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 tests: see Rastin; Hoskins; (b) in relation to both these tests the onus of proof lies on the plaintiff; (c) the plaintiff must satisfy the court that the action has been conducted with at least reasonable diligence; (d) in this context diligence must be tested, not by the approach adopted by the court on applications to dismiss for want of prosecution, but by the new timetables laid down by Ord.17, r.11; (e) the plaintiff must secondly satisfy the court that the failure to apply for a hearing date within the time limit laid down by the rules was ‘excusable’.’
Judges:
Otton LJ
Citations:
Times 18-Jan-1996, Gazette 21-Feb-1996, [1996] 1 WLR 592
Statutes:
County Court Rules 1981 17(11)
Jurisdiction:
England and Wales
Citing:
Cited – Hoskins v Wiggins Teape (UK) Limited CA 1994
The plaintiff had delayed the action. It had been transferred from the High Court in July 1991, and was then automatically struck out. The plaintiff sought re-instatement.
Held: The court attempted to put into proper context the problems that . .
Cited – Rastin v British Steel Plc, Todd v Evans, Adams v Geest Plc CA 18-Feb-1994
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.’ . .
Cited – Gardner v Southwark London Borough Counci (No 1); King v East Cambridgeshire District Council etc CA 18-Jan-1996
It was not an abuse of process, to restart a claim within the limitation period after an automatic striking out of an earlier action. Millett LJ referred to the ‘same dilatory progress’ all the parties to the action continued to make after the . .
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 . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 27 October 2022; Ref: scu.88756