1.	LORD JUSTICE SWINTON THOMAS: This is an appeal, with the leave of the judge, from an order made by His Honour Judge Stretton on 12th July 1999 in the Derby County Court, when he ordered that the appellant's claim be struck out for want of prosecution as being an abuse of the process of the court.
2.	The appellant brought a claim in respect of serious injuries sustained by him in a road traffic accident which occurred on 6th December 1989. In the accident he sustained fractures of the left tibia, the sternum and the right orbital floor.
3.	The claimant issued his proceedings on 30th November 1992. That was approximately a week before the expiry of the primary limitation period, just under three years after the accident. All the actions taken by the parties (or, perhaps more aptly, the failure to take steps by the claimant and his advisers) took place before the coming into effect of the Civil Procedure Rules on 26th April 1999. Accordingly, the steps to be taken were, substantially at any rate, in the hands of the claimant's advisers, despite, in my judgment, Mr Lewis's submissions to the contrary based on the orders to which he invited our attention. It is to be hoped that, with case management by judges, delays such as have occurred in this case will never occur again. It is now over ten years since this accident occurred and the case has not been tried. That is undoubtedly a scandalous state of affairs.
4.	Having waited until the limitation period had almost expired, it was then incumbent on the claimant's advisers to progress the claim expeditiously. Unfortunately, that did not occur. On 9th March 1993 the defendants filed a defence admitting that they were liable for the accident. Accordingly, from that time onwards the only outstanding issue was, and is, one of quantum of damage. On 29th September 1994 interlocutory judgment was entered in favour of the claimant with an order for the assessment of damages. So far as the court process is concerned, nothing then occurred until 24th June 1997, when the defendants applied for the case to be listed for hearing. There was accordingly a period of nearly three years when no steps were taken in the action itself.
5.	On 29th July 1997 District Judge Rutherford ordered that the assessment of damages be listed for a hearing before a district judge in open court upon the filing of a joint certificate of readiness with a timetable. It is not in my judgment sufficient to say that when the district judge made that order he placed no limit as to time on it. The claimant's solicitors had the carriage of the action and it was incumbent upon them to act on that order with reasonable expedition. Again unfortunately, they did not. On 5th January 1998 the defendants' solicitors wrote to the claimant's solicitors with a signed certificate of readiness, but that did not have the desired effect. Accordingly, on 7th January 1999 the defendants applied to strike out the action for want of prosecution and as an abuse of process. On 17th May 1999 the district judge refused to make that order and gave certain directions. The defendants appealed against his refusal to strike out and Judge Stretton, as I have said, allowed the appeal.
6.	The appellant, through Mr Lewis QC, explains or excuses the delay which has taken place in this case by reference to difficulties that arose in relation to one of the consultants instructed on his behalf, Mr Quinnell. It is right to say that Mr Lewis does not attempt to suggest otherwise than that overall the delay which has taken place in this case was inordinate and that it was inexcusable. In the course of his submissions to us he concedes that the case ought to have come on early in 1996. It may well be, for reasons which I will come to, that the case ought to have come on for hearing at an earlier date than that.
7.	In the circumstances of this case it is necessary that I should review as speedily as I can the history of the medical reports because they are at the core of the issues that arise. The first report is from Mr Rajaratnam, who was a registrar at the Princess Margaret Hospital. His report is dated 18th October 1990. He set out the injuries that the claimant sustained in the accident and described them as "multiple fractures".
8.	The next report is from Mr Quinnell, who is an orthopaedic consultant surgeon, and his first report is dated 22nd March 1991. At the conclusion of the report he said:    "As this patient has not fully recovered from his injury at this stage it would be appropriate to obtain a follow up report in 12 months time if this continues to be the case. If on the other hand in 12 months he is making great strides in improvement and the left leg symptoms are better and the swelling of the knee has stopped, a follow up report should not be necessary."
