Hunter v Skingley

Dismissal for want of prosecution requires both inordinate and inexcusable delay and a substantial risk that a fair trial is impossible or serious prejudice has resulted.

Where the defendant has materially contributed to the delay, the court should, where possible, attribute particular periods of delay and items of prejudice to the responsible party. The rule that such allocation is artificial applies where the claimant is solely responsible. A delay caused by the illness of a crucial fact and expert witness may be excusable. Strike-out is inappropriate where the claimant’s contribution to prejudice is marginal and a fair trial remains possible.

The claimant obtained judgment on liability for building-work defects, with damages to be assessed. The defendant had disappeared for more than two years after failing to comply with a conditional order, and substantial procedural delay followed.

The District Judge rejected the defendant’s application to dismiss for want of prosecution. On appeal, His Honour Judge Byrt QC stayed further proceedings consequent on the judgment, treating two later periods of delay by the claimant as inordinate and inexcusable and considering the overall prejudice caused by the passage of time.

The claimant appealed to the Court of Appeal. The central issue was whether the lower court had erred by failing to distinguish delay caused by the defendant from delay caused by the claimant, and whether a fair trial remained possible.

Appeal allowed. Hirst LJ delivered the leading judgment and Phillips LJ agreed, both exercising the discretion afresh.

1. The applicable test for dismissal for want of prosecution was the two-stage test in Birkett v James: inordinate and inexcusable delay, together with a substantial risk that a fair trial was impossible or serious prejudice to the defendant. The decision remained discretionary, but the judge had erred in principle.
2. The passage from Roebuck v Mungovin [1994] 2 AC 224 concerned allocation of prejudice where the claimant was solely responsible for the delay. It did not prevent attribution of periods of delay and particular prejudice where the defendant had caused a substantial part of the delay. In those circumstances, such allocation was proper and necessary.
3. The delay from April 1993 to May 1994 was inordinate and inexcusable, although close to the borderline. The later delay caused by Mr Westlake’s serious illness was excusable. He was both a crucial expert and a witness of fact who had inspected the premises, and replacing him would have deprived the court of equivalent first-hand evidence.
4. Prejudice had to be assessed by responsibility. The defendant was responsible for the important early period when memories were freshest and statements should have been taken. One witness died during that period, another was lost because the defendant failed to keep track of him, and only part of the prejudice from the later death of a third witness was attributable to the claimant.
5. A fair trial remained possible because much evidence was visible, documented or covered by expert reports, and both principal witnesses remained available. The claimant’s contribution to prejudice was marginal. The application to strike out was therefore refused and the appeal allowed.

Costs were awarded in the Court of Appeal and below against the first defendant, enforceable only with leave. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) allowed the claimant’s appeal and declined to strike out the action: [1997] EWCA Civ 1541.
• Mayor and City of London County Court, on 16 September 1996, allowed the defendant’s appeal from the District Judge and ordered a stay of further proceedings consequent on the judgment.
• District Judge Samuels rejected the defendant’s application for dismissal for want of prosecution.