House of Lords - Grovit and Others v. Doctor and Others

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House of Lords

Session 1996-97
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Judgments

Judgments - Grovit and Others v. Doctor and Others

HOUSE OF LORDS

  Lord Goff of Chieveley   Lord Woolf   Lord Nicholls of Birkenhead   Lord Steyn   Lord Clyde

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

GROVIT AND OTHERS
(APPELLANTS)
v.

DOCTOR AND OTHERS
(RESPONDENTS)
ON 24 APRIL 1997

LORD GOFF OF CHIEVELEY

My Lords,

1       I have had the advantage of reading in draft the speech of my noble and learned friend Lord Woolf. I agree that, for the reasons he gives, this appeal should be dismissed.

LORD WOOLF

My Lords,

2       This appeal concerns the powers of the court to strike out proceedings. On 30 October 1992 Mr. John Crowley, Q.C. sitting as a Deputy High Court judge ordered that the writ and statement of claim in these proceedings should be struck out and the action dismissed for want of prosecution. The judge gave leave to appeal and on 28 October 1993 the Court of Appeal, (Glidewell and Evans L.JJ.), dismissed that appeal.

The Present Approach

3       The approach which is adopted at the present time by courts on an application to dismiss an action for want of prosecution is set out by Lord Diplock in Birkett v. James [1978] A.C. 297, 318F-G. Lord Diplock basing himself upon a note in the Supreme Court Practice (1976) to R.S.C., Ord. 25, r. 1, said:

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) 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 cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

4       In Birkett v. Jamestheir Lordships were concerned only with the application of principle (2). In this case the courts below have been concerned with both principles (1) and (2). On this appeal Mr. Isaac Jacob on behalf of the appellant identifies the primary issue to be determined as being:

"Can inexcusable and inordinate delay (if stigmatised as an abuse of process) constitute or be treated as, prejudice without the need for the defendant to show actual prejudice or a substantial risk that a fair trail of the actual would be impossible? Alternatively is it permissible to take elements which might (but are not sufficient on their own to) amount to a ground for striking out for abuse of process, combine them with delay and treat the combination as an additional and hybrid ground for striking out?"

5       Mr. Jacob submits that this appeal raises that issue because the conduct by the plaintiff of which complaint is made is insufficient by itself to amount to an abuse of the process of the court so as to satisfy principle (1). Furthermore principle (2) is not satisfied since, although Mr. Jacob accepts there has been inordinate and inexcusable delay, there has been no serious prejudice to the defendants.

6       Although principle (1) links abuse of process with delay which is intentional and contumelious, the prevention of abuse of process, has by itself long been a ground for the courts striking out or staying actions by virtue of their inherent jurisdiction irrespective of the question of delay and Lord Diplock's statement of the principles does not affect this separate ground for striking out or staying proceedings.

The Criticisms of the Present Approach

7       The requirement laid down by the second principle that the delay has to cause "serious prejudice" to the defendants can and has been the subject of criticism. It is suggested:

8 (1) The effectiveness of the court's power to strike out proceedings as a sanction against delay is undermined by the need to show prejudice to the defendants. This requirement prevents the court taking into account the adverse effect which delay can have on the reputation and efficiency of the civil justice system as a whole. Defendants (for reasons which will be explained later) find it difficult to establish prejudice, so the requirements of the Rules of the County Court as to time can usually be ignored with a reasonable degree of confidence that nothing very serious will happen in consequence. Actions therefore take much longer to come to trial than they should and the general impression given to the public is that litigation is a very long drawn-out process with which they should try to avoid becoming involved.

9 (2) What is regarded as capable of amounting to prejudice is too restricted. Normally little regard is paid to the anxiety caused to litigants as a result of litigation. The fact that a defendant will normally recover his costs if he succeeds is regarded as providing a sufficient protection to the defendant for the consequence of being involved in the proceedings. This is far from being the position, the costs payable do not usually indemnify the defendant for the cost actually incurred and their recovery is delayed.

10 (3) In order to establish prejudice a defendant is required usually to show that the delay has prejudiced him in the conduct of his defence. This will involve him in having to demonstrate, for example, that his witnesses, recollection has been adversely affected. Relying on this sort of ground is all right from the defendants point of view if the action is struck out but can be unfortunate if the action is not struck out since he has undermined his own case by his comments about his witnesses.

11       However, the criticisms of Birkett v. James [1978] A.C. 297 were considered by the House in Department of Transport v. Chris Smaller Transport Ltd. [1989] A.C. 1197. Lord Griffiths in a speech with which the other members of the House agreed, referred at pp. 1204-1205 to a statement of Kerr L.J. in his judgment in Westminster City Council v. Clifford Culpin & Partners (unreported), 18 June 1987; Court of Appeal (Civil Division) Transcript No. 592 of 1987, that our law needs to be changed both in substance and procedurally and, that the principles laid down in Birkett v. James are unsatisfactory and inadequate. They are far too lenient to deal effectively with excessive delays. Moreover they then breed excessive further delays and costs in their application. Similar misgivings were expressed by Mustill L.J.

