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Session 1996-97
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Judgments - Grovit and Others v. Doctor and Others


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




ON 24 APRIL 1997


My Lords,

      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.


My Lords,

      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

      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."

      In Birkett v. James their 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?"

      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.

      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

      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:

(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.

(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.

(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.

      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.

      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)."

      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".

      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.

      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.

      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.

      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

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

      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 which the appellant was chairman. On 5 March 1990 Wright J. gave leave for the second plaintiff to discontinue. Since that time the proceedings have been conducted on behalf of the appellant alone. The proceedings were brought against seven defendants. The claims against the fourth to the seventh defendants were dismissed by consent. The third defendant is now in liquidation although it was represented before the Court of Appeal. The proceedings are there now only against the two respondents who are acting in person.

      The appellant's claim is now limited to a claim for damages for libel, the other claims are no longer pursued. It is alleged by the appellant that the first respondent was employed by him as a mining consultant. In August 1989 the second respondent gave the first respondent a reference on writing paper of the third respondent in the following terms:

     "He (the first respondent) has a dry Scottish sense of humour and an ability to get along well with all members of the management team. In the case of Inver Trust, this was not always easy as the Chairman (of Middle Eastern origin) was a very difficult man to work for."

      It was on 25 August 1989 that the plaintiffs commenced proceedings against the defendants alleging, inter alia, that the statement was defamatory. A defence was filed on behalf of all the defendants on 25 October 1989. It was admitted that the reference refers to the appellant.

      On 11 July 1990 Wright J. dismissed an application to strike out the statement of claim under R.S.C., Ord. 18, r. 19 and directed that the issue of whether the words relied on were capable of bearing a defamatory meaning should be tried as a preliminary issue. On the same occasion Wright J. discharged an Anton Piller Order which the plaintiffs had obtained and ordered an inquiry as to the damages payable by the plaintiffs under the undertaking which they have given in connection with Anton Piller Order.

      For the purposes of the application which resulted in this appeal the plaintiffs did not themselves personally file an affidavit. However in an affidavit filed on their behalf by their solicitor it is stated that the appellant had not deliberately delayed pursuing the action but he and the other plaintiff had been devoting their energies to dealing with related High Court litigation which had involved substantial time and effort on their part.

The judgment of Deputy High Court Judge Crowley Q.C.

      In his judgment, the judge commenced by pointing out that the action originally had been much more complicated when it commenced in August 1989 and that the proposed Writ relied on in support of an application for an Anton Piller Order included allegations against the defendants of unlawful interference with the plaintiff's business, conspiracy to injure the plaintiff's business and passing off as well as libel. However by March 1990 all that remained was the allegation of libel and in the judge's view "there was absolutely no reason why the plaintiff, if he had any desire to have this matter litigated, should not then and there have got on with it," while the last activity on behalf of the plaintiff had been on 20 September 1990 over two years previously. This was despite the fact that on 21 March and again on 23 September 1991 the defendant's solicitors had written to the plaintiff's solicitors inviting them either to proceed with or abandon the case.

      The judge therefore not surprisingly came to the conclusion that there had been inordinate and inexcusable delay.

      He then turned to consider the question of prejudice and found "an element of prejudice" in relation to the effect on the business activities of the companies. However the judge attached more importance to the fact that he was:

     "Quite satisfied . . . on the evidence that he [the appellant] has had literally no interest in actively pursuing this litigation. So far as he was concerned, I am sure it was dead in the water."

The judge added:

     "Does that mean that the courts are powerless unless the defendant can show prejudice? It is said that the sword of Damocles argument only ought to be used or acceded to in exceptional cases. I do regard this as a case where the court is fully entitled to say that the very existence of an action which the plaintiff has no interest in pursuing is intolerable and there is no reason why defendants, some of whom are no longer in any way connected with the corporation and may (to their great relief) not have to be concerned with any of the other litigation, should still have this hanging over them."