9.	There is then a report from a further consultant orthopaedic surgeon, Mr Stephen Norris, dated 27th August 1991. He gave his conclusions as follows:    "Mr Purdy has made a good recovery following the fracture of his sternum. There is nothing abnormal to find on examination of his chest and his sternum fracture must be considered to have healed. It is unlikely that the injury to the sternum will cause him any long-term problem. His position in the general job market as a result of his sternum fracture has not been put at risk. The injury to his orbit on the right side should be the subject of a separate medical report from a facial surgeon. Mr Purdy sustained a fracture of his left knee with a fracture of the tibial tubercle and a fracture of the tibial plateau which ran through the lateral compartment of the left knee. In addition there was a fracture of the inferior pole of the left patella. His symptoms are consistent with previous fractures of his left knee and if there has been damage to the articular surface this is likely to cause long-term symptomatology. He has definite objective signs of impaired knee function manifest by wasting of his quadriceps and slight lack of movement. It is likely that the symptoms in Mr Purdy's knee are now permanent but it will be important to obtain the medical records from Derby to ascertain what is found at the time of arthroscopy. It is likely that the knee is suffering from early osteo-arthritic change caused by the fracture of the lateral tibial plateau. If this is the case then it is probable that the knee will continue to cause pain and there will be a gradual deterioration of the condition of the knee joint with the passage of time. Ultimately if the knee continues to deteriorate Mr Purdy might require knee replacement but this is unlikely to be needed for at least 15 or 20 years. His position in the general job market is clearly at risk as he is unable at the present time to manage his job as the driver of a light goods vehicle. He would be suited for driving a light van provided he was not required to lift and load."
10.	That very full report from Mr Norris was obtained as long ago as September 1991 and was, in my judgment, a complete report, subject only to him obtaining the radiographs which he mentions in the body of the report. Mr Norris reported again on 15th October 1991 and then disappeared out of the case, as I understand from Mr Lewis, on the advice of counsel.
11.	Mr Jefferson, a neurologist, advised on 11th May 1992. There is a further report from Mr Quinnell dated 12th May 1992. In that report Mr Quinnell said that his left knee continued to be a major problem to him and that he was having difficulties at work. He said that in his opinion:    "This patient continues to suffer from the after effects of his left knee injury. The arthroscopy that was undertaken has shown that he has wide spread low grade degenerative changes in the joint. There is also some irregularity laterally on the articular surface. The knee also contained a synovitis. It is not felt at this stage that this patient is likely to change significantly over the months ahead. Over the years to come though if the synovitis improves he could see a temporary improvement symptomatically but I suspect in the longer term that degenerative change is likely to supervene."
12.	At the end of that report he said:    "In essence therefore the principal cause for his continuing disability is a post traumatic synovitis occurring in a knee with modest articular damage which itself could be the cause of long term osteo arthritic changes."
13.	The defendants instructed Mr Berkin, a consultant orthopaedic surgeon. His report is dated 4th February 1993. Mr Berkin has now died. He had an opportunity in February 1993 of examining this patient. Mr Lewis submits that, in the context of the medical reports and the circumstances of the particular injury in this case, the fact that a physical examination took place in February 1993 is not a matter of any great importance. That is a submission which I confess I find difficult to accept.
14.	In his opinion Mr Berkin said:    "The fractures united soundly within approximately three months and will in themselves cause no further trouble. Articular surfaces of the tibia were not involved. ... He has significant crepitus in both knees and the generalised distribution of abnormalities of the articular cartilage in the left knee detected by the arthroscopy suggest a generalised early osteoarthritis of the knee rather than any particularly localised articular damage caused by the relevant accident. I believe that the accident itself has added to the pre-existing arthritis and that it is responsible for the lack of full flexion in the knee."
15.	Then at the end of his report he said:
16.	"I believe that he could take up most of his previous pastimes and he could return to a driving job."
17.	Accordingly, Mr Berkin was expressing the opinion that the accident was a comparatively minor incident from a medical point of view and that the claimant ought to be able to continue with his work. He reinforced that opinion in a letter written on 11th May 1993, when he said that in his opinion the claimant could have returned to work and remained at work well before August 1992. He then went on to say that he should have returned to virtually normal function within three months of the accident.