12       Lord Griffiths however, concluded, (p. 1206) that the time was not appropriate to adopt a different approach in accordance with Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234, 1235-1236. Lord Griffiths added, at p. 1207:

"To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court control case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by Rules of Court as modified by a judge ; See the Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd 394)."

13       Lord Griffiths went on to point out that the principles to which reference has already been made are now well understood. He stated that he was not persuaded that there should be abandonment of the need to show that post writ delay would either make a fair trial impossible or prejudice of the defendant. As to that prejudice he added, at p. 1209, that it "may be of varying kinds and it is not confined to prejudice affecting actual conduct of the trial".

14       The period which has elapsed since Lord Griffith's speech has not seen any improvement in the problems caused by delay in the conduct of civil proceedings. In the county court a response to the corrosive effect of delay has been to introduce the automatic strike-out (C.C.R. Ord. 17, r. 11(9)). However this has proved to be a crude remedy the effects of which have not been wholly beneficial. It has funded an industry of satellite litigation. Furthermore, there is now on the horizon the introduction of the sort of process of reform to the rules of procedure which Lord Griffiths thought was required. In this situation it is at least open to question whether it is not preferable to await the outcome of the implementation of the new rules before making a substantial inroad on the principles endorsed by Lord Diplock in Birkett v. James [1978] A.C. 297. They should by case management prevent the delay happening. If delays do happen they could provide the court with wider powers to mitigate the consequences.

15       In the meantime both the court and defendants have the means to achieve greater control over delay. Defendants do not need to wait until there has been inordinate delay before apply for peremptory orders (although they are under no obligation to do this). The courts should more readily make "unless orders." That is orders that an action should be struck out unless certain steps are taken at certain times. The advantage of such an order is that it places the onus on the plaintiff to justify the action being allowed to continue whereas in the case of an application to strike out the onus is on the defendant to show the action should be struck out.

16       Certainly this appeal is not an appropriate vehicle for making significant inroads on the principles endorsed by Lord Diplock in Birkett v. James.The respondents are not represented and so their Lordships have not had the advantage of subjecting submissions by counsel in favour of such a change to the scrutiny which is a desirable condition of precedent to such a change.

17       Having set out this context in which the main issue identified by Mr. Jacob has to be considered I turn to examine the facts which give rise to this appeal.

The Facts

18       In addition to Felix Fareed Ismail Grovit, the appellant, Berkeley Administration Incorporated was a plaintiff.

19       Paragraph 1 of the statement of claim stated that this second plaintiff had conduct of the proceedings on behalf of all companies and bodies corporate owned whether directly or indirectly by the Inver Trust of whic

