IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mrs Justice Steel)
Monday 19th November, 2001
B e f o r e :
LORD JUSTICE MANCE
LORD JUSTICE DYSON
|(1) ASIANSKY TELEVISION PLC|
|(2) ASIANSKY PROPERTIES LIMITED|
|- v -|
|BAYER-ROSIN (A FIRM)|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Appellants
MR C GIBSON QC and MR C SEMKEN (Instructed by Messrs Reynolds Porter Chamberlain, London WC1V 7HA)
appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE CLARKE:
The claimants' case
(1) The claimants retained the defendants as their solicitors in connection with the purchase of 7.87 acres of land ("the site") from Brent Council ("Brent") in 1992. The site is situated beside the A406 North Circular Road.
(2) In about 1988 the Department of Transport ("the DoT") had served a Compulsory Purchase Order ("CPO") on Brent with a view to acquiring part of the site in connection with the North Circular Road Hanger Lane to Harrow Improvement Scheme ("the works"). The works were carried out for the DoT by Balfour Beatty.
(3) Although none of the site was ever acquired by the DoT under the CPO, or at all, Brent had granted the DoT a licence to use part of the site to enable the works to be carried out.
(4) The claimants wanted to buy the site in order to develop it into something called the "Asian Sky TV and Cultural Centre" ("the development"), with completion by the spring of 1994. The development was to comprise, among other things, a television centre, cinemas, discotheque, hotel complex, function halls, retail units and car park. Mr Sharad Patel was the chairman and chief executive of the first claimants, which was to be the developer. The second claimant was acquired by Mr Patel in August 1992 and was the purchaser of the site.
(5) Part of the site had been used in the past as a waste tip, known as the Twyford Tip. As a result it was covered with waste of varying toxicity up to a depth of about 20 metres. One estimate suggested that some 338,000 cubic metres of waste had to be removed from the site before the construction of the development could begin.
(6) In early March 1992 a purchase price of £1.6 million was agreed. The defendants acted for the claimants in connection with the purchase. Mr Patel gave various instructions to two partners of the firm, namely Mr Gavin Le Chat and Mr Sunil Sheth, both of whom have made witness statements. The price was reduced to £1.3 million in June 1992 because an additional 20,000 cubic metres of waste was deposited on the site. The reduction in price was made up of £200,000 as the extra cost of removal of the waste and £100,000 as a result of an agreement on the part of the claimants, known as a section 106 agreement, to construct an access road.
(7) Contracts were exchanged on 19th October 1992 and completion was on 3rd November 1992.
(8) The claimants' case depends almost entirely upon the alleged negligence or breach of contract on the part of the defendants before contracts were exchanged. At that stage everyone, including the claimants, knew about the CPO. The question arose whether the CPO could be withdrawn before exchange of contracts, but it was agreed that in practice it could not because it would take too long. The claimants expressly agreed to proceed in spite of the CPO, provided that they received a suitable letter of comfort from the DoT.
(9) Mr Le Chat wrote to Brent on 30th September 1992 as follows:"My clients' position is that they are prepared to proceed to an exchange of Contracts without any formal withdrawal of the Compulsory Purchase Order. However, they will require a letter of comfort from the Department of Transport confirming that it does not require any of the land which is being sold by the Council to Asian Sky Properties Limited and that it will withdraw the Compulsory Purchase Order insofar as it relates to the Council's site.In addition my clients will require a letter from the Department of Transport acknowledging that the owner of Twyford Tip has a right of way over the access road leading to the site."
On 12th October 1992 Brent wrote to the defendants enclosing the letter of comfort from the DoT addressed to Brent, which included the statement that the DoT had no further interest in acquiring title to various plots which formed part of the site, but added:"These plots are all within the contractors site boundary. He must therefore be assured continued access during the contract period presently due programmed to continue until Autumn 1994."
(10) It is the claimants' case that in the light of that letter the defendants should have expressly advised them that the reference in the letter to access should be explored, in order to ensure that they would in truth obtain vacant possession on completion and that the access given to the contractors, Balfour Beatty, would not make the claimants' proposed work impossible.
(11) If the defendants had given the contractors that advice, they would not have entered into the contract. In addition, they would not have entered into a further contract under which they agreed to buy the British Pavilion ("the Pavilion") which had been exhibited at the 1992 International Exhibition in Seville from the Department of Trade and Industry. Contracts were exchanged in respect of the Pavilion on 25th February 1993.
