Cooper v Touche Ross and Co

In the case of Cooper v Touche Ross and Co, the plaintiffs sought leave to proceed with their legal action against the defendants, Touche Ross and Co, and a related application to dismiss the proceedings for want of prosecution. The primary issue before the court was whether the plaintiffs' significant delay in pursuing the case, coupled with the defendants' claimed prejudice, justified refusing leave to proceed and dismissing the proceedings. The court was also required to determine whether the plaintiffs' prospects of success in the case were sufficient to warrant granting leave to proceed despite the delay.

The court considered various factors, including the plaintiffs' explanation for the delay, the defendants' claims of prejudice, and the potential for irreparable unfair prejudice due to the delay. It noted that the defendants had not raised any issues of prejudice when the plaintiffs' representative passed away, and that the defendants had been aware of the proceedings and the plaintiffs' case for an extended period. The court emphasised the importance of documentary evidence in the case and acknowledged that while there were some matters of prejudice to the plaintiffs arising from the delay, the prejudice did not extend to the loss of documentary evidence. Ultimately, the court concluded that the plaintiffs' claim could not be determined to be clearly unmeritorious, and that the refusal of leave to proceed and the striking out of the proceedings would terminate the plaintiffs' ability to prosecute their claim. Therefore, the court granted the application for leave to proceed and refused the application to dismiss the proceedings for want of prosecution.

The court further highlighted that while undue delay can lead to palpable deterioration, such as the death of crucial witnesses or the destruction of important documents, prejudice can also exist without the parties realising it. The court recognised the importance of considering the prospects of success of a plaintiff's case in determining whether to grant leave to proceed. In this instance, the court found that the plaintiffs' prospects of success were not so bleak as to warrant refusal of leave to proceed, especially given the stage the proceedings had reached.

In conclusion, the court granted the application for leave to proceed, allowing the plaintiffs to continue with their legal action against the defendants. The court noted that it would hear submissions regarding costs and directions for the conduct of the proceedings in due course.