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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Begum v Yousaf [2002] EWCA Civ 187 (23 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/187.html Cite as: [2002] EWCA Civ 187

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE BOGGIS QC, Sitting as a High Court Judge)

		Royal Courts of Justice Strand London WC2 Wednesday, 23rd January 2002

Wednesday, 23rd January 2002

1. LORD JUSTICE CHADWICK: This is an appeal against an order made on 11th December 2000 by His Honour Judge Boggis QC, sitting in Birmingham as a Judge of the High Court in the Chancery Division, striking out proceedings brought by the appellant, Zeenat Begum, as personal representative of her late husband, Mohammed Khan, against Mohammed Jamheel Yousaf. The order was made in the circumstances, and for the reason, that the appellant had failed to set down the action or comply with an order which the judge made earlier that year, on 10th January 2000.
2. There is no dispute that the judge had power to strike out the claim in those circumstances - see CPR 3.4(2)(c), and the observations of Lord Woolf MR in Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926 at 1933B. Nor is there any dispute that, under the Civil Procedure Rules, the power to strike out the claim was exercisable in the discretion of the judge; nor that, in exercising that power, the judge was required to have regard to the overriding objective set out in CPR 1(1). The only question for this court is whether the judge's exercise of the discretion went beyond what has been described as "the generous ambit within which a reasonable disagreement is possible" - see the judgment of Brooke LJ in Tanfern Limited v Cameron-MacDonald [2000] 1 WLR 1311, at paragraph 32 on page 1317, adopting, in the context of the Civil Procedure Rules, the phrase used by Lord Fraser of Tullybelton in G v G (Minors) Custody Appeal [1985] 1 WLR 647, at page 652.
3. In order properly to address that question it is necessary to have in mind, first, the course which this litigation had taken prior to the order of 10th January 2000; second, the purpose for which the order made on that day was made; and, third, the explanation offered to the judge on 11th December 2000 for the failure to comply with that order.
4. The claim arises out of the transfer, on or about 25th August 1993, of property known as 97 College Road, Moseley, in Birmingham, into the name of the respondent, Mohammed Jamheel Yousaf. Prior to that date the property was registered at Her Majesty's Land Registry in the name of the appellant's husband, Mohammed Khan. The transfer of the property, and the consequent registration at the Land Registry, appear to have been effected at a price of £55,000 pursuant to an agreement in writing and a deed of transfer dated 12th August 1993. The appellant does not admit the authenticity of either of those documents. Special conditions 5(a)and 5(b) of the agreement were in these terms, as appears from the statement of claim:

"5(a) The parties hereby acknowledge that the consideration for the contract has been discharged by the buyer making available to the seller an equivalent sum in rupees as each party hereby acknowledges (sic).

5(b) The seller is the maternal uncle of the buyer. Each party acknowledges that he has been advised that it would be appropriate for each to be represented by a separate solicitor but in view of the relationship between the parties have requested that Messrs Lincoln-Lewis & Co should act for both parties."

