Begum v Yousaf

An appellate court should not interfere with a case-management discretion merely because it might have exercised the discretion differently. The question is whether the decision fell outside the generous ambit within which reasonable disagreement is possible. A failure to comply with an order to set down an old case for trial may justify striking out where the order served the overriding objective, particularly the expeditious and fair resolution of issues affected by delay and fading recollections. The court must also consider the parties’ obligation to help further the overriding objective. A strike-out order is not impermissible punishment for procedural mistakes where, in the circumstances, it is the proportionate means of achieving justice.

The appellant, as personal representative of Mohammed Khan’s estate, claimed relief arising from the alleged unpaid transfer of a property to the respondent in 1993. Default judgment was entered, then set aside, and directions were made for a defence, disclosure, witness statements and a prompt trial. On 10 January 2000 the High Court ordered the action to be set down within 28 days. The appellant did not comply. On 11 December 2000, after a hearing to show cause, the judge struck out the proceedings. The appeal concerned whether that exercise of discretion was disproportionate or outside the permissible range, and whether further evidence should be admitted to explain the default.

1. Appeal dismissed. The application for permission to adduce further evidence was refused. The appellant was ordered to pay the respondent’s appeal costs, with a payment on account of £2,000 within 56 days. The matter was remitted to the costs judge to consider a possible wasted-costs order against the appellant’s solicitors.
2. Chadwick LJ held that the High Court judge had power under CPR 3.4(2)(c) to strike out the claim for failure to comply with an order. The discretion had to be exercised in accordance with the overriding objective in CPR 1.1, but the issue on appeal was whether the decision fell outside the generous ambit within which reasonable disagreement was possible.
3. The order to set down the action within 28 days was made because the litigation was already old, concerned events more than six years earlier, and involved factual disputes likely to depend on recollection and credibility. The judge was entitled to regard prompt listing as necessary to progress the case fairly and expeditiously. The appellant’s explanation did not justify the failure to comply, particularly since the bank inquiry specifically directed by the earlier order had been answered.
4. The judge was entitled to take account of the appellant’s failure to comply with the obligation in CPR 1.3 to help the court further the overriding objective. His failure to refer expressly to every aspect of CPR 1.1 did not show that he had overlooked them.
5. Staughton J agreed in the result. He observed that the overriding objective reflected the wider principle discussed in Cropper v Smith, but that principle was never absolute. At this stage, justice required that the respondent should no longer be harassed by the very old proceedings.

• Court of Appeal (Civil Division): appeal from the order of His Honour Judge Boggis QC, sitting as a High Court Judge in the Chancery Division at Birmingham, striking out the proceedings on 11 December 2000. Appeal dismissed.