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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 >> Tulsiani v Albin Hunt & Stein (A Firm) [2001] EWCA Civ 2066 (21 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2066.html Cite as: [2001] EWCA Civ 2066

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(His Honour Judge Richard Havery QC: sitting as a High Court Judge)

		Royal Courts of Justice Strand London WC2A 2LL Friday 21st December 2001

Friday, 21st December 2001

1. LORD JUSTICE PETER GIBSON: This is an appeal brought with the permission of this court (Rix LJ) from the order made on 21st May 2001 by His Honour Judge Havery QC sitting as a judge of the High Court whereby he allowed the appeal of the claimant, Nilam Gulabrai Tulsiani, from the order made by Master Ungley. By that order the Master had struck out Mr Tulsiani's claim on the ground that a fair trial of his action was not possible.
2. The facts of this case are unusual. I take the first part of the history from the judgment given as long ago as 9th May 1989 by Sir Michael Ogden QC, sitting as a Deputy High Court Judge, in an action brought by Janek Patel against Mr Tulsiani. In April or May 1982 Mr Patel, whose family had a business in India, had 105,015 Nigerian naira in Nigeria resulting from a commercial transaction. Mr Patel wished to remit that money to India. The money was in three bankers' drafts drawn on a Nigerian bank. He was introduced to Mr Tulsiani as a person who helped other people in business by being able to arrange for the transfer of naira out of Nigeria. Mr Tulsiani represented to Mr Patel that he knew most of the people in the Government and that within a few days or weeks he would be able to get approval for the foreign exchange and to remit the money from Nigeria to India, failing which Mr Tulsiani would return the money in Nigeria to Mr Patel. At Mr Tulsiani's suggestion Mr Patel endorsed the bankers' drafts over to Mr Tulsiani. Mr Patel did not do that with a view to evading exchange control regulations. He understood that Mr Tulsiani knew the procedures and would be able to make the necessary lawful arrangements. Mr Patel then left Nigeria. Mr Tulsiani never sent the money out of Nigeria and never paid the money back to Mr Patel.
3. Mr Patel commenced proceedings against Mr Tulsiani in the Queen's Bench Division in 1983 seeking the return of the money. In September 1983 Mr Tulsiani instructed Albin Hunt & Stein ("Albins"), who are the defendants in the action with which we are concerned. In Mr Tulsiani's defence settled by counsel it was pleaded that Mr Patel handed the money to Mr Tulsiani with a view to evading the Nigerian exchange control regulations then in force in Nigeria and in the expectation that Mr Tulsiani would transfer the funds to the United Kingdom and there repay them to Mr Patel.
4. Sir Michael Ogden tried the action. He disbelieved Mr Tulsiani, whom he described as a fraudulent rogue and liar. He accepted the evidence by and for Mr Patel. He said:

"I am not satisfied that there is proper material before me to satisfy me that [Mr Patel] was knowingly engaged in any kind of unlawful activity such as deliberate evasion of the exchange control regulations, as opposed to thinking that Mr. Tulsiani would be able to obtain the necessary approval for a lawful transfer of the money to India."

