Atutu v Meaby & Co (A Firm)

An action may be struck out for want of prosecution where the delay is inordinate and a fair trial is no longer possible. The court must assess both matters. A claim concerning alleged negligence in earlier litigation may be incapable of fair trial where the underlying events and proceedings are many years old. In a permission application, permission should be refused where the applicant has no realistic prospect of showing that the decision under challenge was wrong.

The claimant pursued a claim against his former solicitors concerning their conduct of earlier litigation arising from an uninsured vehicle accident and the loss of his business. The underlying action was issued in 1987 and struck out for inordinate delay in 1989. The claim against the solicitors was issued in 1995. Following further delay, failure to serve witness statements and an automatic stay, Master Turner struck out the claim for want of prosecution on 26 October 2000. Owen J upheld that order in chambers on 9 February 2001. The claimant sought permission to appeal. The central issue was whether the lower courts were entitled to conclude that the delay was inordinate and that a fair trial was no longer possible.

Permission to appeal was refused.

1. On an application to strike out for want of prosecution, the court must consider whether there has been inordinate delay and whether a fair trial remains possible. Both Master Turner and Owen J applied that approach.
2. The delay was plainly inordinate. The claim against the solicitors was served in September 1995. Although a list of documents was eventually served, it was five months late, no witness statements were served, and the proceedings then remained inactive for over a year. An automatic stay followed.
3. A fair trial was no longer possible. The allegations against the solicitors concerned litigation arising from events in 1982. The underlying action had been issued in 1987 and struck out in 1989. The age of the subject matter meant that the claim could not fairly be tried.
4. There was no prospect of persuading the Court of Appeal that Owen J’s decision was wrong. The application for permission to appeal was therefore refused.

1. Court of Appeal (Civil Division): Lord Justice Longmore refused permission to appeal on 4 May 2001.
2. Administrative Court: Owen J upheld Master Turner’s order striking out the claim on 9 February 2001.
3. Master: Master Turner struck out the claim for want of prosecution on 26 October 2000.