Tulsiani v Albin Hunt & Stein (A Firm)

An action may be struck out as an abuse of process where extraordinary delay, coupled with breach of a procedural requirement, makes a fair trial impossible or renders it unjust to allow the proceedings to continue. The court must assess the issues broadly, including matters raised by the pleadings and evidence indicating possible amendments or defences. Difficulties in obtaining legal aid or expert evidence do not, without more, excuse prolonged inactivity. A court exercising case-management powers may strike out a stale claim even where the pleaded case is not suitable for summary judgment. The discretion must be exercised having regard to the whole circumstances, including prejudice caused by lost documents and deteriorating witness recollection.

The claimant sued his former solicitors for allegedly negligent conduct of an earlier action concerning Nigerian exchange-control law. The negligence action was commenced in 1993, but no effective step was taken for more than six years after pleadings closed. Documents were missing, the principal surviving solicitor witness had retired and her recollection had deteriorated, and expert evidence was obtained only after repeated delay.

The Master struck out the claim under Part 3.4 of the Civil Procedure Rules on the ground that a fair trial was impossible. The High Court allowed the claimant’s appeal, holding that the pleaded case raised principally an issue of Nigerian law and that the prejudice relied upon was insufficient. The central issue was whether the claim should be permitted to proceed despite the delay and resulting prejudice.

1. Appeal allowed. The High Court’s order was set aside and the Master’s order striking out the claim was restored, with costs subject to public funding assessment.
2. The Master’s failure to give reasons was open to criticism, but the High Court judge had also erred. He took too narrow a view of the issues by concentrating on the unamended statement of claim and the question of Nigerian illegality. The defence raised the further issue whether the solicitors had acted in accordance with the claimant’s instructions, including responsibility for obtaining expert evidence. The witness statement of the surviving case handler materially supported that issue and had to be considered.
3. The court was entitled to consider the likely effect of amendments. If the claimant were permitted to amend his case, the defendants would likewise have been entitled to amend their defence. The litigation therefore could not properly be assessed solely by reference to the original pleadings.
4. The delay was gross and inexcusable. The claimant’s difficulties in obtaining legal aid did not justify the failure to progress the claim, since he could have acted in person. Nor did the time taken to obtain expert evidence excuse the delay; the expert should have been instructed with clear instructions from the outset.
5. The prolonged failure to take out a summons for directions, contrary to Order 25 rule 1(1) of the Rules of the Supreme Court, was highly relevant. In the circumstances, the breach and delay constituted an abuse of the court’s process. The deterioration of the surviving witness’s memory and the loss or incompleteness of documents made a fair trial impossible or, in any event, made it unjust to permit the action to continue.
6. The court did not need to determine the detailed effect of the expert evidence on Nigerian law. The claim was sufficiently stale and prejudiced to justify strikeout.

• Court of Appeal (Civil Division) ([2001] EWCA Civ 2066): allowed the defendants’ appeal, set aside the High Court order and restored the Master’s order striking out the claim.
• High Court, Queen’s Bench Division: His Honour Judge Havery QC allowed the claimant’s appeal from the Master and permitted the negligence action to continue.
• Master Ungley: struck out the claim under Part 3.4 of the Civil Procedure Rules because a fair trial was not possible.