The “inordinate, inexcusable and prejudicial” delay
In a recent decision of Wycliffe Baird v David Goldgar and another, the Court of Appeal of Saint Christopher and Nevis has confirmed the position that an appeal can be struck out or dismissed for want of prosecution or as an abuse of process notwithstanding the Court’s finding that the appellant had an arguable case.
Baird v Goldar concerned a dispute arising out of an agreement in 1991 which, for reasons not explained, only proceeded to trial in 2016 with judgment being given in July 2019. The appellant appealed against the judgment in September 2019, but after various missed deadlines by the appellant to file the record of appeal the respondents filed an application seeking an order that the appeal be struck out or dismissed for want of prosecution due to the protracted delay by the appellant in filing the record of appeal.
In deciding to strike out the appellant’s application for appeal, the Court considered the Court of Appeal case of The Barbuda Council v The Attorney General et al which set out four factors which a court must consider in an application to strike out proceedings for want of prosecution: (1) length of delay; (2) reasons for delay; (3) merits of the proceedings; and (4) prejudice to the litigants.
On the facts of the case, the Court found that the delay on the part of the appellant in filing the record of appeal was simply “inordinate, inexcusable and prejudicial” justifying a dismissal of the appeal for want of prosecution.
The record of appeal should have been filed in June 2020, and despite having undertook to file the record in August 2021 and having further been ordered to do so by 6 September 2022, the record of appeal was not filed until 23 March 2023. The Court found that the explanation by the appellant that the record of appeal could not be filed by 6 September 2022 because certain pages were illegible was unsatisfactory and simply lacked cogency. Since a stay of execution had been granted in March 2020, the prolonged appeal had denied the respondents the fruits of the judgment. Although the appeal was considered to be at least arguable, this factor alone would not warrant dismissing the striking out application.
The Court further found that the inordinate, inexcusable and prejudicial delay also amounted to an abuse of process of the Court, on the basis of which the appeal should be struck out.
This case serves as an important reminder that merit of a case is only one of the factors which the Court will consider when deciding whether to strike out / dismiss the case. In circumstances involving unreasonable delays such as those in the current case, merit alone will not warrant a dismissal of the strike out application. The Court must have regard to all facts of the case including i) the length of the delay; ii) reasons for the delay; iii) the merits of the case; and iv) the prejudice to the parties.