The High Court has struck out claims against three defendants in a dispute over an allegedly defective cement mixer unit attached to a Volvo lorry, finding that the plaintiffs’ delay in advancing the case was inordinate and inexcusable and that the balance of justice favoured dismissal.
Mr Justice Birmingham delivered the judgment on 17 April 2012. He was considering two applications to strike out the proceedings for want of prosecution or because of inordinate and inexcusable delay. The court granted both applications, striking out the claims against the first, second and fourth defendants. The judgment does not state that the claim against the third defendant was struck out.
The first plaintiff, a self-employed ready-mix concrete haulier, bought a Volvo lorry with a Hymix cement mixing unit from the second plaintiff, a commercial dealership, in April 1999. The plaintiffs claimed the unit was defective and that repair and replacement work arranged by the second, third and fourth defendants was inadequate. They alleged breaches of agreements and said the first plaintiff was left with a defective unit and suffered loss. Those allegations were not findings on the merits of the claim.
The proceedings began in March 2001. The judge highlighted a lack of activity between delivery of the statement of claim in March 2003 and July 2009, apart from notices of intention to proceed that did not result in progress. The plaintiffs said their attention had been focused on commercial survival and restoring the business’s reputation. The judge found that explanation unsatisfactory and concluded that they had put the litigation on hold without consulting the defendants.
The defendants argued the delay had impaired their ability to defend the case. The second and fourth defendants cited former employees whose whereabouts were unknown, repair work involving a company they could not contact, and missing weighbridge records. The judge treated the missing records point as speculative but regarded the other concerns as substantial. He also gave particular weight to the loss of an indemnity from the third defendant, which had ceased trading and was insolvent.
The judge found no acquiescence by the defendants. Although he recognised that the first plaintiff’s problems with the new purchase were a factor favouring allowing the case to proceed, he concluded that the prejudice and changed position of the defendants meant it would be contrary to the interests of justice to require them to defend the stale proceedings. The judgment records no determination of whether the alleged defects or contractual breaches occurred.