The High Court has allowed a claim over an allegedly defective hair-removal laser to continue, but has barred the plaintiff from relying on representations said to have been made by a deceased sales manager whose evidence is no longer available to the defence.
Precision Laser Care Limited, trading as Medilaser, sued Lamda Photometrics Limited and Woodchester Finance Limited over a ruby laser purchased in 1997. The machine was acquired for £56,870 sterling and was intended for human hair-removal treatment.
Medilaser alleged that the machine repeatedly broke down and that Lamda made representations and warranties about its performance, including that its flashlamp could provide about 250,000 shots. Lamda denied those allegations and said the agreed payment for the machine had been made through Woodchester Finance.
Proceedings began in December 1998. After discovery activity ended in October 2001, nothing happened for about two and a half years. During that period, Lamda’s sales manager Ray Forshaw, who was said to have made the disputed oral representations, died in February 2004.
Lamda asked the High Court to dismiss the case for want of prosecution, arguing that it could no longer fairly defend the claims relating to Mr Forshaw.
Mr Justice Michael Peart found the delay between October 2001 and April 2004 inordinate. He accepted, however, that Medilaser’s expert engineer had suffered catastrophic injuries which left him unavailable to give evidence for several years, making the delay excusable to a significant extent.
The judge was critical that this difficulty had never been communicated to Lamda. He also accepted that the company had suffered real prejudice because Mr Forshaw could no longer answer allegations attributed to him.
Rather than dismissing the action entirely, the court adopted a narrower solution. Medilaser could continue with claims concerning matters such as the machine’s quality and specifications, but could not rely on any alleged representation or warranty by Mr Forshaw or evidence which only he could have contested.
The dismissal application was therefore refused, subject to an appropriate undertaking reflecting those limits.