Richard F. Poncher v. P.H. Sin & Co
Read the full judgment text of HCA 1448/1968 on BabelCite. This High Court CFI judgment.
1. The defendants by way of summons have applied for this action to be dismissed for want of prosecution. The plaintiff, on the other hand, has by way of summons made application that the time for filing a further amended statement of claim be enlarged.
Cited by 1 case
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HCA001448/1968 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1448 OF 1968 -----------------
Coram: Mr. Commissioner Morley-John. Date of Judgment: 4 November. 1971 ----------------- JUDGMENT ----------------- 1. The defendants by way of summons have applied for this action to be dismissed for want of prosecution. The plaintiff, on the other hand, has by way of summons made application that the time for filing a further amended statement of claim be enlarged. 2. The argument heard before me concerned the defendants' summons as it was agreed between the parties that the hearing of the plaintiff's summons should await the outcome of the defendants' application. 3. The history of these proceedings goes back to October 1963, when according to the statement of claim, negligence on the part of the defendants was alleged by the plaintiff. The plaintiff also alleged negligence on the part of the defendants in October 1964. The present action was commenced by the plaintiff by way of writ of summons on the 14th November, 1968, and on the 18th November, 1968 a statement of claim was served on the defendants. Appearance was entered on behalf of the defendants on 26th November, 1968. On the 8th January, 1969, on the advice of counsel, the solicitors for the defendants wrote to the plaintiff's solicitors pointing out that the statement of claim was unintelligible and disclosed no cause of action, and the defendants' solicitors indicated that if the plaintiff did not avail himself of the opportunity of amending the said statement of claim, the defendants would have no alternative but to apply to have the statement of claim struck out. The letter also enumerated what the defendants' solicitors alleged to be the defects in the said statement of claim. On the 26th March, 1969 in accordance with the provisions of Order 20 rule 3(1) of the Rules of the Supreme Court the plaintiff amended the statement of claim without leave, and such amended statement of claim was served on the defendants' solicitors on the 29th March, 1969. On the 26th April, 1969 the defendants' solicitors again wrote to the plaintiff's solicitors informing them that in the defendants' view the amendments did not render the statement of claim more intelligible, nor did they cure the defects previously mentioned, and they offered the plaintiff one final opportunity to put matters right by filing a properly formulated statement of claim. The plaintiff's solicitors replied to this letter on the 29th April, 1969, disagreeing with the views expressed in the letter dated the 26th April, 1969 and stating that such letter had been passed to counsel for his attention. Two months later on the 24th June, 1969, the plaintiff's solicitors wrote to the defendants' solicitors asking the latter to take steps to file their defence with all due expedition. This letter was followed two days later by a further letter from the plaintiff's solicitors giving the defendants 48 hours in which to file a defence. 4. On the 27th June, 1969 the defendants issued a summons for an order that the statement of claim be struck out as disclosing no reasonable cause of action and or because it might embarrass or delay the fair trial of the action. This summons was heard by a judge in chambers on the 21st October, 1969, and the learned judge agreed with the defendants' submission, as he gave leave to the plaintiff to amend the statement of claim and he ordered that it be filed and served by the plaintiff by the 30th November, 1969, and in default thereof the action would be dismissed. On the 29th November, 1969 an amended statement of claim was filed by the plaintiff. This reamended statement of claim was considered by the defendants to be even more defective than before the amendment, and a summons therefore was taken out on the 17th December, 1969 applying for the reamended statement of claim to be struck out on the same grounds as before, with an additional ground that such reamended statement of claim was frivolous or vexatious. This summons was heard before a judge in chambers on 17th January, 1970 when it was ordered that the defendants' summons be adjourned with leave for the plaintiff to file another amended statement of claim. In his said order the learned judge did not specify a time within which such further amended statement of claim should be filed, and therefore in consequence of the provisions of Order 20 rule 9 of the Rules of the Supreme Court, if the amendment was not made within a period of 14 days after the order, such order would cease to have effect. 