MR W NORRIS QC and MISS M EGAN (instructed by Messrs Greenwoods, London WC1) appeared on behalf of the Appellant Plaintiff.

MR D FOSKETT QC and MR M FULLERTON (instructed by Messrs George H Coles & Co., Hove, East Sussex) appeared on behalf of the Respondent Defendant.

hr>

1.	LORD JUSTICE AULD: This is an appeal by the defendant, Mr McGregor, from an order of Mrs Justice Steel on 8th November 1996 that the action against him of the plaintiff, Mr Miles, should not be struck out for want of prosecution.
2.	Mr Miles's claim is for damages for injury caused by Mr McGregor's alleged negligence on 13th August 1990. Mr Miles's case is that Mr McGregor, a pedestrian, caused him to fall off his motorcycle and injure his back by suddenly stepping off the pavement into the road in front of him. He maintains that, although he was unemployed at the time of the accident, his back injury has caused him permanent incapacity. He maintains, in particular, that it has prevented him from qualifying as a commercial pilot, as he had expected to do in the summer of 1991, and from earning his living in that capacity ever since. Mr McGregor denies that he was negligent and contends that such injury and incapacity as Mr Miles has suffered in the accident were caused by his own negligence. He also strongly challenges the extent of Mr Miles's claimed injury and loss. Thus both liability and quantum are disputed.
3.	There was a good deal of communication between the parties before the issue of proceedings. Mr Miles notified Mr McGregor's insurers promptly of his claim. They initially took the view that the two men shared responsibility for the accident and made some interim payments towards the cost of Mr Miles's medical treatment. During 1991 they commissioned two medical reports on him. However, Mr Miles's solicitors, beyond providing Mr McGregor's solicitors with some receipts for medical treatment and asserting Mr Miles's entitlement to recover damages against Mr McGregor, did very little over the next three years to particularise or document his claim. In the early part of that period there may have been good reasons for that. The claim, though serious, was not then thought by either party to be as serious as it is now said to be. No doubt both were awaiting a final prognosis and contemplating settlement. Not until January of 1993 did Mr Miles learn from a report prepared by Dr Goody that his incapacity was permanent. Shortly after that he provided Mr McGregor's insurers with a copy of that report. That prompted requests from them for consent to the release of medical reports and for information about past employment.
4.	Mr Miles served his writ and statement of claim endorsed on it in early August of 1993; that is, a few days before the end of the three-year limitation period. Some five or six weeks later, on 15th September 1993, Mr McGregor served his defence and a request for further and better particulars of the claim. Mr Miles's solicitors took six months to provide those particulars, doing so at the end of March 1994. The particulars indicated an overall claim for damages in the region of £400,000, made up largely of his lost potential earnings as an airline pilot.
5.	In early April 1994 Mr Miles's solicitors served a list of documents, but no documents vouching for the make-up of his considerable claim. After that, they did little to make progress with the action. They served no witness statements. They failed to respond to Mr McGregor's solicitors' requests and reminders of them for documents relating to Mr Miles's pre-accident employment and to his flying career. They failed to provide consent for a further medical examination on behalf of Mr McGregor's insurers and they failed to set the matter down for trial. They never did provide the documents requested, and they only provided the consent for the release of medical records at the end of May 1995, some 11 months after it had been requested. Unfortunately, by then Mr McGregor's solicitors seem to have been infected with the same lethargy, because they did not arrange any medical examination of Mr Miles, despite reminders from his solicitors in November 1995 and July 1996.
6.	By this time, now getting on for six years after the accident and three years after the issue of the writ, Mr McGregor had applied to strike out the claim for want of prosecution, serving the application on Mr Miles's solicitors on 12th July 1996. The application was heard by District Judge Lay on 29th July 1996, who had before him evidence on affidavit from both parties' solicitors.
