Notice of Intention to Proceed in UK Law

They are decisions which involve balancing against one another a variety of relevant considerations upon which opinions of individual judges may reasonably differ as to their relative weight in a particular case. Where leave is granted, an appellate court ought not to substitute its own "discretion" for that of the judge merely because its members would themselves have regarded the balance as tipped against the way in which he had decided the matter.

To justify dismissal of an action for want of prosecution the delay relied upon must relate to time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.

In the meantime the plaintiff had run short of money owing to the defendant depriving him of his employment and forcing one of the companies whose overdraft the plaintiff had guaranteed to go into liquidation. The plaintiff could not find this money and accordingly applied for legal aid; this was refused on the 23rd December 1973, but the plaintiff succeeded in getting that decision reversed in December 1974.

On the 18th June 1976 the Plaintiffs gave the Defendant notice of intention to proceed. On the 30th June the Defendant's Solicitors thanked them for their letter "which we accept as notice of intention to proceed". "We shall have to consider", they wrote, "the Defendant's position and possibly take Counsel's advice before we comment on the questions you raise".

It would be wrong to assess the value of the claim by reference to what, with hindsight, can be seen to be a wrong view of the law. It would also be wrong to investigate what KNM might have done as a matter of fact, because that was influenced by the prevailing view of the law. In any event, a claim should not be valued on the footing that a defendant might mistakenly think it had a value when as a matter of law it did not.

Mr. Stuart-Smith says that it is any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has no control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by "actual" damage.

The order does not purport to vary the beneficial interests of any clients and, accordingly, provides that the exclusion of any claimant from such a distribution is without prejudice to their right to participate in any subsequent distribution from the client money trust, if they duly establish their claim, and is also without prejudice to any tracing or similar remedy that might be available to them.