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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Phelps v Button [2016] EWHC 3185 (Ch) (11 October 2016) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2016/3185.html Cite as: [2016] EWHC 3185 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building, 110 Fetter Lane, London EC4A 1NL
		11th October 2016

Tuesday, 11^th October 2016.

JUDGMENT:
1. In this case there are two applications before the Court. The first is made by an Application Notice issued by the Claimants. It is dated 28^th April 2016 but was actually sealed on 11^th May. It is for an Order that this claim be listed for what it calls a quantum hearing, the issue of liability having previously been determined in circumstances which I will mention in a moment. It is supported by a witness statement – the third witness statement of Mr Peter Button, the First Claimant – dated as long ago as 16^th May 2012, and also by the witness statement of Philip Simon Clark, which is also dated 16^th May 2012. There was also a fourth witness statement of Mr Peter Button much more recently, dated 24^th September 2016. Although properly made in opposition to the witness statement of Moira O'Hara in support of the Defendant's application which I shall mention, it also can fairly be regarded as made in support of the First Claimant's own application.
2. The second application before the Court is made by Notice on behalf of the Defendant dated 27^th June 2016, for an Order (put shortly) to strike out the claim as an abuse pursuant to Part 3 of the Civil Procedure Rules. This application is based on two main points; firstly, a failure to comply with two Orders of the Court, and secondly on the grounds of substantial delay by the First Claimant. That application is supported, as I say, by the witness statement of Moira O'Hara, dated 27^th June 2012.
3. The applications are made in the context of litigation between the parties which was begun by a claim form together with Particulars of Claim dated 28^th August 2003. That is now over 13 years ago. The Defence of the First Defendant is dated 22^nd September 2003. There were I think Amended Particulars given in October 2004, and then ultimately an Amended Reply in November 2005. All these Statements of Case led to the trial of the claim, but only on liability, before Mr Robert Engelhart QC. He gave his judgment in February 2006. That is more than ten and a half years ago. It appears that it was the judge himself who decided that the question of liability only would be determined at the trial, and the question of the quantum of loss should be left over to a further hearing.
4. I can summarise the facts of the case in very short order. The claim brought by the Claimants arose out of the collapse of a Group of Companies which are referred to as the PNN Group, which were operators of bars and nightclubs. In 2003 a number of people were interested in bidding for some of the bars and nightclubs which the Group owned. There were two rounds of bidding taking place between May and August 2003. The Claimants mounted a bid through a corporate entity incorporated for that purpose, known as Ryeheath Ltd, but that bid was unsuccessful. The essential complaint against the First Defendant was that he agreed to support and participate in the Claimants' bid, but actually proceeded to instigate a rival bid, which was successful after the second round of bidding.
5. The judge at the trial found that the First Defendant's agreement to the original heads of terms agreed between the parties in early May 2003 was not voidable for duress, as had been argued, but that those original heads of terms were terminated on 23^rd May 2003, when the second bid was put in. The judge then found that the First Defendant had breached the original heads of terms, and therefore was in breach of contract, until he was released prospectively by the revised heads of terms on 23^rd May. All the other claims which had been mounted against the First Defendant were dismissed by the judge.
6. The consequence of that is that the only part of the litigation still remaining at the end of the trial was the question of the quantum of loss suffered by the First Claimant in wasted expenditure in the context of the original Ryeheath bid, viz., during the month of May 2003.
7. I have already set out the main elements of the procedure in this action. I should however go on to say that in February 2007, viz., after the handing down of the Judgment, Master Bragge gave directions for the determination of the issue of quantum. These made provision for the First Claimant to give disclosure by I think 27^th February 2007, but that Order was not complied with. As the First Claimant put it in a witness statement, he had doubts about the solvency of the First Defendant, and wondered whether it was worthwhile pursuing a claim for damages against him. However, those doubts, according to Mr Button, were resolved by June 2007.
8. Then, again according to the First Claimant, between June 2007 and August 2010 the First Claimant was in contact with his then solicitors Messrs Hamlins. He says he chased them extensively for progress updates, and was assured that progress was being made. In August 2010 a further application was made by the Claimants to the Court which led to a further Directions Order being made (in fact by me) on 6^th September 2010. That Order also provided for similar things as the 2007 Order, namely, disclosure, witness statements and so on.
9. So in this case there have been two Court Orders, that of Master Bragge in February 2007 and my own Order of September 2010, both ordering disclosure and inquiry as to damages and the provision of witness statement evidence. The matter is now some more than 13 years since the issue of proceedings, more than 10 years since the trial on liability has taken place, and I am now being asked by the Claimants' application to fix a quantum hearing. I should add that the application of April 2016 of the First Claimant was made some 16 months or so after the First Claimant had changed his solicitors from Messrs Hamlins to his current solicitors.
10. It was agreed between the parties, and it certainly seemed to me that it would be sensible, that I should begin by considering the Defendant's application to strike out. This is because if that were successful it would not be necessary to go on to consider the Claimants' application to list the quantum hearing. Accordingly, that is the order in which I have considered these matters.
11. The law in relation to such an application as the First Defendant is making is set out in Part 3 of the Civil Procedure Rules. Rule 3.4(2) provides as follows:

