formally set aside, security having been provided by the defendant paying money into court. On 23 January 1995 further and better particulars of the statement of claim were served, some 7 months after they had been requested. Attempts by the defendant to obtain from the plaintiff the original of the legal fees letter of 12 September 1991 for forensic examination culminated in an order by Master Foster dated 7 February 1995 requiring the plaintiff to swear an affidavit explaining why the original letter had not been produced and ordering that no summons for directions be issued pending that explanation. The requisite affidavit was sworn on 16 March 1995 in which the plaintiff stated that he could not locate the original document and that it might have been lost as a result of a move between solicitors' offices. He subsequently sought to play down the importance of the document.
14. Apart from further and better particulars of the defence served in November 1995, nothing of note happened until the plaintiff served notice of intention to proceed on 8 April 1997. The plaintiff's list of documents was served on 9 May 1997, more than 3 years after required by the discovery direction. In the latter part of 1997 the limitation period expired. On 4 March 1998 the plaintiff issued a summons for directions. On 25 March 1998 the defendant applied to strike out the claim for non-compliance with the provisions of the Solicitors Remuneration Order 1972 on the ground of failure to endorse the pleaded bill of costs with the requisite notice on its reverse side. On 22 May 1998 the defendant applied to strike out the claim for want of prosecution.
15. The judge dealt with that application under the second limb of Birkett v James (1978) AC 297 at p.318 F-G, that is to say he considered whether there had been inordinate and inexcusable delay on the part of the plaintiff and whether such delay would give rise to a substantial risk that it would not be possible to have a fair trial of the issues in the action or whether it would be such as to be likely to cause, or have caused, serious prejudice to the defendant.
16. He held that there had been delay beginning at the end of July 1994 and continuing until the notice of intention to proceed was served on 8 April 1997, a delay of almost 3 years. That was followed by a further period of delay between the service of the plaintiff's list of documents on 9 May 1997 and the issue of the summons for directions on 4 March 1998, a further period of 10 months. Overall, the judge held that there had been a delay of about 3 1/2 years.
17. Before Master Tennant, the defendant had argued that the delay constituted so wanton a disregard for the rules that the claim should be dismissed. However, that argument was not pursued in front of the judge because, after the hearing before Master Tennant, the plaintiff instructed fresh counsel and a considerable amount of new evidence was put before the Court, including an assertion by the plaintiff that, during a material part of the period of delay, he thought he was negotiating with the defendant through Mr Jafari, as an intermediary, upon terms that nothing be done to pursue the action while negotiations continued. The defendant denies that, if Mr Jafari so acted, it was with the defendant's consent.
18. The judge held that, although such negotiations did take place, it had not been established that they were with the authority of the defendant, nor did he think that it was excusable to halt proceedings in those circumstances. He held that the delay of 3 1/2 years was inordinate and inexcusable.
19. The judge identified, as the crucial question, whether the delay had caused prejudice as described by Lord Diplock in Birkett v James. He considered the issue of prejudice under two headings - firstly, the question of the retainer and, secondly, the bill of costs. So far as the bill of costs is concerned, the judge decided to give the plaintiff leave to amend the statement of claim by substituting a reference to the bill of costs dated 2 March 1992 for the bill of costs dated 23 March 1992.
20. So far as the question of retainer is concerned, the judge held that the defendant had failed to show prejudice resulting from the delay. He referred in his judgment to the defendant's suggestion that the plaintiff's conduct was equally referrable to him having worked with Mr Jafari and Irco to broker a deal between Rover and the defendant. He identified the plaintiff and Mr M.B. Mokhberi as being the two main witnesses to the central issue of whether Mr Mokhberi had signed the two letters of 12 September 1991, and he referred to the fact that neither of the documents, both of which are alleged to be forgeries, are available in their original form.
21. The judge found that the tone of Mr Mokhberi's affidavit was clear and confident and that Mr Mokhberi did not express any misgivings about his ability to give evidence after such a long time. Similarly, he described the evidence of Mr Mahdavi, a legal consultant occasionally employed in the defendant's legal department, whose evidence is relevant to events after the plaintiff issued proceedings, as clear and free from misgiving as to failure of recollection. The judge then dealt with the reference in an affidavit dated 26 May 1998 sworn by Dr Gharaie, the defendant's solicitor, to four potential witnesses, of whom two had sworn affidavits. Without naming them, he said:-
"Nothing that I have heard or read suggests relevant prejudice in respect of them".
