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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Williams & Co Ltd v Carolan & Anor [2000] EWCA Civ 24 (31 January 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/24.html
Cite as: [2000] EWCA Civ 24
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Case No: CHANI/99/0586/A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Chancery Division
Mr. David Donaldson Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday, 31 January 2000
LORD JUSTICE PETER GIBSON
LORD JUSTICE JUDGE
and
MR. JUSTICE FERRIS
J. R. WILLIAMS & CO. LTD. |
Appellant | |
- and - |
||
CAROLAN & ANR. |
Respondent |
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)
Mr. David Casement (instructed by Messrs. Nightingales of Manchester for the Appellant)
Mr. Ian Leeming Q.C. and Mr. James Stuart (instructed by Messrs. Harris and Cartwright of Slough for the Respondent)
As Approved by the Court
Crown Copyright ©
Monday, 31 January 2000
MR. JUSTICE FERRIS:
1. This is an appeal by the plaintiff from an order of Mr. David Donaldson QC, sitting as a Deputy High Court Judge, made on 17th February 1999. By that order the Deputy Judge dismissed an appeal of the Plaintiff from an order of Master Bowman dated 5th August 1998 under which the plaintiff's action was dismissed for want of prosecution. This appeal is brought with the permission of this court granted by Peter Gibson LJ on the 28th May 1999.
2. The judgment of the Deputy Judge contains a full statement of the relevant facts which is not disputed in any material respect. A comparatively brief summary of those facts will suffice for the purposes of this appeal.
3. Before his retirement the first defendant, James Carolan (who has died during the course of the proceedings) built up an electrical contracting business. Eventually the business was transferred to a company, Elko Electrics (Maidenhead) Limited, in which Mr. Carolan and his wife were the only shareholders. Early in 1989 Mr. and Mrs. Carolan desired to retire from business and sought a purchaser for the company. They accepted the offer of the plaintiff company for their shares and they entered into a formal sale agreement with the plaintiff on 3rd. May 1989. It is of some importance to note that the agreement was executed under seal. It was completed a few days after it was made, on 8th May 1989.
4. In the agreement Mr. and Mrs. Carolan gave to the plaintiff certain warranties of a kind usually given by the vendors of shares in a private company. In particular they warranted that the audited accounts of Elko for the period ended 31st August 1988 gave a true and fair view of Elko's state of affairs as at 31st August 1988. It was, however, provided that their liability for any breach of this or other warranties given in the agreement should be limited to £40,000 each.
5. Unhappily Elko did not prosper in the hands of its new owners. Mr. and Mrs. Carolan attributed this to mismanagement on the part of the plaintiff. The plaintiff attributed it to underlying causes which, it claimed, had been concealed by the understatement of Elko's losses in the warranted accounts to the extent of £80,000.
6. On 6th March 1990 the plaintiff issued the writ in this action alleging breach of warranty and also fraudulent, or alternatively negligent, misrepresentation. The basis of both these claims was the alleged error in the accounts. The writ was issued out of the Manchester District Registry, the plaintiff and its solicitors being based in that area. Mr. and Mrs. Carolan lived in Berkshire and instructed solicitors whose offices were in Slough, Berkshire, but no steps were taken at that time to have the action transferred to a location more convenient to them.
7. In addition to defending the action by means of denials of all the principal allegations against them, Mr. and Mrs. Carolan raised comparatively small counterclaims against the plaintiff for £3700 and £3600 in respect of contractual obligations which, it was said, the plaintiff had not fulfilled. They also joined Elko itself as a defendant to a rather larger counterclaim for about £17,500, mostly in respect of unpaid remuneration. In the course of the proceedings Elko has gone into insolvent liquidation, with the result that this counterclaim can be ignored.
8. For about the first two years the action proceeded in a normal, if unhurried, manner. By the middle of 1992, however, Mr. Carolan had become seriously ill. The plaintiff was informed of this and appears to have refrained from pressing on with the action out of consideration for his difficulties. Unhappily Mr. Carolan did not recover, but died on 26th June 1993. On 22nd September 1993 the plaintiff obtained leave to carry on the action against Mrs. Carolan and the estate of Mr. Carolan which was represented by Mrs. Carolan. In this judgment the expression "the defendants" refers to Mr. and Mrs. Carolan jointly down to the date of Mr. Carolan's death and to Mrs. Carolan in her personal capacity and as representative of Mr. Carolan's estate in respect of the period since 22nd September 1993.
