Allen v Sir Alfred McAlpine & Sons Ltd

JurisdictionEngland & Wales
Judgment Date11 January 1968
Judgment citation (vLex)[1968] EWCA Civ J0111-1
Date11 January 1968
CourtCourt of Appeal (Civil Division)

From Mr Justice Chapman

Sir Alfred Mcalpine & Sons Limited

From Mr. Justice Mocatta

Bermondsey & Southwark Group Hospital Management Committee

From Mr Justice Mocatta

Sternberg and another
Hammond and others

[1968] EWCA Civ J0111-1


The Master of The Rolls

(Lord Denning)

Lord Justice Diplock and

Lord Justice Salmon

In The Supreme Court of Judicature

Court of Appeal

Civil Division

Mr F. B. PURCHAS, Q. C. and Mr D. BARKER (instructed by Messrs Hair & Co., Agents for Messrs Burton & Co., Lincoln) appeared as Counsel for the Appellant.

Mr H. TUDOR EVANS, Q. C. and Mr E. G. ROUGIER (instructed by Messrs Barlow, Lyde & Gilbert) appeared as Counsel for the Respondents.

Mr J. MISKIN, Q. C. and Mr K. MCHALE (instructed by Messrs Donovan J. Smaliey & Co.) appeared as Counsel for the Appellant.

Mr T. H. BINGHAM (instructed by Messrs Hempsons) appeared as Counsel for the Respondents.

Mr E. W. EVELEIGH, Q. C. and Mr M. SHERRARD (instructed by Messrs Israel Joslin & Co.) appeared as Counsel for the Appellants.

Mr MICHAEL EASTHAM, Q. C. and Mr NORMAN KING (instructed by Messrs Kingsley Napley & Co.) appeared as Counsel for the Respondents, First Defendants.

Mr ROGER PARKER, Q. C. and Mr W. FORBES (instructed by Messrs Chamberlain & Co.) appeared as Counsel for the Respondents, Third Defendants.

Mr J. WILMERS, Q. C. and Mr MICHAEL OGDEN (instructed by the Law Society) appeared as amicus curiae on behalf of the Law Society


in these three cases the law's delays have been intolerable. They have lasted so long as to turn justice sour. I will give details later, but in outline they stand thus. In the first case a widow lost her husband nearly nine years ago. He was killed at his work. She had a good claim to compensation from his employers for herself and her two small children. Her case has not yet been set down for trial. In the second case, a nurse complained that she strained her back over nine years ago whilst lifting a patient. It meant a year off work. If her story is true, she was entitled to compensation from the hospital authorities. They have not even yet put in a defence to the claim. In the third case, a man of business bought shares-nearly fourteen years ago for £20,000. He brought an action complaining that he was deceived in the deal, and that his Company was let down by the solicitors. The man who sold the shares has since died. His estate cannot be administered whilst this suit is hanging over it. His widow cannot receive the money he bequeathed to her. Yet the suit has not yet been entered for trial.


In none of the three cases has the party himself been at fault. The widow, the nurse and the man of business, each one of them wanted to get on. The fault, I regret to say, has been with the legal advisers. It is not that they wilfully neglected the cases. But they have put them on one side, sometimes for months, and even for years, because of the pressure of other work or of other claims on their time. Hence these ills. And these are not the only examples. A few months ago we had a couple of cases of like sort. One was on the 9th March, 1967, called Reggentin v. Beecholme Bakeries Ltd. The other was on the 17th March, 1967, called Fitzpatrick v. Batger & Co. Ltd. 1967, 1 Weekly Law Reports, p. 706. We said; "Delay in these cases is much to be deplored. It is the duty of the plaintiff's advisers to get on with the case. Every year that passes prejudices the fair trial". We struck out those cases for want of prosecution. This meant that the injured plaintiffs could not recover theircompensation, from the defendants. But they could recover it from their own negligent solicitors. These cases have brought home to lawyers that they must get on. A note in the White Book says that:


"These emphatic decisions of the Court of Appeal, which lay down a more stringent practice than was formerly followed, have injected a new element of expedition in the conduct and preparation of cases before trial, especially in relation to 'accident' cases. Plaintiffs' solicitors who do not 'get on' with their cases will be at risk of having the plaintiff's action dismissed for want of prosecution and themselves rendered liable for negligence to the plaintiff as their own former client".


