Martin v Turner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE WINN,LORD JUSTICE KARMINSKI |
| Judgment Date | 06 October 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1006-2 |
| Date | 06 October 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J1006-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Chapman - in Chambers)
Lord Justice Davies
Lord Justice Winn and
Lord Justice Karminski
Mr. MICHAEL EASTHAM, Q.C. and Mr. E.H. LAUGHTON SCOTT (instructed by Messrs. Cripps, Harries, Willis & Carter, Agents for Messrs. Dunn & Baker, Exeter) appeared on behalf of the Applicant (Plaintiff).
Mr. MICHAEL TURNER (instructed by Messrs. Parks, Nelson & Dennes & Co., Agents for Messrs. Seldon, Ward & Nuttall, Bideford) appeared on behalf of the Respondent (Defendant).
(without calling upon Counsel for the Respondent)
This is the plaintiff's motion for leave to appeal from an order made in Chambers by Mr. Justice Chapman on, we are told, the 28th April, though in fact the order was formally dated the 24th June of this year. On the 28th April the learned judge had before him an appeal from an order of District Registrar Russell at Barnstaple made on the 15th January, 1969. The learned Registrar had before him two cross-summonses: one by the plaintiff for leave to serve a Statement of Claim many years out of time, and a summons by the defendant to dismiss the action for want of prosecution. The learned Registrar dismissed the plaintiff's summons, and on the defendant's summons made an order dismissing the action for want of prosecution.
We have had recently a great number of these cases of dismissal for want of prosecution - probably as a result of the decision of this Court in the case of Allen v. McAlpine. I have been in a few of them myself, as have I think both my lords; and I am bound to say that so far as the length of delay is concerned this case is almost an outstanding example.
Before going in any detail into the history of the matter, I will just give the main dates so far as the proceedings are concerned. The accident happened on the 29th May, 1960, nearly nine and a half years ago, when the plaintiff, who apparently had a milk round, was leaning over his milk float or milk delivery van and the defendant backed his motor car into the plaintiff, there- by causing the plaintiff quite serious injuries. He had in fact both his femurs broken. That was in May of 1960. I will for the moment pass over intervening events to note that on the 25th April, 1963, just one month within the period of limitation, a writ was issued. That writ was served on the 2nd April, 1964- that is to say just three weeks within the prescribed period within which a writ may be served. The defendant appeared to that writ, with alacrity, on the 7th April, 1964.
There was a discussion between the defendant's and theplaintiff's solicitors as to letting matters sleep for a time with a view to disposing of the action by settlement, hut communications between the parties ceased shortly after the defendant had appeared. Thereafter there was dead silence until the 31st July, 1968, that is to say four years later, when the plaintiff made an abortive attempt to serve a Statement of Claim without having given any notice of intention to proceed with the action. That is the history of the matter.
The learned judge decided, in a full and perhaps, for Chambers, an unusually long judgment, a note of which we have had the advantage of having read to us, that this delay was in- ordinate. Mr. Bastham, who has put forward everything that could be put forward on behalf of the appellant here, is forced to admit that the delay has been inordinate. But what is submitted on behalf of the appellant is that in all the circumstances this delay was not inexcusable and that it has not in fact been prejudicial to and would not be likely to be prejudicial to the defendant if the case were allowed to go on. What is asked on the appeal is: leave to appeal, which the learned judge refused, leave to appeal out of time, leave to amend the Notice of Appeal, the original one having been defective as it had not specified any grounds of appeal, and, finally and principally, a reversal of the judge's order.
I think it is necessary that I should (I hope not at any great length) say a little more about the history of the matter. As I have said, the accident having happened on the 29th May, 1960, the plaintiff's then solicitors, who had remained his solicitors throughout until I think the 7th April of this year, when a notice of change was given, acted with great promptitude, for on the 1st June they were instructed and on the following day they wrote to the defendant's insurance company giving notice of F claim.
The plaintiff was in hospital for a good many months, having, as I say, broken both his thighs. On the 9th September, whatever previous examinations had been made on behalf of theplaintiff, an orthopedic surgeon examined the plaintiff on behalf of the defendant. One may notice in passing, because this may be relevant as to the merits of the action, that we were told that on the 20th September the defendant pleaded guilty before a court of summary jurisdiction at Bideford to careless driving; so it is suggested, no doubt with force, that, although there had been no formal admission of liability, liability in this case is not really in dispute. In February, 1961, there was a joint medical examination by two surgeons, one for the plaintiff and one for the defendant. In November, 1962, there was another joint examination by these surgeons; and the final examination by the surgeons was on the 14th February, 1964. I do not propose to quote from any of those reports. The substance of it is this both the surgeons thought that the plaintiff had made an extremely good recovery: for some time there was some limitation of flexion of one knee (I think the left knee, but it matters not which), but in substance they said that he had made a wonderful recovery. There was some psychological overlay; and in report after report they emphasise that in the best interests of the plaintiff the claim should be settled as soon as possible, which was obviously common sense. In all the letters from the insurance company they were indicating their willingness, indeed their anxiety, to settle the claim, as one can well imagine.
We pass from there. I have given the date of the issue of the writ - April, 1963 - and its service and the appearance to it. The trouble throughout I do not want to criticise at all the solicitors who through most of the period were acting for him, as I have said has been the plaintiff himself. He has been steadfastly refusing to co-operate with his solicitors, steadfastly refusing to supply them with required information on which they could base a Statement of Claim, insisting that he could never work again for the whole of his life, and refusing when it was suggested to him to have psychiatric examination in order to see to what, if any, extent he had been affected by this accidentor if there was anything wrong with his head. It was not until April, 1968, that he finally consented to being seen by a psychiatrist, and the report of that psychiatrist is one of the matters on which Mr. Eastham strongly relies. Again only paraphrasing, Dr. Blair, who was the doctor in question, was of the opinion that this accident and the injury which the plaintiff suffered and the shock which he endured had affected greatly what on any view previous to the accident was a somewhat strange and odd personality. Dr. Blair in his final conclusion rather takes upon himself the mantle of a judge and says this (and I will quote this passage): "It is my belief that all the mental reactions which ensued from Mr. Martin's accident (from the purely psychiatric point of view with which I am concerned) rendered his unwanted" (sic) "delay in replying to your letters and issuing your instructions, explicable and excusable, and that from the legal perspective he knew what he was doing but did not appreciate that he was doing anything wrong".
From that view of the psychiatrist, accepting that the plaintiff's mental condition...
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The "Plato"
... ... where there has been no real dispute as to liability, the Court may still dismiss an action for want of prosecution : Gloria v Sokoloff ; Martin v Turner ... The application to dismiss ... The bank submits there has been inordinate and inexcusable delay by the plaintiffs resulting in ... ...
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...although I agree that it cannot carry much weight. My noble and learned friend Lord Edmund-Davies relied for the opposite view upon Martin v. Turner [1970] 1 W.L.R. at page 87. There Davies L.J. cited with approval the following passage from a judgment of Winn L.J. in an unreported case: "F......