(12) Some time after the claimants acquired the site, they discovered that Balfour Beatty had rights of access to part of it. As a result the claimants were not able to proceed with the development at a reasonable cost and no development has, in the event, taken place.
(13) As a result of the defendants' negligence and/or breach of contract, the claimants are entitled to be put in the position they would have been in if the contract had been performed. Since in that event they would not have purchased either the site or the Pavilion, they have suffered loss in the sum of about £6.4 million made up as follows:(i) £4.55 million calculated by the addition of the purchase price of the site, namely £1.37 million, to what the claimants say was a negative value of -£3.25 million;
(ii) £1.358 million in respect of losses arising from the purchase of the Pavilion, made up of the purchase price of £350,000 and £1.123 million in dismantling and transport costs from Spain, less credit for the scrap value of the Pavilion and the value of the containers in which it is stored;
(iii) £495,000 in respect of wasted professional fees; and
(iv) £27,935 in respect of other wasted expenditure.
"(1) Every appeal will be limited to a review of the decision of the lower court unless-
(a) a practice direction makes different provision for a particular category of appeal; or(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive-
(a) oral evidence; or(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was-
(a) wrong; or(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence."
Part 52 came into force on 2nd May 2000 and applies to appeals brought on and after that date.
"There being at least some prospects of persuading an appellate court to take a different view of the correct approach to Rule 3.4, ..."
The claimants subsequently applied on paper, without notice, to Gray J for an order that the appeal to the judge should be by way of rehearing. Gray J granted that application on paper, observing in a very short note that:
"... in the context of an appeal such as this, the distinction between a rehearing and a review may be illusory)."
"30. As a general rule, every appeal will be limited to a review of the decision of the lower court. This general rule will be applied unless a practice direction makes different provision for a particular category of appeal, or the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing: CPR, r. 52.11(1). The appeal court will only allow an appeal where the decision of the lower court was wrong, or where it was unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR, r. 52.11(3).
31. This marks a significant change in practice, in relation to what used to be called `interlocutory appeals' from district judges or masters. Under the old practice, the appeal to a judge was a rehearing in the fullest sense of the word, and the judge exercised his/her discretion afresh, while giving appropriate weight to the way the lower court had exercised its discretion in the matter. Under the new practice, the decision of the lower court will attract much greater significance. The appeal court's duty is now limited to a review of that decision, and it may only interfere in the quite limited circumstances set out in CPR, r. 52.11(3).
32. The first ground for interference speaks for itself. the epithet `wrong' is to be applied to the substance of the decision made by the lower court. If the appeal is against the exercise of a discretion by the lower court, the decision of the House of Lords in G v G (Minors: Custody Appeal)  1 WLR 647 warrants attention. In that case Lord Fraser of Tullybelton said, at p. 652:
`Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as `blatant error' used by the President in the present case, and words such as `clearly wrong', `plainly wrong', or simply `wrong' used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.'"
"By the autumn of 1999 I was concerned about the lack of progress to compromise or litigate the claim and the prejudice of the delay to the Defendant. Had the Claimants responded to my letter of 12 November 1999 with proposals for settlement or mediation at a figure close to the sum of £200,000 paid into Court, however, serious consideration would have been given even then to such proposals. On the other hand, had they sought mediation, asserting a claim for £6 million or more, or applied to set down the claim for trial, I would have advised my client to apply to strike out the claim. An application to strike out was considered in late 1999, when it was decided to wait, not least because there appeared to be a good prospect that the claim would in any event be stayed under CPR Part 51.19 in April 2000. No intimation whatever was given to my firm that any `debate concerning damages' was being conducted. No explanation is given even now as to when that debate, commenced it is now said in May 1999, was concluded. At the hearing before Master Eyre on 1 June 2000 the Claimants had not revised their schedule of loss, and were able to quantify their claim no more exactly than `between £5 million and £10 million'. Only on 12th October 2000 was a draft revised schedule of loss served."
That statement was made on 24th October 2000 in response to a draft of the third statement of Mr Bacon of Simmons & Simmons which was ultimately dated 30th October 2000. It follows that neither of those statements was before the master.