9. Some time after this the plaintiff indicated that it wished to amend its statement of claim. A draft amended statement of claim was submitted to Mrs. Carolan's solicitors on 6th April 1994. The amendments involved the addition of new allegations relating to non-disclosure of the departure from Elko of certain key employees in the summer of 1988. This non-disclosure was said to be "constructively tantamount to fraud on the part of the defendants". After a little delay the defendants made it clear in July 1994 that they would not consent to the making of the amendments. Leave to amend was then obtained from the court and the amended statement of claim was served on 29th September 1994. From then until the end of February 1995 time was taken up with consequential pleadings, including further and better particulars of the amended statement of claim.
10. On 13th July 1995 the summons for directions came before the court. Agreed directions were given for the service of witness statements and experts' reports within 56 days. Neither side complied with these directions. On 14th November 1995 the defendants issued a summons to strike out the action, but this application was pursued with no discernible vigour and it was eventually dismissed by consent on 4th November 1996, when the parties consented to a new order for the exchange of witness statements and experts' reports and for setting down. Eventually the plaintiff did cause the action to be set down, but this was not until 18th March 1997. By that time witness statements and experts' reports had still not been served. The solicitors to the parties seem to have been corresponding about this through the summer of 1997.
11. By August 1997 Mrs. Carolan's own health had seriously deteriorated and it was thought that she would be unable to attend a trial in Manchester, although she might be able to do so in London. On 26th August 1997 her solicitors obtained an order for the transfer of the action to the High Court in London. At about this time the plaintiff indicated that it was contemplating a further amendment of the statement of claim. When the draft amendments were produced in September 1997 they involved three types of change, namely (i) the deletion of the new "key employee" non-disclosure allegations which had been added by amendment in September 1994; (ii) the addition of some substantial new allegations; and (iii) one or two minor amendments. By early in November 1997 the defendants' solicitors had made it clear that the amendments, or at least those in category (ii), would not be consented to.
12. During November and December 1997 and the early months of 1998 the defendants' solicitors wrote a number of chasing letters to the Plaintiff's solicitors without receiving any response. At some point during this period the plaintiff's solicitors became aware that the action appeared not to have been transferred to London as ordered on 26th August 1997. It seems, however, that they did not do anything effective to resolve the position until the beginning of May 1998, when they made inquiries at Manchester and in London which revealed that the file had gone astray and the action had not formally been transferred. Steps were then taken by the court office in London to reconstitute the file and implement the transfer. This seems to have been done by 26th May 1998, for the plaintiff's solicitors wrote to the defendants' solicitors on that date informing them that they had received confirmation that the action had been transferred to London.
13. On 27th May 1998 the plaintiff issued a summons seeking leave to re-amend the statement of claim in accordance with the draft submitted the previous September. When this summons was served on the defendants' solicitors they retaliated by issuing a summons seeking an order that the action be struck out for want of prosecution. Both summonses came before Master Bowman on 5th August 1998, when it was ordered that the action be struck out, as already mentioned. In view of this order the Master did not have to consider the application for leave to amend the statement of claim.
14. On the appeal to the Deputy Judge the plaintiff indicated that it would not pursue its application to amend by raising the new substantial allegations identified in the draft pleading. As I understand it, the plaintiff also indicated that it would not seek to maintain the "key employee" amendments made in 1994. These matters were not, however, taken further because attention was concentrated on the defendants' application to dismiss for want of prosecution. On this the Deputy Judge identified in his judgment four periods of delay which needed to be considered. These were as follows:
(i) From September 1993 until March 1994. This is the period between the making of the order to carry on and the production of the draft amended statement of claim. It is a period during which nothing at all happened to progress the action. No excuse was offered for this delay and the Deputy Judge rightly considered that it was inordinate and inexcusable.
