Litigation. In your own good time

In his Access to Justice report, Lord Woolf said: “The key problems facing civil justice today are cost, delay and complexity.”

The courts and the Government have long displayed an ambivalent attitude towards delay. Lord Woolf identified the cause as the lack of any “judicial responsibility for managing individual cases of the overall administration of the Civil Court”. As for the blame, it is placed fairly and squarely on the shoulders of legal advisers who, he says, are guilty of “failure to progress the case sufficiently, wasting time on peripheral issues or procedural skirmishing to wear down an opponent or to excuse failure to get on with a case”.

While no one could accuse Lord Woolf of courting popularity by pandering to the public whim of blaming lawyers for all that is wrong with the legal system, his report absolves the Government and the judges of any responsibility. The maladministration has reached epidemic proportions, not because there is no cure but partly because the courts fail to prescribe it and partly because the Government refuses to invest in the machinery of civil justice. It is a low priority and it is cheaper to heap blame on the lawyers.

In the county courts, actions are automatically struck out if no hearing date is applied for within 15 months. RSC Order 25 provides the facility in the High Court for a party to apply to strike out an action for want of prosecution in circumstances where there has been inordinate and inexcusable delay or contumelious default. Yet since the days of Birkett v James (1978, AC297) defendants to litigation have frequently found the courts unwilling to exercise the remedies at their disposal to prevent plaintiffs delaying the resolution of their cases.

It is galling and ironic, therefore, that in litigation it is often the plaintiffs rather than the legal advisers who cause delays and the courts which sanction them by failing to take action to prevent them. This is not always true and there are many cases when it is the plaintiff’s legal advisers who are at fault, but when the opposing party and its legal advisers ask the court for help they usually find it only too willing to sanction delays the public would find unacceptable.

The core of the problem lies with the requirement of the House of Lords in Birkett v James that even if a defendant can show there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, he must then prove that such delay will give rise to a substantial risk of serious prejudice to the defendants. In the recently reported case of Slade v Adco (The Times 7 December 1995), the Court of Appeal (Lord Justices Neill and Auld and Sir Iain Glidewell) upheld a decision of Mr Justice Judge who had in turn upheld the District Judge’s Order, striking out the plaintiff’s claim for negligence and breach of statutory duty arising from an accident he suffered at work on 6 November 1987. The writ was issued on 10 March 1989, six years before the defendant applied to dismiss the action for want of prosecution.

Only afterwards, in June 1994, did the plaintiff’s solicitors attempt to set down the case for trial, some four years and eight months after the date by which it should have been set down and six years after the accident. Between the commencement of proceedings and the application it was twice necessary for the plaintiff’s solicitors to serve Notice of Intention to proceed, following delay of more than a year in taking any step in the action.

Although the court upheld the decision to strike out, the decision was not even unanimous. Lord Justice Auld dissented on the grounds that (a) there must be evidence of circumstances from which it could be inferred the delay had caused a specific problem for one or both of the witnesses, as distinct from a general impairment of memory from the passage of time, and (b) serious prejudice is likely to be caused to the defendant. Furthermore, Lord Justice Neill, one of the majority, thought the case was “clearly near the borderline”.

Many practitioners would agree with the recent statement of the Master of the Rolls in Rastin v British Steel (1994, 1WLR 739F) that “delay has long been recognised as the enemy of justice”, a statement with which Lord Woolf agreed in his report. He went on to express sympathy for the parties to litigation and to refer to the “benefit” of delay to legal advisers. Most practitioners involved in litigation would agree with the Master of the Rolls although not with all of Lord Woolf’s analysis.

In his report, Lord Woolf dismisses the comment that the existing rules and practice directions already contain the solution to problems by saying that the rules are flouted on a vast scale. “The timetables they contain are generally ignored and their other requirements are complied with when convenient to the interest of one of the parties and not otherwise.”

Is it any wonder? His Court of Appeal brethren labelled a case that had not been set down for six years after it was commenced as “borderline” when it came to an application to strike out, and one of them even considered the case for striking out had not been fully made. Is it any wonder litigants ignore the orders made by the courts, which frequently sanction years of delays in complying with steps in litigation?

What the courts ignore in determining applications to strike out is the prejudice to the interests of the party making the application. It is difficult to prove, particularly where witness statements have been prepared, although even in that case there is the question of whether a witness will be able to deal with cross-examining on peripheral matters after such a long time.

The courts have failed to appreciate, since Birkett v James, and as Slade v Adco has re-emphasised, that parties should have their cases determined as speedily as reasonably possible. Lord Woolf recognises this in his report: “Delay is an additional source of distress to parties who have already suffered damage… Delay results in increased costs.”

These considerations apply equally to defendants and plaintiffs yet they are given little weight by the courts. Some judges have made an attempt at least to redress the balance. On 8 February 1995 Mr Justice Drake, then the judge in charge of the jury list, issued a practice direction in which he stated, inter alia: “…it is essential that parties obey directions they are given and in particular directions as to setting down… In future, if the Order for setting down is not obeyed, the party in default may face severe penalties including, where appropriate, an Order that the action be struck out. Any party who is at present in default should hasten to remedy the position.”

While Mr Justice Drake may himself have been prepared to tackle the problems of delays in litigation, the record of the courts is not encouraging. Even when a defendant is able to satisfy the court that he has suffered the sort of prejudice the courts will recognise, he is unlikely to succeed in an application to strike out if the limitation period has not expired. Again, thanks to the decision of the House of Lords in Birkett v James, the non-expiry of the limitation period is generally a conclusive reason for not dismissing the action.

Yet this is not a sufficient reason to deny an applicant a remedy to which he would otherwise be entitled. If a plaintiff has delayed sufficiently for the court to consider his action should be struck out, there is no reason why he should incur the expense of paying the applicant’s costs of the current action and the cost of issuing a fresh writ. In many cases, particularly where the plaintiff does not have a strong cause, he would almost certainly not bother. If he does, he would at least be subject to the accepted practice that a plaintiff issuing a writ long after the cause of action arises is obliged to prosecute his action expeditiously. While greater use by the courts of Order 25 rule 1 is not a panacea for all delays in civil litigation, such use would at least be an immediate step which the courts could take to alleviate the problem of delay and it would give notice to litigants that the courts will no longer sanction delay.

If the Government, on the one hand, is not willing to address the problem of delays in obtaining hearing dates by making greater investment in the civil legal process, addressing the problem by greater use of Order 25 on the other is at least cost-effective.