(a) that the claimants were in breach of the order of Master Eyre dated 1st December 1998 in that they had failed to set the action down to trial by 15th January 1999 and
(b) the claimants' inordinate and inexcusable delay in the prosecution of the action had resulted in a fair trial no longer being possible and/or had prejudiced the defendant.
The application was based on the provisions of the CPR, and it is I think right to say that no one has suggested that it was appropriate to apply the provisions of the RSC.
CPR: the correct approach
"3.4(2) The court may strike out a statement of case if it appears to the court-
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or(c) that there has been a failure to comply with a rule, practice direction or court order.
(5) Paragraph (2) does not limit any other power of the court to strike out a statement of case."
It is common ground that the claimants were in breach of the order dated 1st December 1998 that they set the action down for trial on or before 15th January 1999, which they failed to do. It follows that the court had power to strike out the statement of case, and thus the action, under Rule 3.4(2)(c). It was not, however, bound to do so.
"There is no fear in this case that this court is going to suggest that the judge should `adjust his wing mirrors'. He had to make a decision applying the principles under the COR, not under the previous regime, in deciding whether this claim should be allowed to proceed. He could not, and should not, ignore the fact that the parties previously had been acting under a different regime. The fact that they were acting under a different regime does not mean that the judge is constrained to make the same sort of decision as would be made under the previous regime.
The courts have learnt, in consequence of the periods of excessive delay which took place before April 1999, that the ability of the courts to control delay was unduly restricted by such decisions as Birkett v James  AC 297. In more recent decisions the courts sought to introduce a degree of flexibility into the situation because otherwise the approach which was being adopted by litigants generally of disregarding time limits for taking certain actions under the rules would continue.
Under the CPR the position is fundamentally different. As rule 1.1 makes clear the CPR are `a new procedural code with the overriding objective of enabling the court to deal with cases justly.' the problem prior to the introduction of the CPR was that often the courts had to take draconian steps, such as striking out the proceedings, in order to stop a general culture of failing to prosecute proceedings expeditiously. The prime example of that was contained in Ord 17, r 11(9) of the County Court Rules 1981 (SI 1981 No 1687 (L.20)) which involved the automatic striking out of cases where the appropriate step of seeking a hearing date was not taken by the strike out date. That led to litigation which was fought furiously on both sides: on behalf of the claimants to preserve their claim, and on behalf of defendants to bring the litigation to an end irrespective of the justice of the case because of a failure to comply with the rules of court."
Lord Woolf then set out CPR Rule 3.4(2) and added, at page 1933:
"Under rule 3.4(2)(c) a judge has an unqualified discretion to strike out a case such as this where there has been a failure to comply with a rule. The fact that a judge has that power does not mean that in applying the overriding objectives the initial approach will be to strike out the statement of case. The advantage of the CPR over the previous rules is that the court's powers are much broader than they were. In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out.
Under the court's duty to manage cases, such as have occurred in this case, should, it is, hoped, no longer happen. The court's management powers should ensure that this does not occur. But of the court exercises those powers with circumspection, it is also essential that parties do not disregard timetables laid down. If they do so, then the court must make sure that the default does not go unmarked. If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant.
There are alternative powers which the courts have which they can exercise to make it clear that the courts will not tolerate delays other than striking out cases. In a great many situations those other powers will be the appropriate ones to adopt because they produce a more just result. In considering whether a result is just, the courts are not confined to considering the relative positions of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the effect of the court's ability to her other cases if such defaults are allowed to occur. It will also involve taking into account the need for the courts to show by their conduct that they will not tolerate the parties not complying with dates for the reasons I have indicated."
"1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable-(a) ensuring the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate-(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
1.2 The court must seek to give to give effect to the overriding objective when it-
(a) exercises any power given to it by the Rules; or ...
1.3 The parties are required to help the court to further the overriding objective.
1.4(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes-(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;...(g) fixing timetables or otherwise controlling the progress of the case;...(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently....
3.1(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may-...(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.(3) When the court makes an order, it may(a) make it subject to conditions, including a condition to pay a sum of money into court; and(b) specify the consequence of failure to comply with the order or a condition....(5) The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.(6) When exercising its power under paragraph (5) the court must have regard to-(a) the amount in dispute; and(b) the costs which the parties have incurred or which they may incur."