22. The judge found that the prejudice caused by the loss of the original legal fees letter and the page 167 letter had occurred before the start of the culpable delay. He then stated:-
"As to the other circumstances, it is not enough for the Defendant to invite the court to draw a general inference of prejudice from the fact of delay and the dependence of the case upon oral evidence when its own key witnesses make no such assertion."
23. Finally, the judge stated that he did not accept the argument that prejudice arises from the increased possibility that the plaintiff may seek to attribute the manifest inconsistencies in his evidence to fading memory.
24. For all those reasons, the judge concluded that the defendant had failed to show prejudice resulting from the delay.
25. The judge's decision on the issue of prejudice relating to the retainer and the bill of costs are not seriously challenged by the defendant. The defendant's appeal on the issue of prejudice is focussed on matters which, in the main, are said to arise if the plaintiff were to establish that he was retained by the defendant as their solicitor, but which were not dealt with by the judge.
26. However, before I come to deal with the issue of prejudice I should first deal with an abuse of process argument which was raised on behalf of the defendant. It was based on the deliberate decision of the plaintiff to put his action on ice, or to "warehouse" the proceedings, from mid-1995 to April 1997 during which time he was negotiating with Mr Jafari in the belief that Mr Jafari was acting on behalf of the defendant. According to the plaintiff, Mr Jafari told him on several occasions that the defendant had requested that the action should not be progressed whilst negotiations were continuing. He therefore took no further steps to progress the action as he had no reason to doubt Mr Jafari's word.
27. In submitting on behalf of the defendant that such action by the plaintiff was capable of amounting to an abuse of process, Miss Andrews relied on the observations of the court in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (1998) 1 WLR 1426 when Lord Woolf MR, under the heading "The Future", said at p. 1436 F to H:-
"It is already recognised by Grovit v Doctor (1997) 1 WLR 640 that to continue litigation with no intention to bring it to a conclusion can amount to an abuse of process. We think that the change in culture which is already taking place will enable courts to recognise for the future more readily than heretofore, that a wholesale disregard for the rules is an abuse of process as suggested by Parker LJ in Culbert v Stephen G. Westwell and Co Ltd (1993) P.I.Q.R. P54.
While an abuse of process can be within the first category identified in Birkett v James (1978) AC 297 it is also a separate ground for striking out or staying an action (see Grovit v Doctor at pp 642-643) which does not depend on the need to show prejudice to the defendant or that a fair trial is no longer possible. The more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, as long as it is just to do so, will avoid much time and expense being incurred in investigation of questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired."
28. Lord Woolf then dealt with the "warehousing" of proceedings at p. 1437 in the following way:-
"It has been the unofficial practice of banks and others who are faced with a multitude of debtors from whom they are seeking to recover moneys to initiate a great many actions and then select which of those proceedings to pursue at any particular time. This practise should cease in so far as it is taking place without the consent of the court or other parties. If there is good reason for doing so the court can make the appropriate directions. Whereas hitherto it may have been arguable that for a party on its own initiative to, in effect, "warehouse" proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes. This new approach will not be applied retrospectively to delays which have already occurred but it will apply to future delay."
29. In Choraria v Sethia (1998) CLC 625 the Court of Appeal applied the first of those two observations that I have quoted and held that the court was declaring the law as it then was and as it is now.
30. Reliance was also placed on Co-operative Retail Services v Guardian Assurance Plc (unreported, 28 July 1999) where May LJ indicated that a deliberate decision taken by the plaintiff to "warehouse" a claim for over 4 years pending the outcome of discussions between the parties relating to the settlement of a related matter in anticipation of reaching a global settlement was "very arguably" an abuse of process. In fact, the point did not arise for decision in that case because it was not argued before the judge in the court below and the case, which involved a delay of 5 years and 5 months, was decided under the second limb of Birkett v James. Miss Andrews, however, relies on that case as showing that it is possible to categorise a bona fide but deliberate decision by a party to put the action on ice whilst "without prejudice" negotiations with the other side are carried on as an abuse of process.
31. In the present case Miss Andrews points out that the plaintiff made no contact with the defendant during his negotiations with Mr Jafari, although the defendant had solicitors acting for it. She submitted that, as a solicitor himself, he should have known that he was taking a risk and that he should therefore bear the consequences.
