Icebird Ltd v Winegardner

Action – Striking out – Want of prosecution – Appellant claiming right of way over respondent’s land – Appellant claiming damages against respondent for obstruction — Whether appellant abandoning right of way by non-use – Judge striking out action for inordinate and inexcusable delay — Whether judge entitled to conclude respondent severely prejudiced by delay in prosecuting action – Appeal allowedThe appellant owned a property in the Bahamas and claimed the benefit of a right of way over a roadway running from that property to a beach owned by the respondent. The appellant alleged that, from around 1998, the respondent had obstructed its right of way. It therefore commenced proceedings against her for an injunction, damages and other relief. For more than two years, no action was taken to progress the prosecution. The respondent applied to strike out the action on certain grounds, namely: (i) the appellant’s inordinate and inexcusable delay in prosecuting the action; (ii) the serious prejudice that she was likely to suffer as a result of that delay; (iii) the substantial risk that a fair trial would not be achievable; and (iv) the appellant’s conduct, which, it was argued, amounted to an abuse of the process of the court.The court at first instance struck out the action on the grounds of inordinate and inexcusable delay and severe prejudice but made no comment regarding those grounds relating to fair trial or abuse of process. The Court of Appeal, by a majority, dismissed the appellant’s appeal, expressing the view that the delay had constituted an abuse of the process of the court because the appellant had evinced no intention of carrying the case to trial. The appellant appealed to the Privy Council.Held: The appeal was allowed.The power to strike out should be exercised only where the court was satisfied either that the default had been intentional and contumelious or that there had been inordinate and inexcusable delay on the part of the plaintiff or its lawyer, and that such a delay was likely to militate against the possibility of a fair trial and would cause serious prejudice to the defendant. The instant case was not one in which there had been contumelious default. There had been inordinate and inexcusable delay, but there was no evidence of any serious prejudice to the respondent: Birkett v James [1978] AC 297 applied.Delay in prosecuting an action and abuse of process were separate and distinct grounds on which an application to strike out an action could be made, but they might sometimes overlap. Want of prosecution for an inordinate and inexcusable period could justify a striking-out order, but in the event of an abuse of process it was not strictly necessary to establish want of prosecution. Where, however, there was nothing to justify a striking-out order other than a long delay for which the plaintiff could be held responsible, the requisite extent or quality of the delay necessary to justify the order ought not to be reduced by categorising that delay as an abuse of process without evidence of what it was that had transformed the delay into an abuse: Grovit v Doctor [1997] 1 WLR 640 considered.In the absence of evidence from the respondent that the litigation had obstructed or hindered any dealings with her land or had caused her any other kind of prejudice, or was likely to do so, the judge had erred in concluding that she had been severely prejudiced by the appellant’s action. Without evidence of very special features in the particular case, the natural worry and anxiety that accompanied litigation did not constitute the severe prejudice that would justify, without more, a strike-out for delay in prosecuting an action.On the evidence, there was no reason why the appellant’s delay should prevent a fair trial. Given that the main issue was whether the right of way had been abandoned by non-use and whether an intention to abandon had to be established, it was unlikely that any valuable evidence would have been lost during the period of delay.No appearances are available in this case.Eileen O’Grady, barrister