(ii) From the beginning of January 1997 when, according to the directions given when the defendants' first application to dismiss for want of prosecution was dismissed by consent, the action should have been set down until it was actually set down on 27th March 1997. The plaintiff offered no excuse for this inaction and the Deputy Judge rightly characterised it as inordinate and inexcusable.
(iii) A period of about a year taken up with pleadings which were consequential upon the amendment of the statement of claim and with the consideration of revised witness statements and experts' reports. The defendants contended before the Deputy Judge that this constituted wasted time for which the plaintiff was responsible because in September 1997 the plaintiff proposed to abandon the 1994 amendments. It was suggested that this showed that the allegations introduced in 1994 were never sustainable. The Deputy Judge was not satisfied about this and declined to take account of this period. The correctness of this part of his decision is questioned by part of the respondents' notice which has been served, but the argument on this point was not pressed and I see no reason to doubt the Deputy Judge's conclusion on the point.
(iv) The greater part of the period between the order for transfer to London made on 27th August 1997 and the issue of the plaintiff's summons for leave to amend on 27th May 1998. The plaintiff, while accepting that the action did not progress during this period, argued that this was the fault of the court office in failing to implement the transfer and that it was not, so far as the plaintiff's conduct is concerned, inexcusable. As to this the Deputy Judge accepted that it was for the court office to implement the transfer but held that some significant element of blame attached to the plaintiff's solicitors for their failure to carry out what he described as "the extremely non-onerous duty of making inquiries of the court" directed to putting matters right. He held that the plaintiff was responsible for the delay between about the end of September 1997 until the end of April 1998, that is seven months.
15. The Deputy Judge went on to hold that, although the delay during periods (i) and (ii) was not by itself sufficient to justify dismissing the action, a different conclusion should be reached when period (iv) is taken into account. He considered that the defendants had suffered prejudice from the delay, notably in the form of distress during a seriously prolonged period. He took account of the fact that the limitation period had not expired in respect of the plaintiff's contractual claims (in relation to which the fact that the agreement was under seal meant that the period was twelve years) but held that Birkett v James [1978] AC 297 did not lay down an absolute rule that an action which is not statute barred should not be dismissed. He regarded the prospect that the plaintiff would commence a new action as small and considered that in all the circumstances he was entitled to dismiss the action.
16. At the time of the appeal to the Deputy Judge the defendants' counterclaim against Elko had, as I have said, fallen by the wayside as the result of the liquidation of that company. Their counterclaims against the plaintiff remained on foot and, as the only pleaded defence to them was one of set-off, they constituted a potential difficulty in the way of their application to dismiss the action. This difficulty was, however, avoided by the defendants saying, through their representatives, that if the action was dismissed they would not proceed with the counterclaims. The order of the Deputy Judge contains a paragraph under which these counterclaims were formally dismissed.
17. On this appeal and taking into account a respondents' notice served on
behalf of the defendants the following issues arise for consideration:
(a) Was the plaintiff guilty of inordinate and inexcusable delay?
(b) If it was, did the delay cause any prejudice to the defendants?
(c) Should the action be dismissed having regard to the fact that the
plaintiff's cause of action in respect of its breach of warranty claim is not
statute barred?
(d) Does the plaintiff's conduct amount to an abuse of the process so that the
action ought to be dismissed even if issues (b) and (c) are determined in a
sense favourable to the plaintiff?
It is pertinent to note that not only did the whole of the relevant procedural
history take place before the commencement of the Civil Procedure Rules but the
decision appealed from was made before that time. It was not suggested to us
that this appeal ought to be decided otherwise than in accordance with the
principles and practice applicable before 29th April 1999.
(a) Was the plaintiff guilty of inordinate and inexcusable
delay?
18. On behalf of the plaintiff Mr. Casement submitted that the only relevant
period of delay is period (iv). I am unable fully to accept this. As I have
already mentioned the Deputy Judge considered that there was inordinate and
inexcusable delay in periods (i) and (ii) and there is no appeal from his
decision on these periods. Although there is also no appeal from his decision
that the delay during these periods does not, by itself, constitute a
sufficient ground to dismiss the action, if he was right to treat the delay in
period (iv) as inordinate and inexcusable then, in exercising his discretion,
he was entitled to take into account the delay in periods (i) and (ii) as well.