"It would indeed be ironic if as a result of the new rules coming into force, and the judgment of this court in the Biguzzi case, judges were required to treat cases of delay with greater leniency than they would have done under the old procedure. I feel sure that that cannot have been the intention of the Master of the Rolls in giving judgment in the Biguzzi case. What he was concerned to point out was that there are now additional powers which the court may and should use in the less serious cases. But in the more serious cases, striking out remains the appropriate remedy where that is what justice requires."
"45. Under the Civil Procedure Rules, the court has ample power in an appropriate case to strike out a claim for delay. The power is to be found, if nowhere else, in rule 3.4(2)(c), which provides that the court may strike out a statement of case if it appears to the court that there has been a failure to comply with a rule, practice direction or court order; or in rule 3.1(2)(m), which provides that the court may take any step or make any other order for the purpose of managing the case and furthering the overriding objective; or under the court's inherent jurisdiction, expressly preserved by rule 3.1(a); each of these to be exercised and interpreted in accordance with rule 1.2(a) and (b) to give effect to the overriding objective.
46. The Civil Procedure Rules are a new procedural code with an overriding objective enabling the court to deal with cases justly in accordance with considerations which include those to be found in rule 1.1(2). One element expressly included in rule 1.1(2) as guiding the court towards dealing with cases justly is that the court should ensure, so far as is practical, that cases are dealt with expeditiously and fairly. Delay is, and always has been, the enemy of justice. The court has to seek to give effect to the overriding objective when it exercises any powers given to it by the rules. This applies to applications to strike out a claim. When the court is considering, in a case to be decided under the Civil Procedure Rules, whether or not it is just in accordance with the overriding objective to strike out a claim, it is not necessary or appropriate to analyse that question by reference to the rigid and overloaded structure which a large body of decision under the former rules had constructed. Mr Lewis QC, for the claimant in this case, has correctly not sought to do so.
50. Lord Woolf MR in Biguzzi drew attention to the armoury of powers which the court has under the Civil Procedure Rules in addition to that of striking out: see in particular his judgment at 1932G to 1934 C. In doing so, he was doing no more than emphasising the range of powers available to the court in its search for justice, indicating that the court should consider such powers as may be relevant to a particular case before deciding which to use. He was not indicating that any one of those powers was inherently more appropriate than any other. Mr Lewis has, correctly in my view, not suggested otherwise.
51. The effect of this is that, under the new procedural code of the Civil Procedure Rules, the court takes into account all relevant circumstances and, in deciding what order to make, makes a broad judgment after considering available possibilities. There are no hard and fast theoretical circumstances in which the court will strike out a claim or decline to do so. The decision depends on the justice in all the circumstances of the individual case. As I read the judgments of Lord Lloyd of Berwick and Ward LJ in the UCB case, they are saying nothing different from this. As Ward LJ said in the UCB case, Lord Woolf MR in Biguzzi was not saying that the underlying thought processes of previous decisions should be completely thrown overboard. It is clear, in my view, that what Lord Woolf was saying was that reference to authorities under the former rules is generally no longer relevant. Rather it is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective."
"69. Although CPR 3.1(a) expressly preserves the court's inherent jurisdiction to protect its process from abuse, this is a residual long-stop jurisdiction. The main tools the courts have now been given to exterminate unnecessary delays are to be found in the rules and practice directions and in the orders they may make from time to time."
To my mind that paragraph is important because it stresses the fact that the court should approach the problems of the kind that have arisen here through the CPR, which, as Lord Woolf observes, are much more flexible than the old rules, i.e. the RSC. Thus the passage from Lord Lloyd's judgment in the UCB case quoted above must be read subject to the fact that the new rules give the courts valuable powers to deal with delay short of striking out. See also to the same effect Axa Insurance Co Ltd v Swire Fraser Ltd CAT 9th December 1999 (Auld and Tuckey LJJ) per Tuckey LJ at paragraph 20.
"82. I would add that the court is no longer necessarily faced, in a case in which liability is not in issue, with making a decision wholly in favour of one side or the other on a strike-out application. It may be able to take a middle course if this is more consistent with the overriding objective of doing justice."
