Birkett v James: HL 1977

Exercise of Power to Strike Out

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’.

Lord Diplock
[1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38
England and Wales
CitedSayle v Cooksey 1969
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. . .
CitedAllen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .

Cited by:
CitedArrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
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 . .
SupercededNasser v United Bank of Kuwait CA 21-Dec-2001
The claimant appealed against 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 . .
CitedLewis v Henry St Hillaire and others PC 22-May-1996
(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 . .
CitedWorldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
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. . .
CitedArrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. 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 . .
CitedLace Co-Ordinates Ltd v Nem Insurance Co Ltd CA 19-Nov-1998
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 . .
ConsideredDepartment of Transport v Chris Smaller (Transport) Ltd HL 1989
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 . .
CitedRegina v Law Society ex parte Birkett Admn 30-Jul-1999
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 . .
CitedGrovit and others v Doctor and others HL 24-Apr-1997
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 . .
CitedBarclays Bank v Miller CA 1990
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 . .
CitedJoyce v Joyce 2-Jan-1978
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 . .
CitedHopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from 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 . .
CitedRath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party) CA 1991
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 . .
CitedBrooker and Another v Fisher CA 4-Apr-2008
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 . .
CitedEvans Executors v Metropolitan Police Authority CA 1993
The court considered that the approach in striking out an employment case should generally follow that in Birkett. . .
CitedIcebird Ltd v Winegardner PC 2-Jun-2009
(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 . .
CitedLuke v Kingsley Smith and Company and Others QBD 23-Jun-2003
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 . .
CitedHatton v Messrs Chafes (A Firm) CA 13-Mar-2003
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 . .
CitedMorrissey v McNicholas and Another QBD 26-Oct-2011
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 . .
CitedBiguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
CitedCallery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.179862