To the extent that his submission was that period (iv) is crucial Mr. Casement
was, however, correct.
19. Before us Mr. Casement repeated the argument which had been presented to
the Deputy Judge to the effect that the implementation of the transfer from
Manchester to London was the work of the court service, not that of the
plaintiff or its representatives. What went wrong in this case, he said, was
that the court service did not perform its duty promptly, or indeed at all,
until the beginning of May 1998. This was not the fault of the plaintiff,
which was unable to progress the action until the transfer had been completed.
Even if, as the Deputy Judge thought, the plaintiff's solicitors were under
some duty to inquire what had gone wrong and press for it to be put right,
there is no reason to accept that the transfer would have been implemented any
earlier, bearing in mind that the file seems to have been lost.
20. I accept that the implementation of the transfer was the duty of the court
service. It is, however, a duty which involves little more than the physical
transfer of the file to London, the allocation of a new case number in London
and the issue of a notification of the transfer to the parties. I am not
surprised to hear that, as the Deputy Judge recorded in his judgment, he was
told that the experience of the representatives of the parties was that they
would normally expect to receive notification from London of the transfer
within a week or two of the order for transfer being made.
21. However, like the Deputy Judge, I do not think that the plaintiff can
escape all responsibility for what occurred or, more accurately, what did not
occur. As has frequently been observed, it is the duty of a plaintiff to
progress his action. This duty is, if anything, stronger when, as here, the
action has already been subjected to serious delay and the allegations made
include a claim in fraud, which involves an attack on the defendants' honesty.
While a plaintiff may legitimately wait for a short period while an order for
transfer is implemented he cannot, in my view, sit back and do nothing
indefinitely. In this case it should, long before May 1998, have become
apparent to any reasonably diligent party that something had gone seriously
wrong. This would have been so even if the defendants' solicitors had not been
writing repeated reminders asking to know the position. All that was needed to
remedy the position was the making of a few elementary inquiries of the court
offices in Manchester and London. When this was eventually done in May 1998
the transfer was implemented within a month, even though the file had been lost
and had to be reconstituted. In my judgment it was the duty of the plaintiff,
through its solicitors, to make these inquiries and I consider that they ought
to have done so at a much earlier date than they did. I do not disagree with
the Deputy Judge in his finding, which is implicit in his treatment of the
delay in period (iv) as commencing at the end of September 1997, that they
should have done so by that time.
22. As to the argument that, even if they had, the transfer would not, or might
not, have been effected earlier than it was, I consider that it is unnecessary
to do more than refer to the experience of the parties that transfers are
normally implemented within a week or two and that once effective inquiries in
this case were made in May 1998 the transfer was completed within the month.
The position might well have been different if the plaintiff's solicitors had
inquired in a determined manner in September 1997 and there had been no action
until May 1998, but that is not what happened.
23. I therefore consider that the Deputy Judge was correct to hold that the
plaintiff was responsible to a substantial extent for the delay in period (iv),
that this delay was approximately seven months from the end of September 1997
until the beginning of May 1998 and that it was inordinate and inexcusable.
(b) Did the delay cause any prejudice to the defendants?
24. The Deputy Judge found that the defendants had suffered prejudice of two
kinds as a result of the plaintiff's delays. First, without the delays a trial
might well have taken place at a time when Mrs. Carolan could have attended
court, something which she was unable to do by the time of the hearing of the
appeal to him. Secondly the defendants, which for this purpose effectively
means Mrs. Carolan alone, had suffered substantially increased anxiety as a
result of these prolonged proceedings. The plaintiff disputes the correctness
of both these findings.