5. Mr Tulsiani was ordered by the judge to pay £84,450 plus interest and costs to Mr Patel. An application by Mr Tulsiani for permission to appeal out of time to this court was dismissed. Two days after the trial Albins handed over their papers to Mr Tulsiani. Mr Tulsiani went to new solicitors, Gersten & Nixon. They obtained a report on Nigerian law on which no reliance is now placed because it was based on facts other than those found by Sir Michael Ogden. On 14th February 1991 a letter before action was sent to Albins, but it merely stated that a legal aid certificate had been granted to Mr Tulsiani to take proceedings to claim damages for professional negligence in connection with the action brought by Mr Patel. No details were given in that letter, and despite the fact that Albins sought details and that Mr Tulsiani's solicitors promised to write when they had considered the matter with counsel no further information was supplied. There was then a delay of 32 months before proceedings were commenced. The delay was said to be largely due to Mr Tulsiani's illness, though why that should have prevented him, having, as he did, legal representation and legal aid for the whole of that period, from starting proceedings is not explained.
6. On 15th October 1993 Mr Tulsiani commenced the present action against Albins. Thereby he claimed damages for the negligent conduct by them of the earlier action. In the statement of claim counsel then instructed for Mr Tulsiani pleaded in paragraph 2 that Mr Tulsiani had consulted the solicitors about the action, and in paragraph 3 that Mr Tulsiani had retained Albins and entrusted them with the task of defending the action against him. In paragraph 4 there is a reference to Albins writing to Mr Patel's solicitors enclosing a defence, which included an assertion of the illegal nature of the agreement under Nigerian law. In paragraph 5 it is pleaded that Albins wrote to the African Advisory Committee requesting confirmation in time for the trial commencing five days later that an arrangement for money paid in local currency to be repaid in foreign currency contravened Nigerian exchange control and in paragraph 6 that during the trial the judge directed that neither party was to be at liberty to call expert evidence. In paragraph 7 it was pleaded that the judge's direction and the consequent inability to adduce evidence of the illegal nature of the said contract which afforded the plaintiff a complete defence to the said action was caused by the negligence of the defendant. Particulars of negligence were then given. it was pleaded that the defendant was negligent in that it (a) with the full knowledge of the importance of obtaining and disclosing expert evidence on Nigerian law and adducing the legal nature of the contract under Nigerian law at trial, failed to take any sufficient action to obtain such evidence for proper adduction at trial; (b) failed to exercise proper skill, care and diligence in defending the said proceedings; and (c) failed properly or adequately to prepare the case for the plaintiff despite having the care and conduct of the said matter for a period of six years prior to trial. In paragraph 8 it was pleaded that Mr Tulsiani had appealed unsuccessfully against the judgment to this court, and in paragraph 9 particulars are given of the loss and damage which it was alleged that Mr Tulsiani suffered by reason of the matters earlier pleaded.
7. On 22nd October 1993 Albins asked Mr Tulsiani's solicitors to lend Albins the file which had been supplied to Mr Tulsiani back in 1989. Some papers were supplied, but not all that Albins had expected to find. Albins were told that discovery would deal with some matters. A specific request was made by Albins for a letter of 22nd March 1988 from Mr Tulsiani to them and also for an affidavit of Mr Tulsiani of 4th November 1983, but they had gone missing. On 12th January 1994 the solicitors acting for Albins wrote to Mr Tulsiani's then solicitors saying that it was clear that the papers were far from complete. Nevertheless a defence was then prepared for Albins. In that defence it was pleaded that Albins admitted being instructed by Mr Tulsiani in relation to the conduct of his defence and that they had duly conducted Mr Tulsiani's defence in accordance with his instructions. No admissions were made as to paragraphs 2 to 6 of the statement of claim. By paragraph 4 of the defence it was pleaded:

"The Defendant denies paragraph 7 of the Statement of Claim and will, if so advised, plead further thereto after receipt of full particulars thereof and Discovery herein."

8. Paragraph 6 of the defence contained a denial of paragraph 9 of the statement of claim, and it ended with an averment that the liability of Mr Tulsiani to Mr Patel and the judgment awarded in Mr Patel's favour flowed wholly and properly from the true facts of the matter and from Mr Tulsiani's conduct. It was pleaded in paragraph 7:

"Further and without prejudice to the denials hereinbefore set out Mr Tulsiani's alleged loss was wholly caused by alternatively contributed to by the negligence and/or wrongful behaviour of Mr Tulsiani."