'The Court may strike out a Statement of Case if it appears to the Court'

(and then (a) is not relevant),

'(b) that the Statement of Case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a Rule, Practice Direction or Court Order.'

12. Because it becomes potentially relevant later, I should also draw attention to Rule 3.9, which provides

'(1) On an application for relief from any sanction imposed for a failure to comply with any Rule, Practice Direction or Court Order the Court will consider all the circumstances of the case so as to enable it to deal justly with the application including the need (a) for litigation to be conducted efficiently and at proportionate cost, and (b) to enforce compliance with Rules, Practice Directions and Orders;

(2) An application for relief must be supported by evidence.'

13. I was referred by the First Defendant to two decisions from the late 1960s/early 1970s Gloria v Sokaloff [1969] 1 All ER 204, and Paxton v Allsop [1971] 1 WLR 1310, where it was made clear by the Court of Appeal that, in considering whether the Court should strike out for abuse of process, it made no difference that the question was one of an inquiry as to damages or the quantum of loss rather than the trial of the issue of liability.
14. The Rules of Court now governing the procedure of the High Court are the Civil Procedure Rules 1998. But it appears clear that the position has not been in any sense liberalised by the introduction of those new Rules; indeed it may even be that it has become somewhat tougher. But I was referred in particular to the decision of Barling J in the case of Wearn v HNH International Holdings Ltd [2014] EWHC 3542 Ch (permission to appeal refused [2015] EWCA Civ 704). This was a case in which there was an application inter alia to strike out the claim pursuant to the same two provisions of the CPR i.e. 3.4(2)(b) and (c). In that particular case the judge set out what he considered to be the relevant principles to be applied in a case of this kind.
15. The judge said this:

"66. In relation to 3.4(2)(b) Explanatory Note 3.4.3.5 in the White Book 2014 states:

"Rule 3.4(2)(b) is not strictly relevant where the complaint is one of delay rather than a complaint as to the form or content of a statement of case (Western Trust & Savings Ltd v Acland & Lenson (a firm) [2000] L.T.L June 19, 200 (QB). However, in Habib Bank Ltd v Jaffer (Gulzar Haider) [2000] CPLR 438, CA, a claim was struck out where delays were caused by a claimant acting in wholesale disregard of the norms of conducting serious litigation and doing so with full awareness of the consequences (cf. Grovit v Doctor [1997] 1 WLR 640; [1997] 2 All ER 417, HL, noted in para 3.4.5 below). Delay, even a long delay, cannot by itself be categorised as an abuse of process without there being some additional factor which transforms the delay into an abuse (Icebird Ltd v Winegardner [2009] UKPC 24). The principles of Grovit and Icebird were considered and applied in Adelson v Anderson [2011] EWHC 2497 (QB)…"

67. In the latter case at [16]-[32] Tugendhat J set out and summarised the relevant case law (including the Grovit and Icebird decisions referred to in the Note above) on the interaction between delay and abuse of process. The guiding principle is that delay alone, even if it is inordinate and inexcusable, cannot be an abuse of process; but such abuse may arise when delay is combined with some other relevant factor (such as an absence of intention to take a case to trial).