5. On the 18th February, 1971, that is more that 12 months after the date of the order giving leave to further amend the statement of claim, the plaintiff gave notice to the defendants in pursuance of Order 3 rule 6 of the Rules of the Supreme Court of his intention to proceed with this action after the expiration of one month from the date of such notice. However, up to the date of the hearing of this present summons the plaintiff has not filed any further amended statement of claim. On the 16th April, 1971 the plaintiff's solicitors wrote to the defendants' solicitors enclosing a further amended statement of claim and requesting the defendants to consent to the filing of that document out of time. On the 26th April, 1971 the plaintiff's solicitors wrote again to the defendants' solicitors asking for a reply to their letter dated the 16th April, 1971 and on the 29th April, 1971 the defendants' solicitors wrote to the plaintiff's solicitors informing them that they were taking instructions from their clients and advice from counsel, and finally, by way of a letter dated the 5th May, 1971 the defendants' solicitors wrote to the plaintiff's solicitors advising them that they were not prepared to consent to the reamended statement of claim being filed out of time, as they had been advised by counsel to take out a summons for the dismissal of the action under Order 19 rule 1 of the Rules of the Supreme Court. Such summons, which is now before me, was filed on the 5th day of May 1971. 6. Mr. Litton who appeared on behalf of the defendants, in commenting upon the history of this action submitted that the facts complained of in the Writ of Summons arose nearly eight years ago between October 1963 and October 1964. He said that the Court had shown the utmost leniency towards the plaintiff and that the plaintiff had been given every possible indulgence as is shown by the Orders made on 21st October, 1969 and the 17th January, 1970, when on cither occasion the Court could have ordered that the statement of claim be struck out, and that after the Order of 17th January, 1970 it was incumbent on the plaintiff to take every step to see that the action was not further delayed, as the defendants had made their attitude clear as early as 25th April, 1969 in their letter of that date when the defendants' solicitors stated that their clients were anxious to have the matter disposed of as soon as possible and did not wish to have the case hanging over their heads one moment longer than necessary. He submitted that no reasonable explanation has been given for a delay which he submits is of some 24 months, as the plaintiff's case has not moved forward since the defendants' letter of 26th April, 1969 pointing out that the amended statement of claim disclosed no cause of action, and he submitted that his view had in no way been altered by the contents of the affidavit of the plaintiff's solicitor filed on the evening prior to the hearing of this summons. Further he submitted that even now the re-reamended statement of claim submitted to the defendants' solicitors with a request that they agree to it being filed over a year out of time, is still unintelligible and even now calls for further amendment and clarification. Mr. Litton submitted that this is a factor that should be taken into account although it is not within the ambit of this present summons. He also submitted that weight should be given to the fact that the defendants are a firm of solicitors and that charges have been brought against professional men who are in a position of vunerability. 7. Mr. Litton referred to a number of authorities, the principal authority being the judgment of Lord Donning, M.R. in the case of Allen v. Sir Alfred McAlpine and Sons Ltd. & Others.(1). In that case, which in fact involved three appeals, the causes of action arose respectively nine years, six years and fourteen before the appeals. In this present case of the cause of action arose in 1963 and 1964 between seven and eight years ago. Lord Denning M.R. in his judgment stated inter alia at p. 244:-