25. As to inability to attend court the plaintiff's submissions were based on
the assumption that if the delays had not occurred the trial would probably
have taken place some time in 1998. The evidence showed, it was said, that
Mrs. Carolan would not have been able to attend a trial at that time, so that
the additional delays had caused no prejudice. I do not think that this is
correct. The medical evidence is fairly scanty. It certainly shows that at
some time in 1998 Mrs. Carolan suffered from liver failure, which seems to have
represented a new and very serious deterioration in her health. But the
earlier evidence for 1997 showed only that she was frail and unable to travel
far, the implication being that she could attend trial if the amount of
travelling was limited. That seems to have been the assumption on which the
order for transfer was made in August 1997. It is not clear when the down-turn
in Mrs. Carolan's health occurred and I would not accept that the evidence
shows that she could not have attended a trial in, at any rate, the earlier
part of 1998. But I do not think it is sound to assume that the trial would
not have been before 1998. The delays during periods (i) (ii) and (iii) amount
altogether to some sixteen months and this probably understates the impact of
these delays on the postponement of the trial date. Looking at the matter
realistically and allowing for a delay on compassionate grounds during the
period of Mr. Carolan's illness, this is an action which ought to have been
brought to trial in about 1995 and certainly not later than 1996. Even taking
into account only the inordinate and inexcusable delays for which the plaintiff
is responsible there ought to have been a trial during 1997. In these
circumstances I do not think it appropriate to engage in detailed calculations
in order to determine when the trial might have been if the periods of
inordinate and inexcusable delay had been avoided and then to inquire into Mrs.
Carolan's ability to attend a trial at that time. A broader approach should,
in my view, be adopted and when this is done it can be seen that Mrs. Carolan's
health has been steadily deteriorating to the point at which she is now unable
to attend a trial or, it seems, give evidence in her own defence. I am
satisfied that the Deputy Judge was right to find that this amounts to
prejudice.
26. As to stress and anxiety, it is clear from Biss v Lambeth etc Health
Authority [1978] 1 WLR 382 and Department of Transport v Chris Smaller
Ltd [1989] AC 1197 that these and other matters which do not directly
prevent a fair trial may be taken into account in deciding whether a defendant
has suffered prejudice. It is necessary to have regard to the note of caution
recorded by Lord Griffiths in the Chris Smaller case at pages 1209-10 to
the effect that it would be an exceptional case where anxiety alone would found
a sufficient ground for striking out in the absence of evidence of any
particular prejudice. But he evidently regarded the Biss case, where
professional reputations were at stake, as such an exceptional case. In my
view the present case is also exceptional. It is now more than ten years since
the sale agreement was made and the misrepresentation, if there was one,
occurred. Mrs. Carolan is elderly and infirm and has had to bear the burden of
this action by herself for more than six years. In particular she has to meet
an allegation of fraud in which her honesty and that of her late husband is
called into question. It is difficult to envisage litigation which would give
rise to a higher degree of stress and anxiety.
27. I would therefore uphold the decision of the Deputy Judge on this point as well.
(c) Should the action be dismissed having regard to the fact that the
plaintiff's cause of action in respect of its breach of warranty claim is not
statute barred?
28. In Birkett v James [1978] AC 297 the House of Lords held that, as a
plaintiff whose action is dismissed for want of prosecution before the
limitation period has expired could normally commence a new action for the same
relief the power to dismiss for want of prosecution should not normally be
exercised before the limitation period has expired, because to exercise it will
be likely to expose the defendant to a new action in which the prejudice
already suffered by the defendant will be exacerbated. In the present case the
plaintiff's misrepresentation claim became statute barred long ago but, the
agreement being under seal, the limitation period in respect of the contractual
warranty claim is twelve years, which still has some time to run. The
plaintiff therefore argued that the warranty claim should not be struck out and
that as the misrepresentation claim depends on substantially the same facts as
the warranty claim that claim should not be struck out either.
29. In cases decided since Birkett v James it has been held that,
although that authority establishes the general rule, it is not a rule of
universal application. In Wright v Morris [1997] FSR 218 this court
upheld the decision of Millett J, who had declined, as he put it, to "struggle
to bring the ... case within the straightjacket of the guidelines laid down in
Birkett v James." On the appeal Mustill LJ (at page 229) deduced from
the reasoning in Birkett v James that
"[W]hat we must consider is whether the defendants in the present case would be
better off if the order for dismissal is upheld and the ... plaintiffs are
remitted to the second action, than if the existing proceedings are left in
being."