68. In respect of the court's jurisdiction to strike out for failure to comply with rules, practice directions and court orders, the White Book 2014 Explanatory Note 3.4.4 provides the following guidance:

"Rule 3.4(2)(c) gives the court an unqualified discretion to strike out a claim or defence where a party has failed to comply with a time limit fixed by a rule, practice direction or court order.

…

The relevant circumstances include any prejudice suffered by other parties but it is no longer necessary to consider prejudice in the way it was considered pre-CPR, or to ascribe it to a particular period or periods of delay (Axa Insurance Co Ltd v Swire Fraser Ltd (formerly Robert Fraser Insurance Brokers Ltd) [2001] CP Rep 17; [2000] CPLR 142, CA).

"I can see that were delay to have occasioned prejudice short of an inability of the court to be able to provide a fair trial, then there would be or may be scope for the use of other forms of sanction. But where the conclusion that is reached is that the prejudice has resulted in an inability of the court to deal fairly with the case, there can only be one answer and one sanction; that is for the [proceedings] to be struck out" (per Latham L.J. in Purefuture Ltd v Simmons & Simmons, May 25, 2000, CA).

The relevant circumstances may also include the weakness of the claim even if it is not so weak as to have no real prospects (Cohort Construction (UK) Ltd v M Julius Melchior [2001] C.P. Rep. 23, CA; cf Chapple v Williams [2000] LTL, December 8, CA, concerning applications under r.3.9).

The court's power to strike out under r.3.4(2)(c) is not confined to circumstances in which the upshot of the party's failure to comply with a rule, practice direction or order has been serious delay (of the kind that pre-CPR might have led to an application to strike out for want of prosecution), though that is the more usual case…

…

In Maqsood v Mahmood [2012] EWCA Civ 251, the Court of Appeal held that the judge had been justified in striking out the claim under r.3.4(2)(c) given the failure of the claimant to comply with court orders relating to specific disclosure, exchange of witness statements and delivery of trial bundles. The claimant should have been ready for trial but attended before the judge seeking an adjournment which had been rightly refused. Given the claimant's hopeless position following the refusal of the adjournment, his case was doomed to be dismissed. The Court of Appeal made the point that the right to a fair trial was a right enjoyed by defendants as well as claimants."

69. Further recent guidance is to be found in the judgment of Hamblen J in The Owners and/or Bailees of the Cargo of the Ship Panamaz Star v The Owners of the Ship Auk [2013] EWHC 4076 (Admlty) ("The Auk"). There a strike out was sought by reference to both delay and abuse of process, and Hamblen J examined the relevant case-law on each head. He helpfully summarised the principles derived therefrom as follows:

As to delay

"37. In summary, the authorities provide the following guidance:

(1) There are no hard and fast rules. The court has to make a broad judgment having regard to all relevant circumstances and the justice of the case.

(2) The relevant circumstances may include the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so how it can be compensated for, and whether the delay is such that it is no longer possible to have a fair trial.

(3) A defendant cannot let time go by without taking action so where delay does cause prejudice to him he cannot say that it is entirely the fault of the claimant.

(4) In considering what is the just and proportionate order to make the court should have regard to the alternative sanctions to that of striking out provided by the CPR."

As to abuse of process

"38. To commence or to continue proceedings which you have no intention to bring to a conclusion may constitute an abuse of process; see Grovit v Doctor [1997] 1 WLR 640: Habib Bank Ltd v Jaffer (The Times on 5 April 2000).

39. As Lord Woolf stated in Arbuthnot Latham Bank Ltd v Trafalgar Holdings [1988] I W.L.R. 1426 at p. 1437:

"Whereas hitherto it may have been arguable that for a party on its own initiative to in effect 'warehouse' proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the Claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes."

40. Inordinate and inexcusable delay alone does not amount to abuse of process. However, it may do so if it involves a wholesale disregard for the rules of court with full awareness of the consequences; see Habib Bank Ltd v Jaffer at [10] per Nourse LJ."

