Dismissal for Want of Prosecution in UK Law

Not only would there be available to him any advice or material which had been given or obtained by his solicitor in support of his case in the dismissed action, but the principle of Armory v. Delamirie would apply and would impose upon the solicitor the onus of satisfying the Court that the plaintiff's claim in the dismissed action would not have succeeded had it been prosecuted with diligence.

But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay.

Positive action, however, by which he intimates that he agrees that the action may proceed, is a different matter. If, for example, he intimates that he is willing for the action to proceed and thereby induces the plaintiff's solicitors to do further work and incur further expense in the prosecution of the action, he will be precluded from relying on the previous delay by itself as a ground for dismissing the action.

But, as I read the authorities, including what the Master of the Rolls said in Cresswell's case, on balance they state the law to be as submitted, not by Mr. Slot, but by Mr Phillips. I hesitate to use the word "waiver", as I think did Lord Justice Sachs in Spriggs' case.

The only exception I have been able to think of where it might be proper to give a direction under section 2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant; but there is no suggestion of this in the instant case.