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.

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