9. Then particulars are given. They include failing to act on Albins' advice sufficiently or at all, lying to Albins, lying to the court, failing to give Albins full and honest information regarding the transaction the subject of the action and failing in all the circumstances to take any, or any sufficient, steps to advance his own defence.
10. The defence was served on 27th January 1994. Pleadings closed 14 days later. Not a single step in the action was then taken for over six years, despite attempts by Albins to find out what was happening. Nor was any attempt made by Mr Tulsiani or his legal representatives to inform Albins of what was happening in the litigation. In fact almost immediately after the service of the defence the Legal Aid Board had required a further opinion from counsel on the merits of Mr Tulsiani's case, and when that was obtained the legal aid certificate had been discharged. New solicitors then appointed to appeal that discharge were unable to succeed on the appeal in August 1995. In January 1997, after an unexplained gap, legal aid to obtain counsel's opinion was obtained. He advised getting a report from an expert in Nigeria in Nigerian currency law. A report was obtained from Mrs Akinjide-Balogun in Nigeria in October 1997, but further clarification was sought. More horrendous delays ensued. A first addendum was obtained on 29th January 1999, but still more clarification was sought. A second addendum was produced only on 24th February 2000.
11. In April 2000, at a without notice hearing, Mr Tulsiani obtained from Master Ungley a direction that the Civil Procedure Rules were to apply to the case, that pleadings should be served by Mr Tulsiani by 26th May 2000 and that Mr Tulsiani should apply for a case management conference. Only then were Albins informed that Mr Tulsiani intended to proceed with an action which they had thought had long since expired. No pleading appears to have been served, despite the Master's order. Mr Tulsiani's solicitors made application for a case management conference. That was fixed for 25th October 2000. A note provided by Albins for that hearing suggested that the Master might wish to strike out the claim. At the hearing counsel for Mr Tulsiani, Mr Krolick, who appears before us today, seems to have indicated that he wished to amend the statement of claim and to serve a reply. The Master adjourned the hearing to 18th January 2001, giving directions relating to the proposed further pleadings and also as to the service of evidence by Albins if they wished to apply to strike out or enter judgment.
12. Draft amendments to the statement of claim and a draft reply were then served in November 2000. A new point was taken by Mr Tulsiani. That was an averment that a properly instructed expert in Nigerian foreign exchange law would have stated that the agreement between Mr Patel and Mr Tulsiani, on the facts as found by Sir Michael Ogden, contravened Nigerian exchange control legislation and was illegal and unenforceable. No leave to serve those amendments and that reply so long out of time has yet been obtained. Nor has a direction yet been obtained for the expert's report to be admitted.
13. Albins applied to strike out the statement of claim, alternatively for summary judgment under Part 24 on the whole of the claim. In the witness statement of Mr Taylor on their behalf he deposed to the inordinate and inexcusable delay by Mr Tulsiani over so many years and to the prejudice which he alleged that Albins had suffered by reason of the delay. He relied in particular on the fact that there were only two case handlers at Albins of Mr Tulsiani's defence in the action brought by Mr Patel. One had died in 1985. The other, Barbara High, had retired in August 1990. She is now 76. She was said to remember Mr Patel's action to a degree, but mainly because Mr Tulsiani was spectacularly bad and incredible in the witness box. Mr Taylor referred to concerns about the completeness of the documentation. He then said this:

"24.Although Miss High feels she may be able to recall matters better if all the relevant documents were to hand, she confesses that her recollection is no longer that reliable, and although the Claimant was so memorable in court, that does not assist her recollection of the preparation for trial.

25. The difficulty for the Defendant is she does recall various efforts being made to obtain expert evidence, involving the High Commission and the Law Society. She also recalls that the Claimant insisted that he could and would arrange to instruct a suitable expert who would support his view of the law. Due to the problems she had had in getting an expert she was pleased that he might obtain one. However she cannot now recall the sequence of events, nor the extent to which the importance of this aspect of the case was explained and repeated to the Claimant - although she can recall chasing him on it, and can also recall that he made several claims that he would certainly get an expert - right up to the first day of the trial.

26. Miss High tells me that there were also conferences with counsel, at which notes were made - these were also not among the papers disclosed by the Claimant.

27. A further area of difficulty for the Defendant is that the Claimant changed story - which was one of the reasons why the Defence was amended so late. At this stage she cannot remember quite what parts of his story changed from time to time, this being rather eclipsed by his performance as a witness, but her recollection on such matters would serve at least to explain what difficulties the Defendant had in dealing with the Claimant, as well as going to his credit."