7.	Mr Gregory Michael, Mr McGregor's solicitor, detailed in his affidavit the delays that I have summarised and set out two categories of prejudice to the defence if the action were to continue: first, on the issue of liability, a belief that the delay had dimmed the memories of Mr McGregor and his wife, who was with him at the time of the accident, as to the circumstances of it; and second, on the issue of quantum, an assertion that the failure of Mr Miles to make any disclosure of his pre-accident employment and earnings could hinder investigation of those matters as records were likely to disappear with time.
8.	Mr John Timothy Deacon, Mr Miles's solicitor, spoke of a good deal of frustrated activity to advance the claim not evident from the inter-parties correspondence. This included difficulties in obtaining statements from witnesses, including Mr Miles himself; consequential delays in instructing leading counsel, which he eventually did in January 1995; over a year's delay, to February 1996, in obtaining a draft report from loss of employment claims specialists; and a further six months, to July 1996, to arrange a consultation with leading counsel. By this time, of course, Mr McGregor's solicitors had issued his application to strike out the claim.
9.	As to the claimed prejudice to Mr McGregor on the issue of liability if the matter were to proceed, Mr Miles's solicitor deposed that there were two independent witnesses to the accident, both of whom had made witness statements. They were a Mr Ingram and a Mrs Cowie, of whom Mr McGregor's insurers had known since shortly after the accident. As to the claimed prejudice to Mr McGregor on the issue of quantum, Mr Miles's solicitor observed that Mr McGregor's solicitors had made no application to the court about the lack of discovery of Mr Miles's employment details, that the loss of employment claims specialist's report would be disclosed before trial and that the factual bases for it were, as he put it, matters of record.
10.	On 29th July 1996 District Judge Lay dismissed Mr Miles's action for want of prosecution. Mr Miles immediately served a notice of appeal to a judge in chambers. Pending the hearing of the appeal Mr Miles's solicitor disclosed an affidavit sworn in October 1996 from one of the independent witnesses to whom he had referred, Mr Ingram. In it Mr Ingram said that he had a vivid recollection of the accident, described it clearly and exhibited a witness statement to like effect which he had provided to Mr Miles's solicitors in August 1994. However, it appears that he had earlier given a somewhat different account to Mr McGregor's insurers, saying that he had only a vague recollection of the accident.
11.	Mr Ingram's affidavit and a further affidavit from Mr Miles's solicitor giving more detail of the history of the matter were put before Mrs Justice Steel, who heard the appeal on 8th November 1996. She found that there had been inordinate and inexcusable post-writ delay for which both Mr Miles and his solicitors were responsible, Mr Miles in failing to make himself available for interview when required. As to the exact period of inordinate and inexcusable delay, her finding was not clear. At page 5G-H of the transcript she said:
	"... the responsibility for the delay ... must lie firmly with the plaintiff who failed properly to prosecute and pursue his claim through the period from the issue of the writ in 1993 up to the time in 1996 when the matter came before the District Judge."
12.	Mrs Justice Steel was of the view that such inactivity as there had been on the part of Mr McGregor's solicitors towards the end did not mitigate Mr Miles's and his solicitors' responsibility for the delay, it being for them properly to prosecute the claim. However, as to a substantial risk of the impossibility of a fair trial and/or the likelihood of serious prejudice to Mr McGregor, the judge held that there was no substantial risk and no such likelihood. She referred to the question of dimming of memories, comparing the period of six years since the accident in this case with the ten years in the unreported case of Benoit v Hackney London Borough Council (11th February 1991), in which Stuart-Smith and Nourse LJJ upheld an inference of prejudice from such dimming over the long period of delay. Mrs Justice Steel referred to the available aids to recollection in this case - an accident report and early witness statements from all who could give oral evidence about the accident, and found that there was no substantial risk of the impossibility of a fair trial and no more than minimal prejudice to Mr McGregor flowing from the post-writ delay.
