Duggan v Wood

In long-stale litigation, applying the overriding objective may justify striking out a remaining head of claim where procedural inactivity and inadequate evidence create a risk that a fair trial is no longer possible. The court must balance prejudice to the claimant against the defendant’s ability to investigate the claim and the need to protect a fair trial. Where the party has had opportunities to remedy procedural deficiencies, the court may conclude that no further opportunity should be granted.

After judgment in default on liability for personal injuries arising from a 1988 road accident, only the assessment of damages remained. The action was automatically stayed following a 12-month period in which no step had been taken. The County Court lifted the stay only for general damages, refused an adjournment to provide further evidence, and later struck out the claim for special damages. It also refused an application for relief from sanctions and rectification of administrative defects. The claimant appealed against those orders and against the refusal to reconsider the strike-out. The central issue was whether the special-damages claim should remain stayed to permit a further application or be struck out because of the delay, inadequate evidence and resulting fair-trial concerns.

Kay LJ gave the first judgment, with which Latham LJ agreed. The appeal was dismissed with costs.

1. The order directing that the application be dealt with by telephone hearing did not lift the automatic stay. It merely provided for the application to be heard by telephone under the practice direction to Part 23. It was not an adjudication of the application. Such an order would ordinarily require the parties’ consent, which had not been shown.
2. On the evidence before Deputy District Judge Cooke, lifting the stay only for general damages was justified. The evidence did not explain the 12-month period of inactivity. Counsel had declined an adjournment at the outset, so refusing a late adjournment was within the deputy judge’s discretion.
3. Judge Holman was entitled to uphold that decision and to determine what should happen to the stayed special-damages claim. He had to balance the claimant’s substantial potential loss against the defendant’s difficulties in investigating an exceptionally old claim and the need to protect a fair trial under the overriding objective.
4. There had been repeated opportunities, including on appeal, to provide the evidence needed to justify lifting the stay, but the deficiencies remained. The claim was very stale and no effective step had been taken for many years. The time had therefore come to strike out the special-damages claim. The later application did not justify reopening the order.

1. Manchester County Court: Judgment in default of defence was entered on 14 February 1992. Following an extended period of inactivity, the action was automatically stayed. Deputy District Judge Cooke lifted the stay for general damages only. Judge Holman dismissed the claimant’s appeal on 28 November 2000 and struck out the remaining claim for special damages. On 19 February 2001 he refused relief from sanctions and rectification of administrative defects.
2. Court of Appeal (Civil Division): On 22 November 2001, the court dismissed the appeal with costs: [2001] EWCA Civ 1942.