1) Edward John Camp and Another (Plaintiffs) Appellants) Day Smith & Hunter (A Firm)(Defendant) Respondent) 1) Edward John Camp and Another (Plaintiffs) Appellants) Victor E. Grimwood (Defendant) Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,SIR CHRISTOPHER SLADE |
| Judgment Date | 07 November 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1107-4 |
| Docket Number | 91/1051 |
| Date | 07 November 1991 |
| Court | Court of Appeal (Civil Division) |
[1991] EWCA Civ J1107-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR PETER PAIN, sitting as a High Court Judge)
Royal Courts of Justice.
Lord Justice Lloyd
Sir Christopher Slade
91/1051
MR. ROBERT DENMAN (instructed by Messrs. Bertin Ware & Associates of Folkestone appeared on behalf of the Appellants.
MR. HUGO PAGE (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the Respondent (Day Smith & Hunter).
MR. JEREMY STUART-SMITH (instructed by Messrs. Davies Arnold Cooper) appeared on behalf of the Respondent (Grimwood).
These are two linked appeals from a judgment of Sir Peter Pain, sitting as a judge of the High Court on 7th November 1990, whereby he struck out the plaintiffs' claim in two actions for want of prosecution. The actions arise out of the same set of facts and were ordered to be tried the one after the other. But the dates at which various steps were taken are not precisely the same, so to some extent they have to be considered separately.
The plaintiffs, Edward John Camp and Mabel Ruth Mussett, are or were directors, creditors and majority shareholders in a company called Multipurpose Buildings Limited. They were also directors and creditors of a wholly owned subsidiary, Multipurpose UK Limited. Messrs. Day Smith & Hunter, the defendants in one of the actions, are a firm of accountants who were retained to advise the companies and act as auditors. The plaintiffs say the defendants were also retained to advise the plaintiffs personally. This is denied by the defendants. At a meeting on 25th September 1980 it was decided that the parent company should go into voluntary liquidation. According to the plaintiffs' case, the defendants gave them bad advice, as a result of which they have lost their entire interest in the companies whether as shareholders, creditors or salaried directors.
The second action is against Mr. Victor Grimwood, a chartered accountant who was appointed liquidator of the companies. It is said that he too owed the plaintiffs an independent duty of care of which he was in breach. The amount claimed is the same in both actions.
Both actions were commenced in August 1986, very nearly six years after the meeting in September 1980 when the cause of action presumably accrued. Thereafter the actions proceeded at a leisurely pace. On 9th August 1989 the plaintiffs gave notice of intention to proceed. On 26th October 1989 the trial was fixed for 14th January 1991. It was estimated to last ten days. At that point the dates in the two actions diverge. On 16th August 1990 the defendant in what I called the second action, that is to say Mr. Victor Grimwood, issued a summons for discovery to be given within seven days, failing which the action was to be struck out. That summons was served on 12th October 1990. The return date on the summons was 19th October before the master. Meanwhile, on 24th September, the defendant had issued a second summons to strike out for want of prosecution. That summons was also served on 12th October. The return date was 23rd October before the judge. That hearing was subsequently put back until 7th November. Meanwhile, on 16th October, the parties reached agreement as to the order for discovery. Accordingly on 19th October the master made a consent order that the plaintiffs were to serve their list of documents within 21 days or the claim was to be struck out. The 21 days expired on 9th November.
The dates in the other action against Messrs. Day Smith & Hunter were that the summons for discovery was issued on 16th October. A consent order was made by the master on 19th October in the same terms as in the other action, but the summons to strike out, unlike the other action, was not issued until 31st October. However, in a telephone conversation which took place on 15th October the defendant's solicitors informed the plaintiffs' solicitors that they were considering joining in the application to strike out. The plaintiffs' solicitors commented that it would be a little odd for his clients to have to produce discovery only to be struck out at a later date. On 7th November Sir Peter Pain made an order dismissing both actions. That order was made two days before the expiry of the time for discovery fixed by the consent order.
On those facts the judge had no difficulty in holding that if the applications had come on before him in, say, August 1990, this would have been a proper case to strike out. The delay in bringing the case to trial had been inordinate, inexcusable and highly prejudicial.
The only point which caused him any concern was the consent order made on 19th October. It was argued on behalf of the plaintiffs that by agreeing to a consent order the defendants had led the plaintiffs to believe that the case would proceed to trial. This was the point first discussed by Lord Justice Diplock in Allen v. McAlpine [1968] 2 Q.B. 229 at page 260 and by Lord Justice Salmon at page 272. The same point has been canvassed more recently in County & District Properties v. Lyell decided in 1977, but only reported in [1991] 1 W.L.R. 683; Simpson v. Smith decided on 13th January 1991; and, finally, Reynolds v. British Leyland [1991] 1 W.L.R. 675. In the event, the learned judge rejected the plaintiffs'...
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