13.	There was some suggestion by Mr William Norris QC, for Mr McGregor, that the judge did not focus on the need for Mr McGregor to establish only more than minimal post-writ delay, having regard to the near three-year period of pre-writ delay. However, I am satisfied, from passages to which I now refer in the judgment, that that is exactly what she had in mind. At page 3G-H, in referring to the various propositions recently set out by this court in Shtun v Zalejska [1996] 1 WLR 1270, she said:
	"Thirdly, where there was delay in issuing proceedings and prejudice then caused by further delay, the additional prejudice that had to be shown to justify dismissal of the action need not be great, but it had to be more then minimal.
14.	At page 7B she said:
	"I have to be satisfied that the prejudice suffered was more than minimal following the issue of the writ and, is there [sic] a substantial risk that a fair trial would not be possible?"
15.	Finally, at page 9D-G she said:
	"But Mr Fullerton submits that the degree of prejudice here is not serious. This is a prejudice that is no more than minimal from the date of the issue of the writ by means of the subsequent failure of the memory of the various witnesses to whom I have been referred.    What is a substantial risk to a fair trial? In my view there is no substantial risk here by reason of the delay that the plaintiff and the defendant may not each have a fair trial of this issue and I am not satisfied that there is sufficient prejudice to the defendant for this matter to be struck out by reason of the inordinate and inexcusable delay that has happened here."
16.	The judge, having stated that she proposed to allow Mr Miles's appeal for those reasons, added that, in exercising her discretion in the matter, she had taken into account his possible personal contribution to the delay and the fact that his possible lack of any remedy against his solicitors for that reason if the action were struck out would cause him substantial hardship. She cited Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, CA. She said at page 10F-11B:
	"I should say that I also take into account in the decision I reach, in exercising the discretion that I have, that the case of Allen v Sir Alfred McAlpine & Sons Ltd is relevant and I have the power to temper logic with humanity. There is here a prospect that the plaintiff may or may not be a wholly innocent plaintiff. That is a matter which will be the subject of litigation. It may be that he may be wholly at fault; he may be wholly not at fault. There may be issues here for contributory negligence to be considered. But if he is left without any effective remedy for the loss of his cause of action, it causes, in my view, a substantial hardship to the plaintiff if the action is dismissed. That hardship to the plaintiff, in my view, outweighs any hardship to the defendant in the conduct of this trial as and when it shall come to trial as soon as it can."
17.	The only issue in this appeal when it started was whether the judge was correct in concluding that there was no substantial risk of an unfair trial and no likelihood of serious prejudice to Mr McGregor. Mr Miles has not cross-appealed the judge's finding of inordinate and inexcusable delay, though Mr Foskett, on his behalf, sought to identify and confine it. He put it at about two years for the three-year period of post-writ delay, suggesting that even with proper expedition it would probably have taken at least two years for this contest on liability and quantum to reach trial.
18.	The applicable principles are well established and are now conveniently gathered together in the judgment of Peter Gibson LJ, with whom Hobhouse and Neill LJJ agreed, in Shtun v Zalejska , at p.1277A-E of the report. The judge referred to them in her judgment and had them clearly in mind, in particular, as I have said, the need for Mr McGregor to establish only more than minimal post-writ prejudice.
19.	Mr McGregor's main challenge to the judge's ruling stems from her observation towards the end of her judgment that she had taken into account the substantial hardship to Mr Miles which dismissal would cause him, given his possible lack of remedy against his solicitors arising from his own possible contribution to the delay. Mr Norris submitted that she was wrong to have regard to the possible non-availability of an alternative remedy and to balance the consequential potential hardship to Mr Miles against any hardship to Mr McGregor in the conduct of the trial. That consideration, submitted Mr Norris, was plainly wrong in law, having regard to the majority's view in Birkett v James [1978] AC 297 that it is irrelevant to consider whether a plaintiff has an alternative remedy against his solicitors for inefficiency. He submitted that this court should therefore exercise its judgment on the matter afresh. Mr Foskett acknowledged that the judge's reference to Mr Miles's possible lack of alternative remedy against his solicitors was in error. However, he submitted that it was not the primary ground for her decision, which was that a fair trial was possible and that Mr McGregor had not suffered more than minimal post-writ prejudice.
