Choraria v Sethia
| Jurisdiction | England & Wales |
| Judge | Nourse,Pill,Thorpe L JJ |
| Judgment Date | 15 January 1998 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 1998 |
Court of Appeal
Before Lord Justice Nourse, Lord Justice Pill and Lord Justice Thorpe
Practice - inexcusable delay an abuse of process - striking out justified
Inordinate and inexcusable delay by a plaintiff in prosecuting his action in full awareness of the consequences and which amounted to a wholesale disregard of the Rules of the Supreme Court amounted to an abuse of process justifying striking out or dismissing his action without the need to show prejudice to the defendant or that a fair trial was no longer possible.
That principle of law, which emerged from the judgment of the Court of Appeal in Arbuthnot Latham Bank Ltd v Trafalgar Holdings LtdTLR(The Times December 29, 1997; [1997] TLR 698), applied to breaches of rules or orders committed before the decision in that case and not just to those committed subsequently.
The Court of Appeal so held allowing an interlocutory appeal by the defendant, Mr Nirmal Sethia, from the judgment of Mr Justice Rimer on November 12, 1996, in which he had reversed the order of a master dismissing the action of the plaintiff, Mr Girdharimal Choraria, for want of prosecution.
Mr James Munby, QC, who did not appear below, and Mr Hashim Reza for the defendant; Mr Charles A Macdonald, QC, who did not appear below, and Miss Catherine Burgin for the plaintiff.
LORD JUSTICE NOURSE said that the plaintiff's claim was for repayment of loans allegedly made to the defendant in 1982. The defendant sought to strike out the action on the familiar ground under the second limb of Birkett v JamesELR ([1978] AC 297), namely inordinate and inexcusable delay on the part of the plaintiff giving rise to a substantial risk that it was not possible to have a fair trial or prejudice to the defendant.
Mr Justice Rimer found that there had been inordinate and inexcusable delay in prosecuting the action, a finding not questioned by the plaintiff, but concluded that no relevant prejudice to the defendant had been established.
Mr Munby submitted that the plaintiff's conduct amounted to an abuse of the process of the court, so that the action fell to be dismissed on that ground alone, without the need to show prejudice, by application of the principle authoritatively recognised by the House of Lords inGrovit v DoctorTLRWLR (The Times April 25, 1997; [1997] TLR 214; [1997] 1 WLR 640) and by the Court of Appeal in Arbuthnot Latham Bank Ltd v Trafalgar Holdings...
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... ... Pte Ltd v Allen & Gledhill [1995] 3 SLR (R) 334; [1996] 1 SLR 478 (folld) Atwood v Chichester (1878) 3 QBD 722 (refd) Choraria v Sethia142 SJLB 53 (distd) Costellow v Somerset County Council [1993] 1 WLR 256; [1993] 1 All ER 952 (folld) Cropper v Smith (1884) ... 34 The respondents sought to rely on Choraria v Sethia 142 SJLB 53, a decision of the English Court of Appeal. In particular, they relied on the following passage from the judgment of Nourse LJ: ... ...
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