14. At page 31 Mr Taylor said:

"This inordinate delay has prejudiced the defendant because the only surviving case handler is now 75 years old and it is long time since she has had to consider either the underlying action or any legal work. In addition the Defendant has probably lost any valuable right to pass on or share any real liability with counsel who were involved. The documentation is incomplete and the judge concluded that he could not trust the Claimant's evidence more than 10 years ago. It seems highly improbable that there could be a fair trial of this action."

15. The Master on 18th January 2001 at the adjourned hearing of the case management conference dealt with the Part 3 and Part 24 applications by Albins. He said this:

"The matter now comes before me and in summary the Defendant's case is that there has been delay that beggars belief. I do not think that is wholly inaccurate. The decision of Sir Michael Ogden was, after all, made in May 1989 and these proceedings are only now really getting underway in 2001, some, yes, 12 years afterwards. The Defendants say that although delay is not itself a sole ground for striking out, it is certainly relevant. There is, they say, substantial prejudice, because the partner dealing with the case originally died some time ago, and the only other member of the firm with anything to do with the file, a Miss High, has been retired for some years and is 75. Her recollections as to what passed is inevitably patchy as she is going back to matters which occurred in the mid-80s."

16. The Master then referred to what Lord Hoffmann had said in Arthur JS Hall & Company v Simons [2000] 3 WLR 543 at page 578, as to the exceptional case where an action for negligence against the lawyers of a party who has been unsuccessful in litigation may be manifestly unfair to somebody else. The example given by Lord Hoffmann related to a defamation action; he posited an attempt by the defendant in that action to show by a subsequent action that, had the case been conducted differently, the allegedly defamatory statement would have proved true, and that would be unfair to the claimant in the defamation action who might have to be joined and re-litigate what had already been tried.
17. The Master referred to the delays by Mr Tulsiani in obtaining a satisfactory report from an expert on Nigerian law. The Master noted the arguments for Mr Tulsiani and expressed his conclusion in this way:

"I have to approach this case, it seems to me, on the basis that there has been monstrous delay on any view. The transaction, it is right to say, was 19 years ago and the trial, the conduct of which is being impugned, almost 12 years ago, and the reasons for the delay appear, in part, due to difficulties with Legal Aid, since Mr Tulsiani's Legal Aid Certificate was discharged for a substantial period before being reinstated and the three-year period it took to obtain the expert report that has now been obtained. The question is can there now be a fair trial? That is the only test I shall apply and I am quite satisfied that no fair trial is possible. I think that this is an action falling within Lord Hoffmann's class of exceptions. It is inevitable that evidence as to Nigerian law cannot but impugn Mr Patel's character."

18. Then a few lines later:

"I do not feel that this is a case for summary judgment for the Defendant on the basis of there being no reasonable prospect of success. Accordingly, my Order is striking out the Particulars of Claim under Part 3.4 of the CPR."

19. The Master refused permission to appeal, as did His Honour Judge Thompson QC, sitting as a judge of the High Court; but Silber J granted permission at an oral hearing. That appeal was heard by Judge Havery QC.
20. In his judgment the judge referred to the expert's report as indicating that the transaction between Mr Patel and Mr Tulsiani was illegal by the law of Nigeria if entered into without the Minister's consent. The judge described Mr Tulsiani's action in this way:

"The ground of the claim is that they [the solicitors] were negligent in failing to obtain an expert report on Nigerian law to show that the whole transaction to which both parties in the earlier litigation were parties was an illegal transaction by the law of Nigeria, that being a matter which was well within the contemplation of the defendant solicitors because the matter had been pleaded.

It is apparent that the defendants to this action - that is to say the solicitors - passed some information and documents on to the solicitors representing their insurers, but the defence did not make any allegation that the defendants had some excuse for not pursuing this expert evidence. The defence was a bare denial in that respect.

That was in 1993, or possibly early 1994."

21. The judge then referred to what the Master had said in the first passage which I have already cited. The judge then said this:

"I should make two comments on that passage. One is that the partner who died, I believe died in 1985, which is before the original trial; the other is, as I have already indicated, that nothing that Miss High can say, it seems to me, can be relevant to the case as pleaded. It is submitted by Mr Warnock [appearing for Albins] on the part of the defendants that the pleadings might be amended. While the case apparently went to sleep, there was good reason for not amending them, but the fact is that they apparently had such instructions as they were ever going to get in 1993 or 1994 and could have pleaded, or immediately amended, at that time.