8. Lord Denning went on to consider the three cases in detail under three headings: The Window's Claim: The Nurse's Case; and The Claim of the Man of Business. In commenting on Lord Denning's judgment under these three headings Mr. Litton submitted that in The Window's Claim it was agreed that she had a good cause of action. Also that the window's solicitor had put forward pressure of work as a reason for his delay, in the same way as has the solicitor for the plaintiff in this present case in his affidavit dated 15th July, 1971, but that Lord Denning had considered such a reason to be no excuse. As to the Nurse's Case where the delay was on the part of the defendants, Mr. Litton submitted that there was no similarity between that case and the present case, because in the Nurse's case a statement of claim was filed, and instead of delivering a statement of defence the defendants after 3½ months merely asked for further and better particulars and that there was no allegation that the statement of claim was unintelligible, however he submitted that in this present case the statement of claim is unintelligible and could not be pleaded to, in fact this was shown by the fact that after the first letter from the defendants' solicitors the plaintiffs voluntarily amended the statement of claim for the first time without leave. 9. Commenting on the Claim of the Man of Business, in which case the delay was on the part of the plaintiffs, where at one stage his solicitor did nothing for 14 months which was considered inexcusable, Mr. Litton pointed out that one of the defendants in that case was a firm of solicitors and in this regard Lord Denning M.R. said at p.253:-
10. Mr. Litton contended that the injustice is more so in the present case, when right at the beginning it was pointed out to the plaintiff that the defendants, who are solicitors, were reluctant to have the matter hanging over their heads one moment longer than necessary and therefore gave every facility to the plaintiff. 11. Also in the same case on the subject of prejudice to professional men Diplock L.J. at p.265, in agreeing with the judge of first instance said:
12. Again Salmon L.J. said, at p.275:-
13. Mr. Litton also referred to the case of Gloria v. Sokoloff(2). In that case the Court of Appeal adversely commented on the fact that the plaintiff's legal advisers let nearly three years expire after the cause of action arose before they issued the writ, however defences were filed two months later and each defendant requested particulars of the special damage which was alleged. There was then a delay of nearly three years on the part of the plaintiff's solicitors to deliver a set of particulars which turned out to be vague and hopeless. In that case liability had been admitted and the issue was only as to damages, however the Court of Appeal applying the principles stated in Allen v. Sir Alfred McAlpine and Sons Ltd.(1) dismissed the plaintiff's appeal against on order that her action be dismissed for want of prosecution. 14. Mr. Litton also referred to the case of Marlton (An Infant) v. Lee-Leviton(3). Although in this case the plaintiff's appeal against the order dismissing her action for want of prosecution was successful, the Court of Appeal having found that the plaintiff's solicitors had been guilty of prolonged and inexcusable delay, decided that as the facts of the case were simple and uncomplicated, and that the defendants had paid £500 into Court, the defendants were not prejudiced by the delay. The Court of Appeal was also influenced by the fact that the plaintiff was a child. 15. Mr. Litton referred to that case, as in that case he said that the plaintiff was a child and therefore under a disability and had left the entire case in the hands of her solicitors, and could not be expected to hurry her solicitors, whereas in this present case the plaintiff is a rich elderly American gentleman well able to look after himself, that he commenced his action in 1968 and does not seem to have voiced one word of complaint regarding the delay. 16. There is no evidence before me as to the plaintiff's age or status, except that he is not an infant, but also there is no evidence that he himself has attempted to expedite matters. Another distinction between this present case and Marlton v. Lee-Leviton(3) is that in the latter case the Court of Appeal was influenced by the fact that money had been paid into Court by the defendants and that the facts of the case were simple and uncomplicated. In this present action the facts of the case, as far as I can understand them from the statement of claim and the various amendments thereto appear to be far from simple and uncomplicated. 17. Two further cases were referred to by Mr. Litton namely Reggentin v. Beecholme Bakeries Ltd.(4) (a case just prior to the case of Allen v. Sir Alfred McAlpine and Sons Ltd.(1)) where a delay of 12 months was held to be inordinate, and the case of Clough v. Clough(5) where although the plaintiff who had an unanswerable claim for damages would suffer a grave injustice it was held that the Court must follow the stern measures that were adopted in the case of Allen v. Sir Alfred McAlpine and Sons Ltd.(1) and refuse the plaintiff's appeal against an order for dismissal for want of prosecution. Mr. Litton urged that the attitude of the Court of Appeal in England should be followed by the Courts in Hong Kong as the pace of life in Hong Kong is as great if not greater than that in England. 