5. On the face of that document, at least, there is an acknowledgment of payment; and an acknowledgment that parties were advised by a solicitor acting for both of them.
6. The appellant contends, first, that her husband had a very limited understanding of the English language; and second, that - notwithstanding what appears in condition 5(b) of the agreement - her husband was not related to the respondent. She also contends that the respondent has paid nothing for the property; whether by way of an equivalent sum in rupees or at all.
7. Mohammed Khan died on 3rd April 1995. There is nothing in the papers before the court to suggest that if, as the appellant now contends, her husband had not received the payment for the property transferred in 1993, he took any steps during his lifetime to obtain payment. Nor can his failure to do so be explained on the basis that Mohammed Khan and the appellant had continued to live at the property. It is common ground that they left this country in late 1992 or early 1993 in order to live this Pakistan.
8. Letters of administration to the estate of Mohammed Khan were granted to the appellant out of the Birmingham District Probate Registry on 18th October 1996. These proceedings were commenced by the issue of a writ on 3rd March 1998 - that is to say, some four and a half years or more after the transfer of the property. The claim in the proceedings was for an order that the property be transferred to the appellant, as personal representative of the unpaid vendor; in the alternative, rescision of the agreement; in the further alternative action, payment of the purchase price of £55,000 and damages.
9. On 15th October 1998 the appellant obtained an order for payment of £55,000 with interest of 4 per cent per annum over base rate from 12th August 1993 until the date of payment; and for the payment of damages to be assessed. That order was made by His Honour Judge Boggis QC on the basis that the respondent had failed to serve a defence. It was followed, on 13th November 1998, by a charging order nisi against the property to secure the judgment debt.
10. On becoming aware of the charging order the respondent applied to set aside the judgment. The application notice was dated 2nd June 1999. It was supported by an affidavit sworn on 28th May 1999 in which the respondent deposed that he had never been served with the writ. It is said that, if the writ was served by delivery at the property, 97 College Road, (as appeared from the affidavit of service) it would not have been received by the respondent because he did not live there. It seems to be common ground that the property was derelict. Paragraph 5 of the affidavit sets out the respondent's case as to the purchase in 1993. He says this:
11. "I purchased the freehold in the property known as 97 College road, Moseley, Birmingham from Mr Mohammed Khan in October 1993. Payment was made by cheque drawn on my account with the Bolan Bank Limited of Pakistan. There is now shown to me marked "MJY1" a copy of the bank statement of my account at Bolan Bank for the year 1993. It can be seen that on the 4th July 1993 my account was credited with the sum of 2,640,000 Pakistan rupees. This money was lent to me by my parents to finance the purchase of 97 College Road, Moseley. It can then be seen that a debit for the same sum was made on the same account on 23rd October 1993. This payment was made by way of cheque payable to the late Mr Mohammed Khan in consideration for the transfer by Mr Khan to me of his property, 97 College Road. I was not able to obtain a copy of this bank statement until mid May 1999. I was advised by my solicitor that it was important I obtain documentary evidence of the payment before making an application to set aside the judgment."
12. In paragraph 9 of the affidavit the respondent went on to say this:

"The funds were transferred from my parents' account to mine in July 1993 and the following month Mr Khan came over to England to deal with the paperwork. I went to his solicitors on just two occasions, each time accompanied by Mr Khan. The first was to confirm details of the transaction, the second to sign the paperwork. The appointments were made by Mr Khan, although it had been agreed I would pay the solicitors bill (which I subsequently did). I was aware that the contract referred to Mr Khan being my uncle, but I did not think this unusual, nor did I consider it untrue, although he is not a blood relative of mine. I would describe him as being an uncle in the Asian sense of the word, in that he is a man my parents' generation who was a member of my community and who I held in respect."

13. He completed his account of events at paragraph 11 of that affidavit:

"Following the purchase of 97 College Road I was subsequently informed that the property had been registered in my name. Friends of mine in Pakistan handed to Mr Khan a cheque drawn on my Bolan Bank account and made payable to him. That cheque was subsequently presented and debited to my account on 23 October 1993."

14. The copy bank statement, which is exhibited to that affidavit, shows a credit of 2,640,000 rupees on 4th July 1993 to an account with Bolan Bank Limited, Dadyal Branch, in the respondent's name; and a debit to that account of the same amount on 23rd October 1993 against a cheque number. The account number is 1564PLS. It is I think just possible to make out the words "M Khan" against the cheque number given under the particulars in respect of the debit entry. There is nothing else on the bank statement to link those entries to the purchase of the property. But some confirmation of the respondent's assertion that a cheque was handed to Mohammed Khan in late 1993 can be found in a witness statement made by Nazar Hussain, Mohammed Khan's nephew, and a business partner of the respondent. At paragraph 4 of a statement signed on 16th October 1999 Nazar Hussein said this:

"With reference to paragraph 11 of Mohammed Yousaf's affidavit, I confirm that I was aware of the purchase of the property 97 College Road by Mohammed Yousaf from Mohammed Khan in 1993. I arranged for the settlement cheque to be hand delivered Ayaz Khan who I knew was travelling to Pakistan. He subsequently told me that he had delivered the cheque to Mohammed Khan."

