Shtun v Zalejska

JurisdictionEngland & Wales
Judgment Date28 March 1996
Judgment citation (vLex)[1996] EWCA Civ J0328-2
Docket NumberNo CHANI 95/0106/B
CourtCourt of Appeal (Civil Division)
Date28 March 1996
Musij Shtun
Urszula Zaljeska

[1996] EWCA Civ J0328-2

On Appeal From Order of Mr D K Oliver QC (Sitting as a Deputy High Court Judge)

Before: Lord Justice Neill Lord Justice Peter Gibson Lord Justice Hobhouse

No CHANI 95/0106/B



MR PAUL RIPPON (Instructed by Kirkwoods of Stanmore, Middlesex) appeared on behalf of the Appellant.

MR JAMES CHAPMAN (Instructed by Gerard Hales & Co of Ealing London) appeared on behalf of the Respondent.


( )


Once again, this court is required to revisit the much travelled territory of the circumstances in which an action will be struck out for want of prosecution. Such was the delay in the present case that Master Barratt dismissed the action and the Deputy Judge, Mr Oliver QC, was tempted, in his words, to uphold the decision, but he felt constrained by the decision of this court in another case not to yield to that temptation. Accordingly, on the 20th May 1994 he allowed the appeal of the plaintiff, Mr Shtun, from the order of the Master who had acceded to the application of the defendant, Mrs Zaljejska, to strike out. The defendant now appeals with the leave of the Deputy Judge.


The dispute between the parties arises out of events which go as far back as 1978. In June 1978 the plaintiff and the defendant first met. They were both divorced. They co-habited from time to time. The plaintiff in the statement of claim pleads that in the autumn of that year he decided to acquire premises which he could run jointly with the defendant as a bed and breakfast hotel and that in April 1979 he finally decided to buy 24 Cavendish Road, Kilburn NW6, a 100 year old property in considerable disrepair and aa with sitting tenants. The purchase price was £12,950. He says that in May 1979 he instructed his solicitors that the purchase should be in the name of the defendant. He pleads that he provided his solicitors with the purchase moneys, that of these £3,000 was obtained by the defendant by way of a bank loan guaranteed by the plaintiff and a further sum of about £3,300 came from a bank account which was opened by him for and in the name of the defendant in November 1978 into which the plaintiff had deposited £3,500. He says that on 1st August 1979 his solicitors notified the vendor's solicitors that the plaintiff wished the transfer to be in the name of the defendant and, consequently, she was registered as the legal owner of the property.


The defendant's pleaded version of these events differs in some details. She says that on her birthday on 3rd November 1978 the plaintiff gave her £3,500 which, together with the gift of £6,500 from the plaintiff and the £3,000 bank loan, was used for her purchase of the property. In further and better particulars of the allegation of the gift of £6,500, she says that the plaintiff had told her that he wished to purchase the property for her in appreciation of the work carried out by her while the parties had been living together as man and wife, during which time she had been working for his benefit, that prior to the purchase of the property they had inspected the property and he had told her that he would buy it for her and, after they moved into the property, he had told her that the property was all hers.


The plaintiff claims that he carried out works of conversion and refurbishment of the property in 1979 and 1980, and he puts a value of nearly £20,000 on his services and payments to contractors. The defendant says that the plaintiff, the defendant and her daughter carried out work to the property and that the materials were provided partly at the defendant's expense. She says that since August 1979 she let various rooms at the property and she and her daughter provided services such as the cleaning of rooms, laundry and breakfast. The plaintiff says that in June 1980 the property was opened for business as a bed and breakfast hotel and that he permitted her to collect moneys from guests at the property on the understanding that she would account to him for the moneys received. That is denied by her.


The plaintiff relies on a letter dated 15th September 1980 from the defendant's solicitors to the plaintiff's solicitors in which it is admitted by the defendant that beneficially the house belonged to the plaintiff and the defendant in equal shares and complaint is made that the plaintiff refused to share the expenses on the ground that he had said that the house belonged to her. The plaintiff in the statement of claim says that he refused to share in the expenses and disclaimed ownership of the property. The defendant says that the admission in the letter was made under duress from the plaintiff who had threatened her with abuse and violence. However, she accepts that her solicitors knew of the duress before writing the letter on 15th September 1980. The plaintiff's solicitors wrote on 17th September 1980 to the defendant's solicitors, asking for the property to be placed in joint names. That was refused on 2nd October 1980.