18. Mr. Litton referred in some detail to the contents of the three times amended statement of claim exhibited to the affidavit of the plaintiff's solicitors dated 6th May 1971, that is the amended statement of claim which the plaintiff's solicitors sent to the defendants' solicitors on 16th April 1971 with a request that the latter consent to it being filed over a year out of time. He pointed out inter alia that the statement of claim was still unintelligible and inadequate and therefore even at this stage the plaintiffs are not ready for trial, and that the statement of claim shows no connexion between the particulars of damage and the alleged breaches on behalf of the defendants. That the Plaintiff is unable adequately to plead a cause of action. Mr. Litton quoted a passage from the case of Gouw Kioek Lau and Others v. Thians' Plastic Industrial Co. Ltd. and Others(6) which does not appear to have been reported. In this passage Blair-Kerr J. said:
19. Mr. Litton also commented upon the contents of the plaintiff's solicitor's affidavit dated 15th June 1971 in which he also referred to his affidavit dated 6th May 1971. From these affidavits it appears to me that the plaintiff's solicitors had neither considered the provisions of Order 20 rule 3, nor of Order 42 rule 4 of the Rules of the Supreme Court, and also it clearly shows inordinate delay. The most glaring instance being his failure to contact his counsel after the Court's order for amendment dated 17th January 1970. He did not successfully contact his counsel until November 1970 some 10 months after the order, and then according to his affidavit "I met him by chance in the Supreme Court and reminded him that the pleading was still not finalised." 20. Finally Mr. Litton, on the question of prejudice, said that as there is not a clear cause of action the defendants are unable to pin-point whether a piece of evidence may have been lost through passage of time. That apparently according to paragraphs 2 and 3 of the statement of claim oral instructions only were given to the defendants by the plaintiff and after this passage of time it will be more difficult for witnesses to remember what was said in a case of this complexity. The first cause of action goes back to October 1963 and there is further prejudice in that this action has been hanging over the heads of professional men for a considerable time. 21. Mr. Donnelly who appeared on behalf of the plaintiff submitted that on the principles laid down in the case of Allen v. Sir Alfred McAlpine and Sons Ltd.(1) there was no disagreement between himself and Mr. Litton as to the law. Quoting from the judgment of Salmon L.J. in that case he submitted that there were three factors upon which the defendants must satisfy the Court before their application could be successful. Firstly, that there has been inordinate delay, and with regard to this factor he submitted that it is undesirable and impossible to lay down a tariff of so many years or more on one side of the line, and a lesser period on the other, but that what is or is not inordinate delay must depend on the facts of each particular case. The second factor is that the inordinate delay is inexcusable, and the third factor is that the defendants are likely to be seriously prejudiced by the delay. 22. Mr. Donnelly also referred to the judgment of Lord Denning M.R. in the same case when he said at p.245:-
23. Mr. Donnelly submitted that the important point of this passage is where the delay is such to do great injustice to one side or both. 24. Mr. Donnelly pointed out that practically all the cases referred to deal with claims for personal injuries and that with regard to the issue of liability in those cases almost the entire evidence was verbal as to how the various accidents happened. He conceded that the same can be said with regard to an action against a solicitor for negligence, but he submitted that although there is no such evidence before me, one would expect a solicitor to have kept a note of the instructions he received, and of what occurred at various interviews between the solicitor and his client. Mr. Donnelly submitted that even if notes and proofs of evidence in action No. 1337 of 1964 in which the plaintiff and defendants were allies, that is the action referred to in the statement of claim, had been lost, there is still in existance the transcript to that action, from which the defendants could refresh their memories. 25. Mr. Donnelly also referred to the affidavit of his instructing solicitor dated 15th July 1971 where the solicitor has stated that he is not covered by insurance in this particular case and that he has insufficient assets to meet any claim that might be open in law to the plaintiff in an action for damages for negligence. In this respect Mr. Donnelly adopted and emphasised the passage from the judgment of Diplock L.J. in the case of Allen v. Sir Alfred McAlpine and Sons Ltd.(1) at p.260.