Following those decisions, several other cases have been struck out for delay. These three are among them. The plaintiffs appeal to this Court. I say "the plaintiffs" appeal, but we cannot shut our eyes to the fact that the plaintiffs' solicitors and their insurers are very much concerned in the appeals lest they be held liable for negligence. The Law Society too ere concerned, for Counsel appeared for them and asked to be heard. We permitted him as amicus curiae to address us on the issues of public policy involved.


It was urged that we ought not to strike out a man's action without trial because it meant depriving him of his right to come to the Queen's Courts. Magna Carta was invoked against us as if we were in some way breaking its provisions. To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. "To no-one will we deny or delay right or justice". Magna Carta: Ch. 40.


All through the years men have protested at the law's delay and counted it as a grievous wrong, herd to bear. Shakespeare ranks it among the whips and scorns of time. "Hamlet Act III, sc. i. Dickens tells how it exhausts finances, patience, courage, hope. "Bleak House": Chap. I. To put right this wrong, we will in this Court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent jurisdictionof the Court. And the Rules of Court expressly permit it. It is the only effective sanction they contain. If a plaintiff fails within the specified time to deliver a statement of claim, or to take out a summons for directions, or to set down the action for trial, the defendant can apply for the action to be dismissed, see 0. 19, r. 1; 0. 25, r. 1; 0. 34, r. 2. It was argued before us that the Court should never, on the first application, dismiss the action. Even if there was long delay, the Court should always give the dilatory solicitor one more chance. The order should be that the action should be dismissed "unless" he takes the next step within a stated time. Such has been the practice, it was said, for a great many years. It was confirmed by Sir George Jessel, M. R., in Eaton v. Storer (1882) 22 Chancery Division at p. 92: and it should not be changed without prior notice. I cannot accept this suggestion. It there were such a practice, there would be no sanction whatever against delay. The plaintiff's solicitor could put a case on one side as long as he pleased without fear of the consequences.


If you read Eaton v. Storer carefully, you will see that the practice described by Sir George Jessel applies only to moderate delays of two or three months. It does not apply when "there is some special circumstance such as excessive delay". The principle upon which we go is clear: When the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the Court may in its discretion dismiss the action straightaway, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight. Whenever a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim damages against him; as, for instance, when a solicitor does not issue a writ in time, or serve it in time, or does not renew it properly, "We have seen, I regret to say, several such cases lately. Not a few are legally aided. In all ox them the solicitors have, Ibelieve, been quick to compensate the suffering client; or at least their insurers have. So the wrong done by the delay has been remedied as much as can be. I hope this will always be done I turn to consider the three cases in detail.


I. The Widow's Claim


The accident took place nearly nine years ago. On the 1st February, 1959, McAlpines were building a power station at High Marnham near Newark. One of their workmen was James Allen aged 40. He was crossing a floor' which was high above the ground. There was a hole in the floor with a wooden cover over it. As he went across, the wooden cover gave way. He fell 35 feet to his death. He left a widow and two small children, a daughter of 4 years and a son of 8 months. Two days later she consulted a firm of solicitors They represented her at the inquest which was held five days after the accident. Six workmen were called to give evidence. Pieces of the wooden cover were produced. No-one suggested that the dead man was to blame.


Such was the sad and simple story. The widow had undoubtedly a good claim against the employers McAlpines for breach of statutory duty. Out the employers said that the condition of the floor was due to something done by other contractors called International Constrction Ltd: and they wished to claim contribution or indemnity from them.


The widow's solicitors at first pressed her claim with urgency. They said that she was finding it very difficult to make ends meet with her two children. On 13th July, 1960, they issued a writ against McAlpines. On 22nd July, 1960, they delivered a statement of claim. On 18th January, 196l, McAlpines delivered their defence. It was a simple denial. The pleadings were then closed. Under the Rules of Court the widow's solicitors ought to have taken cut, within one month, a summons for directions, see 0. 25, r. 1(1). if they had done so, an order would have been made determinings one place and mode of trialand also directing the time for...

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