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Fay v Chief Constable of Bedfordshire, Court of Appeal, 10 December 2003

17 December 2003
The issues

Abuse of process – want of prosecution – delay.

The facts

In July 1993 Mr Fay deposited three items of luggage at Luton Airport containing over £390,000.00. The Police took possession of the luggage and the cash and arrested Mr Fay. They pursued no charges against him but the Chief Constable refused to return the money seized. In May 1994, Mr Fay commenced proceedings against the Chief Constable. The last steps in those proceedings had taken place in August and September 1994. In August, Mr Fay had given Further and Better Particulars of the Statement of Claim and in September the Chief Constable had given Further Particulars of the Defence and had written a letter to Mr Fay’s Solicitors inviting them to provide further information and documentation. There had been no reply to that and nothing had then happened in the action until September 2002. In April 2000, the action had been stayed automatically as a result of the transitional provisions under CPR 51. In September 2002, the Chief Constable applied for an Order that the stay be lifted and the action be restored for the purposes of an Application to strike out the claim for want of prosecution under CPR 3.4. The Claimant had cross-applied for Summary Judgment on the basis that following the decision in Costello -v- The Chief Constable of Derbyshire, the only basis on which the Chief Constable could defend the claim was to show that another person had better title to the cash than the Claimant and that the Chief Constable had no real prospect of successfully doing so. The matter came before the District Judge, who dismissed the claim, and then before the High Court Judge who allowed the Appeal and remitted the Claimant’s Application for Summary Judgement to the District Judge. The Chief Constable appealed.

The decision

1. The District Judge and the Judge had approached the Applications on the basis that as both parties had wanted the automatic stay lifted, albeit for different purpose, the stay should be lifted. However in Woodhouse -v- Consignia Plc, the Court made it clear that Judges should consider all the requirements of CPR 3.9 when deciding whether to lift an automatic stay. If this had happened in this case, the decision on the Application would have been clear. However, as neither Judge had proceeded on that basis and as the Chief Constable did not present his Appeal in this way, it would not be fair to the Claimant to do so now.

2. The Respondent’s conduct during the period of 4Ω years prior to the introduction of the CPR was a flagrant breach of the ordinary Rules set out in the RSC. The delay had been inordinate and inexcusable.

3. Under the CPR it was self-evident that if the conduct of a party amounted to an abuse of process of the Court, then the Court could strike out the Statement of Case. However, it was not necessary to consider whether the circumstances of this claim, which amounted to the Respondent abandoning his claim without taking steps to discontinue, amounted to an abuse. This was because there was by April 1999 sufficient prejudice under the Procedural Rules then in force and that by September 2002 under the CPR a fair Trial of the action was not possible. The Respondent had, when arrested, exercised his right to remain silent. It was only in August 1994 that he had given an account of how he had come into possession of the large amount of cash left at Luton. That account had called out for further information, which the Chief Constable had promptly sought. There was now no prospect of those matters being properly investigated.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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