Fay v Chief Constable of Bedfordshire

For an automatic stay, the court must identify the scope of the application and consider all relevant circumstances under Civil Procedure Rules 1998 rule 3.9, including the effect on access to court under ECHR Article 6. On appeal from a discretionary decision, intervention requires an error of law, principle or fact; the appellate court then exercises the discretion afresh. Long, unexplained inactivity and failure to answer requests needed to investigate title may cause grave prejudice and make a fair trial impossible. In that event, strike-out is justified even without deciding whether abandonment itself was abuse of process. The appeal was allowed, the claim struck out, and permission given to dispose of the money under Police (Property) Regulations 1997 regulation 6(4).

The claimant began proceedings in 1994 seeking the return of luggage and more than £390,000 seized after his arrest, together with damages. The action became dormant after September 1994 and was automatically stayed in April 2000.

In 2002, the Chief Constable applied for the stay to be lifted for a strike-out application and for permission to dispose of the cash under Police (Property) Regulations 1997 regulation 6(4). The claimant sought a general lifting of the stay and summary judgment. A Deputy District Judge struck out the claim. Davis J allowed the claimant’s appeal and permitted the action to continue, remitting the summary judgment application. The Court of Appeal considered the proper approach to the stay, strike-out, abandonment, delay, prejudice and the possibility of a fair trial.

Appeal allowed and claim struck out. Thomas LJ gave the judgment, with Rimer J and Mantell LJ agreeing.

1. The applications below had been approached on the mistaken assumption that both parties sought a general lifting of the automatic stay. The Chief Constable sought only a limited lifting for the strike-out and disposal applications. The real issue was whether the general stay should be lifted for continuation of the action.
2. The principles in Audergon v La Baguette [2002] EWCA Civ 10 and Woodhouse v Consignia plc [2002] EWCA Civ 275 required consideration of all relevant matters in rule 3.9 of the Civil Procedure Rules 1998. The court should consider each relevant factor and bear in mind that leaving the stay in place deprives a claimant of access to court, engaging ECHR Article 6. Since the issue had not been argued on that basis before the Court of Appeal, it proceeded on the basis adopted below.
3. An appellate court may interfere with a discretionary decision where there has been a mistake of law, disregard of principle or misapprehension of fact. Once intervention is justified, the appellate court must exercise the discretion afresh. Davis J had erred in treating the Chief Constable as free to investigate the possible better title at that stage.
4. The conduct before April 1999 had to be assessed under the procedural regime then in force, namely the RSC, as explained in Biguzzi v Rank Leisure [1999] 1 WLR 1926, Purdy v Cambran (CAT 17 December 1999), Walsh v Misseldine [2000] EWCA Civ 61 and Grovit v Doctor [1997] UKHL 13. The claimant’s four-and-a-half years of inactivity were inordinate, inexcusable and a flagrant breach. It was unnecessary to decide whether abandonment without formal discontinuance independently constituted abuse of process.
5. Following Costello v The Chief Constable of Derbyshire [2001] 1 WLR 1437, the material issue was whether another person had a better title to the money. The claimant’s unanswered requests for information prevented timely investigation and tracing of the funds. By 1999, and decisively by 2002, records and evidence were unlikely to be available. The Chief Constable was gravely prejudiced and a fair trial was clearly impossible. Strike-out under the CPR was therefore justified.
6. The Court exercised its discretion afresh, struck out the claim and gave the Chief Constable the necessary permission to apply the funds in accordance with the application under regulation 6(4) of the Police (Property) Regulations 1997.

1. Court of Appeal (Civil Division): Appeal allowed. The claim was struck out and permission was given to dispose of the cash under regulation 6(4) of the Police (Property) Regulations 1997. [2003] EWCA Civ 1770
2. High Court, Queen’s Bench Division: Davis J allowed the claimant’s appeal from the Deputy District Judge, lifted the stay and permitted the action to continue. The claimant’s summary judgment application was remitted to the District Judge.
3. Luton District Registry: Deputy District Judge Fine lifted the stay, struck out the claim under CPR 3.4 and permitted disposal of the cash.