18.	It is therefore clear, as at May 1993, that the lines were drawn as between the opinion expressed by Mr Berkin and that which had been expressed by Mr Quinnell and, to an extent, earlier by Mr Norris.
19.	Mr Quinnell reported again in February 1994. Mr Lewis says that the receipt of his opinion threw the claimant's case into some disarray. In a letter dated 4th January 1994 Mr Quinnell said:
20.	"The patient being off work for some seven and a half to eight months is ... perfectly reasonable."
21.	At the end of that letter he said that he saw no reason to change his opinion as previously expressed.
22.	However, he then wrote a further letter of 23rd February 1993, which indicated first of all - and this is relevant to a point made by Mr Lewis - that he had seen Mr Berkin's medical report. Mr Quinnell said:    "I agree with Mr Berkin's statement and it is in fact very similar to my own. I pointed out that the arthroscopy that was undertaken had shown that Mr Purdy had wide spread low grade degenerative change in the joint. I would agree with Mr Berkin that the effects of the accident added to the pre existing arthritic change. ... If he had not suffered the accident then his knee would not be giving this much trouble at this stage. It would probably have increased symptomatically had there been no accident to reach this stage of symptoms within 2-3 years from the 6th December 1989."
23.	Mr Lewis says with some force that there is an internal contradiction between the first and second sentences in that paragraph. However, taking the second of the sentences, it would seem on the basis of the medical evidence that the dispute as between Mr Quinnell and Mr Berkin at this stage is that Mr Berkin was saying that the accident had brought the symptoms forward by no more than three months, whereas Mr Quinnell's estimate was of the order of two to three years.
24.	Mr Quinnell went on in his letter to say:    "It is nonetheless a painful condition which aggravates the level of symptoms from the degenerative change that much more and this condition was unlikely to have developed for at least 2-3 years had there been no accident."
25.	As a result of what Mr Quinnell said in that report the claimant and his advisers decided to obtain the opinion of an alternative orthopaedic expert. A very substantial time had already elapsed by February 1994. Despite that, it was not until February 1995 that a report was obtained from the next consultant, Mr Compton. He reported on 6th February 1995. I think it is not perhaps necessary for me to read that report in any detail.
26.	Mr Berkin reported again on 19th October 1995. He said at the conclusion of the report:    "It is my view that Mr Purdy has mild degenerative changes in both knees, and since I last examined him the range of movement in the right (uninjured) knee has diminished and the range of movement in the left knee has increased slightly. This finding supports my view that most of his present symptoms are due to a constitutional degenerative change in his knees with a slight increment of 'wear and tear' caused by the relevant accident."
27.	Mr Berkin then reported again on 12th January 1996. He commented on his current position and also on the reports of Mr Quinnell. He described a "mild and variable limp" which was consistent with "mild degenerative changes".
28.	Mr Compton reported again on 15th April 1998 and expressed his opinion. Then in a letter of 27th April, which was his final view, he said:    "I think there has to be some element of traumatic consequence in the current complaints of his knee. Just because there wasn't a fracture directly into the articular surface, is not enough justification to deny this. Even if there were pre-existing degenerative changes, I think that these will have been aggravated by the trauma in question. In answer to your specific questions therefore:- Mr Purdy is 55 years of age at this stage and was 46 or so at the time of the accident. Even if there were known mild degenerative changes in 1991 I think there would have been more than a balance of probabilities that he would have been able to cope until normal retirement age doing van driving or similar work. Finally, in Mr Berkin's report, with the exception of my difference of opinion regarding the involvement of the knee in the incident, I have no other quibbles with his report."
29.	It will be readily apparent that, whereas finally there was not a great deal of disagreement in substance between Mr Berkin and Mr Quinnell, there was a very substantial difference of view as between Mr Berkin and Mr Compton. Mr Berkin, as I have already said, took the view that the claimant would have recovered from the effects of this accident in a matter of months, whereas Mr Compton was saying that but for this accident he would have been able to work for the remainder of a normal working life.
