An action which had been automatically struck out, may be re-instated if there had been good cause for the delay. ‘The proper approach to the exercise of any judicial discretion must be governed by the legal context in which the discretion arises.’ and ‘A retrospective application to extend time should not succeed unless the plaintiff (in which expression we include his advisers) is able to show that he has, save in his failure to comply with rule 11(3)(d) and (4), prosecuted his case with at least reasonable diligence. That does not mean that there is no room to criticise any aspect of his conduct of the case but that overall he is innocent of any significant failure to conduct the case with expedition, having regard to the particular features of the case. The plaintiff’s failure to comply with the rule can never be justifiable, but he must in all the circumstances persuade the court that it is excusable. If he is able to show that an extension of time for the requisite period, if sought prospectively, would in all probability have been granted, that will help him and the more technical his failure the more readily it will be excused. If, but only if, the plaintiff can discharge these burdens should the court consider the interests of justice, the positions of the parties and the balance of hardship in a more general way.’
Judges:
Sir Thomas Bingham MR
Citations:
Times 18-Feb-1994, Independent 11-Mar-1994, [1994] 1 WLR 732
Statutes:
County Court Rules 1981 Order 17 11-9
Jurisdiction:
England and Wales
Cited by:
Cited – Dowse v Kappell CA 12-Dec-1996
The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it . .
Cited – Reville v Wright CA 18-Jan-1996
Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold . .
Cited – Khela v Pone and Norwest Holst Limited CA 21-May-1997
The claimant sught to re-instate his personal injury action. It had been struck out under the automatic directions.
Held: The claimant had not satsified the requirement to provide a sufficient reason to make his delay excusable. . .
Cited – Arora v A R Erdozain and others (Trading As Solomon Hare and Co) CA 22-May-1997
Appeal against automatic strike out. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 26 October 2022; Ref: scu.85672
