Janov v Morris
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,LORD JUSTICE DUNN |
| Judgment Date | 17 July 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0717-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0350 |
| Date | 17 July 1981 |
[1981] EWCA Civ J0717-2
Lord Justice Dunn
Lord Justice Watkins
81/0350
1980 J No 6213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(INTERLOCUTORY LIST)
Royal Courts of Justice
MR R. MILLER (instructed by Messrs Park Nelson & Doyle Devonshire, agents for Messrs Lock, Solicitors, Dorchester) appeared on behalf of the Appellant.
MR M. STRACHAN (instructed by Messrs Myers, Ebner & Deaner) appeared on behalf of the Respondent.
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This is an appeal from an Order of Mr Justice Smith made in Chambers on the 1st April 1981, whereby he allowed an appeal from an Order of Master Elton, who had struck out an action on the grounds that the action was an abuse of the process of the Court.
The action, which is No. JC 213 of 1980 arose out of a contract for the sale of a yacht which had been made in April 1978. On the 7th August 19 78, the Plaintiff, the seller of the yacht, had brought an action, No 4563, claiming damages for non-acceptance of the yacht. A Defence was delivered in October 1978, disputing the contract and setting up a counterclaim for damages for non-delivery.
Various steps were taken in the action, and on the 23rd May 1979, Further and Better Particulars of the Defence and Counterclaim were delivered pursuant to a request which had been made on the 1st February.
No further step was then taken in the action until the 10th March 1980—a period of very nearly 10 months—when the Defendant applied to strike out the action for want of prosecution. His Solicitor swore an Affidavit in support of that application.
There was no Affidavit in reply by the Plaintiff, and on the 21st March 1980 the Master made an Order that the action would be struck out unless the Plaintiff served his Summons for Directions by the 1st April 1980. There was no appeal by the Plaintiff against that Order; no explanation was given for the delay and no application was made to extend the time for service of the Summons for Directions.
So accordingly, on the 2nd July 1980, the Master gave Judgment on the claim for the Defendant, but ordered the Counterclaim to stand, and directed that proceedings should be issued under Order 14 in respect of the Counterclaim.
On the 13th August 1980, the Defendant filed an Affidavit under Order 14 in respect of the Counterclaim.
On the 9th September 1980, the Plaintiff issued a second Writ, which is the Writ with which we are presently concerned, No. 6213, in which he relied on precisely the same cause of action as in the Writ No. 4563 which had been effectively struck out only two months before.
The Defendant then issued a Summons under Order 18 rule 19 to strike out that new Writ on the ground that it was an abuse of the process of the Court.
Meanwhile, in the first action, the Plaintiff filed an Affidavit in the Order 14 proceedings on the 14th November 1980, and was given leave to defend the Counterclaim, on the 5th December 1980. So that the Counterclaim in the first action is still alive, but if this second action is struck out, then effectively the Plaintiff is debarred from proceeding with his claim for damages for non-acceptance.
The Defendant's application to strike out came before the Master on the 2nd March 1981, when the Master made the Order striking out the second action, and on the 1st April the learned Judge rescinded that Order, and it is against that Order of the learned Judge that the Defendant now appeals.
The Defendant relies on paragraph 1(d) of Rule 19 of Order 18 which provides: "That the Court may at any stage in the proceedings order to be struck out any pleading or the endorsement of any Writ in the action on the ground that it is otherwise an abuse of the process of the Court".
What is said, quite shortly, on behalf of the Defendant is that this claim, having been struck out once in an action raising an identical cause of action, it would be an abuse of the process of the Court to allow it to be resurrected.
What is said on behalf of the Plaintiff, effectively, is this, that since the period of limitation for the original cause of action does not expire until 1984, the Plaintiff is entitled to bring a second action at any time within that limitation period, notwithstanding that his original claim was struck out by reason of his failure to comply with a peremptory Order.
The learned Judge accepted that, and we have been told that he accepted it, primarily, because he relied on a dictum of Lord Edmund Davies, in the well-known case of Birkett -v-James, 1978 AC 297. The difficulty in the case arises because there are what were submitted to be inconsistent obiter dicta in the case of Birkett -v- James, and also in the more recent case of Tolley-v-Morris 1979 1 WLR 592.
It is important to remember that both Birkett-v-James and Tolley-v-Morris were concerned with applications to strike out actions for want of prosecution on the ground of inordinate and inexcusable delay. They were not concerned, as is this case, with an application to strike out under Order 18, rule 19, where there had been a failure by the Plaintiff to comply with a peremptory Order in a previous action.
Ever since Allen-v-McAlpine & Sons Ltd. 1968 2 QB 229, it has been accepted that the power of the Court to strike out actions for want of prosecution should be exercised only where the Court is either satisfied that there has been an intentional and contumelious default—for example, disobedience of a peremptory order of the Court—or that there has been inordinate and inexcusable delay. And although Birkett-v-James was dealing with the second ground, there are obiter dicta relating to the first ground which are, of course, of persuasive authority in this Court, although not binding upon us.
At 321 of the Report in Birkett-v-James, Lord Diplock said: "The Court may and ought to exercise such powers as it possesses under the rules to make the Plaintiff pursue his action with all proper diligence, particularly where at the trial the case will turn upon the recollection of witnesses to past events. For this purpose the Court may make peremptory orders providing for the dismissal of the action for noncompliance with its order as to the time by which a particular step in the proceedings is to be taken. Disobedience to such an order would qualify as 'intentional and contumelious' within the meaning of the first principle laid down in Allen-v-McAlpine. But where no question of non-compliance with a peremptory order is involved the Court is not in my view entitled to treat as 'inordinate delay' justifying dismissal of the action in accordance with the second principle in Allen-v-McAlpine a total time elapsed since the accrual of the cause of action which is no greater than the limitation period within which the statute allows plaintiffs to start that action. To...
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Aktas v Adepta
...have been raised before.” 43 In the context of delay in the conduct of litigation, there is a line of cases which goes back at least to Janov v. Morris [1981] 1 WLR 1389. That case concerned a claim for damages for breach of contract. Following the service of a defence, the action went to s......
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Baljit Singh Bhandal v HM Revenue and Customs
...claim had been struck out for failure to obey a peremptory order, in which the courts have expressed more of a willingness to do so (e.g. Janov v Morris [1981] 1 WLR 1398). In Janov v Morris, the claimant had had a first action struck out because, without explanation, he had failed to compl......
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