26. Mr. Donnelly also referred to the judgment of Salmon L.J. who in the same case stated at p.269:-
27. Mr. Donnelly also submitted that the decisions in the cases that have been referred to were not given on the basis of when did the causes of action arise being a major factor to be taken into consideration, but that the major factor considered was what was the period of delay after the writ was issued in regard to the various steps that were taken and should have been taken in the circumstances. He submitted that no court can properly criticise the plaintiff in this case if he delayed bringing his action until October 1969 or with regard to the negligence alleged in 1964 if he delayed until 1970. Mr. Donnelly further submitted that in the cases that have been referred to any inquiry into the history of the action was primarily for the purpose of considering whether the defendants were likely to be severely prejudiced by the delay, and he again quoted from the judgment of Lord Donning M.R. in the case of Clough v. Clough(5) at p.528. (The passage already referred to by Mr. Litton.) 28. With regard to the contents of the statement of claim and the various amendments thereto, Mr. Donnelly submitted that these are not factors which should be taken into consideration in an application to dismiss an action for want of prosecution. 29. He also disagreed with Mr. Litton's submission that nothing had been done by the plaintiff between January 1970 and April 1971. He said that this was not factually accurate. However, he agreed that nothing effectual had been done by the plaintiff during this period. In fact Mr. Donnelly admitted that there had been inordinate delay, and upon the point as to whether such delay was also inexcusable he referred me to the excuses given in the affidavit sworn by his instructing solicitor. He further frankly admitted that on the facts of this case if the only factors that the defendants were required to satisfy the Court to succeed in their application were inordinate delay and inexcusable delay his client would be in great difficulties, however, he submitted that the defendants' application must fail on the third factor as they cannot satisfy the court that they have been gravely prejudiced by the delay. Mr. Donnelly submitted that the question of prejudice is the dominant factor. He referred to the case of Austin Securities Ltd. v. Northgate & English Stores Ltd.(7) where in his judgment in that case Davies L.J. again referred to the principle laid down in Allen v. Sir Alfred McAlpine & Sons Ltd.(1) at p.534:
30. Mr. Donnelly pointed out that the defendants cannot say one way or the other whether they are prejudiced or not as they say that the acts complained of by the plaintiff are not properly specified in the statement of claim. He pointed out the provisions set out in the Fourth Cumulative Supplement to the Supreme Court Practice Vol. 1 para. 25/1/3c, which state:-
31. Mr. Donnelly said that it was because of this provision that the plaintiff's solicitor filed his affidavit on 15th July 1971, and he submitted that the defendants should have filed a similar affidavit. 32. Finally Mr. Donnelly stressed again that it was for the defendants to satisfy the Court that they have been gravely prejudiced by the delay. He submitted that the proposed action by the plaintiff would be no more difficult to try in 1971 or 1972 as it would have been if the action had been commenced with proper dispatch. Mr. Donnelly used the words, "to try" by which I presume he meant "it would be no more difficult to plead or defend." He quoted several further cases all based on the principles laid down in Allen v. Sir Alfred McAlpine and Sons Ltd(1). which cases also laid down that the defendants must show that they have been gravely prejudiced by the delay. That serious prejudice has been suffered Sayle v. Cooksey(8), and National Insurance & Guarantee Corporation Ltd. v. Robert Bradford & Co., Ltd. and Another(9), though in the latter case it was noted that the delay had not been all on one side. Also the case of Hymanson v. Rubin(10) where it was again held that although there had been inordinate and inexcusable delay, no serious prejudice to the defendants had been established. Mr. Donnelly submitted that the defendants have made no attempt to establish that they have been seriously prejudiced by the delay. That they contend that they are unable to do so because of the defects in the statement of claim, and if this is so in fact then Mr. Donnelly queried how could the defendants say that they have been seriously prejudiced or that any grave injustice would be done if the action was allowed to proceed to trial. 33. Mr. Donnelly agreed that the re-reamended statement of claim had still not been filed and he also admitted that before such statement of claim was filed, certain further amendments would still be necessary, principally to connect the particulars of damages with the alleged cause of action. 