Summary

In an application by the defendant to strike out the plaintiff's claim for want of prosecution, the judge was entitled to conclude that, due to inordinate and inexcusable delay of the plaintiff in prosecuting the claim, there was serious prejudice to the defendant and it would not be possible in the circumstances for a reasonable trial of the issue to take place.

Facts

Plaintiff's appeal from the order of Kennedy J made on 25 March 1998 whereby it was ordered, inter alia, that the plaintiff's claim be struck out for want of prosecution. In November 1980, the plaintiff had instructed the defendant to deal with the discharge of his bankruptcy. The defendant discharged the plaintiff's bankruptcy in 1984. In April 1986, the defendant issued proceedings on the plaintiff's behalf against the plaintiff's former accountant and solicitors for damages for negligent advice given concerning the plaintiff's bankruptcy. Due to the defendant's negligence in inordinately delaying their prosecution of the action, the plaintiff's case was struck out on 9 September 1991. The plaintiff consequently instructed new solicitors, who commenced proceedings against the defendant for losses incurred directly and indirectly as a result of the plaintiff's original action being struck out. In the action brought against the defendant, there was a period before issue of the writ in February 1994 when the plaintiff was attempting to obtain legal aid. After the writ was issued, there was a further period of delay between 5 May 1995 and 8 August 1996 when the plaintiff died. During that period, the plaintiff's estate and the defendant were involved in without prejudice negotiations and preparation in respect of discovery and drafting of further particulars of special damage. In the final period from the death of the plaintiff to the defendant's application, dated 24 October 1997, to strike out the plaintiff's action for want of prosecution, complications in respect of the deceased plaintiff's intestacy were resolved and the plaintiff's children applied to be substituted as plaintiffs. On 25 March 1998, the judge, after considering the evidence before him, struck out the plaintiff's claim for want of prosecution. The plaintiff appealed.

Held

(1) The difficulty that the plaintiff faced in the instant case was not whether it could be established that the defendant was negligent but how to evaluate the consequences of that negligence. (2) The judge was entitled to conclude that there was a period of inordinate and inexcusable delay in the litigation during the period from May 1995 to April 1996 by the plaintiff. Moreover, from August 1995 to May 1996 nothing of any significance occurred. (3) The judge was entitled to conclude that there was serious prejudice to the defendant and that it would not be possible in the circumstances that a reasonable trial of the issue could take place (see Birkett v James (1978) AC 297 at 318). (4) In cases such as the instant one, it was imperative that subsequent litigation be conducted with due expedition. It was difficult to see why the case had not proceeded with extreme speed. Accordingly, there was no reason to interfere with the judge's exercise of discretion.

Appeal dismissed.