Striking out for want of prosecution: no scope for delay

It is back. The ancient jurisdiction to strike out a civil claim for want of prosecution, enshrined in the old Rules of Court and seemingly removed on 26 April 1999 with the arrival of the Civil Procedure Rules (CPR).

The underlying principle was that if a plaintiff (now claimant) allowed an issued action to become dormant, the defendant could pounce and seek dismissal of the claim. There was no obligation upon the defendant to prompt the other side. Indeed, 'The White Book ' explicitly recognised the right to ‘let sleeping dogs lie’. Typically, the defendant would make noises about memories fading and the diminished ability to secure a fair trial.

The Empire Strikes Back

Fast forward to today and striking out for want of prosecution (SOWP) is back with a vengeance. This raises a risk for claimants and a corresponding opportunity for defendants. There was an oblique reference to the concept in Denton and Others v TH White [2014] where Lord Justice Jackson succinctly stated: “What litigants need is finality, not procrastination.”

Indeed, the appeal in Denton was allowed because, by allowing in late witness statements, the judge had thrown away a ten-day fixture which in turn caused a further 17 months of delay in listing the hearing. This last point does not appear in the transcript.

In Solland International v Clifford Harris & Co [2015], the claimant had failed to file a listing questionnaire due 31 months earlier. The defendant applied for a strike out and in response, the claimant then served the questionnaire and sought relief from sanctions. The court held that no automatic sanction for this breach existed. Instead, the court had the ability to make whatever order it felt appropriate. The chronic failure to progress the matter was evidence of a dilatory attitude which was unacceptable, which constituted an abuse of process; striking out was therefore warranted under CPR3.4(2) and the professional negligence claim put at £4 million against a firm of solicitors was dismissed. An appeal upheld the decision.

Master Matthews has recently delivered a staggeringly comprehensive analysis of the law in Phelps v Button [2016]. He draws upon decisions going back to 1969 in another strike out application. The novelty of this case is that the claimant had won insofar as that he had obtained a liability judgment after a hearing in February 2007. Directions were then given for the determination of quantum. That order was not honoured and so a further order to similar effect was made September 2010. That too went unfulfilled.

Unlucky for some

In October 2016, the action came before Master Matthews; some 13 years on from the commencement of proceedings. There were two applications before the court: the claimant wanted the matter listed for what it described as a quantum hearing and the defendant retaliated with an application to strike out for abuse.

A core observation made by the Master, drawing upon a series of authorities, is that the abuse of process concept is not engaged solely on account of delay in the prosecution of a claim; there must be more. He found it. The unexplained and unacceptable delay meant that the quality of a trial today would be greatly diminished compared with one that ought rightly to have been concluded in perhaps 2008:

...defendants are still entitled to all the usual advantages of a proper trial in the English sense, and that includes pre-trial disclosure and the ability to obtain documents where relevant from third parties.

The suggestion that the defendant contributed to the delay was swept aside. It is the duty of the claimant, who launched the litigation, to conclude proceedings in a timely fashion.

One further observation from Phelps ought to be noted by everyone who conducts litigation: “We no longer have the luxury of being able to schedule repeat performances of hearings because the parties are not ready. It is a much harder game to play”.

Indeed, the ethos of litigation practice has been transformed in recent years. That, for example, is why late amendments to pleadings are now nigh impossible to secure. This was explained with her customary clarity by Mrs Justice Carr in Su-Ling v Goldman Sachs International [2015], a decision that Jackson LJ believes to be one of the most important of that year and is compulsory reading for all.

The unsurprising upshot of Phelps was that a case which had been won, subject only to proof of recoverable damages, was lost and the culpable defendant walked away.

Get on up

A claimant who launches litigation is now more than ever before expected to get on with it. Delay clogs the arteries of the court system and is not going to be tolerated.

This approach explains why the Court of Appeal refused to grant relief in Jamadar v Bradford Teaching Hospitals NHS Trust [2016]; a clinical negligence action worth approximately £3 million, where liability was admitted. Those advising the claimant were uncertain about track allocation. Consequently, they failed to file a costs management budget. They ought to have done. Failure is punished by CPR 3.14, which provides that a party that does not file is taken to have lodged one claiming no costs whatsoever save for the outlay of court fees.

In a tart judgment, the court was unforgiving. A claim of such magnitude with a ‘five a side’ for experts was achingly multi-track material and a budget was mandatory. On appeal, Jackson LJ was perturbed at the idea of directions and costs being dealt with at different hearings and this clearly influenced the unanimous decision of the Court of Appeal. Time would be wasted.

The overriding message is clear: get on or risk being thrown out.
With contribution by Dominic Regan, Professor of Law and advisor to Lord Justice Jackson.

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Read other items in the Personal Injury Brief - March 2017