Birkett v James

JurisdictionUK Non-devolved
JudgeLord Diplock,Lord Simon of Glaisdale,Lord Salmon,Lord Edmund-Davies,Lord Russell of Killowen
Judgment Date25 May 1977
Judgment citation (vLex)[1977] UKHL J0525-1
CourtHouse of Lords
Date25 May 1977
Birkett (A.P.)

[1977] UKHL J0525-1

Lord Diplock

Lord Simon of Glaisdale

Lord Salmon

Lord Edmund-Davies

Lord Russell of Killowen

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Birkett (Assisted Person) against James, That the Committee had heard Counsel, as well on Monday the 28th, as on Tuesday the 29th, Wednesday the 30th and Thursday the 31st, days of March last, upon the Petition and Appeal of Michael Oliver Birkett of 10 Harford Close, Coombe Dingle, Bristol, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 2d of November 1976, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal or such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of John James, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 2d day of November 1976, complained of in the said Appeal, be, and the same is hereby, Set Aside except in so far as it ordered that the Costs of the said Appellant in that Court be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974, and that the Order of Mr. District Registrar Parmiter in Chambers of the 27th day of October 1975 be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Courts below including the Costs incurred before Mr. District Registrar Parmiter, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Costs incurred by the Appellant in respect of the said Appeal to this House and also the Costs incurred by him before the Honourable Mr. Justice Cobb in Chambers and before Mr. District Registrar Parmiter be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974: And it is further Ordered, That the Costs so ordered to be paid and taxed be paid only after the main action shall have been determined: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Diplock

My Lords,


This is an appeal against an order of the Court of Appeal upholding the order of the late Mr. Justice Cobb who had dismissed the plaintiff's action for want of prosecution before the expiry of the six year limitation period applicable to his cause of action.


It is only very exceptionally that an appeal upon an interlocutory order is allowed to come before this House. These are matters best left to the decision of the masters and, on appeal, the judges of the High Court whose daily experience and concern is with the trial of civil actions. 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. That is why they are said to involve the exercise by the judge of his "discretion". That, and the consequent delay and expense which appeals in interlocutory matters would involve, is also why no appeal to the Court of Appeal from his decision is available except with the judge's leave or that of the Court of Appeal. 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. They should regard their function as primarily a reviewing function and should reverse his decision only in cases either:

(1) where they are satisfied that the judge has erred in principle by giving weight to something which he ought not to have taken into account or by failing to give weight to something which he ought to take into account; or

(2) as in Ward v. James [1966] 1 Q.B. 273, in order to promote consistency in the exercise of their discretion by the judges as a whole where there appear, in closely comparable circumstances, to be two conflicting schools of judicial opinion as to the relative weight to be given to particular considerations.


The modern practice as to dismissing actions for want of prosecution dates from 1967. By that time the dilatory conduct of proceedings in the High Court by solicitors to plaintiffs whose causes of action would turn upon the reliability of witnesses' recollections of past events had become a scandal, particularly in the case of those who litigated with the help of legal aid. Postponement of a trial until memories had faded and witnesses had vanished created a substantial risk that justice could not be done. True it is that at the trial the evils of delay would be likely to bear more heavily on the plaintiff on whom the onus would lie of proving that things had happened as he alleged, but the risk that justice would not be done to him extended also to the defendant and, even if successful at the trial, the defendant was likely to be out of pocket for his costs, which in legally aided cases he had little prospect of recovering.


Although the rules of the Supreme Court contain express provision for ordering actions to be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial, such as delivering the statement of claim, taking out a summons for direction and setting the action down for trial, dilatory tactics had been encouraged by the practice that had grown up for many years prior to 1967 of not applying to dismiss an action for want of prosecution, except upon disobedience to a previous peremptory order that the action should be dismissed unless the plaintiff took within a specified additional time the step on which he had defaulted.


To remedy this High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible. This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin v. Beecholme Bakeries, Ltd. (reported in a note to Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 at 276), and Fitzpatrick v. Batger & Co. Ltd. [1967] 1 W.L.R. 706.


The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, I shall refer to as Allen v. McAlpine ( ubi sup), the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to Order 25, Rule 1 of the current White Book. The power should be exercised only where the court is satisfied either:

(1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or


  • ( a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and

  • ( b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.


In the instant appeal your Lordships are concerned with the application of principle (2) only. Contumelious default is not relied upon by the defendant.


My noble and learned friend Lord Salmon and I myself were parties to the decision in Allen v. McAlpine. My noble and learned friends Lord Edmund-Davies and Lord Russell of Killowen have been parties to subsequent decisions of the Court of Appeal in which those principles have been applied. In the instant appeal no one has sought to question them. For my part I think they are correct and should receive the approval of this House, though possibly with some reservations as to the general application of what my noble and learned friend Lord Salmon and I said in Allen v. McAlpine about the relevance of the absence of an effective remedy for the plaintiff against his own solicitor.


All three cases dealt with in Allen v. McAlpine were concerned with summonses to dismiss the actions after the limitation period had expired. In all three, the inordinate and inexcusable delay was solely due to the negligence of the plaintiffs' solicitors, the plaintiffs being free from any blame. In the one case where the plaintiff's remedy against her solicitor would be ineffective this was due to his impecuniosity—he was uninsured, struck off the roll and in gaol.


Three points which have assumed importance in subsequent cases were left undecided by Allen v. McAlpine.


They were:

(1) The relevance of the fact that the limitation period had not expired by the time the application to dismiss for want of prosecution was heard;

(2) The relevance of the period which the plaintiff had allowed to elapse...

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