I should say that the delay is explained by severe problems suffered by the claimant in getting legal aid, and also by what appears to be a three year time lag in obtaining the expert evidence."

22. The judge then referred to the Master's conclusion and pointed out that the Master had not given any reasons for that conclusion. The judge then said that in the circumstances he was bound to allow the appeal. He said that he did so with considerable regret because it seemed to him that the nature of Mr Tulsiani's case itself showed that he could scarcely possibly succeed in the action because Nigerian law does provide foreign exchange transactions with the consent of the Minister.
23. The judge then went on to explain by reference to the expert's report why he was of that view. He pointed out that the expert had quoted the relevant Nigerian legislation as allowing a person to do certain prohibited things with the permission of the Minister. He also pointed out that the expert appears to have assumed facts contrary to those found by Sir Michael Ogden. Accordingly the judge said that the claim would fail. But he said that the point was his own point, that Mr Krolick had not really had an opportunity to consider it, that it was a matter which would have more appropriately been dealt with under Part 24, that the Master had only reached his conclusion on the basis of CPR 3.4 and that there had been no appeal from the decision. Accordingly, he repeated his regret that the appeal had to be allowed. The judge also found that the trial of the action brought by Mr Tulsiani would not really impugn Mr Patel, and so the judge said that he did not accept the application of the Hall v Simons point. The judge purported to give permission to appeal.
24. This is, however, a second appeal which needs the permission of this court. Rix LJ gave such permission. He said that he thought that there was a compelling reason to grant permission because of what the judge had said, viz. that Mr Tulsiani's case could scarcely possibly succeed. Rix LJ said that although Albins had not appealed against the Master's refusal to give summary judgment, that was not necessary as they only needed a Respondent's Notice. The judge, he said, could, and it might be said should, have dispensed with the need for a Respondent's Notice, the relevant matters being before the court. Rix LJ further added that it was properly arguable that the judge should have exercised his case management powers to uphold the Master's order for striking out the claim under Part 3.4 either on the basis identified by him or on the basis that Mr Tulsiani was seeking to prove his own as well as Mr Patel's illegal act as the foundation of his claim. But he granted permission principally because of the point taken in the notice of appeal of Albins that in the view of the judge Mr Tulsiani could scarcely possibly succeed in main action, Rix LJ saying that the concept of dealing with an application under rule 3.4 justly (the overriding objective), in a case where the argument of delay making a fair trial impossible and the argument of an ill-founded claim meet, requires a holistic approach.
25. The other grounds of appeal which were advanced in the Appellant's Notice were that the judge was wrong to interfere with the decision of the Master, involving as it did an exercise of the Master's discretion, and that the judge should not have confined himself to the existing pleadings but should have taken into account possible defences indicated in Albins' witness statement.
26. Before us Mr Stewart QC appears for Albins. He submits that this is a case where no fair trial is any longer possible as a result of the gross delay. He also points to the reports of Mr Tulsiani's expert which, he submits, will involve reopening what occurred in the transaction in 1982. Mr Stewart also adopted a suggestion from the Bench that this is a case of an abuse of process. Mr Tulsiani was obliged, under Order 25 rule 1(1) of the Rules of the Supreme Court, within four weeks from the close of pleadings on 10th February 1994, to take out a summons for directions. That was not done and, as I have already stated, more than six years were allowed to pass by. That constitutes a flagrant breach of the rules. Under Part 3.4(2) the failure to observe a rule is a ground on which an order striking out a claim can be made.
27. Mr Krolick submitted that the judge was right to find that the Master failed to give reasons for his conclusion on the impossibility of a fair trial. Mr Krolick further submitted that Lord Hoffmann's dictum in Hall v Simons, relating as it did to a serious libel, was inapposite to a case such as the present where Mr Tulsiani's case is that while Mr Patel was party to an illegal transaction with Mr Tulsiani the illegality was only technical. Mr Krolick stressed that he does not wish to go behind any of the findings of fact made by Sir Michael Ogden. Mr Krolick also submitted that this court could not properly interfere with the judge's findings of fact and exercise of discretion. He relied in particular on the judge's view that the question of illegality of the transaction between Mr Patel and Mr Tulsiani was the only issue in the case, on the judge's comments about Miss High being unable to give evidence of relevance and on the judge's finding that the delay was attributable to legal aid difficulties and the delay by the expert in giving her report. He submitted that it is plain that Mr Tulsiani himself was not to blame and that, he said, was a material factor.
