Birkett -v- James; HL 1977

References: [1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38
Coram: Lord Diplock
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and (b) such delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues or is such as is likely to cause or to have caused prejudice to the defendants. In addition the court has a general inherent power to strike out an action in cases of a deliberate failure to comply with a peremptory order of the court. Again, however, the power is a discretionary one albeit a narrowly circumscribed one. It does not matter whether it is the plaintiff or his lawyers at fault, the effect on the defendant is the same.
Lord Diplock said: ‘delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party’.
This case cites:

  • Cited – Sayle -v- Cooksey ([1969] 2 Lloyd’s Rep 618)
    The court questioned whether the availability of an alternate remedy for a party against his solicitors should affect the decision to strike out a plaintiff’s claim. . .

This case is cited by:

  • Cited – Arrow Nominees Inc, Blackledge -v- Blackledge ChD (Times 08-Dec-99, Bailii, [1999] EWCA 198, [2000] BCLC 187)
    The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
  • Superceded – Nasser -v- United Bank of Kuwait CA (Bailii, [2001] EWCA Civ 1454, [2001] 1 WLR 1868)
    The claimant appealed a decision to strike out her claim for want of prosecution, and a failure to pay a sum ordered as security for costs. She had put jewelry with the defendants for safe keeping, and alleged it had been stolen. The lock on her . .
  • Cited – Lewis -v- Henry St Hillaire and others PC (Bailii, [1996] UKPC 16)
    (Saint Vincent and The Grenadines) A writ was issued, but little progress was made. The respondent applied for a declaration that the action had been abandoned and was incapable of being revived.
    Held: The provision was one local to the home . .
  • Cited – Worldwide Corporation Limited -v- Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited (Bailii, [1999] EWCA Civ 1650)
    Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
    Held: The claim had little prospect of success. Leave to appeal refused. . .
  • Cited – Arrow Nominees Inc and Another -v- Blackledge and Others CA (Times 07-Jul-00, [2000] CP Rep 59, Bailii, [2000] EWCA Civ 200, [2001] BCC 591, [2000] BCLC 167)
    The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or falsified documentation in discovery.
    Held: If a party to litigation behaved in such a . .
  • Cited – Lace Co-Ordinates Ltd -v- Nem Insurance Co Ltd CA (Bailii, [1998] EWCA Civ 1798)
    Referring to the new Civil Procedure Rules: ‘These guidelines … create an entirely new climate in which the court is required to examine the plaintiff’s conduct by reference to the overall interests of justice and fairness (including . .
  • Considered – Department of Transport -v- Chris Smaller (Transport) Ltd HL ([1989] AC 1197)
    An application had been made to strike out a claim for want of prosecution. The writ was not issued until the end of the relevant six year limitation period and then not served for a further nine months. The period of inexcusable delay after action . .
  • Cited – Barclays Bank Plc -v- Birkett CA (Bailii, [1996] EWCA Civ 826)
    Renewed application for leave to appeal – possession order. . .
  • Cited – Regina -v- Law Society ex parte Birkett Admn (Bailii, [1999] EWHC Admin 770)
    Some twenty years after the events, the claimant still sought compensation following the alleged negligence of his former solicitor. He now sought it from the Law Society’s compensation fund. The Law Society said the nature of his claim was outside . .
  • Cited – Grovit and others -v- Doctor and others HL (Gazette 21-May-97, Times 25-Apr-97, House of Lords, Bailii, [1997] UKHL 13, [1997] 1 All ER 417, [1997] 1 WLR 640)
    The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
  • Cited – Barclays Bank-v- Miller CA ([1990] 1 WLR 343)
    In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave . .
  • Cited – Joyce -v- Joyce ([1978] 1 WLR 1170, [1979] 1 All ER 175)
    A claim was made for specific performance of an oral agreement to sell shares.
    Held: The plaintiff had failed to show that if he issued another writ for the same relief, it would be not be defeated by the doctrine of laches. Payment of the . .
  • Cited – Hopkinson; Richard Bessell Hare; Timothy Peter Wreford Hare and Birmingham Mid-Shires Building Society -v- John David Tupper CA (Bailii, [1997] EWCA Civ 882)
    The plaintiffs appealed an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the defendants. . .
  • Cited – Rath -v- CS Lawrence & Partners (PJ Cook & Co) (a Firm) (Third Party) CA ([1991] 1 WLR 399)
    The plaintiff bought the property in 1982, relying on the defendant’s survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to . .
  • Cited – Brooker & Another -v- Fisher CA (Bailii, [2008] EWCA Civ 287, [2008] Bus LR 1123, [2008] FSR 26, [2008] EMLR 13)
    The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
  • Cited – Evans Executors -v- Metropolitan Police Authority CA ([1993] ICR 151)
    The court considered that the approach in striking out an employment case should generally follow that in Birkett. . .
  • Cited – Icebird Ltd -v- Winegardner PC (Bailii, [2009] UKPC 24)
    (The Bahamas) The parties disputed the existence of a right of way. The appellant issued proceedings to claim that the right of way had been obstructed. After inordinate delay, it was struck out.
    Held: The appeal succeeded. There had been . .
  • Cited – Luke -v- Kingsley Smith & Company and Others QBD (Bailii, [2003] EWHC 1559 (QB), [2007] Lloyd’s Rep PN 29)
    The claimant sued various of those who had represented him in a claim against the Ministry of Defence. He believed that he had had to accept an inadequate sum in settlement after being at risk of losing the claim for non-prosecution. The defendant . .
  • Cited – Hatton -v- Messrs Chafes (A Firm) CA (Bailii, [2003] EWCA Civ 341, [2003] PNLR 24, [2007] Lloyd’s Rep PN 15)
    The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
    Held: By the time that the . .
  • Cited – Morrissey -v- McNicholas and Another QBD (Bailii, [2011] EWHC 2738 (QB))
    The claimant musician alleged defamation, saying that the defendant had accused him of being a right wing racist. The defendant now applied to strike out the claim as an abuse of process because of the claimant’s delay.
    Held: The application . .

Leave a Reply