70. In The Auk the claim was issued in May 2000 and was subject to an agreed suspension of the procedural timetable until 2004. No steps were then taken between 2005 and 2013, when the claimant applied to list a CMC. The learned Judge struck out the claimant's claim under rule 3.4(c) on the basis of delay, which he found had caused serious prejudice to the Defendant in that a fair trial was precluded. He so decided even though the defendant was partly responsible for the delay. In view of his finding on delay/breach of rules, the learned Judge made no determination on the alternative ground of abuse of process.

71. Both Mr Nathan and Mr de la Mare referred to the dicta of Neuberger J (as he then was) in Annodeus Entertainment Ltd v Gibson (unrep., 2000) identifying a number of potentially relevant factors to which he considered the court should have regard in addressing the question of whether an action should be struck out on grounds of delay. Mr de la Mare emphasised that in the Court of Appeal decision Audergon v La Baguette Ltd [2002] CP Rep 27 Jonathan Parker LJ had indicated (at paragraph 107) that one should be cautious about applying a judicially-created checklist which does not appear in the CPR itself, and which could compromise the flexibility the CPR was designed to achieve. He submitted that the factors in question are simply potentially relevant considerations within the broad range of such considerations under the flexible CPR test.

72. The list of factors identified by Neuberger J was set out in the judgment of Jonathan Parker LJ:

"51. …..The list reads as follows (so far as material):

"First, a claimant has and always has had a duty to get on with proceedings, and is liable to sanctions if he does not.

Secondly, this duty was taken more seriously under the RSC even before the CPR came into effect: see Arbuthnot Latham v. Trafalgar Holdings [1998] 1 WLR 1426. This is a point of significance because part of the period of the delay was before the CPR came into force.

Thirdly, following the coming into effect of the CPR, keeping to time limits laid down by the CPR or by the court itself is accorded more importance than it was previously, see per Lord Woolf in Biguzzi v. Rank Leisure plc [1999]1 WLR 1926 at 1932G. One sees that principle reflected also in the observations of Lord Lloyd of Berwick in UCB Corporate Services Ltd v. Halifax SW Ltd (unreported 6 December 1999 at paragraph 17).

Fourthly, under the old law a claim could normally only be dismissed for want of prosecution where the plaintiff's default or delay had been intentional and contumelious, or where he had been guilty of inordinate and inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible, or to serious prejudice to the defendant (see Birkett v. James [1978] AC 297).

Fifthly, the court is now prepared to dismiss a claim for delay even if neither of Lord Diplock's two requirements as laid down in Birkett v. James [1978] AC 297 is satisfied (see Biguzzi v. Rank Leisure plc [1997] 1 WLR 1926 at 1932 G).

Sixthly, the duty of a claimant to pursue an action expeditiously and in accordance with the rules is all the more important when the claimant has already had a significant benefit at the expense of the defendant from the action — for instance, in this case the benefit of the search order. This is perhaps even more true where the claimant has, and continues to have, the benefit of a continuing interlocutory injunction to the defendant's disadvantage, which injunction is to run to trial. …

Seventhly, the CPR enable the court to adopt a more flexible approach. The previous "all or nothing" extremes of either dismissing the claim for delay or permitting it to continue are now merely the two ends of a spectrum. The court has other sanctions at its disposal which it can and, in appropriate cases, should impose, rather than adopting one of the two extreme positions. …

Eighthly, in light of general principle and the overriding objective (see CPR r.1.1(2)) the sanction, if any, to be invoked by the court to deal with a particular case of delay should be proportionate. To dismiss a claim where the claimant appears to stand a reasonable chance of success and of recovering substantial damages is a strong thing to do. Particularly so bearing in mind Article 6(1) of the [ECHR] …

Ninthly, it appears to me that it is normally relevant to consider the following factors. First, the length of the delay; secondly, any excuses put forward for the delay; thirdly, the degree to which the claimant has failed to observe the rules of court or any court order; fourthly, the prejudice caused to the defendant by the delay; fifthly, the effect of the delay on trial; sixthly, the effect of the delay on other litigants and other proceedings; seventhly, the extent, if any, to which the defendant can be said to have contributed to the delay; eighthly, the conduct of the claimant and the defendant in relation to the action; ninthly, other special factors of relevance in the particular case.""