32. For my own part, I am not persuaded that the conduct of the plaintiff was sufficiently serious as to amount to an abuse of process. The length of time for which the negotiations were carried on by the plaintiff without progressing the action from mid-1995 to April 1997 was less than half the time involved in the case of Cooperative Retail Services Ltd v Guardian Assurance plc, and the overall period of inordinate and inexcusable delay in that case was 5 years and 5 months compared to the period of 3 1/2 years in this case. Furthermore, it is implicit in the findings of the judge that the plaintiff believed that Mr Jafari was acting on behalf of the defendant, albeit that he can quite properly be criticised for failing to check the authenticity of Mr Jafari's authority to negotiate, either with the defendant or with the defendant's solicitor. Looking at the matter in the round, however, I do not consider that, as a matter of fact and degree, this is a case where it can be said that the plaintiff's conduct was such as to amount to an abuse of process so that it should be struck out without prejudice having to be shown.
33. It follows that this appeal must be decided under the second limb of Birkett v Jones - that is to say, whether the inordinate and inexcusable delay on the part of the plaintiff would give rise to a substantial risk that it would not be possible to have a fair trial of the issues in the action or whether it would be such as to be likely to cause, or have caused, serious prejudice to the defendant. In applying that test it is necessary to bear in mind the principles and guidelines mentioned by Neill LJ in Trill v Sacher (1993) 1 WLR 1379 at p. 1397H to p. 1400A, as well as the dictum of Peter Gibson LJ in Shtun v Zalejska (1996) 1 WLR 1270 when he said at p 1285B:-
"In my judgment, in order to determine whether a defendant has suffered the necessary prejudice when it is in the form of the impairment of witnesses' recollection as a result of inordinate and inexcusable post-writ delay, the court must examine with care all the circumstances of the case, including both the affidavit evidence as well as the issues disclosed by the pleadings. It is not, in my judgment, essential in every case that there should be evidence of particular respects in which potential witnesses' memories have faded, still less that it need be shown that such fading of memories occurred in a particular period."
34. The defendant's case on the issue of prejudice is that the judge focussed on the question of prejudice in relation to the issue of the retainer and ignored the prejudice alleged by the defendant to arise from determination of the precise nature and extent of the plaintiff's involvement in the Rover project - in particular, what work the plaintiff was doing on the project on behalf of the defendant, what work he was doing on the project on behalf of Irco, the nature of that work and which of them was liable to pay for it and whether the defendant knew of , and consented to, the plaintiff acting on behalf of Irco as well as on its own behalf.
35. It was submitted that those kinds of issues could not be determined on the basis of the contemporaneous documentation which is confusing and inconclusive and some of which is self- serving in that it emanates from the plaintiff. The case would, it was said, depend largely on oral evidence about events occurring in late 1991, some 6 1/2 years after the summons to strike it out for want of prosecution and now some 8 years ago, there having been an inordinate and inexcusable delay by the plaintiff for about 3 1/2 years between the end of July 1994 and March 1998. It was submitted that it was impossible to reconstruct now what happened and that there would be serious prejudice to the defendant relating to those issues which were simply not addressed by the judge.
36. Insofar as the judge had found no prejudice in relation to the four witnesses mentioned in Dr Gharaie's affidavit dated 26 May 1998, the finding, it was said, only related to the issue of the retainer. The judge had made no findings on prejudice relating to those witnesses on the other issues, nor had he dealt with the question of prejudice relating to potential witnesses from Rover dealing with those issues.
37. The four witnesses referred to in Dr Gharaie's affidavit were Mr Mohammedi and Mr Zarrebi, who had become untraceable since February 1996, and Mr Sobhani and Mr Mossadeghi who had sworn affidavits that their recollection of events had now dimmed. Mr Mohammedi was a senior negotiator for the defendant who was part of a team of delegates on the Rover project. Mr Zarrabi was a translator and interpreter for Mr Rafigdhoost, the defendant's president. Mr Sobhani took over from Mr M.B. Mokhberi in March 1992, and Mr Mossadeghi was Mr M.B. Mokhberi's deputy who deposed to having been involved in the commercial negotiations in 1991 and having attended at least a couple of meetings between Rover and the defendant at which the brokers, including the plaintiff, were present. There is a letter from the plaintiff to Mr Mossadeghi dated 16 October 1991 which refers to a meeting with him the previous week. Mr Mossadeghi also attended a dinner on 8 October 1991 given during Mr Rafigdhoost's visit to this country to see some Rover factories.