The judgments of the Court of Appeal

      In the Court of Appeal the first judgment was given by Evans L.J. Having referred to the conclusions of the deputy judge to which reference has already been made, he records that the appellant did not seek to challenge them. He then finds that there was sufficient prejudice established as regards the company, the third defendant. In relation to the first and second defendants he refers to Lord Griffith's comment in the Chris Smaller Transport Ltd. case [1989] A.C. 1197, 1207F and acknowledges that it would be an exceptional case when anxiety alone would be considered a sufficient ground for striking out. He then expresses the view that "abuse of process" in Lord Diplock's formulation of the rule is a separate or potentially separate ground for striking out. He also indicates that the evidence in this case suggests that the appellant intended to maintain a state of anxiety on the part of the defendants and concludes that "if the circumstances were such that the plaintiff intended to prolong the defendants' anxiety" then he would if necessary uphold the judgment on this ground alone. However as I understand his judgment he then gives as his main reason for dismissing the appeal, his conclusion that this is a case "where elements were present of facts relevant to both limbs, (1) and (2) [and] the deputy judge was entitled to make an overall assessment, doing justice between the parties, within the scope of Lord Diplock's rule."

      It is because of this approach by Evans L.J., that Mr Jacob identifies this appeal as raising his principle issue.

      In the course of his judgment, Glidewell L.J. posed the question as to whether the appellant's conduct amounts to an abuse of process. Having done so he concludes that it was proper to infer that the appellants motive in delaying the libel action did constitute an abuse of process. Having done so he then added:

     "Where delay results from an abuse of process, in my judgment these facts can properly be said to be exceptional and thus the abuse of process coupled with the anxiety to the defendants amount to significant prejudice which justifies the court in striking out the pleadings and dismissing the action for want of prosecution."

      In reciting the circumstances leading up to this appeal, I have omitted any reference to a judgment of Wright J. in April 1990 in related litigation. This is because in the course of the hearing their Lordships indicated to Mr. Jacob that it was not necessary for him to develop a contention included in the appellant's case that it was not appropriate to take into account what Wright J. said because of a subsequent decision of the Tribunal de Commerce de Paris on 26 September 1990.

The Outcome of the Appeal

      Mr. Jacob submitted that it was not open to the deputy judge and the Court of Appeal to come to the conclusion that the appellant maintained the action in existence notwithstanding that he had no interest in having it heard. He submitted that the determination which the appellant has personally shown in having the decision of the deputy judge to strike out set aside indicates clearly to the contrary. I am far from sure that Mr Jacob is entitled to take comfort from the fact that his client has prosecuted his appeal with such vigour. The vigour with which he has approached the appeal may indicate no more than that he regarded his prospects in the appellate litigation over procedure as a result of the striking out as being more favourable than in the libel action itself. In saying that I do not ignore his unusual conduct at the conclusion of Mr Jacob's argument on his behalf in this appeal. At the end of that argument, the parties were invited to withdraw so that their Lordships could consider whether it was necessary to call upon the respondents. When the hearing resumed, before their Lordships could inform the respondents that they did not require their assistance, Mr. Jacob told their Lordships that he had been instructed to seek leave to withdraw the appeal. Mr. Jacob was unable to assist their Lordships as to the reason for these instructions. However without investigating the appropriateness of such an application, their Lordships announced that they were not prepared to give leave for the appeal to be withdrawn.

      Even without this surprising late development, I am satisfied that both the deputy judge and the Court of Appeal were entitled to come to the conclusion which they did as to the reason for the appellant's inactivity in the libel action for a period of over two years. This conduct on the part of the appellant constituted an abuse of process. The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v. James [1978] A.C. 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings.

      It is possible that in his judgment Evans L.J. was indicating that in a hybrid situation, an action could be dismissed for want of prosecution albeit that the evidence strictly fell short of what is required under limb (1) and limb (2) when each is considered separately I can appreciate the reasons why it could be thought to be appropriate to adopt this approach. However without indicating that this approach is wrong, I would prefer to leave this qualification on Lord Diplock's approach to be finally determined in a case where the issue is fully argued on both sides.

      I would however for the reasons that I have given dismiss this appeal with costs.


My Lords,

      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.


My Lords,

      For the reasons given in the speech of my noble and learned friend Lord Woolf I would dismiss the appeal with costs.


My Lords,

      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.


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