England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE OWEN)

		Royal Courts of Justice Strand London WC2 Friday, 4th May 2001

Friday, 4th May 2001

1. LORD JUSTICE LONGMORE: Mr Atutu comes to this Court this morning seeking permission to appeal from a judgment of Owen J which was given in chambers on 9th February 2001 in which he upheld the order of Master Turner made on 26th October 2000 striking out Mr Atutu's action against his former solicitors, Messrs Meaby & Co.
2. The matter commences in 1982 when Mr Atutu who provided cars for the Nigerian High Commission unfortunately had an accident in one of those cars, and it emerged as a result of the accident that the car was uninsured. It is also the case that at an earlier stage he had been prosecuted for failure to be insured. The Nigerian High Commission cancelled the contract that he had. Mr Atutu maintained that he was at all material times insured or that if he was not and the insurers were entitled to cancel the policy for failure to pay the premium, then the fault in failure to pay the premium was that of the broker, Mr Dibble because he, Mr Atutu, had paid the premium to the broker.
3. In those circumstances, Mr Atutu claimed that he had lost his business as a result of the activities of Mr Dibble and/or the insurers who were the Guardian Royal Exchange. In March of 1984 he instructed Meaby & Co, a firm of solicitors, to sue the Guardian Royal Exchange and Mr Dibble. A writ was issued on 1st September 1987 and served on 7th September 1987. A defence was served in December 1987, but nothing of legal consequence happened thereafter although Mr Atutu did transfer his instructions to another firm of solicitors.
4. On 11th December 1989 Master Topley struck out the action for inordinate delay causing prejudice to a fair trial of the action. That, therefore, was the end of that action in relation to the claim for loss of business by Mr Atutu.
5. In August 1990, Messrs Meaby & Co received intimation that there would be a claim against them but in fact no writ was issued against Messrs Meaby & Co until 13th September 1995. That was served, together with a Statement of Claim, on 25th September 1995. At this stage Mr Atutu had the services of other solicitors. However, there came a time, after pleadings had closed in that case and after Master Rose had made an order on 14th January 1997 for an exchange of list of documents within 14 days and witness statements within 14 weeks, that Mr Atutu began to act in person. I have seen a letter from Mr Atutu of 17th May 1997 confirming that he was acting in person as from that time. Following that time he did have the services of another solicitor for part of that time, but the formal position on the record of the proceedings was that Mr Atutu was acting in person. In fact the order for the exchange of lists of documents was complied with, albeit five months late, on 12th June 1997 but no witness statements were ever served.
6. On 30th October, Master Turner, in an attempt to help Mr Atutu with this litigation, did order the solicitors for the defendants to liaise with Mr Atutu for new directions, and there was some communication in writing between Meaby & Co's solicitors and Mr Atutu. But no directions could be agreed and nothing happened in the action for over a year, so that there was an automatic stay that applied to the action until such time as that stay could be lifted. On 25th July 2000, Mr Atutu did apply to lift that stay but he was met with an application to strike out the action against Meaby & Co for want of prosecution. On 3rd August Master Turner gave directions in relation to that application and it came before him on 26th October 2000.
7. What the master and then the judge had to consider was whether there had been inordinate delay in the prosecution of the action against Messrs Meaby & Co and since the written statement of claim had been served in September 1995, there was no answer that could be given to the suggestion that there had been such inordinate delay. Then they had to consider whether a fair trial of the action would be possible. In relation to that both Master Turner and Owen J said that it would not be possible to have a fair trial of the action against Messrs Meaby & Co because the allegations of negligence made against them related to the action which had been brought in respect of events in 1982, the action itself being an action that had been brought in 1987 and struck out in 1989. They considered that the subject matter of the action brought against Messrs Meaby & Co related to matters so old that now there cannot be a fair trial of them.
8. I regret to say that Mr Atutu has no prospect of any kind in persuading the Court of Appeal that that decision of Owen J was wrong, and it must follow that I have to refuse him permission to appeal.
(Application for permission to appeal refused)