20.	In my judgment, the judge's reference to the possible lack of alternative remedy was an unnecessary afterthought, adding nothing of relevance to the reasoning of her decision nor vitiating it. That reasoning did not involve an exercise of discretion or of balancing hardship. Given her finding that a fair trial was possible and that such post-writ prejudice as existed was no more than minimal, it did not need to. I have already referred to what she said at page 9D-G of the transcript of her judgment. She reached and expressed her conclusion at page 10C-E, just before the passage complained of by Mr Norris. This is what she said:
	"What I propose to do, therefore, is to allow the appeal; not on the basis that there has not been inordinate and inexcusable delay, because there has, but I have not been persuaded that there is a substantial risk that a fair trial would not be possible or that there was serious prejudice to the defendant by that trial."
21.	In the absence of a finding by her that there was a substantial risk of the impossibility of a fair trial or a likelihood of serious prejudice to Mr McGregor, there was nothing to balance against Mr Miles's entitlement to proceed with his claim. Accordingly, I consider that it is not for this court to consider the issues afresh and make its own decisions on them. Its role is simply to consider whether there was material before the judge on which she could properly decide as she did, keeping well in mind the reluctance of the court to interfere in such issues of secondary fact, the determination of which is ordinarily the province of the judge.
22.	Although there are two overlapping considerations, the possibility of an unfair trial and the likelihood of prejudice to Mr McGregor, the available evidence before the judge focused on the latter. As to the potential prejudice in the dimming of witnesses's memories, even when aided with timely witness statements, the judge gave careful attention to it, in particular to the cautionary words of Stuart-Smith LJ in Benoit. She referred to the three-year period of post-writ overall delay, compared with the much longer period in that case, to the early notification of the claim and its investigation by Mr McGregor's insurers, to the availability of a contemporaneous accident report and to the early availability to both parties of all the potential witnesses. Given the probable normal span of about one to two years between writ and trial in such a case, I cannot say that the judge was not entitled to conclude in those circumstances that there was no likelihood of serious prejudice to Mr McGregor from such dimming of memories as may have occurred in the balance of the post-writ period.
23.	There is the other claimed head of prejudice, inability on the part of Mr McGregor to protect himself in costs because Mr Miles has not formulated or documented his claim sufficiently carefully to enable him to make an offer in settlement or a payment into court. The judge noted and accepted that Mr McGregor's solicitors were caused some difficulties by that, but was of the view that they did not imperil the safety of the trial and were not likely to cause serious prejudice to him. In my judgment, that was a view she was entitled to take on the material before her, no doubt having regard to the ultimate discretion which the trial judge would have in such matters of costs at the conclusion of the trial and to the probability that Mr Miles will succeed at least in part of his claim. It is certainly not a matter on which I would consider it proper to substitute my own view for that of the judge. Accordingly, I would reject the first ground of appeal, the only one initially advanced on behalf of Mr McGregor.
24.	In the course of argument in the appeal the court and counsel learned of the decision of another constitution of the court in Choraria v Sethia given on 15th January 1998. Mr Norris indicated that he wished to rely on it to advance a separate and new ground in support of the appeal, namely that, prejudice or no, the action should be struck out as an abuse of process. As the judgments in Choraria had yet to be revised, we adjourned the hearing to await their revision and to allow both counsel to consider them.
25.	Now, armed with the revised judgments and a number of other authorities, Mr Norris has argued that this case is indeed one of abuse of process justifying strike-out regardless of any question of prejudice. He says, by reference to a catalogue mainly of failures by Mr Miles and his solicitors to comply with the automatic directions in personal injury actions, that their conduct satisfies the criteria for abuse of process now clearly stated in Choraria.
26.	Nourse LJ, with whom Pill and Thorpe LJJ agreed, expressed those criteria as follows at page 12, paragraph 30 of the transcript of the judgments:
	"The law, as it applies to this case, may therefore be stated thus. Although inordinate and inexcusable delay alone, however great, does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground."
