Before:

MR P LAWRENCE (Instructed by Messrs Boyd & Hutchinson, The Exchange, 136 Streatham High Street, London SW16 1BW) appeared on behalf of the Applicant

The Respondent did not appear and was not represented

1.	MR JUSTICE KAY: On 24th April 1998 Deputy Master Chism ordered that the plaintiff's action be dismissed for want of prosecution. Her appeal against that decision was dismissed by Popplewell J on 5th June 1998. She now renews her application for leave to appeal against the decision of Popplewell J.
2.	The action arises out of a gas explosion at a grocer's shop in Tooting owned by the defendant, which occurred on 21st August 1987. The plaintiff's husband was killed in the explosion, as were others. A letter before action was written promptly on 28th April 1988, but no writ was issued until 5th April 1990. There were difficulties over service, and service was not effected until September 1990. On 9th October 1990 the defendant filed a defence. There being no reply, proceedings were deemed to be closed 14 days thereafter and, since this was a case to which order 25 rule 8 applied, automatic directions under that rule became effective from that date. Those automatic directions imposed obligations on the plaintiff as to discovery, disclosure of evidence and setting down.
3.	Popplewell J accepted an assurance from counsel that setting down had to be within fifteen months. It is not clear where that figure came from, as the period specified within the rule is six months. In any event, the plaintiff did not comply with any of the directions and no further step was taken in the proceedings until 19th April 1993. Thereafter it is unnecessary to recount in detail the lack of progress of the action. On three separate occasions the plaintiff's solicitors were obliged to serve notice of an intention to proceed, notwithstanding that over a year had gone by since the last step was taken. Eventually, in 1994, the matter came before the court for further directions to be made and a new timetable was set out by the Master on that occasion. That timetable provided for setting down within a further three months. None of the requirements of that timetable were observed by the plaintiff or, indeed, by the defendant. The result was that by the time 1998 had come round the matter still had not been set down.
4.	Eventually the plaintiff's solicitors set the case down for hearing. Not surprisingly, the defendant then sought to strike the matter out for want of prosecution. When the matter came before the Deputy Master, he concluded that there had been inordinate and inexcusable delay and that prejudice was likely to result for the defendant from that delay. When the matter came on appeal before Popplewell J, the matter was put on the same basis as it had been before the Deputy Master and also on a second basis, that in the light of recent decisions of the Court of Appeal in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 AER 181 and Choraria v Sethia , unreported judgment 15th January 1998, there was in the delay that had occurred in this case in all the circumstances an abuse of the court's process. Popplewell J without difficulty concluded that there had been inordinate delay, and he rejected excuses put forward on behalf of the plaintiff to explain that delay and found that it was inexcusable. However, he did not find himself able to share the view of the Deputy Master that the defendant would suffer any prejudice as a result. He therefore focused his attention on the second ground, which had not been argued before the Deputy Master.
5.	Having reviewed the authorities, he came to the following conclusions:
	"However, it seems to me that, although the number of failures to comply may not amount to the same number as in Choraria, what one has got here, in my judgment, is a wholesale disregard of a perfectly simple rule; that, by January 1992, this case had to be set down and it was not. And for six years, that has simply not been complied with. It did not require the defendants at hourly intervals to go along and complain about that; they were entitled to sit back and see what happened. The fact that there have been three notices of intention to proceed, culminating eventually in a Master's order by consent in March 1994, when it was to be set down within three months, and that was not complied with, and that is now nearly four years ago, it seems to me that there has been in this case a total failure to comply with the orders of the court . . . What is the court to make of that? It seems to me that there is no point the court having automatic directions if they are not complied with, or having the Master make a Consent Order, again if it is not complied with. I take the view that this is an affront. I am sorry to say, I do not think it is an exceptional case, unfortunately; those of us who try these matters find that these cases are constantly coming up in the same way".
6.	The judge therefore concluded that this case did amount to an abuse of process and rejected the appeal on a different basis from the Deputy Master.
7.	In Choraria, which is perhaps the closest decision in terms of the factual background, Nourse LJ reviewed the various authorities, culminating in Arbuthnot Latham , and concluded (paragraph 30):
	"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. With regard to the facts of this case, I would add that a disregard of a non-peremptory order must, if anything, be a fortiori to a disregard of the rules".
8.	Pill LJ said (paragraph 46):
	"To constitute an abuse there must be a deliberate affront to the authority of the court and incompetence and delay cannot constitute such an affront."
9.	In that case there had been orders, including directions as to setting down, made at a time when the defendant was seeking to strike out the claim, and those orders had not been complied with. There can be no doubt that the court attached great weight to this fact. For example, Pill LJ said (paragraph 54):
	"The failure to set down in compliance with the court order, when striking out of the action was decided on an assumption of the order would be complied with, amounted to such an affront to the court as to be an abuse of process."
10.	It was this fact which enabled the court to conclude, as Pill LJ put it, that (paragraph 52):
	"The plaintiff's solicitor was plainly aware of the importance of setting down in this case against the earlier background"
11.	which, it was observed, had been acknowledged in the solicitor's affidavit.
12.	On behalf of the applicant in this case, it is argued by Mr Patrick Lawrence in his helpful skeleton that Popplewell J found nothing in this case that took it out of the ordinary. It was, as he puts it:
	"one of many cases in which the plaintiff's advisers have failed to get a grip on litigation, and have failed to move it towards trial".
13.	Hence, he argues, it cannot come within the principles recognised by the authorities.
14.	For my part, there are aspects of the delay in this case which put it at the top end of the cases of delay with which the court is concerned, and I have considerable sympathy with the views taken by Popplwell J. However, I am troubled by the fact that he nowhere addresses the issue of whether the delay was with the "full awareness of the consequences", which Nourse J and the other members of the court in Choraria clearly thought was an integral finding for abuse of process. There is nothing as obvious in this case as the earlier striking out proceedings in Choraria that would bring home the consequences of failure to comply with the rules and the consent order. There was nothing in the solicitor's affidavit which conceded any awareness, and indeed the tenor of that affidavit was very much that he was unaware that he was running the risk of striking out.
15.	The fact that the court in Choraria rejected the suggestion that their decision would open the floodgates to applications to strike out on this basis, whilst Popplewell J thought the instant case was not an exceptional case, perhaps serves to underline that his decision was extending the principle beyond that which the court of appeal envisaged. For these reasons, although not wishing to suggest that the plaintiff's chances of success are particularly high, I consider that the matter merits argument before this court, and I would grant leave.
16.	LORD JUSTICE ROBERT WALKER: I agree.
	ORDER: Application granted, with costs in the appeal.