30.	Mr Lewis submits that when Mr Quinnell's report of 24th February 1994 was received it was indeed necessary to obtain further medical evidence and that the learned judge was wrong when he referred in his judgment to "expert shopping".
31.	Mr Berkin (who of course is the defendants' primary - indeed, possibly only - witness in this case) died on 31st August 199 I should say, first, that I am quite satisfied that this action could, and should, have been concluded a long time before that date. It could in my view have been concluded in 1994 and certainly in 1995. The consequence is that the defendants have been deprived of their primary witness.
32.	Mr Lewis, in the course of his compelling submissions, submitted, first, that it was not open in this case to Judge Stretton to hold that there was any abuse of the process of the court. Secondly, he submitted that it was not open to the judge on the facts of the case to find that the defendants had sustained serious prejudice or that a fair trial of the issues between the parties was no longer possible. He submits further that the judge failed to have in mind the important principle set out in the Civil Procedure Rules, namely proportionality, and that the order made should have a proper proportion to the effect on the party, in this case the claimant.
33.	Mr Lewis makes specific criticism of the judge's approach and his judgment. On page 3 of the judgment the judge said:    "Although the Claimant had obtained the report from Mr Compton in February 1995 that report was not disclosed to the Defendants, enabling the Defendant's doctor, Mr Berkin, to produce his comments upon it. He was in ignorance of Mr Compton's report, even when he, Mr Berkin, produced his second report in October 1995."
34.	Mr Lewis says that the judge was wrong in saying that, and the fact is that Mr Berkin was supplied with Mr Compton's report. That is a factual criticism which is justified.
35.	Then, as I indicated earlier, the judge said:    "When it is said by the Defendant that what this Claimant was doing was shopping around simply to obtain for himself a more favourable medical report, it is a point in my view that is well made."
36.	Mr Lewis submits that that was an unfair thing to say in the light of the change of view of Mr Quinnell. He says that the decision to obtain a different expert was not something which was done on a whim, but that the claimant was plainly entitled to obtain an opinion from a different expert. Again I think there is substance in that submission; although, if that is to be done in a case such as this, then it is vital to obtain the alternative evidence speedily.
37.	Mr Lewis then goes on to submit that the fact that the defendants are not now in a position to call Mr Berkin does not cause them substantial prejudice. He submits that it is open to them to find a new expert and that all the relevant material is there. It was also suggested that the defendants could rely on Mr Quinnell. They could put his reports in at a trial or alternatively they could call him as a witness.
38.	In my view that is not a realistic approach. Mr Quinnell had advised the claimant and there is a quite substantial difference between his view and the view formed by Mr Berkin. Of course, it may well be that the defendants could consult another orthopaedic surgeon. However, that surgeon would not have the advantage which Mr Berkin had of having examined the claimant over a period of time. The defendants are also perfectly entitled to say that Mr Berkin was their chosen expert; he had expressed an opinion which was favourable to their case, and they are now deprived of the great advantage of having him as a witness to go into the witness-box and give the evidence that is contained in his reports. I have no doubt at all that the defendants have suffered substantial prejudice by reason of the death of Mr Berkin, which occurred some long time after this case should have been heard and, looking at it from the defendants' point of view, they have as a result been deprived of a fair trial.
39.	The defendants also place some reliance upon financial prejudice as a result of the effect of the Social Security (Recovery of Benefits) Act 1997. I think that Mr Lewis is justified in saying that there is no satisfactory material before the court on this topic; and certainly I would not for my own part place much weight on that aspect of prejudice.
40.	Mr Lewis is of course perfectly entitled, and right, to make the point that he does in relation to proportionality; but in my judgment that point is met by the matters which I have already alluded to, namely the severe prejudice sustained by these defendants by the loss of their primary witness.
