Hopkinson & Ors v Tupper

A claim may be struck out for want of prosecution where delay is inordinate and culpable, it has prejudiced a fair trial, and it is seriously arguable that fresh proceedings would be statute-barred. The court need not finally determine limitation in the stale action. It may leave that issue to fresh proceedings. After sale of mortgaged property, it was seriously arguable that a shortfall claim was a simple-contract claim subject to six years, rather than a sum secured by mortgage or a specialty attracting 12 years. Prejudice may be inferred from the nature and age of the issues and the length of delay. Specific evidence identifying each impairment of memory is unnecessary.

The appellants claimed principal and interest said to be due under a 1981 legal charge. The mortgaged property was surrendered and sold in 1985, leaving a shortfall. Proceedings issued in 1989 were served in 1990, followed by prolonged delay. The defendant applied to strike out for want of prosecution and issued fresh proceedings were commenced in 1993.

A District Judge dismissed the application. On appeal, Judge Graham dismissed the original action under the court’s inherent jurisdiction, finding inordinate and inexcusable delay, prejudice, and an arguable limitation bar affecting at least the interest claim. The appeal concerned limitation, delay, prejudice and the appropriateness of striking out where fresh proceedings were available.

Disposition

1. Lord Justice Auld delivered the leading judgment and Sir Brian Neill agreed. The appeal was dismissed with costs. There was no stay of taxation, and legal aid taxation was ordered for the respondent.
2. The court’s task on limitation was not to resolve the substantive limitation questions. It was to decide whether it was seriously arguable that all or a significant part of the claim would be statute-barred in fresh proceedings. That threshold was satisfied.
3. It was seriously arguable that, after the mortgagee had repossessed and sold the security, the shortfall claim was in simple contract. On that view, the special provisions of the Limitation Act 1980 concerning sums secured by mortgage or charge did not govern the claim. Nor did the general 12-year period for actions on a specialty apply. The six-year period for simple-contract claims was seriously arguable.
4. Following the approach in [1990] 1 WLR 343, the court could dismiss the stale action for want of prosecution and leave complex limitation questions to be determined in the fresh proceedings. The possibility that the claim might be renewed did not prevent dismissal where the limitation issue was seriously arguable.
5. The judge was entitled to consider pre-writ and post-writ delay as part of the overall delay. The delay was inordinate and culpable. The prejudice assessment was principally factual, and the Court of Appeal should be slow to interfere.
6. Following [1996] 1 WLR 1270, particular evidence identifying precisely how or when recollections had deteriorated was unnecessary. The age of the issues, the length of the delay, fading memories, the wife’s ill health and the difficulty of testing oral evidence supported an inference of serious prejudice. The alleged lost opportunity to sue the surveyor was only prima facie arguable and should not bear significant weight.

• Court of Appeal (Civil Division): On 30 January 1997, the appeal from Judge Graham’s order was dismissed with costs.
• Earlier proceedings: A District Judge dismissed the defendant’s strike-out applications. Judge Graham subsequently dismissed the action for want of prosecution under the inherent jurisdiction, while rejecting the separate application under CCR Order 17, rule 11.