Department 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 brought was 13 months.
Held: Referring to dicta of Lord Justice Kerr, Lord Griffiths said: ‘I see the force of this observation, particularly in a case like the present, when there is no good reason why the action should not have been started much earlier than it was. But limitation periods are set by Parliament and not by the courts. It would, I think, introduce intolerable uncertainty into the litigation process if litigants were at risk of being penalised even if they commenced their actions within the limitation period and thereafter pursued them expeditiously. The effect would be to push people into precipitate litigation for fear that the court might eventually rule that they had not started their action soon enough.
The courts must respect the limitation periods set by Parliament; if they are too long then it is for Parliament to reduce them. I therefore commence my assessment of the present regime by concluding that the plaintiff cannot be penalised for any delay that occurs between the accrual of the cause of action and the issue of the writ provided it is issued within the limitation period.’ No case had been made out to abandon the need to show that the post-writ delay will either make a fair trial impossible or prejudice the defendant.
The House considered its ability to depart from its previous decisions, and the Practice Statement: ‘To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court control case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by Rules of Court as modified by a judge ; See the Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd 394).’


Lord Griffiths


[1989] AC 1197


England and Wales


DoubtedWestminster City Council v Clifford Culpin and partners CA 18-Jun-1987
It was questionable whether plaintiffs should be allowed the benefit of the full limitation period with virtual impunity where the facts are known and there is no obstacle to the speedy institution and prosecution of claims. . .
ConsideredBirkett 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 . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .

Cited by:

CitedPhonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 May 2022; Ref: scu.214297