CASE STRUCK OUT AFTER JUDGMENT BECAUSE REPEATED FAILURES TO COMPLY AMOUNTED TO AN ABUSE OF PROCESS

In Zaman -v- Paradise UK Ltd (QBD) 11/12/2014* Judge Seymour QC upheld a decision of the Master to strike out a personal injury action on the grounds of abuse of process where liability had been admitted.  This is an important reminder of the point that a failure to advance a case towards trial amounts to an abuse of process.

THE CASE

The claimant was injured in 2007.

• Proceedings were issued, liability admitted and judgment entered.
• The proceedings became protracted.
• The defendant applied, twice, for peremptory orders.
• The proceedings were stayed on the basis that the claimant had to apply to lift the stay and comply with the directions made or the claim would be struck out.
• The defendant then applied to strike out the claim on a number of grounds.
• The Master struck out the claim on the basis of abuse of process – because of the claimant’s failure to take the necessary steps to  bring the matter to trial.

THE APPEAL

The judge refused the claimant’s appeal against striking out.

• The striking out was based on the fact that the claimant had not demonstrated an intention to bring the claim to a conclusion. Grovit -v- Doctor [1997] UKHL 13 applied.
• The issue of whether the claimant’s solicitors were competent was of limited relevance.
• The claimant had done nothing effective to bring matters to a trial.
• The master’s decision was within an acceptable range.

GROVIT -v- DOCTOR

It is worthwhile remembering what was said in the extremely succinct speech Lord Woolf of the House of Lords in Grovit -v- Doctor.

“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.”

IMPOSING THE SINS OF THE LAWYERS UPON THEIR CLIENTS

The judgment also makes reference to the decision in Training in Compliance Ltd -v- Dewse [2001] C.P. Rep 46 in the context of an argument that the fact that it the delay may be the lawyer’s fault is of no great relevance. It is worthwhile looking at the judgment of Peter Gibson L.J.

“65. Mr Pooles characterised the order as being punitive. Mr Pooles submitted that under the
Civil Procedure Rules the court must distinguish between a party and his lawyers in order to deal
with a case justly as required by the overriding objective. This was not the position, Mr Pooles
accepted, under the Rules of the Supreme Court. But he said that the introduction of the Civil
Procedure Rules had changed that and that a client should not be penalised because of the faults of
his lawyers.
66. There is no doubt that the Civil Procedure Rules give the court greater powers, enabling the
court to choose between a wider range of remedies and sanctions, and that in the exercise of its
powers the court must have regard to the overriding objective which recognises the principle of
proportionality. The Civil Procedure Rules relate to the making of a wasted costs order against
legal representatives, as had the Rules of the Supreme Court; but I see no justification for Mr
Pooles’ submissions on the Civil Procedure Rules requiring the court to draw distinctions between a
party and his legal representatives. Of course, if there is evidence put before the court that a party
was not consulted and did not give his consent to what the legal representatives had done in his
name, the court may have regard to that as a fact, though it does not follow that that would
necessarily, or even probably, lead to a limited order against the legal representatives. It seems to
me that, in general, the action or inaction of a party’s legal representatives must be treated under the Civil Procedure Rules as the action or inaction of the party himself. So far as the other party is
concerned, it matters not what input the party himself has made into what the legal representatives
have done or have not done. The other party is affected in the same way; and dealing with a case
justly involves dealing with the other party justly. It would not in general be desirable that the time of the court should be taken up in considering separately the conduct of the legal representatives from that which the party himself must be treated as knowing, or encouraging, or permitting.
However, in the present case there is in fact no evidence at all as to what the defendant knew of the
action or inaction on his behalf taken by those representing him. In my judgment, therefore, in this
case there is even less scope for making an order against the legal representatives which would
leave the defendant himself without any sanction against them.”

* This is reported on Lawtel. This post is based on the Lawtel note.