15. I have referred to the passages which I set out, not because it is possible to form any view as to what the outcome of these proceedings would be if there were to be a trial, but in order to indicate that the scope of the issues between the parties, and the evidence that would be likely to be adduced in respect of those issues, was before the judge in 1999 on the application to set aside the judgment which had been obtained the previous year in default of defence.
16. That application came before Judge Boggis on 21st June 1999. It was adjourned to the first open date with a time estimate of half a day. It came back before the same judge on 26th October 1999. The judge set aside the order of 5th October 1998. He directed that the respondent was to file and serve a defence by 9th November 1999; that there was to be standard disclosure by 23rd November; and that witness statements were to be exchanged and filed in court by 21st December 1999. He directed, also, that the action be listed for pre-trial review on 10th January 2000.
17. It is clear from those directions that the judge was imposing a timetable with which he expected the parties to comply in an action which was already 18 months old and in which the claim related to a transaction which was by then more than six years in the past. He directed, also, that the appellant's solicitors were to use their best endeavours to obtain details of Mohammed Khan's account PLS1372 at Bolan Bank as soon as possible. He must I think have been told by counsel for the appellant who appeared before him on that occasion that account PLS1372 would show whether or not Mohammed Khan had received the money said to have been paid to him in October 1993.
18. The respondent filed and served a defence. The defence is dated 8th November 1999. It was filed on 22nd November 1999. It is not clear whether, and if so to what extent, the other directions in the order of 26th October 1999 were complied with; but the position, as it appeared to the judge when the matter came back before him as directed on 10th January 2000 for pre-trial review, can be seen from a passage in the judgment which he was to give later that year on 11th December. The judge said this at page 2A-E in the transcript:

"So it was that the matter came back before me on the 10th January, this year. It was clear that there was a concern as to whether monies had been paid for the property, and this involved investigations of a bank in Pakistan. I was told that there were difficulties getting information from the bank. But, despite that, I considered that given the long history of delay in the matter, and the fact that it was going back to a transfer in 1993, the matter was to be progressed as quickly as possible, particularly given the listing delays here. So I ordered that the matter was to be set down by the 7th February, this year, with a time estimate of two days. I reserved the matter to myself, and I required details of non-availability for the next eleven month period to be provided with the application to set down. And I said that there was to be a further PTR approximately two months before the trial, so that at that point it would be possible to see that everything was in order. But, the clear requirement of my Order was that the matter was to be set down within four weeks, so that the matter could be progressed."

19. Those directions were incorporated in the order which the judge made on 10th January 2000; which requires, in terms, that the action be set down for trial within 28 days.
20. There was no compliance with that direction. The appellant's solicitors next made contact with the court by a letter dated 26th October 2000. The letter was in these terms:

"We are writing to let you know that we have recently applied for prior authority to the Legal Services Commission to cover the costs of a witness being brought from Pakistan to give evidence at the final hearing.

We will now be writing to the person involved to confirm that hopefully he will be in a position and willing to come to this Country.

In the meantime we do not know whether you wish to fix a date for a further pre trial review as the last hearing was on the 10th January of this year one of the directions being that a further pre trial review would take place in due course."

21. There is nothing said in that letter about setting down the action. Without setting down there would be no date for hearing and there would be no purpose in having the further pre-trial review which the judge contemplated when he made his order in January.
22. That letter was put before the judge for his directions. He took the view that the appellant should be required to show cause why the action should not be struck out for failure to comply with the order that he had made some ten months earlier. As he said in his judgment of 11th December at transcript page 3B-C:

"That letter was shown to me and, having seen it, I required the Court to send out notice of today's hearing, because that letter plainly proceeds on the basis that there was absolutely no need at all to comply with paragraph (1) of my last Order, referring as the letter does to a further pre-trial review, and not giving any explanation at all as to why the matter had not been set down."

23. A notice to show cause why the case should not be struck out for failure to comply with the judge's order of 10th January 2000 was sent to the parties' solicitors by the court on 23rd November 2000.
24. It was in those circumstances that the matter came back before the judge on 11th December 2000. No evidence was put before him to explain why the order had not been complied with; in particular, to explain why the action had not been set down for trial. But we have been provided with a transcript of counsel's submissions to the judge on that day. Mr Lally, who appeared as counsel for the appellant then, as he does today, said this:

"Now, since that particular date, since January, the Claimant's case is indeed based upon any bank official coming from Pakistan from Bolan Bank to state that, yes, the Defendant had no bank account at this particular bank. Now, since January, of this year, there has been so much correspondence. I mean, there has been a delay on most occasions because the Bolan Bank has simply not been replying to either of the Claimant's solicitors letters or, indeed, the Defence solicitors at all. There has been a huge delay.