"99. It is clear that the Court is now able to adopt a much more flexible approach to the question of striking out for delay or non-compliance with an order, than was possible under the somewhat rigid rules of the old law. In Biguzzi v Rank Leisure Plc  1 WLR 1926, this Court made it clear that references should no longer be made to the old cases (see per Lord Woolf MR at p1932). But some of the considerations which were relevant before are obviously relevant now. For example the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so whether it can be compensated for by some order relating to costs or interest or it is so serious that it would be unjust to the Defendant to require the case to be tried. Moreover, the delay may be such that it is no longer possible to have a fair trial.
100. It is particularly important to notice that there may well now be a significant difference between a case in which liability is not in dispute and one where it is. Under the old law, this tended not to make all that much difference. The choice was a stark one, either to strike out or not. But as this case illustrates, where liability is not in dispute, it may be possible to protect a Defendant from prejudice by making orders for costs or disallowing interest, which will have a real impact. The order for costs can be deducted from the Claimant's damaged and he can be deprived of interest which he would otherwise recover. Where liability is in dispute, such an order may be of little effect if the claim fails, unless the costs order can be enforced against the Claimant. And any deprivation of interest will not be effective if the claim fails.
101. Furthermore where liability is not in dispute, it is likely that a payment into Court will have been, very often, as in this case, long ago. The payment may have been a realistic and good payment in at the time it was made which should have been accepted by the Claimant; but by the passage of time and the effects of inflation it will be insufficient if there is long delay. If the Defendant is obliged to increase the payment in to take account of these factors, it would be unjust since on acceptance the Claimant could recover all his costs. In such a case I see no reason why the Court, if it decides not to strike out under Part 3.4(2)(c) should not make it a condition that the judge at trial should consider whether or not the payment in was one which should have been accepted at the time; and if it was, either deprive the Claimant of costs after the payment in or order him to pay some or all of the Defendant's costs thereafter."
"Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it."
In my judgment that includes applications to strike out for breach of an order.
The master's discretion
"The directions which were given in the early years of this action culminated in directions given to set the matter down, under the procedure that then applied, by 15 January 1999, and to complete the exercise in respect of the expert evidence by obtaining a `without prejudice' meeting and a joint report as to the areas of agreement or disagreement by 31 March 1999.
Those directions have quite simply been ignored along with every later one, even the latest direction were due to have been completed something like 14 months ago. So that is the first matter of which the Defendant complains, this being an application to strike out the Claimants' claim on the grounds of culpable delay and prejudice. Quite apart from the delay, the Defendant also alleges that it has suffered prejudice and that the conduct of the action amounts to an abuse of process."
It is not absolutely clear to me what criticism the master is making in those paragraphs. It is true that the claimants did not set the action down, in spite of two orders that they should do so. But I do not think that a more general conclusion that directions had quite simply been ignored is justified. It is true that the defendants complain from time to time about the claimants' discovery and that by the end the claimants had served four lists of documents. But the defendants themselves had served three list of documents, the last of which was served on 1st February 1999. There had been slippage on both sides with regard both to the exchange of witness statements and the service of experts' reports.
"I think that the stance taken by the Claimants in respect of mediating the dispute is utterly unconvincing, and their stance in respect of the directions is equally unconvincing."
By "unconvincing" I think that the master must have meant that the claimants did not genuinely want either mediation or directions.
"... has every appearance of - I am not going to say a death-bed conversion - but an attempt to grasp at a prospect in the hope of rescuing the action."
He also referred to the claimants' "sudden change" by comparison with their attitude to mediation in the autumn of 1999. Further, with regard to the payment in of £200,000, the master said this:
"The Claimants did not respond to the payment into Court, whether by saying the payment was not appropriate or why it was not appropriate, nor was there any suggestion of an alternative amount. Substantively, there was complete silence."
In my judgment, the master would have been likely to have put his conclusions differently if he had had the evidence about the without prejudice telephone conversation, to which I referred earlier and which was before the judge, before him.
"I am not in a position to provide details of the review, for reasons of legal privilege. However, the debate was a difficult one, involving the analysis of a considerable number of factual and legal issues. The review of the Claimants' position on damages has now been completed, as can be seen from the Draft Amended Schedule of Loss which has been sent to the Defendants' solicitors."
(1) the schedule of loss required amendment;
(2) leading counsel had advised on quantum in June and July 1999;
(3) in September 1999 the claimants' solicitors gave further advice by partner;
(4) the claimants requested that another partner review that advice, and this exercise was not finished until March 2000;
(5) the schedule of loss had been "on junior counsel's word processor" since June/July 1999.
