High Court of Justice in Northern Ireland Queen's Bench Division Decisions

for an order pursuant to the provisions of Order 34 Rule 2(2) of the Rules of the Supreme Court and/or to the inherent jurisdiction of the Court striking out this action and entering Judgment with costs for the Defendant or for such other order as the Court deems just and for an Order that the Plaintiff pay the Defendant's cost of this application due to the Plaintiff's failure to set this action down for trial.

an order pursuant to Order 3 Rule 6(2) and/or pursuant to Order 34 Rule 2(2) and/or pursuant to Order 19 Rule 1 and/or pursuant to the inherent jurisdiction of the Court dismissing the above-entitled action in its entirety and entering judgment herein inter alia in favour of the Fourth Party upon such terms as the Court may think fit and together with all necessary and consequential directions.

pursuant to Order 34 Rule 2(2) of the Rules of the Supreme Court and under the inherent jurisdiction of the court, that the plaintiff's action against the defendant be and it is hereby struck out for want of prosecution and that judgment therein be entered for the defendant with costs ( same not to be enforced without further order of the court).

pursuant to Order 3 Rule 6(2), Order 34 Rule 2(2) Order 19 Rule 1 of the Rules of the Supreme Court and under the inherent jurisdiction of the court, that the plaintiff's action against the defendant be and it is hereby struck out for want of prosecution and that judgment therein be entered for the defendant with costs ( same not to be enforced without further order of the court).

The plaintiff appeals against both orders.

"I consider that the arguments presented on behalf of the defendant are correct, and that my doubts were not justified. In my opinion the inherent jurisdiction still exists, notwithstanding the specific power to dismiss for want of prosecution contained in Order 3 Rule 6(2)."

Thus the accepted view is that the inherent jurisdiction has survived and exists side by side with Order 3 Rule 6(2).

"In order for such an application to succeed, the defendant must show:

(1) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs.

(2) that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(3) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plaintiff or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial."

"What then are the principles which the court should apply in exercising its discretion to dismiss an action for want of prosecution upon a defendant's application? The application is not usually made until the period of limitation for the plaintiff's cause of action has expired. It is then a draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. It is for the defendant to satisfy the court that one or other of these two conditions is fulfilled. Disobedience to a peremptory order of the court would be sufficient to satisfy the first condition. Whether the second alternative condition is satisfied will depend upon the circumstances of the particular case; but the length of the delay may of itself suffice to satisfy this condition if the relevant issues would depend upon the recollection of witnesses of events which happened long ago."

"There is no question here on the matter of delay. The accident happened in October 1965, and the pleadings were closed by delivery of reply on 17^th December 1968, and the final act, the answer to the plaintiff's Notice for Particulars of Contributory Negligence was delivered on 20^th December, 1968. No step has been taken since then and no explanation given for the failure to take the mater any further. The defendants are in no way to blame and indeed throughout have acted in general expeditiously whenever action on their part was called for. The delay is due solely to the plaintiff or to the plaintiff's legal advisers.

There has therefore been inordinate delay and no excuse for it. The third requirement set out in Allen's case is whether the defendants will be seriously prejudiced by the delay.

It was argued before me that as the defendants had had an opportunity to investigate and did investigate the accident in 1966 they must then have seen and interviewed and taken statements from any relevant witnesses and that while the recollections of these witnesses may by now be greatly impaired the individual witnesses will be able to refresh his recollection by reading his statement and will then be in a position to deal adequately with the points relevant to the defendants' case. If that is a correct view no application to dismiss an action for personal injuries could succeed since insurers and their solicitors in general see and taken statements from such witnesses as appear relevant when making their initial enquiries. I cannot, however, accept that that is a correct view. A statement made by a witness, particularly by a defendants' witness, cannot deal in detail with all the points which may become relevant at the trial and his recollection of detail which did not appear material or relevant or in issue when he made the statement may be completely gone by the time a delayed trial takes place; nor where there are disputed issues of fact is it fair for a witness to have to try to give evidence based not on actual recollection of facts but on a recollection derived from what he said in a statement made five or six years ago. He cannot even call that statement in aid in the witness box and in honesty may have to make concessions based on faulty recollection which he would never have made if the action had come on for trial when the details were still fresh in his mind. There may also be controversial issues raised at the trial as to purported acts or conversation relied on by the plaintiff which the defendants would have no means of knowing and preparing for in advance and which they will now have no means of investigating from witnesses who may no longer be available and who even if they are available will depend on recollection blurred and dimmed by the passing of time.

It appears to me that where there is a delay of some years the inference of serious prejudice is properly to be drawn from the delay itself and in my opinion that is a case of that kind.

For this reason it appears to me that this case falls within the principle laid down in Allen's case that the application is entitled to succeed."

This passage was approved by Lowry LCJ in Boyd v Sinnamon, supra.

'The prejudicial effect of delay on a defendant and the effect of delay on the possibility of a fair trial will depend in large measure on the nature of the issues in the case. In some cases much of the evidence will be in documentary form or there will be in existence statements made soon after the relevant events which will enable witnesses to refresh their memories. In other cases, however, including many cases involving road accidents or industrial accidents where claims for damages for personal injuries are made, the crucial evidence may be largely oral and any statements made shortly after the event may be imprecise or incomplete. It follows therefore that each case is likely to depend on its own facts. The onus of proving prejudice or the impossibility of a fair trial rests on the person who asserts it . . . An account must also be taken of the fact that delay may create difficulties for a defendant when he seeks to test by way of cross-examination the reliability of the plaintiff and his witnesses. As Sir George Baker said in Hayward v Thompson [1981] 3 All ER 450 at 464, [1982] QB 47 at 69: "There are few civil actions in which nothing new emerges in the course of the hearing". But even in the absence of some wholly new factor, the cross-examiner, in a stale claim, when seeking for example to ask questions about the position of some control mechanism (in an industrial accident) or lines of visibility (in a traffic accident), may be faced with the understandable reply "It is all so long ago that I cannot remember." Stuart-Smith LJ has referred to such an answer being a common experience for judges when trying stale cases (see Benoit v Hackney London BC [1991] CA Transcript 116).'

'In many cases, however, the resolution of the issues will depend on oral testimony. Sometimes the defendant will be able to show that a witness has died or has become too infirm to give evidence, or has disappeared. But there will be cases where the proper assessment of the defendant's position and the nature and degree of any prejudice will not depend primarily on the absence of one or two particular witnesses, but on all the circumstances of the case. It is in these cases where the experience of the judge has a crucial part to play in evaluating prejudice and the possibility of a fair trial. As Lord Griffiths indicated in Smaller, it is incumbent on the defendant to explain his position and to establish prejudice. He must explain how the relevant delay will affect his case and, where relevant, the evidence he will be able to call and how it will affect the resolution of identified issues. But the court is not trying the case. The judge's task is to assess the likely effect on the trial and on the defendant's ability to put his case forward. The judge must, therefore, draw inferences based on all the material before him. These inferences will include inferences as to the effect of delay on the recollection of witnesses. It is in this context that I think it is important to keep in mind the words of Lord Browne-Wilkinson in Roebuck v Mungovin [1994] 2 AC 224 at 234 where he said that a judge can infer a further loss of recollection from any substantial delay. Whether that further loss of recollection is sufficient in a particular case will be for the judge to evaluate'."