The difficulty for not setting it down was simply for two reasons: there was a limitation on a legal aid certificate as far as the Claimant is concerned. The legal aid certificate was only up to the setting aside of the Judgment and, therefore, after that they need an external Counsel or, indeed, an external solicitor with higher advocates right to put cause why the claim should proceed, on the basis that there is still a good claim.

The response that we have been having from the Defendant's solicitors regarding certain letters from the Bolan Bank, basically say that we are wrong, the Claimant is wrong, and the Defendant is right. That, simply, the Defendant has a bank account at this bank. Whereas on the other side of the coin the Claimant's solicitors have been receiving letters from the same bank, Bolan Bank, to say, "Well, the Defendant in your matter has no bank account here." Therefore, the whole issue revolves around Bolan Bank, we say, because it goes to the heart of the case, because if the Defendant is making these false letters from the Bolan Bank and giving to his solicitors, we simply say that the whole case revolves around a fraud, and that to make the case easier for your Lordship to decide at the end of the day, although your Lordship may well say, "Well, please just give me the documents and I will decide", the fear that the Claimant will have: your Lordships may come to a conclusion and, in fact, it doesn't take your Lordship any further because there are two identical letters from the same bank saying different things. So we simply can't decide, and we believe that your Lordship may well be in a similar position.

Since January, of this year, we have been writing letters to the Bolan Bank requesting that one of the bank officials come to this country. We have already had prior authorisation from the legal aid to say, yes, given the nature of the case we will fund that, although be reasonable. Now, we have only had a letter faxed over this Saturday, on the 9th December - I have shown this to my learned friend - which confirms the position. May I simply read this letter out."

25. Counsel then did so. The letter is in these terms:

"With reference to your letter recording G Begum dated the 27th November, on the above mentioned subject, we are going to inform you that the above named account was opened at our branch on the 12th September, 1994, and we have already sent documents, statement of Mohammed Khan, with our letter dated 13th December, 1999. Once again we sent account statement of the above account. As we have no more information about this case it is useless for us to come for evidence."

26. Counsel went on:

"Now, this is the only positive response we have received from the Bank, or a bank official, saying that there is no need for us to come, "We have sent you all we can. We cannot assist you any further." Now, that was not the information that we were receiving throughout this year. We were always of the opinion that somebody could come from the Bolan Bank Ltd simply with the documents and say, "Yes, the Defendant in your matter does not have a bank account at this bank." That, we would respectfully submit, would have been the end of the matter. The claim would have been, without any doubt, proved on behalf of the Claimant.

Well, that is the situation. It has been a long struggle for the claimants and, indeed, the Claimant's solicitors, to get any positive response from the Bolan Bank."

27. That was the explanation given to the judge on the 11th December 2000. I draw attention to the fact that what was being said by counsel for the appellant was that Bolan Bank had been expected to state that the defendant - that is to say, Mohammed Jamheel Yousaf - had no account with the bank. If that were correct, then the copy bank statement exhibited to the respondent's affidavit on 28th May 1999 - which shows, on its face, an account PLS 1564 in the name of Mohammed Jamheel Yousaf would require some explanation. Indeed, that copy bank statement would then appear to be a forgery. Further, the appellant's solicitors would seem to have ignored the judge's order of 26th October 1999, which required them to use their best endeavours to obtain details of the deceased's account - that is to say, the account of Mohammed Khan - at Bolan Bank, which was then said to have a number PLS 1372.
28. There is nothing in the order of 26th October 1999 which suggests that anybody was interested at that stage in the defendant's account, 1564. Nor is counsel's statement that his solicitors were expecting to receive confirmation from Bolan Bank that the respondent - Mohammed Jamheel Yousaf - had no account with the bank to reconcile with the correspondence which has been included in the appeal bundle before us. The letter of 8th December 2000 from the bank, faxed on 9th December 2000, which counsel read to the judge, refers to the account of Mohammed Khan. It makes no reference to the existence or otherwise of any account held by Mohammed Jamheel Yousaf. The same may be said of the other letters from the bank which had been included in the bundle - letters dated 3rd February 2000, 27th April 2000, and 2nd December 2000. Each of those letters refers to accounts held, or not held, by Mohammed Khan. The only reference to an account numbered 1564 - and that in the context of a response to an inquiry about accounts held by Mohammed Khan - is that it does not exist in the books of the bank's Nangi Chowk Branch "because they are still at account No.1476". What I understand by that reason is that the bank, as at 24th April 2000, had only 1476 numbered accounts and therefore had not reached account 1564. But the respondent, Mohammed Yamil Yousaf, had never suggested that his account, number 1564, was held at the bank's Nangi Chowk Branch. The bank statement which he produced was of an account held with the Dadyal branch of the bank.
29. There may be an explanation for all of that. But be that as it may, what is not open to doubt is that the inquiry which, by his order of 26th October 1999, the judge had directed the appellant's solicitors to make - that is to say, to obtain details of Mohammed Khan's account PLS 1372 at Bolan Bank - had been answered by the bank in unequivocal terms in the letter dated 3rd February 2000. The bank wrote:

"SUB: Mohammed Khan...

With reference to your letter numbered DG JT 100162 dated 10-12-99 addressed to our Head Office Quetta, we write to inform you that in response to your letter, our Dadyal Branch has sent you the statement of account No.519 of deceased Mr Mohammed Khan on 14/12/99 and further informed that account No.1372 is not existing in their books in the above named deceased customer."

30. In the light of that answer from the bank - which was the answer to the question which the judge had directed should be asked - there was no reason why the appellant's solicitors should have taken the view, if they did, that they need not comply with the order of 10th January 2000 for setting down before the expiry of 28 days.
31. I have added the qualification "if they did" because the appellant seeks to adduce further evidence on this appeal which advances a different reason for the failure to set down the action as directed by the order of 10th January 2000. In a statement which is undated, but which appears to be signed by Mr David Golden, the sole principal of the appellant's solicitors, Mr Golden states that his understanding was that the court would set the case down for hearing; and that, accordingly, he did not have to take any action "relating to that aspect of the order". He produces an attendance note of a discussion with the appellant's counsel on 15th August 2000 on which he relies as evidence of that understanding. Whether or not Mr Golden's understanding of the position was as he now claims, it could not have been derived from the order itself, nor from the report of the hearing of 10th January 2000 which was made in the attendance note prepared by his associate, Mr Graham Marsh, a solicitor who had attended court that day. Nor is it consistent with what counsel told the judge on 11th December 2000. Counsel's answer to the question "why my order... which required setting down roughly within four weeks seems wholly to have been ignored" was not "the solicitors thought that that would be done by the court and they did not have to take any action". The answer was "they did not want to come to a situation where it was set down for trial, and then requesting the court to pull it out, as it were."
32. I would refuse leave to adduce that further evidence. It is relevant to keep in mind that the hearing on 11th December 2000 was directed by the judge for the express purpose of enabling the appellant's counsel to show cause why the case should not be struck out for failure to comply with the earlier order of 10th January 2000. In those circumstances, if in no other, the court was entitled to expect that it would be provided by counsel, on instructions from the appellant through her solicitors, with the reasons which were to be advanced on behalf of the appellant to explain why the action had not been set down. In those circumstances it is not acceptable that the judge should be provided with reasons which - as can now be seen - are not capable of being sustained and that this Court should then be invited to admit evidence of some other, and inconsistent, reason. If the true reason was, as Mr Golden now suggests, that his understanding was that there was nothing for his firm to do in compliance with the order to set the action down, the judge could have been told that on 11th December 2000. The fact that he was not told that - but was told something inconsistent with that - throws doubt on the credibility of the reason now advanced.
33. In those circumstances, I would approach the question whether the judge was entitled to exercise his discretion as he did by considering the reasons which he gave in the light of the explanation which had been given to him on 11th December 2000. After setting out that explanation - in substantially the terms which can now be seen in the transcript of counsel's submissions to the judge - and after observing that the appellant now sought permission to amend the statement of claim so as to allege fraud, the judge said this:

"In those circumstances the question is what do I do with this action? The answer is I propose to strike it out. It seems to me little short of a disgrace that an order which was made in circumstances where the matter had already gone to sleep and needed to be pursued vigorously, has been so wilfully ignored by the claimant's solicitors, even to the extent that they write what appears to be a totally disingenuous letter of the 26th October, asking about a further pre-trial review, and not addressing at all the reason for failure to set down. Even now, today, I have no information sworn to by anybody having the conduct of this file at Goldens, explaining the delay. All I have is Mr Lally's best endeavours to tell me what has been going on. I do not know when Legal Aid was sought to be extended, I do not know the reasons for the delay. There is absolutely no explanation why the matter could not have been set down, as I had required, and it is appropriate to consider the effect of all these delays. The two day trial, if an application for listing was made before me now, will come on towards the end of October or November, next year. That means that it will be something in the order of eight years after the transfer with which I am concerned. I was seeking to get the matter on as quickly as possible after the 10th January, this year, by the order that I made, in order to reduce the delay as much as possible. If the Claimant's solicitors, for whatever reason, fail to comply with that Order then I am afraid the Claimant has no one to blame but them.