34. Mr. Litton in reply submitted that the courts do take into account initial delay in commencing an action when they considered the overall conduct of the action and he quoted the case of Clough v. Clough(5) to support his submission, when in his judgment Lord Denning M.R. in referring to delay, speci-fically mentioned a period of 3 years that elapsed before the issue of the writ. 35. Secondly with regard to the question of the plaintiffs solicitors not being insured. Mr. Litton submitted that the cases referred to on this subject were cases where the plaintiffs had very strong claims for damages, in some cases unanswerable and in others admitted, and in others money had been paid into court. He agreed that in such cases the matter of insurance was of the utmost importance, but in this present case he submitted that we do not really know if it is the fault of the plaintiff or his legal advisers that 8 years after the alleged breach no clear claim has been formulated. He invited me to draw the inference that the plaintiff is unable to give his solicitors clear instructions. He therefore submitted that in any event in this present case any hardship suffered by the plaintiff would not be nearly as great as in the case where the plaintiff had a clear and virtually admitted claim. 36. On the question of prejudice Mr. Litton submitted that this present case was an exceptional one, and that it differed from the authorities referred to in that in those cases the facts were crystal clear, and in some cases liability was admitted. He submitted that with regard to prejudice the court must ask itself "What prejudice will entire to the defendants if the matters were now to go to trial?" That the court would be much better assisted in finding an answer to this question if the issues involved were clear. He submitted that in this present case even now there is not a clearly formulated statement of claim, and no clear cause of action. Mr. Litton further submitted that the court cannot expect to receive affidavits from the defendants on matters of potential prejudice; that the court cannot expect the defendants to file affidavits stating that they do not know what the cause of action is but if the cause of action is this then they may be prejudiced in such and such a way. 37. In this present case adopting the principles stated in the case of Allen v. Sir Alfred McAlpine and Sons Ltd.(1)and bearing in mind all the other authorities that have been quoted to me, I am satisfied from the affidavits filed in this case that there was inordinate delay on behalf of the plaintiff in the prosecution of this action, and also that that delay was inexcusable. The question that remains to be decided by me is that of prejudice. The present case differs in one aspect from the cases to which I have been referred. In all those cases a statement of claim had been filed and the plaintiff's cause of action was clearly stated, and in some cases liability was admitted, and in others the plaintiffs had what amounted to an unanswerable claim. In this case we have no finally formulated statement of claim, and it is therefore impossible fully to evaluate whether the plaintiff has a good cause of action. In October 1969 and in January 1970 the learned judge who heard the defendants' previous applications, considered that the statement of claim required amendment before such statement of claim could disclose a reasonable cause of action, and counsel for the plaintiff has admitted that the re-reamended statement of claim which the plaintiff seeks to file over a year out of time, would still require further amendment. 38. It has been said that delay of itself can cause prejudice, and the defendants' negligence complained of by the plaintiff arose in 1963 and 1964, yet the plaintiff did not seek to commence his action until November 1968. Mr. Donnelly submitted that no court can properly criticise the plaintiff in this case if he delayed bringing his action until October 1969, I think he probably meant November 1969, however he did say that in the cases which have been referred to any inquiry into the history of the action was primarily for the purpose of considering whether the defendants were severally prejudiced by the delay, and I am now dealing with the matter of prejudice. However in both the case of Clough v. Clough(5) and Gloria v. Sokoloff(2) the court did take into consideration a delay in each case of three years from the date that the cause of action arose to the issue of the writ. Mr. Donnelly submitted that it would be no more difficult for the defendants if this case was heard in 1971 or 1972 as it would have been if the action had been commenced with proper dispatch, because he said that one would expect the defendants who are solicitors to have kept a note of the instruction they received and of what occurred at various interviews between the solicitors and their client. Also that as the plaintiff and defendants were joint defendants in action No, 1337 of 1964, the action referred to in the statement of claim, the transcript of that action would still be existence, from which the defendants could refresh their memory. I cannot agree that in these circumstances the defendants have not been prejudiced by this long delay. They may well have kept notes of interviews with the plaintiff in 1963 and 1964, I do not know, no evidence has been adduced as to this, but even if such notes exist after this lapse of time I am satisfied that there is a strong likelihood that the defendants would be prejudiced by this long delay. It is admitted that many of the instructions given by the plaintiff to the defendants were oral instructions. Again if a clear cause of action was shown in the statement of claim the defendants would be able to judge whether certain pieces of evidence were lost through the passage of time. As to the case referred to by Mr. Donnelly, the plaintiff and the defendants might well have been joint defendants in that action, I do not know the details of that action, except that the trial of that action lasted for some 117 days; there is no evidence before me that the defendants would in any way be assisted in this present action by reference to the transcript. 