Nasser v United Bank of Kuwait

Applications to dismiss for want of prosecution under the Civil Procedure Rules 1998 must be decided under the CPR and its overriding objective, rather than by treating the traditional Birkett v James approach as controlling. The length and culpability of delay, resulting prejudice and prospects of a fair trial remain relevant. The court must consider the available case-management powers and whether a fair trial remains possible. Striking out remains appropriate where justice requires it, particularly where unjustifiable delay has materially contributed to serious prejudice, such as the loss of a key witness and fading memories. An appellate court should not interfere with a discretionary decision merely because it might have exercised the discretion differently.

The claimant brought proceedings against the Bank for delivery of, or damages for, jewellery allegedly missing from a safe deposit box. The proceedings were delayed by related litigation, security-for-costs orders and repeated legal-aid restrictions.

Mr Justice Ian Kennedy struck out the claim for want of prosecution on 26 October 1999, applying the traditional principles in Birkett v James. The claimant appealed, arguing that the CPR governed the application and that the delay had not made a fair trial impossible. The central issues were whether the judge had applied the wrong legal approach and whether the subsequent delay and evidential difficulties justified dismissal.

1. Appeal dismissed. Sir Christopher Slade gave the leading judgment and Lord Justice Henry agreed. The order striking out the claim for want of prosecution was upheld, with costs.
2. Applicable principles. The judge had proceeded on the traditional approach in Birkett v James, namely inordinate and inexcusable delay together with substantial prejudice or a serious risk that a fair trial could not occur. In light of Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, the applicable framework was the CPR. The court nevertheless clarified that delay, culpability, prejudice and the prospects of a fair trial remained relevant considerations.
3. The guidance in Purefuture Ltd v Simmons & Simmons 25th May 2000 (unreported) was adopted. The central question was whether it would be fair or just to permit the claim to proceed. The court had to consider the overriding objective, its flexible case-management powers and alternatives to striking out. Prejudice remained relevant, and striking out remained appropriate in serious cases where justice required it. The approach in UCB Corporate Services Ltd v Halifax (SW) Ltd 6th December 1999 (unreported) was consistent with that conclusion.
4. The first-instance judge had mistakenly treated part of the period before February 1994 as unexplained delay. That error did not justify interference. Considering the whole history, the claim was exceptionally stale. The continuing unavailability of Lena Sabbagh, other unavailable witnesses, fading memories and difficulties identifying the jewellery created substantial prejudice and real difficulties in securing a fair trial. The claimant’s unjustifiable delay or that of her legal advisers had substantially contributed to that prejudice.
5. Applying the CPR would have led to the same result. It would not be just, or consistent with the overriding objective in CPR 1.1, to permit the claim to proceed. The appeal was dismissed with costs assessed at £1,500 after VAT had been deducted, with payment out of the £5,000 in court to the respondent’s solicitors.

1. Court of Appeal (Civil Division) dismissed the appeal and ordered the appellant to pay the respondent’s appeal costs.
2. Queen’s Bench Division — Mr Justice Ian Kennedy struck out the claim for want of prosecution on 26 October 1999 under Part 3.4 of the Civil Procedure Rules 1998 and/or the inherent jurisdiction of the court.