41.	This is in essence a straightforward personal injury claim. Ten years have gone by since the accident. I have no doubt that this delay is quite inordinate and that a fair trial of the issues is not now possible. In those circumstances, and in particular taking into account what is set out in the Civil Procedure Rules and what was said by the Master of the Rolls in Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926, the judge came to the correct conclusion. It is important to stress that the decision made by the judge was made in the course of his case management and he is entrusted with the wide discretion that was referred to by the Master of the Rolls in Biguzzi. The judge directed himself that he would make his decision in accordance with the Civil Procedure Rules and I have no doubt, even taking into account the criticisms made by Mr Lewis, that overall the judge did that and that he exercised his discretion fairly and justly and came to the correct conclusion. In my judgment this court would be wrong to interfere with his discretion.
42.	I would accordingly dismiss this appeal.
43.	LORD JUSTICE MAY: I agree.
44.	This case concerns an application to strike out the claim for delay. The application was heard by both the district judge and the judge after the introduction of the Civil Procedure Rules. The Civil Procedure Rules therefore apply to it. It was a transitional or hybrid case in the sense that it was started under the former rules and progressed, insofar as it did proceed, for some time under them. It is not, however, a case where this court is hearing an appeal after the introduction of the Civil Procedure Rules from an order which was made before the introduction of the Civil Procedure Rules.
45.	Under the Civil Procedure Rules, the court has ample power in an appropriate case to strike out a claim for delay. The power is to be found, if nowhere else, in rule 3.4(2)(c), which provides that the court may strike out a statement of case if it appears to the court that there has been a failure to comply with a rule, practice direction or court order; or in rule 3.1(2)(m), which provides that the court may take any step or make any other order for the purpose of managing the case and furthering the overriding objective; or under the court's inherent jurisdiction, expressly preserved by rule 3.1(1); each of these to be exercised and interpreted in accordance with rule 1.2(a) and (b) to give effect to the overriding objective. This Paragraph is referred to in: Asiansky Television Plc v Bayer-Rosin [45], Walsh v Misseldine [79].
46.	The Civil Procedure Rules are a new procedural code with an overriding objective enabling the court to deal with cases justly in accordance with considerations which include those to be found in rule 1(2). One element expressly included in rule 1.1(2) as guiding the court towards dealing with cases justly is that the court should ensure, so far as is practical, that cases are dealt with expeditiously and fairly. Delay is, and always has been, the enemy of justice. The court has to seek to give effect to the overriding objective when it exercises any powers given to it by the rules. This applies to applications to strike out a claim. When the court is considering, in a case to be decided under the Civil Procedure Rules, whether or not it is just in accordance with the overriding objective to strike out a claim, it is not necessary or appropriate to analyse that question by reference to the rigid and overloaded structure which a large body of decision under the former rules had constructed. Mr Lewis QC, for the claimant in this case, has correctly not sought to do so. This Paragraph is referred to in: Three Rivers DC v Bank of England [92], Walsh v Misseldine [79].
47.	As Lord Woolf MR said in Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926 at 1934G, Paragraph [63]:    "Earlier authorities are no longer generally of any relevance once the CPR applies."
48.	Lord Woolf accepted that, for transitional cases, the parties' conduct before the introduction of the Civil Procedure Rules has to be assessed by reference to the rules which were then applicable. Obviously a party will not be considered to have been in breach historically of a former rule when they were not. You do not ignore the fact that the parties were previously acting under a different regime. But the decision has to be made applying the principles under the Civil Procedure Rules, not those under the previous regime: see Lord Woolf in Biguzzi at 1932A-D.
49.	We have been provided with, and have considered, a transcript of the recent decision of this Court in UCB Corporate Services Ltd v Halifax (SW) Ltd (6th December 1999), where the court dismissed an appeal against a decision to strike out an action for delay. Reference was made in that case, not only to Biguzzi, but also to two other Court of Appeal decisions since 26th April 1999, including Co-operative Retail Services Ltd v Guardian Assurance Plc (28th July 1999), which was an appeal before a court consisting of Waller LJ and myself. The Co-operative Retail case was an appeal from a decision made before 26th April 1999 and for that reason the judgment assumed (without deciding) that the former law and practice was to be applied to the appeal. Hence the reference in that case to previous authorities, which, for the reasons given in Biguzzi, are not relevant to appeals against decisions made after 26th April 1999.
