Reynolds v British Leyland Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE STAUGHTON |
| Judgment Date | 31 January 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0131-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 1991 |
| Docket Number | 91/0067 |
[1991] EWCA Civ J0131-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
(MR JUSTICE OWEN)
Royal Courts of Justice
Lord Justice Russell
Lord Justice Staughton
91/0067
MR JOHN MITTING Q.C. and MR ANTHONY LOWE, instructed by Messrs Parkinson Wright (Droitwich), appeared for the Appellant (Plaintiff).
MR CHARLES HARRIS Q.C., instructed by Messrs Buller Jeffries, appeared for the Respondent (Defendant).
This is an appeal brought to this court with the leave of the single Lord Justice against a judgment of Mr Justice Owen who, sitting in Birmingham on 2nd March 1990, dismissed the plaintiff's appeal from an order that had been made by Mr District Registrar Jones, who on 22nd September 1989 had struck out the plaintiff's action for want of prosecution.
The claim was for damages for personal injuries arising out of what was alleged to have been an industrial accident that occurred as long ago as 6th May 1981. I use that phraseology because the accident alleged by the plaintiff was not notified to his employers at the factory where he was working in Longbridge timeously, and it was not in fact until 8th March 1983 that the defendants received the first formal notification of a claim from the solicitors, the Union solicitors then acting for the plaintiff.
The plaintiff alleged in the statement of claim that followed in February 1985, nearly four years after the accident, that on the material date he was attempting to move a piece of equipment using a metal lever when, by virtue of the conditions prevailing, he slipped and strained his back. In November 1981 he had undergone the operation of laminectomy and no doubt after that decided that proceedings with the assistance of his Union should be undertaken.
It is unnecessary in this judgment, in the light of concessions made by Mr Mitting on behalf of the plaintiff, to go into a mass of detail as to what transpired in the way of the conduct of this litigation after the writ and statement of claim had been served. A defence was served promptly. Thereafter there were applications for further and better particulars in an effort to elicit from the plaintiff precisely what had happened. For his part, as time went on, new allegations were made against the defendant employers. It was said that the equipment was defective, the floor was defective and so on. Eventually, in November 1986, the plaintiff's instructions to the Union solicitors were withdrawn because he was out of benefit with the union. It is right to say that the solicitors who are now subjected to criticism did not come on the scene until November 1986 and they are in no way responsible for the very inordinate delay that occurred prior to their instructions.
Unhappily, the delay continued until in February 1987 the action was transferred to the Birmingham District Registry. Very little happened thereafter and certainly very little which affected the defendants for some considerable time.
An engineer's report was obtained. In December 1988 the plaintiff's solicitors took out a summons seeking leave to inspect the scene of the alleged accident. That was a summons which almost inevitably was bound to fail because the plaintiff's solicitors had been put on notice that the scene of the accident had radically changed, that the equipment which was said to have been at fault was no longer in situ, and generally it would be impossible for any engineer to reconstruct what had happened. In passing it is to be observed that when the plaintiff's solicitors sought leave to inspect in December 1988 no step had been taken in the action since February 1987 and yet they did not see fit to serve notice of intention to proceed.
Moving into the year 1989 there were some unconventional steps taken by the plaintiff's solicitors. But before those steps were taken, the defendant's solicitors on 10th January 1989 wrote to the plaintiff's solicitors in these terms:
"Are you now in a position to have this action certified ready for trial because it really is now high time this action was brought to a conclusion. We look forward to hearing from you as soon as possible".
The response to that enquiry from the plaintiff's solicitors reads as follows, in their letter dated 10th January:
"We thank you for your letter of 10th January 1989.
The matter is not of course ready for trial.
Had you been able to provide us with further facilities for inspection of the scene of the accident the matter would have been much further forward than it is now. As you will be aware our application to the Court in this respect is listed for hearing on the 20th February. Little progress can be made until that application is heard and determined."
There the plaintiff's solicitors were indicating that, despite the assurance that inspection facilities would not avail the plaintiff, the solicitors were pursuing their summons. It was heard on 20th February 1989 and the inevitable consequence was that the application for leave to inspect was dismissed. That hearing was attended by solicitors acting for both the plaintiff and the defendants.
Order 25, rule 8 of the Rules of the Supreme Court provide, as is well known to those experienced in personal injury litigation, that automatic directions are appropriate. Despite that, and (as Mr Mitting on behalf of the plaintiff acknowledges) unusually and unconventionally, the plaintiff's solicitors on 22nd May 1989 issued a summons for directions. It was served on 5th June and was heard by the Registrar on 7th July 1989. The defendants' solicitors did not attend upon the hearing and an order matching the form of that which one finds by way of automatic direction in Order 25, rule 8 was made, save for a provision that the action had to be set down within 56 days.
In the meantime the defendants' solicitors had taken their first step toward having the action dismissed for want of prosecution. On 12th May 1989 they attended upon the Registry and took out such a summons, but they were allocated only five minutes for its disposal and not surprisingly that summons was not served. The order for directions to which I have referred having been made by the Registrar on 7th July, about a fortnight later on 21st July the defendants issued the summons for dismissal for want of prosecution.
Mr Mitting realistically acknowledges at once that the history which I have endeavoured to outline in summary form undoubtedly indicates that there was in this action inordinate, inexcusable and prejudicial delay for which the plaintiff's solicitors must be responsible. The short point taken here by way of appeal from the learned judge's decision is that although that delay could be pejoratively described as I have described it, nevertheless the defendants are not entitled to the relief that they seek because they have, by their activity or inactivity, created a situation whereby the plaintiff's solicitors were reasonably led to believe that the action could and would proceed.
In support of that proposition, where in Mr Mitting submits that no discretion is vested in the court, but that on the contrary the court is bound to disallow the application if the defendants have behaved as I have indicated, reliance was placed upon one reported...
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