Law Report: Action is struck out for delay: Roebuck v Mungovin - House of Lords (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lowry, Lord Browne-Wilkinson and Lord Slynn of Hadley) 3 February 1994

A defendant who has induced a plaintiff to incur expense in pursuing an action is not necessarily prevented from relying on the plaintiff's inordinate and inexcusable delay to obtain an order striking out the action. It was for the judge, in exercising his discretion whether or not to strike out the action, to decide what weight to attach to the defendant's conduct.

The House of Lords unanimously allowed an appeal by the defendant, Michael J Mungovin, and restored Judge Taylor's order striking out a claim by the plaintiff, Robert Clifford Roebuck, for want of prosecution.

The plaintiff was injured in a road accident in August 1984. He issued a writ and statement of claim in April 1986. In July 1986, the defendant admitted liability but put damages in issue. During a period of nearly four years the defendant sought to obtain particulars as to the quantum of the plaintiff's claim. In April 1990, the defendant's former solicitors received an affidavit giving specific discovery but still lacking any proper quantification of the plaintiff's claim. In May 1990, the defendant's solicitors wrote to the plaintiff's solicitors, seeking further information. There was some correspondence until May 1991.

In July 1991, the defendant's solicitors issued an application to strike out. Judge Taylor, sitting as a High Court judge, struck out the plaintiff's claim. The Court of Appeal allowed the plaintiff's appeal, holding that, although the delay by the plaintiff had prejudiced the defendant, the correspondence after May 1990 amounted to a representation that the defendant intended to proceed to trial, that as a result the plaintiff had incurred expense and the defendant was thereby estopped from obtaining a striking out order by his acquiescence in the earlier delay.

Piers Ashworth QC, who did not appear below and Howard Elgot (Wansbroughs Willey Hargrave, Leeds) for the defendant; John Toulmin QC and Anne Wakefield (Simpson Curtis, Leeds) for the defendant.

LORD BROWNE-WILKINSON said that Allen v Sir Alfred McAlpine & Sons Ltd (1968) 2 QB 229, which was approved by Birkett v James (1978) AC 297, established that if there had been inordinate and inexcusable delay by the plaintiff causing serious prejudice to the defendant, then the court 'can in its discretion' dismiss the action.

In County and District Properties v Lyell (1991) WLR 683 the Court of Appeal laid down a fixed rule: whenever the defendant had induced the plaintiff to believe that the case was to go to trial he must be taken to have made a representation that the action was to be allowed to proceed to trial and if the plaintiff had incurred more than minimal costs in reliance on that representation the defendant would be estopped from striking out the claim on the ground of the plaintiff's delay.

The numerous appeals to which the 'estoppel' had given rise suggested that law the was not soundly based. Lyell's case should be overruled. Where a plaintiff had been guilty of inordinate and inexcusable delay which had prejudiced the defendant, subsequent conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order. Such conduct of the defendant was a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending on all the circumstances of the case.

In cases like the present, where the defendant's actions were minor as compared with the inordinate delay by the plaintiff and could not have lulled the plaintiff into any major expenditure, a judge exercising his discretion would be likely to attach only slight weight to the defendant's actions. It was for the judge in each case in exercising his discretion to decide what weight to attach in all the circumstances to the defendant's actions.

Arts and Entertainment
The Secret Cinema performance of Back to the Future has been cancelled again
filmReview: Sometimes the immersive experience was so good it blurred the line between fiction and reality
Arts and Entertainment
Sydney and Melbourne are locked in a row over giant milk crates
art
Arts and Entertainment
Crowd control: institutions like New York’s Metropolitan Museum of Art are packed

Art
Arts and Entertainment
Cillian Murphy stars as Tommy Shelby in Peaky Blinders

TV
PROMOTED VIDEO
Arts and Entertainment
The cast of The Big Bang Theory in a still from the show

TV
Arts and Entertainment

art
Have you tried new the Independent Digital Edition apps?
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Dress the Gaza situation up all you like, but the truth hurts

    Robert Fisk on Gaza conflict

    Dress the situation up all you like, but the truth hurts
    Save the tiger: Tiger, tiger burning less brightly as numbers plummet

    Tiger, tiger burning less brightly

    When William Blake wrote his famous poem there were probably more than 100,000 tigers in the wild. These days they probably number around 3,200
    5 News's Andy Bell retraces his grandfather's steps on the First World War battlefields

    In grandfather's footsteps

    5 News's political editor Andy Bell only knows his grandfather from the compelling diary he kept during WWI. But when he returned to the killing fields where Edwin Vaughan suffered so much, his ancestor came to life
    Lifestyle guru Martha Stewart reveals she has flying robot ... to take photos of her farm

    Martha Stewart has flying robot

    The lifestyle guru used the drone to get a bird's eye view her 153-acre farm in Bedford, New York
    Former Labour minister Meg Hillier has demanded 'pootling lanes' for women cyclists

    Do women cyclists need 'pootling lanes'?

    Simon Usborne (who's more of a hurtler) explains why winning the space race is key to happy riding
    A tale of two presidents: George W Bush downs his paintbrush to pen father’s life story

    A tale of two presidents

    George W Bush downs his paintbrush to pen father’s life story
    Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover

    The dining car makes a comeback

    Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover
    Gallery rage: How are institutions tackling the discomfort of overcrowding this summer?

    Gallery rage

    How are institutions tackling the discomfort of overcrowding this summer?
    Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players

    Eye on the prize

    Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players
    Women's rugby: Tamara Taylor adds fuel to the ire in quest to land World Cup

    Women's rugby

    Tamara Taylor adds fuel to the ire in quest to land World Cup
    Save the tiger: The day America’s love of backyard tigers led to a horrific bloodbath

    The day America’s love of backyard tigers led to a horrific bloodbath

    With only six per cent of the US population of these amazing big cats held in zoos, the Zanesville incident in 2011 was inevitable
    Samuel Beckett's biographer reveals secrets of the writer's time as a French Resistance spy

    How Samuel Beckett became a French Resistance spy

    As this year's Samuel Beckett festival opens in Enniskillen, James Knowlson, recalls how the Irish writer risked his life for liberty and narrowly escaped capture by the Gestapo
    We will remember them: relatives still honour those who fought in the Great War

    We will remember them

    Relatives still honour those who fought in the Great War
    Star Wars Episode VII is being shot on film - and now Kodak is launching a last-ditch bid to keep celluloid alive

    Kodak's last-ditch bid to keep celluloid alive

    Director J J Abrams and a few digital refuseniks shoot movies on film. Simon Usborne wonders what the fuss is about
    Once stilted and melodramatic, Hollywood is giving acting in video games a makeover

    Acting in video games gets a makeover

    David Crookes meets two of the genre's most popular voices