38. Miss Andrews submitted on behalf of the defendant that the unavailability of the two witnesses and the dimmed memories of the other two witnesses would cause the defendant substantial prejudice in trying to deal with, inter alia, what work the plaintiff was doing on whose behalf at any relevant time. She also submitted that potential witnesses from Rover might be able to deal with those issues as well as the question of a potential conflict of interest arising out of the plaintiff acting both for Irco and the defendant.
39. Miss Andrews also submitted that the judge was wrong in holding that it was not sufficient for the defendant to invite the court to draw a general inference of prejudice from the fact of delay when its own key witnesses made no such assertion. She relied on the case of Shtun v Zaleyska referred to earlier.
40. Finally, it was submitted that the judge was wrong to reject the argument that prejudice could arise from the increased possibility of the plaintiff attributing the manifest inconsistencies in his evidence to fading memory. Reliance was placed on the words of Neill LJ in the case of Slade v Adco Ltd (The Times, 7 December 1995) when he said:-
"Account must also be taken of the fact that delay may create difficulties for a defendant when he seeks to test by way of cross-examination the reliability of the plaintiff and his witnesses."
41. For all those reasons, and others, it was submitted on behalf of the defendant that the judge was wrong to have exercised his discretion to refuse to strike out the plaintiff's claim.
42. The question for this court to decide is whether the inordinate and inexcusable delay of about 3 1/2 years will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is likely to cause, or have caused, serious prejudice to the defendant. In addressing that question it is necessary to bear in mind that this court's function is primarily a reviewing function and that it should only interfere if the judge has erred on principle (see Trill v Sacher at p. 139H-1400A).
43. It is right to say that the judge in this case concentrated on the retainer issue, as well as the bill of costs issue, when dealing with the question of prejudice. His decision on those issues has not been seriously challenged. He did not, however, expressly deal with the question of prejudice arising from the other consequential issues identified by Miss Andrews on behalf of the defendant. In a sense, that is not surprising because the retainer issue is the fundamental issue in this case. The evidence of the main witnesses relating to the letters of 12 September 1991 on that issue will be crucial as to the credibility of the respective parties.
44. It is, however, also necessary to consider the question of prejudice in relation to those other issues that have been identified. Having heard the submissions on both sides, and having considered the evidence contained in the documents, it appears that those consequential issues are likely to include the following:-
a) to what extent was the plaintiff acting for Irco with the defendant's knowledge? b) to what extent did the defendant agree to be responsible for fees incurred by the plaintiff on Irco's behalf?
c) what work did the plaintiff actually do, whether on behalf of the defendant or Irco?
d) what actual work, if any, was done by the plaintiff for the defendant as distinct from work done for Irco?
45. So far as issue (a) is concerned, it would appear from Dr Gharaie's affidavit of 28 September 1998 that it is unlikely to be disputed that the defendant knew that the plaintiff was acting for Irco. Dr Gharaie makes it clear that the defendant knew that the plaintiff was a member of what he calls the broker's team, that is to say Irco, and it is accepted that the documents show that they were negotiating with Rover.
46. So far as issue (b) is concerned, the defendant disputes any agreement to be responsible for fees incurred by the plaintiff on Irco's behalf. It is, however, clear from the plaintiff's draft written statement that, apart from his conversations with Mr Jafari, the plaintiff's case on this aspect turns very much on conversations which the plaintiff said he had, both on the telephone and in person, with Mr M.B. Mokhberi in July and August 1991. As the judge remarked, the tone of Mr M.B. Mokhberi's affidavit evidence dealing with various matters is clear and confident, and I do not consider that he is likely to have any difficulty in dealing with this aspect of the matter.
47. Issues (c) and (d) are both relevant to an assessment of the plaintiff's costs if he were to succeed in establishing liability at trial. The determination of both those issues is, however, potentially capable of giving rise to prejudice resulting from the delay.
48. Sofar as issue (c) is concerned, I would have thought that it should be possible to identify all the work done by the plaintiff, whether on behalf of the defendant or on behalf of Irco, and to cost it, by using the very considerable documentation that exists without there being any real prejudice being caused to the defendant.