The plaintiff had lived in the property since 1980, but from 25th August 1980 lived in a different part of the property. The defendant excluded the plaintiff from the premises and, on 24th October 1984, he commenced proceedings against her. In a lengthy statement of claim which, with its appendices, amounts to 16 closely typed pages, he claimed -


(a) the dissolution of any partnership between them, (b) a declaration that she held the property on trust for him absolutely, alternatively


(3) a declaration as to his share of the beneficial interest in the property,


(4) an order for sale and division of the proceeds,


(5) an account of all rents and payments received by the defendant,


(6) damages for wrongful exclusion, and


(7) damages for wrongful interference with his goods.


On 19th April 1995 the defence and counterclaim was served. By the counterclaim the defendant claims an account of all rents and payments received by the plaintiff from the property, mesne profits and damages for wrongful interference with her goods.


On 28th June 1985 the plaintiff sent a reply and a defence to the counterclaim to the defendant. Pleadings therefore closed in July 1985.


Within four weeks after the close of pleadings, the plaintiff should have issued a summons for directions. This was not done until 18th December 1986. Prior to that, on 7th November 1986, the plaintiff had served a notice of intention to


proceed. In the summons for directions the plaintiff asked for an order compelling the delivery of further and better particulars of the defence and counterclaim, a request made on 3rd July 1985 having gone unanswered by the defendant. On 18th February 1987 at the hearing of the summons for directions the Master ordered service by the defendant of the further and better particulars requested by 18th March 1987, service of lists of documents by 4th February 1987 and the setting down by the plaintiff of the action by 15th April 1987 for a 3-day trial. The defendant failed to serve any further and better particulars until after the plaintiff had issued a summons for an unless order on 3rd September 1987. When they were served on 4th November 1987 they were inadequate. In December 1987 the Master ordered the defendant to serve further and better particulars of those already served. On 12th January 1988 the defendant at last complied with the order.


The plaintiff did not set down the action until 29th April 1988. Neither party had at that date complied with the order for service of lists of documents. On 14th November 1989 the defendant served her list. Prior to that date her solicitors had accepted that the case should be taken out of the list pending discovery. On 30th January 1990 she sought by summons an unless order in respect of the plaintiff's failure to supply his list of documents. Before the hearing the plaintiff on 27th February 1990 served his list. On 22nd May 1991 the defendant's solicitors wrote to the plaintiff's solicitors, complaining of the incompleteness of the plaintiff's list. No response had been received to that letter when, on 10th September 1991, the defendant's solicitors wrote to the plaintiff's solicitors


threatening to issue a summons for dismissal of the action for want of prosecution. On 17th September 1991 the plaintiff served a further list of 40 documents. Nothing further happened until 4th May 1993 when the plaintiff served a notice of intention to proceed. On 14th July 1993 the defendant's solicitors wrote to the plaintiff's solicitors, indicating that they considered that the action had lapsed. On 9th September 1993 the defendant issued a summons for an order that the action be dismissed for want of prosecution.


On 17th January 1994 Master Barratt dismissed the action. The plaintiff then appealed and on 20th May 1994 the Deputy Judge allowed the appeal. As he said:

"That chronology indicates the desultory pace at which this matter has, since its inception, proceeded."


He said that the case involved three periods of delay. The first was the period of 4 years prior to the issue of proceedings. That period is between 2nd October 1980 and 24th October 1984 when the action commenced. The second was a period of 20 months between the service of the defence and counterclaim and the issue of the summons for directions. More accurately, that is a period from 4 weeks after the close of pleadings (the time allowed by O. 25,r.1), that is to say mid-August 1985, to 18th December 1986, a period of 16 months during which the defendant was in default in responding...

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