27.	Thorpe LJ expressly endorsed that proposition, at page 25 of the transcript of the judgments, paragraph 58, in the following words:
	"Mr Munby convincingly demonstrates that the evolution from Culbert v Stephen G Westwell & Co Ltd in 1992 through Grovit v Doctor to Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd in 1997 establishes the principle that a wholesale disregard of the rules of the court, coupled with an awareness of the consequence, may amount to an abuse of process justifying an order striking out the action without the need to show prejudice to the defendant or that a fair trial is no longer possible."
28.	Those clear statements of the law, as the passage from Thorpe LJ's judgment indicated, give emphasis to previous comparatively recent dicta of this court, in particular the following prompting of Lord Woolf MR, giving the judgment of the court in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (16th December 1997, unreported) , at page 20, paragraph 33 of the transcript of the judgment:
	"It is already recognised by Grovit v Doctor [1997] 1 WLR 640 that to continue litigation with no intention to bring it to a conclusion can amount to an abuse of process. We think that the change in culture which is already taking place will enable courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules is an abuse of process as suggested by Parker LJ in Culbert v Stephen Westwell (supra). While an abuse of process can be within the first category identified in Birkett v James it is also a separate ground for striking out or staying an action (see Grovit v Doctor 642H to 643A) which does not depend on the need to show prejudice to the defendant or that a fair trial is no longer possible. The more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, as long as it is fair to do so, will save much time and expense relating to questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired."
29.	The emphatic articulation and the application by the court in Choraria of this quite separate power to strike out proceedings for wholesale disregard of procedural rules because it constitutes an abuse of the process of the court should not, however, be taken as a ready alternative to the court's power to strike out an action for inordinate and inexcusable delay. The abuse of process route is for cases of an exceptional nature where the conduct of the party in default amounts to an affront to the court and its rules. This Paragraph is referred to in: Lace Co-ordinates v NEM Insurance [28].
30.	Choraria was clearly such a case. There had been at least ten separate periods of inordinate delay and breaches of the rules or non-peremptory orders committed by the plaintiff, including a failure for a year to comply with an order to set down. Nourse LJ, at page 17 , paragraph 40 of the transcript of the judgments, said this about it:
	"In my judgment the plaintiff's failure to comply with the order to set down for over a year after he had survived the first application to strike out was, at the least, a piece of breath-taking insouciance. Combining it with all the previous defaults, especially his failure to comply with two orders for interrogatories, I think that he acted in wholesale disregard of his obligations under the rules and orders of the court, the first application to strike out having made him fully aware of the consequences of his conduct."
31.	At page 19, paragraph 42 he said:
	"Mr Macdonald has also submitted that if this action is dismissed on these facts the door will be opened to a wholesale circumvention of the second limb of Birkett v James . I do not myself see the matter in that way. I think it clear that the facts of the present case are of an exceptional nature. I certainly do not speculate on what other facts might or might not fall within the principle as it now stands. But I think that Mr Macdonald's fear that the decision in this case will open the door to a wholesale circumvention of the second limb of Birkett v James is almost certainly misplaced.
32.	My summary of the circumstances of this case show that it is a far less serious case of culpable delay than that in Choraria.
33.	Mr Foskett has relied on the obvious and great contrast between the two cases. He has also gone to some trouble to analyse and attempt to mitigate the delays here upon which Mr Norris has relied in his catalogue of breaches of the rules in support of this ground of appeal. But, overall, Mr Foskett's point is a simple one, namely, that there is, sadly, nothing exceptional about this case, certainly nothing to make it untypical of the run of average inordinate and inexcusable delay cases that come before the courts.
34.	I am of the clear view that the circumstances of this case are not exceptional and could not be characterised as an abuse of process as applied to such an issue by the decision of this court in Choraria .
35.	Accordingly, I would dismiss the appeal.
36.	LORD JUSTICE ROBERT WALKER: I agree that this appeal should be dismissed for the reasons stated by my Lord.
	Order: appeal dismissed with costs; legal aid taxation of the respondent defendant's costs.