Fitzpatrick v Batger & Company Ltd

JurisdictionEngland & Wales
Judgment Date17 March 1967
Judgment citation (vLex)[1967] EWCA Civ J0317-2
CourtCourt of Appeal (Civil Division)
Date17 March 1967

[1967] EWCA Civ J0317-2

In The Supreme Court of Judicature

The Court of Appeal

Civil Division

From: Mr. Justice Browne


The Master of the Rolls (Lord Denning)

Lord Justice Salmon and

Lord Justice Winn

Michael Fitzpatrick
Batger & Company Limited

MR J. RAYMOND PHILLIPS (instructed by Messrs Milners Curry & Gaskell) appeared as Counsel for the Appellants.

MR P. RIPMAN (instructed by Messrs Harold Kenwright & Cox, Agents for Mr M. Timothy Donovan, London, S.W.17) appeared as Counsel for the Respondent.


In this case Mr Michael Fitspatrick on the 13th December, 1961, was working in the premises of his employers, Batger & Co. Limited., making toffee. He was helping to carry a bowl of hot toffee across the floor when he fell. Some of the toffee splashed over his hand and leg. He was off work for several weeks and sought damages against his employers. He obtained legal aid in October 1962. Solicitors on his behalf issued a writ on the 7th February, 1963. Up to that stage there was no undue delay. The defence was delivered on the 19th April, 1963. In June 1963 there was a discussion without prejudice. The Insurance Company were ready to offer the sum of £;300 in settlement. But Mr Fitzpatrick and his advisers did not accept that sum. Then this action went to sleep for some eighteen months or more. The solicitor's clerk had left the firm and it was overlooked. In February 1965 the plaintiff's solicitor revived the claim. Again the defendants were ready to pay £;300 in settlement. They went further. They offered a modest increase on £;300. Mr Fitzpatrick and his advisers did not accept the offer. The negotiations ended on the 2nd March, 1965. The matter went to sleep Again for nearly two years. Then the plaintiff's solicitors or his London agents wrote a letter seeking to revive it. Thereupon the defendants took out a summons to dismiss the case for want of prosecution. Order 25, rule 4 provides that, if the plaintiff does not take out a summons for directions (as he did not in this case), the defendant himself may do so or he can apply for an order to dismiss the action.


The Master and the Judge allowed it to be revived if £;30 was paid into Court as security for coats. The defendants appeal to this Court. They say a peremptory order should be made to dismiss the action.


Only last week in the case of Reggentin v. Beecholme Bakeries Limited., I said that it is the duty of the plaintiff's advisers to get on with the case. Public policy demands thatthe business of the Courts should be conducted with expedition. Just consider the times herd. The accident was on the 13th December, 1961. If we allowed this case to be sot down now, it would not come on for trial until the end of this year. That would be some six years after the aceident. It is impossible to have a fair trial after so long a time. The delay is far beyond anything which we can excuse. This action has gone to sleep for nearly two years. It should mow be dismissed for want of prosecution.


I know that this is a matter for the discretion of the Judge: but I am satisfied that he was wrong: and following our ruling in Ward v. James, we can interfere. This will not prejudice Mr Fitxpatrick personally. He has, as far as I can see, an unanswerable claim against his solicitors for their neglect. The damages will be at least the sum of £;300 which was offered in settlement.


I would allow the appeal and order that the action stand dismissed.


I entirely agree. The defence was delivered as long ago as April 1963. Some further particulars of the statement of claim were delivered in July 1963. The accident which the plaintiff is alleged to have suffered as a result of the defendants' negligence occurred as long ago as December 1961. From July 1963 until February 1965 the plaintiff's solicitors did nothing at all to get on with the action. It is conceded that the reason for this very serious delay was the fault of one of the plaintiff's solicitors' clerks. Then in February and March 1965 the plaintiff's solicitors apparently woke up for a while and there were some without...

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  • Kerajaan Malaysia v South East Asia Insurance Berhad
    • Malaysia
    • High Court (Malaysia)
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  • Allen v Sir Alfred McAlpine & Sons Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 January 1968
    ...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 advi......
  • Administrator General of Jamaica (Administrator Estate Alvin Augustus Cargill - deceased) v Vivian Plowright and Ferdinand Murphy
    • Jamaica
    • Court of Appeal (Jamaica)
    • 19 July 2001
    ...276 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543, [1968] 2 QB 229 and Fitzpatrick v Batger & Co [1967] 2 All ER 657. The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity......
  • Alcan Jamaica Company v Herbert Johnson et Al
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    • Court of Appeal (Jamaica)
    • 30 July 2004
    ...note to Allen v Sir Alfred McAlpine & Sons Ltd. [1968] 1 All ER 543, [1968] 2 QB 229 and Fitz Patrick v Batger & Co. Ltd. 2 All ER 657 [1967] 1 WLR 706. The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity......
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