Parker (William C.) Ltd v F. J. Ham & Son Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY |
| Judgment Date | 11 October 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1011-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 1972 |
[1972] EWCA Civ J1011-3
Lord Justice Russell
Lord Justice Buckley and
Lord Justice Crr
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Judgment of Mr Justice Phillips.
Mr R.O. HAVERY (instructed by Messrs Hatchett Jones & Co., Agents for Messrs Williams & Hatch, Dartford) appeared on behalf of the Appellants (Defendants).
Mr B J WAKLEY (instructed by Mr N. Lewis Holt, Agent for Mr M.J. Bonne11, Edmonson) appeared on behalf of the Respondents (Plaintiffs).
LORD JUSTICE RUSSELL This is an appeal by the Defendants in an action from a decision of Mr Justioe Phillips, who declined to allow the Plaintiffs' action to be dismissed for want of prosecution. Master Lubbock had been prepared to dismiss it for want of prosecution on the ground of non-compliance with Order 24, rule 2, which is the obligation to produce a list of documents within a stated period from the close of pleadings and failure to issue a Summons for Directions within a particular period, under Order 25 rule 1 Mr Justice Phillips allowed the appeal, accepting (as indeed is accepted before us) that the delay in this case after the pleadings wore closed, the delay on the part of the Plaintiff company, was inexcusable and inordinate, but coining to the conclusion that he was not satisfied on the evidence that the delay had been prejudicial, to the Defendants. The passage at page 391 of the Annual Practice chows in summary form what the situation is, that the power to dismiss for want of prosecution "should not be exercised unless the Court is satisfied" (and I leave out immaterial matters) "that there has boon inordinate and inexcusable delay on the part of the plaintiff or his lawyers" — that is established — "and 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 have caused serious prejudice to the defendants"
Now, the action was an action for damages for breach of two contracts for the sale by the Defendant company to the Plaintiff company of a total in the two contracts of 400 tons of stainless stool welding rods. The first contraot had boon for 100 tons and the second for 300 tons. The broach alleged — and really substantially it lo plain that the broach can beestablished — was delivery of only 75 out of the 100 tons under the first contract and total non-delivery of any of the tonnage under the second or 300-ton contract.
The contracts were in February and April, 1963. The Writ van not issued until the 16th October, 1967 The Statement of Claim was delivered on the 5th December, 1967 The Defence and revert for particulars of the Statement of Olaim wore dellworoad on the 27th June, 1968; and particulars of the Statement of Claim were delivered on the 13th December, 1968 The Defendants delivered a list of documents in March, 1969; but, as I have indicated, none was ever delivered by the Plaintiffs. On the 16th February, 1972, the Plaintiffs gave notice of an intention to proceed. That is under Order 3, rule 6. As a result of that the Defendants caused a summons to be is/sued two dismiss the action for want of prosecution.
Now, I have said it lo accepted that the delay after the issue of the Writ was inordinate and inexcusable, and the fault is to bo lain at the door of the Plaintiffs legal advisers but, in saying that, I wish to make it plain that the senior in the firm of Solicitors appearing toe the Plaintiffs and now instructing Counsel on behalf of the Plaintiffs was deceived by an Assistant Solicitor in his office who was supposed to have the conduct of this matter, and no diroot blame is to bo laid at his personal door
As I have said, the question is whether the learned Judge was right in concluding that ho was not uatlsfiod that the Defendants were at a substantial risk of there not being able to bo had a fair trial and that there was no prejudice to the Defendants by the delay. As I indicated, broadly peaking there oould bo, as I see it, no Question of doubt about liability or theexistence of a breach What is said, however, is this If you look at the claim, which is for damages, you will find in paragraph 8 this statement: "On 1st March 1963 the Plaintiffs contracted to sell to A.P.V. Paramount Limited 350 tons of stainless steel welding rods at £55 Per ton delivered, to be delivered at the rate of 30 tons per month. 9 It was impossible to acquire stainless steel welding rods of the same type in the open market in the period between March and June 1963 and the Plaintiffs were unable to fulfill the contract set out in paragraph 8. 10. By reason of the Defendants' failure to deliver the said welding rods the Plaintiffs lost their profit under the contract set out in paragraph 8 hereof and were unable to sell the balance of 50 tons at a similar price" The purchase price, I should have indicated, for the first 100 tons was £39 a ton, and for the second lot of 300 tons under the agreement between the parties was £41 a ton; and on that basis the damages claimed are of the order of £5,000, based on an inability to sell 400 tons purchased at the prices I have indicated at a price of £55 a ton
Now, what is said on behalf of the Defendant Appellants is this, that they are prejudiced by the delay, in that they are not able now to find out what were the facts at the time of the alleged breach of contract...
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Birkett v James
...in any event from the late issue of the writ however diligently the action were to be prosecuted thereafter. 29In William C. Parker Ltd. v. F. J. Ham & Son Ltd. [1972] 1 W.L.R. 1583 this question was answered in the affirmative as a matter of decision; but in later cases, of which Sweeney ......
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...Court of Appeal I would hold the principle to be that which had been laid down in William Parker Ltd. v F J Ham & Son Ltd. [1972] 3 All ER 1051, [1972] 1 WLR 1583. To justify dismissal of an action for want of prosecution some prejudice to the defendant additional to that inevitably flowin......