Walsh v Misseldine

Under the Civil Procedure Rules, an application to strike out for delay or non-compliance requires a broad assessment of justice under the overriding objective. The former rigid structure governing want-of-prosecution applications does not govern the new procedural code, although historic conduct must be assessed by reference to the regime then applicable.

The court must consider the full range of case-management powers. Where a fair trial remains possible on a defined part of an admitted-liability claim, it may allow that part to proceed subject to conditions that protect the defendant from prejudice. Those conditions may exclude belated issues, fix the date for assessment, and disallow interest.

The claimant was seriously injured in a road traffic accident for which the defendant accepted liability. Proceedings were issued in 1992. After prolonged inactivity, the claim was automatically struck out under CCR Order 17 Rule 11, reinstated, and then struck out for want of prosecution by a district judge on 22 June 1999.

On the claimant’s appeal, Judge Serota QC permitted the defendant to appeal out of time against the reinstatement order and allowed that appeal. The claimant had not been prepared to argue the reinstatement issue. The Court of Appeal held that this procedure could not stand and exercised its discretion afresh under the Civil Procedure Rules.

The central issue was whether the entire claim should be struck out, or whether the claim could proceed on terms despite severe delay and a proposed late expansion of the special-damages case.

1. Appeal allowed unanimously. Lord Justice Brooke, with whom Lord Justice Stuart-Smith agreed, held that Judge Serota QC’s order could not stand. The claimant had been taken by surprise by the late appeal against reinstatement and had not been ready to argue it. The Court therefore determined afresh the appeal from the district judge’s strike-out order.

2. A strike-out application under CPR 3.4 must be decided under the new procedural code and the overriding objective in Civil Procedure Rules. Earlier want-of-prosecution authorities should not be used as a rigid, self-contained test. In a transitional case, however, conduct before the CPR came into force must be assessed by reference to the regime then applicable. The ultimate decision remains one under the CPR: a broad judgment on the justice of all the circumstances and the available case-management options.

3. The court’s powers were more flexible than the former all-or-nothing regime. The court could take a middle course where this would fairly protect both parties. Relevant considerations included the length, explanation and responsibility for delay; prejudice; the possibility of a fair trial; and whether prejudice could be addressed by conditions concerning costs, interest or the scope of the claim.

4. On the facts, a fair trial remained possible on the original claim as formulated by January 1994. Liability was admitted and the remaining medical issue was limited. A fair trial was not possible on the substantially enlarged loss-of-earnings and future-loss case first advanced in August 1999. It would be unjust to require the defendant to meet those new allegations.

5. The action was therefore not struck out. It was confined to the original pleaded and supported claim. The trial judge was to assess compensation as at 15 March 1995; the claimant was denied interest from that date until the Court of Appeal’s order. Later events could be considered only to establish whether predicted future pain had in fact occurred. The case was to proceed after an early pre-trial review.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and set aside Judge Serota QC’s order. It substituted a conditional order permitting the confined claim to proceed.
• Milton Keynes County Court (Judge Serota QC): Granted the defendant permission to appeal out of time against reinstatement and allowed that appeal, thereby reversing the reinstatement order.
• Milton Keynes County Court (District Judge Rhodes): On 22 June 1999 struck out the reinstated action for want of prosecution. Earlier, on 26 April 1999, he had reinstated the action after its automatic strike-out under CCR Order 17 Rule 11.