16. It will be seen that, in the course of his remarks, the judge referred in particular to two decisions at first instance. One was that of Hamblin J in The Auk [2013] EWHC 4076 (Admiralty). The other was Annodeus Entertainment Ltd v Gibson (unreported) in 2000, a decision of Neuberger J which was substantially quoted by Jonathan Parker LJ in Audergon v La Baguette Ltd [2002] Civil Procedure Reports at p. 27.
17. It is clear from those authorities, and from earlier authorities such as Grovit v Doctor [1997] 1 WLR 640, that the concept of abuse process as set out in Rule 3.4(2)(b) is not engaged merely because there is a delay in the prosecution of the litigation; there must be something more. For example, if a party embarks on litigation intending never to conclude it or something of that kind. It may also arise if there is significant prejudice to the other side.
18. So far as concerns whether it is appropriate to strike out because the Statement of Case is otherwise likely to obstruct the just disposal of the proceedings, these words were also discussed in those authorities, and I need not take time now to go through them.
19. The other head upon which the First Defendant relies is the failure to comply with Court Orders, and it is here that rule 3.4(2)(c) applies. As I have already mentioned, there were two Orders of the Court – indeed both of them by consent – which required disclosure to be given and it common ground that there was a clear failure by the First Claimant to comply with them. Therefore, the question is whether the well-known sequence of authorities following the case of Denton v White is engaged. In my judgment it is. Although this is not a case of application for relief from sanctions under Rule 3.9 Civil Procedure Rules, nonetheless it is right for the Court in considering whether to strike out a claim under this Rule to look and see whether it would have given relief if an application were made for relief from sanctions. This is because, as a general proposition, if the Court would be prepared to give relief from sanctions it should not strike the case out.
20. So that is the area of law with which I am concerned. I turn now to consider the position on the facts of this case. The first point is this, that there has been indeed a very long delay since the judgment of Mr Robert Engelhart QC in February 2006 on the question of liability. The first matter is whether this delay can be properly explained. In his witness statement of 24^th September 2016 the First Claimant puts the blame fairly and squarely upon the shoulders of his solicitors Messrs Hamlins.
21. I pause there to observe first of all that the First Claimant appears to be an experienced businessman. He is not, for example, a granny in an attic who has never been involved in legal processes or consulted solicitors before. Secondly, Hamlins is a well-known and highly reputable firm. Thirdly, I have heard nothing from Hamlins as to their side of what happened. Indeed, they would not be allowed to say anything from their side, in relation to such privileged information as they may have, without a waiver of privilege by the First Claimant.
22. On the material before me, I am not satisfied that I have heard the whole story. The First Claimant does not say – I suppose he cannot say – that he was not aware of the two Consent Orders which were made by consent. I do of course accept his evidence that he contacted his solicitors on numerous occasions. However, the First Claimant has not waived privilege for any communications with those solicitors. That is his right; he is entitled not to waive privilege. However, I can only make a decision on the basis of the material which the parties have chosen deliberately to put in front of me. On that basis I am unable to find that the explanation for this long delay is the fault of the solicitors. I simply do not know. I therefore proceed on the basis that the delay in this case is unexplained. I do however record, as I have I think already mentioned, that ultimately in about November or December 2014 the First Claimant changed his solicitors from Hamlins to his present firm and I also observe that it took something like a further 16 months before the present application before me was issued finally on 11^th May 2016. So we have a very long delay, and we have no adequate explanation for it.
23. Secondly, there is the failure to comply with two Consent Orders. Looking at the Denton v White test, I ask myself 'Are these serious breaches?' I conclude that they are. Each of those two Orders was designed to enable the trial of the issue as to quantum. Without those procedures being implemented as required by the Orders a fair trial of those issues was simply not possible. This is not peripheral; this is mainstream. This is what it is all about.