	HOUSE OF LORDS Lord Goff of Chieveley Lord Woolf Lord Nicholls of Birkenhead Lord Steyn Lord Clyde OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE GROVIT AND OTHERS (APPELLANTS) v. DOCTOR AND OTHERS (RESPONDENTS) ON 24 APRIL 1997 LORD GOFF OF CHIEVELEY My Lords,
1	I have had the advantage of reading in draft the speech of my noble and learned friend Lord Woolf. I agree that, for the reasons he gives, this appeal should be dismissed. LORD WOOLF My Lords,
2	This appeal concerns the powers of the court to strike out proceedings. On 30 October 1992 Mr. John Crowley, Q.C. sitting as a Deputy High Court judge ordered that the writ and statement of claim in these proceedings should be struck out and the action dismissed for want of prosecution. The judge gave leave to appeal and on 28 October 1993 the Court of Appeal, (Glidewell and Evans L.JJ.), dismissed that appeal. *The Present Approach*
3	The approach which is adopted at the present time by courts on an application to dismiss an action for want of prosecution is set out by Lord Diplock in Birkett v. James [1978] A.C. 297, 318F-G. Lord Diplock basing himself upon a note in the Supreme Court Practice (1976) to R.S.C., Ord. 25, r. 1, said: "The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) 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 cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
4	In Birkett v. Jamestheir Lordships were concerned only with the application of principle (2). In this case the courts below have been concerned with both principles (1) and (2). On this appeal Mr. Isaac Jacob on behalf of the appellant identifies the primary issue to be determined as being: "Can inexcusable and inordinate delay (if stigmatised as an abuse of process) constitute or be treated as, prejudice without the need for the defendant to show actual prejudice or a substantial risk that a fair trail of the actual would be impossible? Alternatively is it permissible to take elements which might (but are not sufficient on their own to) amount to a ground for striking out for abuse of process, combine them with delay and treat the combination as an additional and hybrid ground for striking out?"
5	Mr. Jacob submits that this appeal raises that issue because the conduct by the plaintiff of which complaint is made is insufficient by itself to amount to an abuse of the process of the court so as to satisfy principle (1). Furthermore principle (2) is not satisfied since, although Mr. Jacob accepts there has been inordinate and inexcusable delay, there has been no serious prejudice to the defendants.
6	Although principle (1) links abuse of process with delay which is intentional and contumelious, the prevention of abuse of process, has by itself long been a ground for the courts striking out or staying actions by virtue of their inherent jurisdiction irrespective of the question of delay and Lord Diplock's statement of the principles does not affect this separate ground for striking out or staying proceedings. *The Criticisms of the Present Approach*
7	The requirement laid down by the second principle that the delay has to cause "serious prejudice" to the defendants can and has been the subject of criticism. It is suggested:
8	(1) The effectiveness of the court's power to strike out proceedings as a sanction against delay is undermined by the need to show prejudice to the defendants. This requirement prevents the court taking into account the adverse effect which delay can have on the reputation and efficiency of the civil justice system as a whole. Defendants (for reasons which will be explained later) find it difficult to establish prejudice, so the requirements of the Rules of the County Court as to time can usually be ignored with a reasonable degree of confidence that nothing very serious will happen in consequence. Actions therefore take much longer to come to trial than they should and the general impression given to the public is that litigation is a very long drawn-out process with which they should try to avoid becoming involved.
9	(2) What is regarded as capable of amounting to prejudice is too restricted. Normally little regard is paid to the anxiety caused to litigants as a result of litigation. The fact that a defendant will normally recover his costs if he succeeds is regarded as providing a sufficient protection to the defendant for the consequence of being involved in the proceedings. This is far from being the position, the costs payable do not usually indemnify the defendant for the cost actually incurred and their recovery is delayed.
10	(3) In order to establish prejudice a defendant is required usually to show that the delay has prejudiced him in the conduct of his defence. This will involve him in having to demonstrate, for example, that his witnesses, recollection has been adversely affected. Relying on this sort of ground is all right from the defendants point of view if the action is struck out but can be unfortunate if the action is not struck out since he has undermined his own case by his comments about his witnesses.
11	However, the criticisms of Birkett v. James [1978] A.C. 297 were considered by the House in Department of Transport v. Chris Smaller Transport Ltd. [1989] A.C. 1197. Lord Griffiths in a speech with which the other members of the House agreed, referred at pp. 1204-1205 to a statement of Kerr L.J. in his judgment in Westminster City Council v. Clifford Culpin & Partners (unreported), 18 June 1987; Court of Appeal (Civil Division) Transcript No. 592 of 1987, that our law needs to be changed both in substance and procedurally and, that the principles laid down in Birkett v. James are unsatisfactory and inadequate. They are far too lenient to deal effectively with excessive delays. Moreover they then breed excessive further delays and costs in their application. Similar misgivings were expressed by Mustill L.J.
12	Lord Griffiths however, concluded, (p. 1206) that the time was not appropriate to adopt a different approach in accordance with Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234, 1235-1236. Lord Griffiths added, at p. 1207: "To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court control case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by Rules of Court as modified by a judge ; See the Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd 394)."
13	Lord Griffiths went on to point out that the principles to which reference has already been made are now well understood. He stated that he was not persuaded that there should be abandonment of the need to show that post writ delay would either make a fair trial impossible or prejudice of the defendant. As to that prejudice he added, at p. 1209, that it "may be of varying kinds and it is not confined to prejudice affecting actual conduct of the trial".
14	The period which has elapsed since Lord Griffith's speech has not seen any improvement in the problems caused by delay in the conduct of civil proceedings. In the county court a response to the corrosive effect of delay has been to introduce the automatic strike-out (C.C.R. Ord. 17, r. 11(9)). However this has proved to be a crude remedy the effects of which have not been wholly beneficial. It has funded an industry of satellite litigation. Furthermore, there is now on the horizon the introduction of the sort of process of reform to the rules of procedure which Lord Griffiths thought was required. In this situation it is at least open to question whether it is not preferable to await the outcome of the implementation of the new rules before making a substantial inroad on the principles endorsed by Lord Diplock in Birkett v. James [1978] A.C. 297. They should by case management prevent the delay happening. If delays do happen they could provide the court with wider powers to mitigate the consequences.
15	In the meantime both the court and defendants have the means to achieve greater control over delay. Defendants do not need to wait until there has been inordinate delay before apply for peremptory orders (although they are under no obligation to do this). The courts should more readily make "unless orders." That is orders that an action should be struck out unless certain steps are taken at certain times. The advantage of such an order is that it places the onus on the plaintiff to justify the action being allowed to continue whereas in the case of an application to strike out the onus is on the defendant to show the action should be struck out.
16	Certainly this appeal is not an appropriate vehicle for making significant inroads on the principles endorsed by Lord Diplock in Birkett v. James.The respondents are not represented and so their Lordships have not had the advantage of subjecting submissions by counsel in favour of such a change to the scrutiny which is a desirable condition of precedent to such a change.
17	Having set out this context in which the main issue identified by Mr. Jacob has to be considered I turn to examine the facts which give rise to this appeal. *The Facts*
18	In addition to Felix Fareed Ismail Grovit, the appellant, Berkeley Administration Incorporated was a plaintiff.
19	Paragraph 1 of the statement of claim stated that this second plaintiff had conduct of the proceedings on behalf of all companies and bodies corporate owned whether directly or indirectly by the Inver Trust of whic