Braunstein v Mostazafan And Janbazan Foundation

Inordinate and inexcusable delay does not, by itself, justify striking out an action for want of prosecution. Under the second limb of Birkett v James, the defendant must show a substantial risk that a fair trial is no longer possible, or serious prejudice caused or likely to be caused by the delay.

Deliberately placing proceedings on hold may constitute an abuse of process and provide a separate basis for strike-out, but the question depends on the seriousness of the conduct and the circumstances viewed as a whole. In assessing prejudice, the court must examine the pleaded issues, witness evidence, availability of witnesses and the documentary record. The Court of Appeal should generally respect the first-instance assessment unless there has been an error of principle.

The plaintiff claimed approximately £205,000 for legal work allegedly carried out for the defendant during negotiations with Rover. The defendant denied any retainer and alleged that the plaintiff had acted as part of a brokerage team.

The action had been issued in 1992. After substantial procedural delay, the defendant applied to strike it out for want of prosecution. The Master granted the application. A deputy High Court judge allowed the plaintiff’s appeal, finding inordinate and inexcusable delay but insufficient prejudice to justify strike-out. The defendant appealed to the Court of Appeal.

The central issues were whether the plaintiff’s conduct amounted to an abuse of process and whether the delay created a substantial risk of an unfair trial or serious prejudice to the defendant.

1. Appeal dismissed. The order of the deputy High Court judge was affirmed. The defendant was ordered to pay the costs of the appeal, and permission to appeal to the House of Lords was refused.
2. The plaintiff’s delay of about three and a half years was inordinate and inexcusable. The Court nevertheless held that the case fell to be determined under the second limb of Birkett v James: whether the delay created a substantial risk that a fair trial was impossible, or was likely to cause or had caused serious prejudice.
3. The deliberate decision to leave proceedings on hold while negotiating through an intermediary was not, on the facts, sufficiently serious to constitute an abuse of process. The assessment was one of fact and degree. The plaintiff had believed that the intermediary was acting for the defendant, although he was properly criticised for failing to verify that authority.
4. Prejudice had to be assessed by reference to all the relevant issues, not merely the existence of delay and reliance on oral evidence. The consequential issues included the plaintiff’s roles for the defendant and Irco, responsibility for fees, and the work actually performed. The documentary record was sufficiently substantial to identify and cost the work. The unavailable or weakened witnesses were unlikely to provide material assistance on the central issues, and speculation about what they might have said was insufficient.
5. The Court of Appeal’s function was primarily supervisory. It should interfere with the first-instance exercise of discretion only where the judge had erred in principle. Having reviewed the evidence and the consequential issues, the court was satisfied that the judge would have reached the same conclusion had those issues been expressly addressed.

1. Court of Appeal (Civil Division): appeal dismissed; the deputy High Court judge’s order was affirmed.
2. High Court of Justice, Queen’s Bench Division: the deputy judge allowed the plaintiff’s appeal from the Master’s strike-out order, accepting inordinate and inexcusable delay but finding insufficient prejudice.
3. Master Tennant: application to strike out for want of prosecution granted.