The clear inference from that account, read with Mr Bacon's third statement, is that both counsel and Simmons & Simmons gave the claimants advice about quantum, but that the claimants asked for more and more advice. Not content it appears with leading counsel's advice, they sought further advice first from one partner of Simmons & Simmons and then from another. Although I recognise that this is a complicated case on quantum, that was not a good or sufficient reason for the delay between the summer of 1999 and April 2000.
In my judgment, although, as I have indicated, there is room for criticism of some of the claimants' conduct of the action, the master's conclusion that their conduct was "utterly irresponsible and contrary to all principles of fairness" and "utterly objectionable" was unjustified. Although they were in breach of the rules of court, their conduct did not, to my mind, amount to an abuse of process. In all these circumstances, on the basis of the materials before the judge, the master's reasoning can, in my judgment, be seen to be flawed.
"I am satisfied that the Master was right to conclude that this was not a case where sanctions or orders in costs would do justice. The delays and failure to respond to requests for particularisation of loss, since 1998, for discovery, mediation, payment in and to set the matter down for trial, without justification or explanation are here such that the order made by the Master was appropriate and clearly within the generous ambit within which reasonable disagreement is possible.
Having considered the history and the likely issues of strongly contested fact in relation to matters which took place in early 1992 I conclude that, despite the fact that witness statements have been exchanged, the Respondent would be severely prejudiced by the delays in bringing this matter to trial and that there is a real risk that a fair trial may not now be possible. Article 6 [of the European Convention] is not breached on the facts of this case. The Master was not wrong. The appeal is dismissed and the Order of the Master will stand."
The judge does not appear to me to have given separate consideration to the case as she would have done of exercising her own discretion. If she did, she was in my judgment wrong for the same reasons as was the master.
LORD JUSTICE MANCE:
LORD JUSTICE DYSON:
(1) the importance of the case to the appellant;
(2) the importance of the case to the respondent;
(3) the nature and extent of the master's consideration of the issues in the case;
(4) the nature of the master's judgment, including whether he had an opportunity to give and had given a fully reasoned judgment or whether it was delivered ex tempore;
(5) if permission to appeal was given by the master, his or her reasons for doing so;
(6) whether or not a party has provided security for costs - here, the Claimants had provided £150,000 by way of security for the Defendant's costs;
(7) whether or not a party has made a payment into court - here, the Defendant has paid in the sum of £200,000;
(8) the readiness of the action for trial;
(9) the strength of the Claimants' case;
(10) the relatively short period of actual delay;
(11) the claimants' willingness to consider mediation."
ORDER: Appeal allowed.
Paragraph 10 of the amended statement of claim will be struck out; paragraph 45.1(4) will be struck out; paragraph 47 will be struck out; paragraph 53 will be struck out; paragraph 55 and 56 will be struck out and paragraph 58 will be amended as stated on the document which was handed in on Friday.
Leave to make the amendments to the schedule of loss and damage; addition to paragraph 58.1, in the third line, where it says "see revised schedule loss and damage section 1" and pages 25 to 26 of the report of John Bunnett dated 17th December 1998.
The parties as soon as reasonable practical and in any event within 14 days to attend before the Clerk of the Lists; case management conference to be listed during January 2002 at which both parties are to make whatever applications are appropriate; the date changed in paragraph 3 for a meeting of the experts to "the end of February", so paragraph 4 will read:
"Claimants to serve re-amended statement of claim and schedule of loss in accordance with our directions."
A direction that the defendants be permitted to inspect the claimants' third supplementary list of documents within 14 days; both parties to serve or indicate that they do not wish to serve a final supplementary list of documents on or before 10th January 2002.
The order as to the statement of claim is without prejudice to the claimants' right to seek leave to further amend their schedule of loss to claim damages on the assumption that the defendants' case is correct. Any such application to be made at the case management conference.
The claimants to pay the defendants' costs before the Master. No order for costs before the judge. The defendants will be ordered to pay the claimants' costs in the Court of Appeal.
Provided the defendants pay the payment in monies into court within 28 days, they will be in the same position as they would have been if the monies had remained in court. But the monies to be paid in to be the £200,000 together with interest which accrued up to the date of withdrawal.
The claimants to be deprived of interest for the period between 5th August 1999 and 4th April 2000.