30. On this question Mustill LJ referred to two features of the action. The
first has no equivalent in the present case. As to the second he said:
"I accept that the defendants are entitled to the benefit of the possibility
that Mr. Vaughan will, in the face of their proposed objections, fail to get
legal aid and that the second action will simply die on its feet. The
prospects cannot be assessed on the material available to this court. But
there is a real doubt, and I believe that the defendants are entitled to the
benefit of it."
31. Nicholls LJ said, at page 231, that the reasoning in Birkett v James
does not apply if it is clear that, for financial or other reasons, a new
action will not be started and pursued although the limitation period has not
yet expired. He continued:
"What, then, if it is not absolutely certain that striking out will not be
followed by a new action, but there is a very real possibility that this will
be so? Questions of degree arise here, and each case must depend on its own
facts. But it seems to me that in principle a judge is entitled to take the
view, in appropriate circumstances, that the prospect of there being no new
proceedings is sufficiently real for it to be just and convenient to strike out
the first action even though the limitation period has not expired. No doubt
such circumstances will be exceptional. But if it is right to strike out an
action, even within the limitation period, in a case where it is clear that no
new action will be started and pursued, it must likewise be open to a judge,
where there is a very real and lively possibility that a new action will not be
started and pursued, to give the defendant the advantage that would result from
striking out in such a case. Striking out, in such circumstances, may confer a
worthwhile benefit on the defendant even though the limitation period has not
expired."
32. A few weeks before Wright v Morris was decided in this court
another division of this court had taken a similar view, basing itself on what
Millett J had said in Wright v Morris at first instance (see Barclays
Bank Plc v Miller [1990] 1 WLR 343).
33. In the present case the Deputy Judge rightly considered what was the
prospect that the plaintiff would commence a second action if this action were
struck out. He took into account the fact that damages for breach of warranty
would be limited to £40,000 plus interest for each defendant, that Mrs.
Carolan is legally aided and that the estate of Mr. Carolan seems to have been
of modest size, not such as to affect Mrs. Carolan's entitlement to legal aid.
He said he would be most surprised if the plaintiff company were likely to form
the view that it made commercial sense to return to the charge with fresh
proceedings. At all events he thought the chance of it doing so was
sufficiently small that, set against other factors it should not act as a bar
to striking out the proceedings. In my judgment this was a view which he was
entitled to form on the facts of the case and he acted in accordance with the
principle expounded in Wright v Morris.
34. Two changes which have occurred since the date of the Deputy Judge's
decision were said to justify a departure from this view. First Mrs. Carolan's
legal aid certificate has been discharged. But we were told that this is the
result of the fact that, on attaining the age of 65, she became entitled to a
pension which takes her outside the financial limits for legal aid. This does
not indicate that she is significantly more able to meet an award of damages of
the order sought by the plaintiff than she was at the time of the Deputy
Judge's decision. Secondly we were told that the plaintiff has discharged its
previous solicitors and commenced an action for negligence against them. The
suggestion was that its duty to mitigate its loss will make it essential to
prosecute a new action against the defendants. I am far from being satisfied
about this. The same duty might point towards the unwisdom of hazarding more
money in respect of the costs of what is likely, after all these years, to seem
a distinctly unattractive action.
35. I would therefore uphold the decision of the Deputy Judge to strike out the
warranty claim even though the limitation period has not expired.
36. This being so there can be no question of allowing the misrepresentation
claim to survive. But the result in respect of this claim would, in my view,
be the same even if it had not been right to strike out the warranty claim.
The benefit to the defendants of getting rid of the misrepresentation claim,
with its allegation of fraud, would be sufficient to justify the striking out
of that claim even if the limitation period applicable to it had not expired.
The position is even stronger when the fact that the limitation period has
expired is taken into account. It would, in my judgment, have been quite wrong
to allow the misrepresentation claim to survive, as it were, on the back of the
warranty claim and the Deputy Judge made it clear that he would not do so. In
this too I consider that he was right.