28. I agree with Mr Krolick that the Master's judgment is open to criticism for failing to give reasons for his conclusion. The fact that the Master had referred to arguments of counsel is neither here nor there when he does not say which arguments he accepted or why.
29. However, in my judgment the judge's approach is no less open to criticism. He had allowed the appeal with regret because he found that it was scarcely possible for Mr Tulsiani to succeed in his claim, and he thought that the absence of an appeal from the Master's refusal to give summary judgment under Part 24 meant that he should not carry the logic of his view on the outcome of the litigation to its logical conclusion. He was also influenced, as I have noted, by the fact that it was a point of his own and that Mr Krolick had not had proper opportunity to consider it. But with respect to the judge, that might have been a good reason for granting Mr Krolick a short adjournment if he had wanted it. It was not a good reason for failing to exercise the wide case management powers now vested in a judge so as to stop a case which in his view could not succeed.
30. But the judge's approach is also vulnerable, in my judgment, to other criticisms. In particular he had accepted the submission of Mr Krolick, repeated before us, that the only issue in the case was the illegality issue on which the only evidence that would be of any relevance was that of experts in Nigerian law. He appears to have done so on the footing that he should only look at the defence in its unamended state as served in January 1994 because of the opportunities available to Albins then or thereabouts to amend, and the judge has treated what Mr Taylor says is Miss High's recollection as to Mr Tulsiani undertaking to arrange for a Nigerian expert as being a matter to be left wholly out of account. In my judgment the judge has inadequately assessed the state of the pleadings. Albins indicated by their defence their unhappiness with the statement of claim originally served. Mr Stewart has described the pleadings as skeletal in relation to the allegation of negligence. That seems to me to be correct. As I have noted, Mr Krolick, who did not draft the original statement of claim, has sought to bolster the pleadings as to negligence with amendments to make Mr Tulsiani's case stronger. They include not only the averment that Mr Patel's case should have failed if an expert properly instructed had produced a report in time for the trial, but reference is also made to certain letters relating to the obtaining of evidence on Nigerian law. But on the basis of the original defence and ignoring for the moment the possibility of amendment, it does not seem to me to follow that the only issue was the question of illegality under Nigerian law. To my mind the defence clearly gives rise to the question whether Albins were acting in accordance with Mr Tulsiani's instructions in relation to the defence of illegality. There is the specific averment that they did throughout act in accordance with his instructions. It leaves open the question whose responsibility it was to arrange for an expert to provide evidence on Nigerian law. But, in any event, the judge in my view was bound to take account of what is included in Mr Taylor's witness statement. That clearly raises the question whether Mr Tulsiani himself had taken responsibility for the production of an expert's report. It has to be borne in mind that the pleadings before the judge were in their unamended state, no leave having been given for the amendments, and if Mr Tulsiani was to be allowed to amend, so surely would Albins have been permitted to amend their defence.
31. The judge in my view misapprehended the state of affairs at the end of 1993 and the beginning of 1994. I have already drawn attention to the fact that Albins handed over their papers to Mr Tulsiani two days after the earlier trial. The letter before action in 1991 was wholly uninformative, and Albins were not informed of the details of what was being alleged against them until October 1993. Their attempts to obtain their original file handed over to Mr Tulsiani only met with partial success. According to Mr Taylor's evidence, there are missing documents. Further, Albins' solicitors were told by Mr Tulsiani's solicitors that there would be discovery. Discovery was never given. Indeed, because the Legal Aid Board was investigating whether to discharge Mr Tulsiani's legal aid certificate, as Albins knew, it was pointless to incur further costs in amendments or obtaining more information.