50.	Lord Woolf MR in Biguzzi drew attention to the armoury of powers which the court has under the Civil Procedure Rules in addition to that of striking out: see in particular his judgment at 1932G to 1934C, Paragraph [51] onwards. In doing so, he was doing no more than emphasising the range of powers available to the court in its search for justice, indicating that the court should consider such powers as may be relevant to a particular case before deciding which to use. He was not indicating that any one of those powers was inherently more appropriate than any other. Mr Lewis has, correctly in my view, not suggested otherwise. This Paragraph is referred to in: Asiansky Television Plc v Bayer-Rosin [45], Walsh v Misseldine [81].
51.	The effect of this is that, under the new procedural code of the Civil Procedure Rules, the court takes into account all relevant circumstances and, in deciding what order to make, makes a broad judgment after considering available possibilities. There are no hard and fast theoretical circumstances in which the court will strike out a claim or decline to do so. The decision depends on the justice in all the circumstances of the individual case. As I read the judgments of Lord Lloyd of Berwick and Ward LJ in the UCB case, they are saying nothing different from this. As Ward LJ said in the UCB case, Lord Woolf MR in Biguzzi was not saying that the underlying thought processes of previous decisions should be completely thrown overboard. It is clear, in my view, that what Lord Woolf was saying was that reference to authorities under the former rules is generally no longer relevant. Rather is it necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. This Paragraph is referred to in: Placito v Slater [43], Walsh v Misseldine [81].
52.	What I have said so far applies to original first instance decisions. Those decisions are necessarily made in the exercise of the broad discretion to which I have referred. If a party seeks to appeal such a decision, as is the case before us, this court applies what Lord Woolf MR said in Biguzzi at 1934F, Paragraph [62]:    "Under that approach judges have to be trusted to exercise the wide discretions which they have fairly and justly in all the circumstances, while recognising their responsibility to litigants in general not to allow the same defaults to occur in the future as have occurred in the past. When judges seek to do that, it is important that this court should not interfere unless judges can be shown to have exercised their power in some way which contravenes the relevant principles."
53.	Against this background, in the present case, I agree with my Lord, Lord Justice Swinton Thomas, that the judge came to a proper conclusion after taking account of the relevant and material considerations and that it is not a decision with which this court should interfere. The submissions which Mr Lewis has advanced do not in my view displace the conclusion that it was just to strike out this claim. It is true that the claimant had long ago obtained judgment on liability upon the defendants' admission and that the claimant would have been entitled to damages if he had brought the matter to court. But he had not brought the matter to court. The delay was massive and unexcused and the defendants' consultant orthopaedic surgeon, who examined the claimant on 4th February 1993 and whose conclusion supported a case that the claimant was entitled to modest damages only, died in August 199 I simply do not accept that a new consultant, instructed by the defendants ten years after the accident and required to examine the claimant for the first time more than six and a half years after Mr Berkin had done so, can properly be seen as a just substitute for Mr Berkin. Mr Lewis makes other points, but they do not in my view displace this palpable injustice, which itself may properly be seen as outweighing the injustice to the claimant in losing his damages. The judge, in my view, exercised his wide discretion fairly and justly in all the circumstances and his decision is not one which this court should disturb.
54.	I too would dismiss this appeal.
55.	MR JUSTICE SINGER: I agree.
	Order:appeal dismissed with costs; appellant claimant's liability under that order for costs having been assessed at nil, order nisi made against the Legal Aid Board pursuant to section 18 of the Legal Aid Act 1988, such costs to be subject to a detailed assessment if not agreed; monies in court plus interest to be paid out forthwith to respondent's solicitors.