I am not prepared to let matters go on like this. I do not make Orders of this type, and in these circumstances, for them simply to be ignored."

34. In my view the judge was right to take the view, in January 2000, that this was an action which should be brought to trial as soon as reasonably possible. It was an action which required the investigation of events which, by then, were already more than six and a half years in the past and the resolution of disputed facts which would be likely to turn on the recollection and credibility of the respondent and his witnesses. That feature was emphasised once the appellant had decided, in the course of the following months of the year 2000, that she would seek to allege fraud some seven years after the event and more than two years after the commencement of the action. The judge, who was managing a busy Chancery list in the Birmingham District Registry, cannot be faulted for taking the view that the best way of achieving the objective which he had, correctly, identified was to order that the action be set down within a short period of time; so that a trial date could be found within the listing windows available for the year 2000.
35. It is plain from his judgment on 11th December 2000 that the judge was satisfied that he made all that clear at the time when he made his order in January. No one has suggested that he did not do so. So he was entitled, on 11th December 2000, to emphasise that an order in the form of that made in January, in the circumstances in which it was made, was not made simply to be ignored. He might have added that the overriding objective set out in CPR 1.1 required him to ensure that litigation be dealt with expeditiously and fairly; and he might have added that, dealing with a case fairly requires that, so far as possible, it should be dealt with before recollections have become irretrievably dimmed by the passage of time. Further, he might have added that CPR 1.1 requires the parties to help the court to further the overriding objective. But the fact that he did not refer to those matters in terms is not to be taken as any indication that he did not have them in mind.
36. The only issue for this Court - as I have indicated at the beginning of this judgment - is whether the judge's response to the appellant's failure to comply with his earlier order - and the appellant's failure to have any regard whatever to requirement imposed upon her by CPR 1.3 - was disproportionate; that is to say, was it a response which fell outside "the generous ambit within which reasonable disagreement is possible"? In my view it was not. The order to strike out the action was one which, in the circumstances which I have set out, the judge was entitled to make. In those circumstances it is not for this court to interfere. As Lord Woolf MR pointed out in the Biguzzi case at page 1934F:

"... 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 powers in some way which contravenes the relevant principles."

37. That has not been shown, and I would dismiss this appeal.
38. SIR CHRISTOPHER STAUGHTON: I agree. Mr Lally for the appellant has relied on the overriding objectives in the Civil Procedure Rules. That is in my view a successor to what was said by Bowen LJ in Cropper v Smith (1884) 26 Ch 700 at page 710:

"... it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace."

39. That was said in the context of amending pleadings, but it has a wider application - or did have. Even in those days it was not an absolute principle. For example, actions could be struck out, dismissed for want of prosecution, which is not exactly within the principle that Bowen LJ pronounced. Now the overriding objective is to see that cases are dealt with justly and that includes, we are told in rule 1.1 of Part 1, ensuring that the parties are on an equal footing, saving expense, dealing with the case in ways which are proportionate, ensuring that they are dealt with expeditiously and fairly, and allotting an adequate share of the court's resources.
40. I do not suppose even the new rules permit the powers of the court to be used to punish mistakes, even pour encourager les autres, as Voltaire said. But when one looks at this case, it seems to me that dealing with it justly at this stage was achieved by the order which the judge made. Mr Yousaf should no longer be harassed by this very old case. If it turns out that Mrs Zeenat's claim has been dismissed through some fault or error of her legal advisers she will have a remedy for that. Justice requires that the action should be struck out.
(Application for permission to adduce further evidence refused; appeal dismissed; the appellant to pay to the respondent the costs of the appeal; costs to be the subject of a detailed assessment; payment on account of costs within 56 days in the sum of £2,000; matter to be remitted to the costs judge for the appellant's solicitors to show cause why a wasted costs order should not be made against them in respect of costs of the appeal; the order not to be drawn up until 4.00pm on 24th January 2002).