24. The next point is, is there a good explanation for the failures to comply with these Orders? In my judgment, No. In particular, even if I were prepared to believe the story from the First Claimant that it was all the solicitors' fault, that would not be a good explanation and especially not a good explanation when, as I have already said, the First Claimant is an experienced businessman. Solicitors are the agents of the parties that they represent. The clients are bound by the acts of their solicitors within the scope of their authority. That is what they are for. The Defendants on the other side are not able as a matter of law to go behind the acts of the solicitors in ordinary circumstances, and must assume that the solicitors are acting on their clients' instructions. It is simply unfair to say 'Oh well, I was not properly represented by my solicitors.' You have chosen your solicitors, made them your agents, and you are bound by what they do. Your remedy, if you have one, is against them. So in my judgment no good explanation has been given for failure in the case of either of the two Orders.
25. However, the third stage of the Denton v White test, my overall assessment of all the circumstances of the case, must await a little further until I have considered all of the other factors with which I wish to deal.
26. The next point is the question of the strength of the claim put forward by the First Claimant. It has to be said that the First Claimant's case was set rather high, and most of the heads of claim were in fact dismissed by the judge. The only one which is left (which of course succeeded, and I must give full credit for that) was that of breach of contract in relation to wasted expenditure by the First Claimant in making the Ryeheath bid, the first unsuccessful bid, in early May 2003. There was only a window of about 14 days or so between the two bids, so it is expenditure in a very short space of time.
27. The evidence in support of that claim (which I have to say is rather bare) shows on its face that at least some of the expenditure was certainly not expenditure by the First Claimant – at any rather not personally – but was expenditure by his creature companies. Prima facie such expenditure would fall foul of the well-known principle of company law in Saloman v Saloman, separating company and shareholder, so that payment by my company is not payment by me. But in any event of course the claim which succeeded at trial of breach of contract is a claim which depends on the relationship between the two parties to the contract and no-one else. So here damages for that breach are only available to the First Claimant, as the person who had a contractual relationship with the Defendant. They are not available to his companies. It is also to be noted that the evidence of the First Claimant does not even directly say that the First Claimant personally paid anything. It only says there was some expenditure. Of course the disclosure in this case would be very important because the case is one being put forward by the First Claimant of matters within his own knowledge and not within the knowledge of the Defendants.
28. The fourth point with which I would like to deal is the question of prejudice to the Defendant after all of this time. There is of course the inevitable dimming of memories; the inability to recall entirely accurately what happened a long time ago. That perhaps matters a little less in this case where, as I have already said, most of the case being put forward on behalf of the First Claimant is one within his own knowledge, and it is only a question of in a sense testing that. But here there is, as it seems to me, a real question of prejudice. If the trial of the quantum had taken place say in 2007 or 2008, as probably it should have done, then at that time it should in principle have been possible for the Defendants to prepare for the full inquiry as to damages by obtaining documents from third parties and in particular documents from the files of the Administrators of the Po-na Group. As I understand it, this will no longer be possible at this distance of time.
29. It was of course said on behalf of the First Claimant that the original idea had been to try both liability and damages at the same time at the trial before Mr Robert Engelhart QC in 2005 or 2006 and it was only when the Judge decided that one would be dealt with straightaway and one would go off that separation occurred and therefore the parties should have prepared already for the question of quantum.
30. It seems to me that there are at least two answers to that point. The first is that the preparation for trial would have been on a much wider range of issues and of course most of those issues disappeared at the trial. Leaving over the question of quantum would mean that it presented a much sharper focus on the question of loss, of wasted expenditure in a very short time frame. That is a legitimate juridical advantage for the party who benefits from it, and in my judgment it is not right to deprive the Defendants of the fact that they were given an opportunity to sharpen their game in relation to whatever it was that the Claimant would put forward as his wasted expenditure.
31. Secondly, it can also be said that the two Consent Orders which were made which ordered the First Claimant to give disclosure meant that it was clear that the whole issue of the wasted expenditure was to be looked at again and in even greater detail. Again in my judgment it is not right to deprive the Defendant of that advantage.