(d) Does the plaintiff's conduct amount to an abuse of the process so that the action ought to be dismissed even if issues (b) and (c) are determined in a sense favourable to the plaintiff?
37. This question is raised by the respondents' notice. It seeks to revive an
argument which the defendants maintained below to the effect that the conduct
of the action by the plaintiff constitutes an abuse of the process and the
action ought to be struck out on that ground. The argument is based on the
principles enunciated by this court in Arbuthnot Latham Bank Ltd v Trafalgar
Holdings Ltd [1998] 1 WLR 1426 and Choraria v Sethia (The Times Law
Reports 29th January 1998). If the argument were upheld then this
action ought to be struck out even if the plaintiff had not been guilty of
inordinate and inexcusable delay or even if the fact that the limitation period
has not expired constituted a bar to the striking out of the warranty claim.
As the defendants have succeeded on these points they do not need to win on
this additional point. The Deputy Judge considered the matter briefly and
said that he would not have considered that the plaintiff was guilty of a
wholesale disregard of rules or orders with awareness of the consequences. As
the point is not determinative, having regard to the other conclusions I have
reached, I see no need to consider the matter in any greater detail. However I
see no reason to suggest that the Deputy Judge was wrong on this point, even
though the delay in this action has been extensive and deplorable.
38. I would therefore dismiss this appeal.
LORD JUSTICE JUDGE:
39. I agree.
40. It is trite law that unless the circumstances are exceptional an action
should not be struck out for want of prosecution where the relevant limitation
period (however long that period may be) has not yet expired. There is,
however, no axiomatic prohibition. (Birkett v James [1978] AC 297) In
Birkett v James the circumstances in which, exceptionally, such a case
might be struck out were not categorised, and in particular, nothing was said
about the proper approach where two or more causes of action were being
pursued, one but not both of which would be time barred by the date of the
striking out order.
41. It is now established that the considerations which may justify the making
of this exceptional order include material which shows that notwithstanding the
likelihood of a fresh writ, the striking out order would produce practical
benefit to the defendant. Another is that the litigation in the form in which
it has developed has ceased to provide a sensible vehicle for the resolution of
the issues. Yet another is that the claimant may elect not to pursue the
defendant any further if the action were struck out. (Barclays Bank Plc v
Miller [1990] 1 WLR 343: Wright v Morris [1997] FSR 218) This list
is not intended to be exhaustive, and even when one or more of these
considerations is present, it does not follow that the striking out application
should succeed. The decision whether to exercise this discretion remains a
matter for the judgment of the judge, in the light of all the circumstances,
recognising as he must, that this remains an exceptional course, precisely
because of what Nicholls LJ identified in Wright v Morris as the "wasted
effort" of an order which would "achieve nothing worthwhile". This summary of
well established principle leads me to doubt whether the plaintiff's liability
to pay the costs of the first action before he may start a second could, on its
own, normally provide sufficient advantage to the defendant to justify the
exceptional use of the power. I do not believe that Hoffmann J in Hicks v
Newman [unreported], 6 July 1989, or Staughton LJ, in Barclays Bank v
Miller, agreeing with the "general tenor" of his reasoning, was indicating
any such rule.
42. What is certain about this appeal is that the present claims against the
defendants allege misrepresentations which would now be statute barred and
therefore could not be pursued. These allegations are not trivial, either in
themselves, or in the overall context of the litigation. Moreover the damages
consequent on a finding of breach of the collateral warranty alone, excluding
the time barred cause or causes of action based on misrepresentation, would be
substantially reduced, and the ascertainment of any such damages (if proved)
would be very simple. In short therefore these defendants (using the word to
describe both the estate of the deceased, and his widow) would gain a
considerable advantage from the strike out order. An important cause of action
would go. The potential liability would be reduced. These are tangible,
practical benefits. In addition, although neither would be conclusive of
itself, there are reasons to wonder whether it would be commercially sensible
for the claimants now enthusiastically to pursue the cause of action still open
to them, particularly when the costs of the present action would have to be
paid first.
