Department of Transport v Chris Smaller (Transport) Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Roskill,Lord Griffiths,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 02 March 1989 |
| Judgment citation (vLex) | [1989] UKHL J0302-2 |
| Date | 02 March 1989 |
| Court | House of Lords |
[1989] UKHL J0302-2
Lord Keith of Kinkel
Lord Roskill
Lord Griffiths
Lord Oliver of Aylmerton
Lord Goff of Chieveley
House of Lords
My Lords,
I have had the opportunity of considering in draft the speech prepared by my noble and learned friend Lord Griffiths. I agree with it, and for the reasons he gives would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech about to be delivered by my noble and learned friend Lord Griffiths. I agree with it, and for the reasons he gives I would dismiss this appeal.
My Lords,
Over 10 years ago, on 8 December 1978, a lorry, owned by the defendants and driven by a lorry driver in their employment, crashed into a bridge on the M50 motorway. The lorry driver was killed and the bridge was badly damaged. The Department of Transport, the plaintiffs, who owned the bridge, wrote promptly, on the 24 January 1979, to the defendants saying that they would consider making a claim for the cost of repairing the bridge if it appeared that the accident was due to negligence of the defendants or their driver. As no other vehicle had been involved in the accident, the plaintiffs clearly had a strong prima facie case that the accident was caused by the negligence of the defendants or their driver. Thereafter, however, matters proceeded at a snail's pace.
The contract for the repair of the bridge was let in May 1980 but it was not until 24 June 1982 that the plaintiffs first wrote to present their claim for the sum of £334,885. The defendants' insurers had instructed a Mr. Parkinson Hill, a consulting engineer, to investigate the claim in 1979 but he had been unable to advise on the value of the claim until it was formulated in June 1982. Thereafter, he sought particulars of the claim from the plaintiffs which were finally delivered to him on 8 March 1983. In July and August 1983, Mr. Parkinson Hill wrote trying to arrange a meeting with the plaintiffs to agree the value of the claim, subject to liability. The plaintiffs responded to the second of these letters, asking to see his calculations and ending "we will contact you thereafter as requested." Mr. Parkinson Hill sent his calculations but nothing more was heard about the claim until a writ was served upon the defendants on 19 March 1985, over eighteen months after he had last written to the plaintiffs with his calculations. The writ had been issued on 30 May 1984, five-and-a-half years after the accident and six months before the expiration of the six-year limitation period. It was not served until three months after the limitation period had expired.
It is difficult to see any justification for a government department to be so tardy in attempting to recover money due to public funds, and one would have at least expected that the action, once commenced, would be pursued as swiftly as possible: but that was not to be. The statement of claim was not delivered until 23 September 1985. The defence denied negligence on the part of the lorry driver alleging a sudden loss of consciousness from natural causes. It also alleged design and construction faults in the structure of the bridge and the safety barrier in the road and a failure to mitigate damage. The pleadings closed on 20 December 1985 but the plaintiffs failed to take out the summons for directions which they should have done by 20 January 1986. Eventually, it was the defendants who took the initiative and issued the summons for directions on 24 June 1986, five months after the date upon which it should have been issued by the plaintiffs.
The summons for directions was heard on 8 July 1986. The plaintiffs were ordered to give further and better particulars, to answer interrogatories and to set down the action, all within 28 days. The plaintiffs failed to comply with any of these directions. The defendants took out a summons for a peremptory order for further and better particulars and answers to the interrogatories returnable on 20 October. This appears to have galvanised the plaintiffs into action; the further and better particulars were served on 15 October and the answers to interrogatories on 19 October, therefore on the summons on 20 October the only order made was for the defendants to have their costs. The plaintiffs still failed to set down the action for trial and on 28 April 1987, the defendants took out a summons to strike the action out for want of prosecution. This summons was taken out nine months after the date upon which the plaintiffs should have set the action down for trial.
The Master struck out the plaintiffs' claim. The judge allowed the plaintiffs' appeal. He held, applying the principles in Birkett v. James [1978] A.C. 297, that the plaintiffs had been guilty of inordinate and inexcusable delay for a period of 13 months but that there was no real risk that there could not be a fair trial of the issues and the defendants had failed to show that they would suffer more than minimal prejudice as a result of the post writ delay.
The Court of Appeal dismissed the defendants' appeal and your Lordships gave leave to appeal so that they might re-examine the principles that have governed applications to strike out for want of prosecution since the decision of this House in Birkett v. James in the light of criticisms as to the effectiveness of those principles expressed in certain judgments in the Court of Appeal.
The principles upon which the jurisdiction to strike out for want of prosecution is exercised were settled by the Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, and approved by the decision of this House is Birkett v. James. 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 (2)(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 plaintiffs, or between each other, or between them and a third party.
These principles left unresolved three further questions upon which divergent views had been expressed in the Court of Appeal. 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 lapse before action was brought, when this was done within the limitation period, and (3) whether the judge ought to weigh up the plaintiff's prospects of success in any remedy he might have against his solicitor if the action were dismissed, and, if so, how his estimate should affect the exercise of his discretion.
It was to resolve these questions that leave to appeal was given in Birkett v. James. The answers given were (1) that only in "wholly exceptional circumstances" should an action be struck out within the relevant limitation period, because the plaintiff would be able to issue a fresh writ which would result in the action being heard at an even later date as a result of the striking out. "Wholly exceptional circumstances" were discussed in the speeches of Lord Diplock and Lord Edmund-Davies but do not fall for further consideration in this appeal. (2) Time that has elapsed between the accrual of the cause of action and the issue of a writ within the limitation period cannot constitute inordinate and inexcusable delay. Although a defendant may well have been prejudiced by this delay and in some cases it may even make it difficult to have a fair trial, these considerations do not justify striking out an action which a plaintiff has commenced within the period of limitation set by Parliament. The plaintiff must have been guilty of inordinate and inexcusable delay in the prosecution of the action after the issue of the writ and the defendant must show prejudice flowing directly from the post-writ delay which must be additional to any prejudice suffered because the plaintiff did not commence his action as soon as he could have done. (3) The fact that the plaintiff may or may not have an alternative remedy against his solicitor is not a relevant consideration in deciding whether or not to dismiss an action for want of prosecution.
It was hoped that the initiative taken by the Court of Appeal in Allen v. McAlpine to strike out actions for want of prosecution and the endorsement of those principles by this House in Birkett v. James would be a sufficient deterrent to ensure that all plaintiffs' solicitors would in future pursue litigation with reasonable despatch rather than face an action against them by their clients when the action was struck out. Unfortunately, this has not proved to be the case. There are still far too many applications to strike out actions for want of prosecution. In a postscript to his judgment in Westminster City council v. Clifford Culpin & Partners (A Firm) (Unreported) 18 June 1987 Kerr L.J. expressed the frustration of the court at the present state of affairs. He said:
"Although more complex than most, and of course unusual to the extent that the plaintiffs were represented by their own legal department during the relevant years, this case is typical of the large numbers of applications to strike out claims for want of prosecution which are constantly before our courts. These are only the tip of the iceberg. For every contested case there are no doubt dozens which are settled or not...
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