County & District Properties Ltd v Lyell (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE ROSKILL,LORD JUSTICE BRIDGE |
| Judgment Date | 12 July 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0712-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 1977 |
[1977] EWCA Civ J0712-3
Lord Justice Stephenson
Lord Justice Roskill and
Lord Justice Bridge
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On Appeal from Order of His Honour Judge Fay.
Mr JOHN G.C. PHILLIPS (instructed by Messrs Franks, Charlesly & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr PETER SLOT (instructed by Messrs Hewitt, Woollacott & Chown) appeared on behalf of the Respondent (Defendant).
his is the Plaintiffs' appeal from a decision of His Honour Judge Fay, sitting as an Official Referee, dismissing on the 23rd March last the Plaintiffs' action for want of prosecution. The learned Judge said that he found this no easy matter. "The case", he said, "is in the borderline area and the authorities give no firm guidance as to how far one must go". He therefore gave leave to the Plaintiffs to bring this appeal. It raises an interesting and important question, namely, on what (if any) principle should the Court exercise its discretion to dismiss an action for want of prosecution where the conduct of the defendant has led the plaintiff to believe that his action will be allowed to go on and has acted on that belief by incurring further costs.
The action in this case is brought by County & District Properties Limited against Mr Lyell, an architect, for professional negligence. The Plaintiffs retained the Defendant as long ago as 1960 or 1961 to act as architect in the supervision and so on of a building development which was completed in 1964. In 1966 and 1969 defects appeared in the roof and the windows of the building; and on the 12th November 1968 the Plaintiffs issued their Writ against the Defendant. Nearly a year later they also issued a Writ against the main contractors. Both Writs were served, and Statements of Claim were served first on the main contractors and then on Mr Igrell, the architect. The Statement of Claim served on him on the 25th November 1970 alleged negligence in the design of the building only. However, as result of an application for leave to amend, which was ultimately granted by this Court on the 14th June 1971, the Statement of Claim incorporated further allegations against Mr. Lyell in respect of the defective roofand windows.
Now, there is no doubt that in pursuing their action against the architect, the Plaintiffs were guilty of inordinate, inexcusable and prejudicial delay. I am content to accept, without going into the facts any further, Mr Slot's submission that the prejudice to the Defendant was much greater than usual, even in these cases. A good deal will turn on conversations, Mr Slot tells us, in 1962 and in 1963. In other words, were it not for the question of the Defendant's conduct, which is the only issue in this appeal, this would have been a plain case for upholding the Defendant's submission that the action should be struck out, under the inherent jurisdiction of the Court, for want of prosecution as too stale to be tried fairly and, in particular, to be tried with justice to the Defendant. The Plaintiffs contend in this Court, as they contended before the learned Judge, that in spite of their "shocking delay", as the Judge described it, they ought to be allowed to go on with their action because of what the Defendant did between the 18th June and the 16th December 1976.
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".
The next thing that happened was that on the 15th July the Plaintiffs served some Further and Better Particulars of their Statement of Claim which had been requested many years before and ought, of course, to have been served long before. But the Defendant's Solicitors took no point on that; and onthe 21st July they wrote "to inform you that on the 19th instant we received your letter of the 13th instant, the contents of which we note, and the particulars enclosed, service of which by post we accept".
On the 17th August the Plaintiffs issued a fresh Summons for Directions. On the 23rd August the Defendant's Solicitors wrote: "We thank you for your letter of the 18th instant and acknowledge receipt of the Summons for Directions herein, the date of which we have noted". That summons came on for hearing before Master Creightmore on the 10th November 1976. He heard the summons, and by consent it was ordered "this action be transferred to an Official Referee and that the costs of the action and of this application be in the cause", with liberty to apply.
Then on the 17th November the Summons for Directions issued from the Official Referee; and on the 24th November the learned Judge, sitting as an Official Referee, started to hear the summons and understandably expressed surprise or horror at the prospect of giving directions in an action relating to events in the early 1960s and begun by a Writ issued in 1968. So the summons was adjourned, and it appears that it was at the instance of the learned Judge himself that the summons was adjourned. Then there was over three weeks' delay before, on the 16th December, the Defendant's Solicitors issued their summons to have the Plaintiffs' action dismissed for want of prosecution. Their application was granted by the learned Judge on the 23rd March, when he dismissed the action.
What the Plaintiffs say is that the Defendant's conduct in these months of 1976 clearly went beyond mere passive inactivity and consisted of positive steps encouraging thePlaintiffs to believe that they were to be allowed to go on with their action without objection by the Defendant and without an application to dismiss it for want of prosecution. They call attention in particular to the action of the Defendant in agreeing to transfer the action to an Official Referee and to the fact, which appears from the recital which I have just given, that it was not until His Honour sitting as an Official Referee himself raised the question that they considered taking the course which they successfully took in having the action dismissed. This action was, I think it has to be conceded, the brain child of the learned Judge, and it may be said none the worse for that. Indeed, I would accept that the learned Judge is going to have a very difficult task in doing justice to the case, in particular the Defendant's case, next year or whenever the action comes on for trial if we allow this appeal. But the question is whether what the Defendant has done has entitled the Plaintiffs, notwithstanding the shocking delay of which they have been guilty, to proceed with this very stale action.
Now, the learned Judge, as I have said, regarded this case as in a borderline area in which the authorities gave him no firm guidance. "Doing the best I can", he said, "I find the case falls on the side of the line on which the Defendant Applicant is excused for his acquiescence in respect of the Summons for Directions and in front of the Master. I say his conduct is not waiver when seen against the case as a whole and very little was spent by the Plaintiffs in consequence. If the Defendants had taken out this summons last October the Plaintiffs would have saved a little money but a very little money against the scale of a completed action. There must be a border-line andmy decision is that this case falls on the side of the border-line favouring the Defendant Applicant. Therefore the Defendant has not acquiesced in or waived his right to rely on the Inordinate and inexcusable delay of the Plaintiffs".
Mr Phillips on behalf of the Plaintiffs says that the learned Judge has gone wrong in principle; and it is conceded that if he has, that would entitle this Court, loyally following the observations of the learned Lords of Appeal in Birkett v. James, decided since the learned Judge gave his judgment, to interfere with his exercise of his discretion in the Defendant's favour and reverse his decision.
The true principle to be applied in considering whether the Defendant's conduct disentitles him from relying on inordinate, inexcusable and prejudicial delay is to be found in the observations of the members of this Court in the leading case of Allen v. McAlpine, reported in 1968 2 Queen's Bench at page 229. In particular, Mr Phillips relies on what he says are the general statements of principle made there by Lord Justice Diplock and Lord Justice Salmon. At page 260 of the report, Lord Justice Diplock said this: "Since the power to dismiss an action for want of prosecution is only exercisable upon the application of the defendant, his previous conduct in the action is always relevant. So far as he himself has been responsible for any unnecessary delay, he obviously cannot rely upon it. But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty offurther unreasonable delay. For the reasons already mentioned, however, mere non-activity on the part of the defendant where no procedural step on his part is called for by the Rules of Court is not to be regarded as conduct capable of inducing the plaintiff reasonably to believe that the defendant intends to exercise his right to proceed to trial". At page 272 Lord Justice Salmon said this: "The only point that has caused me any hesitation upon this appeal arises out of the argument that...
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