43. The question for decision is whether this court should interfere with the
decision of the judge below. The principles are clear. He was perfectly well
aware of the exceptional nature of the course he was taking. He examined the
relevant considerations. He decided that the claim should be struck out. No
basis for interfering with his decision has been shown.
44. It was unnecessary for the judge to deal, as a separate question, with the
possibility of an order striking out the action as an abuse of process. I
agree with his view, and decline to add anything on what, in the context of
this appeal, would be academic.
LORD JUSTICE PETER GIBSON:
45. Applications to strike out for want of prosecution have become the
common diet of the courts, but there are two unusual features of the present
case.
46. The first is that the period of inordinate and inexcusable delay but for
which the Deputy Judge would not have struck out the proceedings, that is to
say the fourth period relied on by the Defendants, was caused at least
initially by the failure of the Court Service to implement the court order for
the transfer of the action from Manchester to the High Court in London. Such
failure was plainly a relevant matter for the court to consider on an
application to strike out when determining whether the Plaintiff's delay during
that period was excusable. But the court is not bound to treat the whole
period of the delay as excusable merely because the transfer could only be
effected by the court itself and was bungled by it. The Plaintiff had the duty
to get on with its action, and in my judgment the Deputy Judge was entitled to
take the view that after a month or so from the making of the transfer order
the Plaintiff ought to have made enquiries as to why it had not heard that the
case had been transferred. There is no proper basis for interfering with his
conclusion that the period from the end of September 1997 to the end of April
1998 was a period of inordinate and inexcusable delay.
47. The second unusual feature is that the Deputy Judge was prepared to strike
out even though the limitation period for the contractual claim had not
expired. In Birkett v James [1978] A.C. 297 Lord Salmon said, at p.
328, that the dismissal of an action for want of prosecution before the
expiration of the limitation period could happen "only in the most rare and
exceptional circumstances". But as Mustill L.J said in Wright v Morris
[1997] F.S.R. 218 at pp. 228-9:
"Birkett v James does not create an absolute bar to dismissal within the
time limit. It would be surprising if this were so, since it would be rare
indeed for the court to establish rules admitting of no exception in relation
to the discretionary control of interlocutory proceedings; and when we study
what was actually said in Birkett v James we find that no such universal
rule is established. On the other hand we also see the members of the
appellate committee making it clear that it will be very much out of the
ordinary to stop the first action if a second action can proceed unimpaired;
for it would be a futile exercise if the defendant would suffer just the same
prejudice by the legitimate commencement of an action within the time-limit as
he has suffered by the illegitimate delay in the conduct of the first action.
So what we must consider is whether the defendants in the present case would
be better off if the order for dismissal is upheld and the new plaintiffs are
remitted to the second action, than if the existing proceedings are left in
being."
48. On the facts of Wright v Morris the court had been told (see p.
224) that the legal aid authorities had been approached for legal aid for the
second action and had intimated an intention to make a grant. But the
defendants were also intending to make representations to those authorities
against a grant being made, and this court held that there was a real
possibility that there would be no second action if the existing action were
struck out.
49. In my judgment the judge was entitled to take the view that the Defendants
would be better off if the order for dismissal was upheld and the Plaintiff
left to decide whether to start new proceedings than if the existing
proceedings were left in being, because of the unlikelihood of such new
proceedings. Although it was argued for the Plaintiff that such proceedings
were highly probable since striking out would lead to a claim by the plaintiff
against its solicitors for negligence and mitigation of the loss by the
commencement of fresh proceedings was very likely, I am not persuaded that that
is correct as a matter of commercial reality in the particular circumstances
that damages under the contractual claim could not exceed £40,000 per
defendant plus interest, that there are real doubts as to whether the estate of
Mr. Carolan and the resources of Mrs. Carolan would enable any recovery to be
achieved and that the costs of the existing proceedings would first have to be
paid. I therefore see no proper basis for interfering with the judge's
conclusion on this point either.
50. For these as well as the reasons given in the judgments of Ferris J. and
Judge L.J. I too would dismiss this appeal.
(Order does not form part of approved judgment).