32. It was only in 2000 that the case became alive again. Miss High had retired in August 1990, and so at the time that the defence was being prepared she had already been away from legal work for some years. When the defence was drafted it was made plain in paragraph 4 that Albins reserved the right to amend the defence to the allegation of negligence in the light of discovery and when further particulars of the statement of claim were given. No doubt if there ever were a trial Miss High might be cross-examined as to why Albins made no reference to some of the documents which it is now suggested are missing such as attendance notes. But that there were attendance notes in Albins' file hardly seems improbable: such notes are the norm when solicitors see clients or attend on counsel.
33. In my judgment, therefore, it is plain that far too narrow a view was taken by the judge of the issues in this case. There would plainly be an issue as to whose responsibility it was to obtain the report of an expert in Nigerian law in time for the trial in 1989; and that requires oral evidence of the only person now available on Albins' side to give such evidence, Miss High, and her memory, as is apparent from the evidence, not surprisingly, has suffered as a result of the gross delays that there have been in this case. In my judgment, therefore, the judge did err in law on this point, and an exercise of discretion will be required on the part of this court.
34. I also have to say that I think the judge was wrong in his acceptance of the explanation for the gross delay. Of course I accept that Mr Tulsiani has had great difficulty in obtaining legal aid. That appears to have been a product of the obstacles in his way in succeeding in this case. He had to go to several counsel before obtaining advice favourable to him. The fact that he was seeking legal aid is no excuse for the gross delay. He could always act in person. It cannot be right that the more insubstantial a litigant's case is and the greater the difficulty in obtaining public money to fund the difficult litigation the longer he can delay. That would be absurd. Nor can it be right that because, for whatever reason, it takes three years to obtain a report from an expert in a foreign law, that somehow excuses the delay. The instructions to the expert should have been crystal clear from the start so that the clarification need not have been sought. In this case it had to be sought twice, partly, as Mr Krolick frankly admitted, because the expert advice as to what Nigerian law was is so surprising.
35. In my judgment the flouting of the rules for the long period of the delay is a matter which is highly relevant to the exercise of discretion by a court considering all the circumstances of the case. To my mind it is plain beyond argument that a delay of this magnitude when the claimant is in breach of a rule which has to be complied with if the action is to get off the ground - that is to say the taking out of the summons for directions - is a significant matter and of itself indicates that there has been an abuse of the process of the court such that the action should not be allowed to proceed.
36. I need say little about the expert's report in the circumstances. I have already indicated that I find that what the expert advises to be Nigerian law is surprising. She also appears to have been under a misconception as to a number of facts or she states as facts matters which are not entirely clear, for example, whether or not Mr Tulsiani was resident in Nigeria at the relevant time in 1982. From what the judge says, it would appear that Mr Tulsiani was resident in England, but clearly the expert was instructed that Mr Tulsiani was a Nigerian resident. The expert also proceeds on the false footing that Mr Patel was knowingly a party to illegality. She also appears to regard the transaction as a result of which the naira came to belong to Mr Pate as one involving an illegality, when that is not something which has been established. But there are passages in her report which may support the conclusion, surprising though it is, that someone who has no intention to commit an illegality and who merely solicits assistance from a person claiming to be able to help in obtaining exchange control permission and hands over money to that person to transfer out of Nigeria, if exchange control permission is granted, and who requires that the naira should be returned to him in Nigeria if exchange control permission is not granted, commits some breach of Nigerian law. But in the event it is not necessary to say more on that aspect of the case.
37. For these reasons, it seems to me to be plain that this very stale action should no longer be allowed to proceed. For my part I have no hesitation in exercising the discretion which this court has in the circumstances to say that this case should not be permitted to last a day longer and should be struck out.
38. I would therefore allow the appeal, set aside the judge's order and restore the order of the Master.
39. LORD JUSTICE MANTELL: I agree.
40. MR JUSTICE WALL: I also agree.
Order: Appeal allowed with costs subject to public funding assessment.