Thorpe v Alexander Fork Lift Trucks Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE ORMROD |
| Judgment Date | 20 June 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0620-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 June 1975 |
[1975] EWCA Civ J0620-1
The Master of The Rolls (Lord Denning),
Lord Justice Roskill and
Lord Justice Ormrod.
In The Supreme Court of Judicature
Court of Appeal
Appeal (by leave of Mr. Justice Donaldson) by third defendants, Provincial Plant Hire Co. Limited., from order of Mr. Justice Donaldson on 21 April 1975.
Mr. M. TURNER, Q. C., and Mr. WILLIAM CROWTHER (instructed by Messrs. Hewitt, Wollacotte & Chown, agents for Messrs. Eking, Manning, Morris & Foster of Nottingham) appeared on behalf of the third defendants, Provincial Plant Hire Co. Ltd., Appellants.
Mr. O. B. POPPLEWELL, Q. C., and Mr. R. HUGHES (instructed by Messrs. Turner Peacock, agents for Messrs. Harrison Golds & Rushworth of Nottingham) appeared on behalf of the Respondent Plaintiff.
Mr. William Trevor Thorpe was engaged on a building site as a labour only sub-contractor. In common parlance, he was "on the lump". On 14th April 1971 he was injured. The arm of a fork-lift truck came down on his arm and broke it. He was not very severely injured. He brought an action against the contractors on the site. They were a firm called Rinetan Limited., who employed the driver of the fork lift truck. It would seem to be a very simple cause of action. The accident was on 14th April 1971. The writ was issued on 12th September 1973 against Rinetan Builders Limited., claiming that the driver was negligent in the working of the fork lift truck. Rinetan Builders Limited. put in a defence on 16th November 1973 saving that the arm of the fork lift dropped because it was defective. Rinetan said they had hired the fork lift truck from a company called Provincial Plant Hire Co. Limited. and had no knowledge that it was defective. On 31st December 1973 the plaintiff asked for further and better particulars. Rinetan took three months and then gave particulars which added nothing. They only said that "the fork lift truck was defective because the forks dropped without any act on the part of the operator to cause them to do so." But although those particulars told nothing, Mr. Thorpe's advisers had to protect his position. If the accident was due to defects in the fork lift truck, Mr. Thorpe might lose his action against Rinetan Limited. The time was running on too. The three years would expire on 14th April 1974. So Mr. Thorpe's advisers issued a "protective writ" against four other persons. They issued it on 10th April 1974, just within three years from the accident. They named as defendants (1) Alexander Fork Lift Trucks Ltd., the owners of the fork lift truck; (2) M. P. Excavators Ltd., who hired it from the owners; (3) Provincial Plant Hire Co. Ltd. who sub-hired it from M. P. Excavators Ltd.; and (4) a company called Trent Construction Co. Ltd., who were the contractorswho engaged Mr. Thorpe.
Although the writ was issued on 5th April 1974, it was not served on the defendants until November of 1974. That is 3½ years from the accident: six months after the Statute of Limitations had expired. The writ then was served accompanied by a statement of claim against all those four defendants. It was dated 30th October 1974. Three of the defendants have, I believe, delivered defences and the action is going on against them: but the third defendants did not deliver a defence. They took out a summons to dismiss for want of prosecution. The Registrar did dismiss the case as against the third defendants. But on appeal Mr. Justice Donaldson allowed the appeal because he thought this case did not come within the accepted principles. He thought that an action could not be dismissed for want of prosecution unless the plaintiff and his advisers had been in breach of one or other of the Rules of the Court.
Now I would like to say at once that I do net think that the power to dismiss is so limited. In the leading case of Allen v. McAlpine (1968) 2 Q. B. 229, the jurisdiction was held to exist, not only for a breach of the rules of Court, but also under the inherent jurisdiction of the Court for excessive delay. I said so myself in that case at page 245, and Lord Salmon did the same at page 268. So an action can be dismissed for want of prosecution, if there has been excessive delay, even though there may not have been any breach of one of the rules of Court.
In this case the third defendants do, I think, make out a prima facie case for dismissal. The plaintiff waited until almost the last day of the three years before issuing his writ against them. It was his duty then to get on with the case promptly. He was not entitled to take an extra year for service. As I said in Sweeney's case (1974) 1 W. L. R. 208, theplaintiff is not entitled to delay as of right for four years from the accident, three years before issuing the writ and another year for service. He has no such right. He is not entitled to delay at all. It is his duty, once the writ is issued, to serve it promptly and get on with it promptly. Lord Goddard said so in Battersby v. Anglo-American Oil Co. Ltd. (1945) 1 K. B. 23 at page 32: "It is the duty of a plaintiff who issues a writ to serve it promptly…. ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development." So in this case it was the duty of the plaintiff, having issued the writ, to serve it promptly and to proceed with the case with expedition. From the point of view of the third defendants the fact is this: In November of 1974 they were suddenly served with a writ and a statement of claim. It was in respect of an accident of which they had not heard anything at the time from anybody. They knew nothing about it at all. After 3½ years this writ was sprung upon them. That does seem to me to raise a prima facie case in which they can ask that the case be dismissed for want of prosecution, even though there was no breach of the rules of Court. It is for the plaintiff's advisers to explain what has happened: and to show, if they can, that the delay has not been inordinate or inexcusable. And regard can be had to the whole delay from the date of the accident to the date of the summons to dismiss.
I do not think the plaintiff's advisers have given a satisfactory explanation. In September of 1972 the plaintiff's advisers were told by representatives of insurers that the vehicle was owned by Alexander Fork Lift Trucks Ltd., who hired it to M. P. Excavators Ltd, who re-hired it to Provincial Plant Hire Ltd., who finally re-hired it to Rinetan Builders Ltd.So it does seem that from September 1972 onwards the plaintiff's advisers had as much information as they have ever had about the ownership and history of the vehicle. They ought to have brought all the defendants into the first action against Rinetan Ltd. which they started on 12th September 1973.
Assuming, however, that it was reasonable to sue Rinetan Ltd. only in the first place, the plaintiff's advisers have still to explain their delay in issuing the second writ in April 1974 against the four defendants and in serving it. The solicitors have given the Court their explanation. They say that although the writ was issued in April 1974, they did not serve it at once, because they had asked for particulars of Rinetan's defence. They did not get them until...
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...as a matter of decision; but in later cases, of which Sweeney v. Sir Robert McAlpine & Sons Ltd. [1974] 1 W.L.R. 200 and Thorpe v. Alexander Fork Lift Trucks Ltd. [1975] 1 W.L.R. 1459 are two examples that appear in the reports, it was stated obiter that the element of additional prejudic......
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...the defendant and or her solicitors.Counsel for the second defendant referred me to the case Thorpe v Alexander Fork Lift Trucks Ltd [1975] 3 All ER 579 in support of the proposition that even if a defendant were guilty of delay in filing the defence, he may nevertheless be entitled to an o......
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...Birkett v. James (1978) A.C. 297 at 318 Abiebge v. Ugbodume (1973) 1 S.C. 133 at 155-156 . Thorpe v. Alexander Fork Lift Trucks Ltd. (1975) 3 All E.R 579, Fawole Ajayi and Another v. Omorogbe (1993) 6 N.W.L.R. (Pt. 301) 512 at 534. It may also be exercised where without good cause a plainti......