49. So far as (d) is concerned, it is accepted by Mr Tager QC, on behalf of the plaintiff, that the plaintiff cannot succeed in his claim to any sum if the defendant did not agree to him acting for Irco. If, however, it were held that the defendant did agree to the plaintiff acting for Irco but did not agree to be responsible for his fees when so acting, the question of identifying what work was done for Irco arises. It is to be noted, however, that during his submissions Mr Tager stated that the plaintiff was not claiming an apportionment of the sum claimed; he was either entitled to all of it or none of it. Indeed, Mr Tager stressed that the bill of costs dated 2 March 1992 expressly related to fees for acting on the defendant's behalf. It may be, therefore, that the question of apportionment simply does not arise. If, however, it does arise, it is necessary to consider the extent, if at all, to which witnesses may have been able to assist on that issue.
50. Whilst it is possible that Mr Mohammedi may have been able to assist on this issue, he was part of a team and there is no evidence that he actually had any dealings with the plaintiff or that he may have been able to corroborate any particular aspect of the evidence of another member of the team. It is, as Mr Tager said, pure speculation as to whether or not he might have been able to assist on this issue.
51. Mr Zarrabi could, at best, only be a corroborative witness for Mr Rafiqdhoost, but it is noteworthy that there is no draft witness statement from Mr Rafiqdhoost. There is, therefore, no evidence from Mr Rafiqdhoost that Mr Zarrabi would have been able to assist on this particular issue.
52. Mr Sobhani only took over from Mr M.B. Mokhberi in March 1992. He therefore had no first hand knowledge of the role of the plaintiff during the relevant period between July and December 1991. It is accepted by Miss Andrews in her skeleton argument that Mr Sobhani is of less importance.
53. It is possible that Mr Mossadeghi, Mr M.B. Mokhberi's deputy, may have been able to give limited assistance insofar as he attended a couple of meetings between Rover and the defendant at which the plaintiff was present, but comparison of the correspondence between the plaintiff and Mr M.B. Mokhberi with a letter dated 16 October 1991 from the plaintiff to Mr Mossadeghi indicates that, although he attended the dinner on 8 October 1991, he was unlikely to have had any real involvement in the plaintiff's activities with Rover. Indeed, it is noteworthy that Mr M.B. Mokhberi does not indicate in his affidavits whether Mr Mossadeghi could have given useful evidence on any of these issues.
54. So far as witnesses from Rover are concerned, we were told that the defendant had tried to obtain assistance from Rover in 1994, but unsuccessfully. Similarly, the plaintiff wrote to potential witnesses at Rover in October 1995 requesting witness statements relating to the plaintiff's involvement in the negotiations between Rover and the defendant, but, with the exception of Mr King, they refused to provide any assistance to the plaintiff. Mr King, who is the project manager for business development with Rover International, has made a draft witness statement which is consistent with the plaintiff's account of his involvement with the defendant. As a matter of practicality, therefore, it does not appear that the defendant is likely to gain any material assistance from Rover witnesses on these issues.
55. It follows, therefore, from an analysis of the likely relevant issues and the extent to which there may be witnesses who could assist on those issues, that I am not persuaded that any significant prejudice would be caused to the defendant arising from the delay if this action were to proceed to trial. There is a great deal of documentation in this case which can assist in refreshing memories, and the plaintiff's letter of 20 November 1991 provides valuable material with which the defendant can pursue its case.
56. Whilst, therefore, the judge only expressed his conclusions on the question of prejudice in relation to the two issues of the retainer and the bill of costs, I am satisfied that, if he had expressed his conclusions on the consequential issues that I have addressed in this judgment, he would have reached the same conclusion as he did in relation to those two issues.
57. My conclusion is that, despite the able and persuasive arguments addressed to the court by Miss Andrews, the defendant has not shown that the plaintiff's inordinate and inexcusable delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is likely to cause, or have caused, serious prejudice to the defendant. In those circumstances, for my part, I would dismiss this appeal.
Lord Justice Mance: I agree.
Order;
(1) The Appellant's appeal be dismissed and the order of the Honourable Mr Nicholas Chambers QC (sitting as a Deputy Judge of the High Court in Chambers) dated 6th November 1998 be affirmed.
(2) The Appellant do pay the Respondent's costs of this appeal, such costs to be detailed assessment forthwith If not agreed.
(3) The Appellant's application for permission to present a petition of appeal to the House of Lords be refused.
(4) The Appellant's application for permission for a stay pending the application appeal to the House of Lords be refused.