39. Another and possibly more important factor with regard to the question of prejudice is that the defendants are professional men, and that they are charged with negligence, which is a very damaging charge. Lord Denning M.R. in the case of Allen v. Sir Alfred McAlpine & Sons Ltd.(1) said that it is a grave injustice to professional men to have a charge of negligence outstanding for so long, and later in his judgment he said that where the delay was prolonged and inexcusable and was such to do grave injustice the court might in its discretion dismiss the action straightaway. Diplock L.J. in the same case agreed that allegations of professional negligence were of such a character which common fairness required should not be kept hanging over the heads of professional men a moment longer than was necessary, and if such damaging charges were to be made, justice particularly required that they should be disposed of with the minimum of delay. Again in the same case Salmon L.J. said that for solicitors to have a charge of negligence hanging over their heads for a considerable time cannot be other than seriously prejudicial to any professional man. 40. With respect I adopt the words of their Lordships in that case and I am satisfied that as professional men the defendants have been seriously prejudiced by the delay in this present case. The defendants' solicitors even went so far in their letter to the plaintiff's solicitors dated 26th April 1969 to point out that their clients were "naturally anxious to have the matter disposed of as soon as possible and do not wish to have this case hanging over their heads one moment longer than necessary" the very words quoted by Diplock L.J. to which I have just referred. 41. As for Mr. Donnelly's submission that the plaintiff's solicitor is not covered by insurance in this particular case, and that he has insufficient assets to meet any claim that might be open in law to the plaintiff in an action for damages for negligence, he adopted the passage from the judgment of Diplock L.J. in the case of Allen v. Sir Alfred McAlpine and Sons Ltd.(1) which I have recorded earlier in this judgment. Quoting from that passage I agree that the court can tamper logic with humanity and the prospect that an innocent plaintiff will be kept without any effective remedy for the loss of his cause of action against the defendants is a factor to be taken into consideration in weighing on the one hand, the hardship to the plaintiff if the action is dismissed, and on the other hardship to the defendants and the prejudice to the due administration of justice, but I must also qualify this by reference to the judgment of Salmon L.J. in the same case, where on the same subject he refers to the plaintiff having a sound cause of action, and that the apparent merits of the plaintiff's case must be borne in mind. As I have already said in the majority of the cases to which I have been referred, the cause of action was clear, and in some cases liability was actually admitted, whereas in this present case the statement of claim has not been finally formulated. Mr. Litton has also submitted that there is no evidence that the plaintiff himself has attempted to expedite matters and I refer to the judgment of Edward Davies L.J. in the case of Austin Securities Ltd. v. Northgate & English Stores Ltd.(7) where he says:-
42. Under all the circumstances I am of the opinion that the possibility, and I put it no higher than that, of the plaintiff being successful in an action for negligence against his solicitor cannot out weigh the hardship to the defendants caused by the serious prejudice to them occasioned by the delay on the part of the plaintiff. 43. In this present case the charges made by the plaintiff are such that they should have been disposed of with the minimum of delay. Finally I quote from the judgment of Lord Denning M.R. in the case of Richards v. Naum(11), which was not referred to me by counsel, in which he said:-
44. I consider that for the reasons I have already given, this case is one that should have been disposed of with the minimum of delay. As I have already said I find that there has been inordinate and inexcusable delay in the prosecution of this action, and that I am satisfied that the defendants have been seriously prejudiced by this delay, and under the circumstances I give judgment for the defendants as claimed with costs, and the plaintiff's action is dismissed accordingly.
15th October, 1971. Representation: ...(illegible) (1) 1968 2 Q.B. 229 (2) 1969 1 All E.R. 204 (3) 1968 1 W.L.R. 1214. (4) 1968 2 Q.B. 276 (5) 1968 1 w.L.R. 525 at 528 (6) Hong Kong Original Action No. 1640 of 1969. (5) 1968 1 W.L.R. 525 at 528 (7) 1969 1 W.L.R. 529 (8) 1969 2 Lloyds Rep. 618 (9) 1970 114 Sol. J. 436 (10) 1971 115 Sol. J. 348 (11) 1970 114 Sol. J. 809 |
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