32. So I ask myself this question; can it be said that a fair trial of this issue of quantum is still possible? In the sense that, formally, there could be a proceeding before a Judge or Master in which the First Claimant said 'Well, here I have made this expenditure' and there would be a challenge made to it by the First Defendant and the master or judge would give a ruling, then Yes, there can be a trial. But in my judgment it simply will not be the same quality of trial that there would have been if it had been done in 2007 or 2008, in large part because of the loss of opportunity to cross-check the First Claimant's case by reference to documents obtained from third parties.
33. It is said on behalf of the First Claimant that well, he won at the trial of liability, and only a narrow issue is now left to be concluded. I entirely agree. It also ought to be said that the First Claimant raised a lot of other issues on which he lost, so that we are left with the narrow issue only because all the other parts of the claim failed. But it seems to me that it is all the more reason why, if there is only a narrow issue left, the First Claimant should have got on with the quantum of damage sooner.
34. I have already mentioned this but I will repeat it. It is said on behalf of the First Claimant that, while there is no positive case to be made by the First Defendant, it is all for the First Claimant to prove. I accept that is a fair point. But in my judgment defendants are still entitled to all the usual advantages of a proper trial in the English sense, and that includes pre-trial disclosure and the ability to obtain documents where relevant from third parties. That is the difficulty in this case.
35. It is also said against the First Defendant that he has contributed to the delay by not getting a move on. This is the kind of thing that is often said. Something has gone wrong and a complaint is made that it was caused or contributed to by one party, who says to the other, 'Well, you did not help either; you allowed it to go on.' It seems to me that we must focus on what is happening here. The duty is the duty (in this case) of the First Claimant to get on with the case. The fact that there may also be a duty on the Defendant to do something is not the question; we are looking at the responsibility of the First Claimant. To say that the Defendants could have done this or that or the other which might have mitigated the situation does not seem to me to take away from the responsibility of the First Claimant on whom the responsibility primarily lay in any event. So, in the context of this application, I am not much impressed by the idea that the Defendant could have done some more than he did.
36. It is also argued on behalf of the First Claimant that costs awards can compensate the Defendants for the fact that the First Claimant has delayed so long and (as it may be) has not complied with the Orders of the Court which have been made. It seems to me, first of all, that a Costs Order cannot compensate for a trial process that becomes unfair. I simply do not know what the result would have been if this question of quantum had been tried in say 2007 or 2008. All I know is that it cannot be tried as fairly now as it could have been tried then.
37. Secondly, even if a Costs Order is made for the purpose of compensating the other side, it can only compensate in relation to these two applications which are now before the Court. There appear to me on the face of it to have been a lot of costs incurred by the Defendant before these two applications were made; for example, significant costs were probably incurred in relation to the two Consent Orders that were obtained from the Court.
38. Lastly, I will observe that the Court ethos has changed enormously since the days of Lord Denning and the two Court of Appeal decisions to which I have referred. I will not say that in former times the Courts were brimming over with resources; I will not say that the streets of the Temple were paved with gold. That was not true then and it certainly is not true now. The fact is however that they did have sufficient resources to be able to cope with litigants who delayed and dilly-dallied, litigants that did not comply with Orders and then had to have further Orders made against them. There was a margin of tolerance, because there was a certain slack in the system. All of that has now gone. There are now fewer resources available. We no longer have the luxury of being able to schedule repeat performance of hearings because the parties are not ready. It is a much harder game to play.
39. There is greater emphasis therefore – in my judgment rightly – on following the Rules and Orders to prevent the litigation system being overwhelmed. I remind myself of what it says in Rule 3.9 of the Civil Procedure Rules, that the Court in considering an application for relief from sanction for a failure to comply with any Court Order will consider all the circumstances of the case including the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with Rules, Practice Directions and Orders. To use the vernacular, this is a game-changer. In my judgment, whatever the position might have been in the 1960s and 1970s, in 2016 it is wholly unacceptable to seek to go ahead with a quantum trial some 10 years after the event, having failed miserably to comply with not just one but two Court Orders, when the other side will be prejudiced by so doing. In my judgment therefore it is entirely right that I should strike out this claim.
40. In those circumstances the application of the First Claimant to list for trial does not arise, and I need not consider it.