Reason for delay may be abuse of process of the court

LAW REPORT 1 May 1997
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Grovit v Doctor, House of Lords (Lord Goff of Chieveley, Lord Woolf, Lord Nicholls of Birkenhead, Lord Steyn and Lord Clyde) 24 April 1997

The court was entitled to dismiss an action where it concluded that the reason for delay on the part of the plaintiff involved abusing the process of the court by continuing proceedings with no intention of bringing them to trial.

The House of Lords dismissed the plaintiff's appeal against the Court of Appeal's dismissal of his appeal against an order that the writ and statement of claim in the proceedings should be struck out and the action dismissed for want of prosecution.

The plaintiff's claim was for damages for libel. Proceedings were commenced in August 1989. The action was dismissed for want of prosecution in October 1992.

Isaac Jacob and Martin Young (Fladgate Fielder) for the appellant; the respondents were not represented.

Lord Woolf said that the appeal concerned the powers of the court to strike out proceedings. The approach which was adopted as the present time by courts on an application to dismiss an action for want of prosecution had been set out by Lord Diplock in Birkett v James [1978] AC 297, at 318.

The primary issue on the appeal was whether inexcusable and inordinate delay (if stigmatised as an abuse of process) could constitute prejudice without the need for the defendant to show actual prejudice or a substantial risk that a fair trial would be impossible, or alternatively whether it was permissible to take elements which might amount to a ground for striking out for abuse of process, and combine them with delay and treat the combination as an additional and hybrid ground for striking out.

The requirement in Birkett v James that delay had to cause "serious prejudice" to the defendants had been the subject of criticism. Those criticisms had been considered by Lord Griffiths in Department of Transport v Chris Smoller Transport Ltd [1989] AC 1197.

The period which had elapsed since Lord Griffiths' speech had not seen any improvement in the problems caused by delay in the conduct of civil proceedings. The introduction of the automatic strike-out in the county court had proved to be a crude remedy which had funded an industry of satellite litigation. Furthermore, there was now on the horizon the introduction of the sort of reform to the rules of procedure which Lord Griffiths thought was required.

In that situation it was at least open to question whether it was not preferable to wait the outcome of the implementation of the new rules before making a substantial inroad into the principles in Birkett v James.

In the meantime both the court and defendants had the means to achieve greater control over delay. Defendants did not need to wait until there had been inordinate delay before applying for peremptory orders, and the courts should more readily make "unless orders", i.e. orders that an action should be struck out unless certain steps were taken at certain times.

In the present case the judge had come to the conclusion that there had been inordinate and inexcusable delay. He had found that there was "an element of prejudice" but had attached more importance to his finding that the plaintiff had no interest in actively pursuing the litigation.

His Lordship was satisfied that both the deputy judge and the Court of Appeal were entitled to reach the conclusion they had as to the reason for the appellant's inactivity in the libel action for over two years. The courts existed to enable parties to have their disputes resolved. To commence and continue litigation with no intention of bringing it to conclusion could amount to abuse of process. If there was an abuse of process it was not strictly necessary to establish want of prosecution under either of the limbs in Birkett v James.

In the present 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.