Is justice delayed now justice denied?
The Supreme Court has recently refined the longstanding Primor principles in respect to delay in civil proceedings, to put a greater emphasis on plaintiffs to progress their claims expeditiously.
Partner, Andrew Croughan, talks us through this recent Supreme Court decision.
In a decision that will be of an interest to both plaintiffs and defendants, the Supreme Court has given a unanimous decision on what is acceptable delay in legal proceedings and what now constitutes “inordinate” and “inexcusable” delay on the part of a Plaintiff, which would justify the dismissal of a party’s claim for “want” of prosecution. While the test remains that two limb test as laid out in the Primor decision, how it is framed has been recalibrated.
In coming to a decision on this, the Court re-emphasised a long standing principle that a defendant’s potential jeopardy in legal proceedings is not open ended and the Court has both an inherent jurisdiction under the Constitution and under the Rules of Court to call a halt to proceedings that have not been progressed in a reasonable timeframe. The decision will have implications for secondary loan and contract owners who have acquired legacy litigation from original loan or contract owners as it will precipitate the need for strategic decisions to be taken earlier and sooner.
Before examining the judgments it is worth setting out what the Rules of Court state. This is the often and obvious first port of call for practitioners, when looking at whether a case is vulnerable to a finding of inordinate and inexcusable delay, once proceedings have issued. The relevant section is part of Order 122 Rule 11 which, inter alia, states “in any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just.”
However, a Court will consider an application taken before this 2 year time period, if the Defendant can show a high level of prejudice from the delay and where the Plaintiff cannot show the Court a good explanation.
A party who brings a dismissal application after the 2 year period of total inactivity on the part of plaintiff has less of a hurdle to overcome in terms of having to show prejudice from the delay of the plaintiff and consequently the onus shifts to the plaintiff to justify the delay and disprove prejudice. Thus, a delay of more than two years is inordinate and on its face inexcusable.
The Chief Justice laid out a judicial guideline in assessing the time periods which, can be summarised as follows; if the party seeking dismissal makes that application within the 2 year period above, they must show a high level of prejudice to their case, caused by the delay, or some abuse of process on the part of the plaintiff. This is a high bar for a defendant to reach. Conversely, however, after 2 years there is a graduated pendulum swing in the other direction. For instance a delay of more than 2 years but less than 4 years, may entitle a Court to dismiss a case, but the Court should look for evidence of significant prejudice to the Defendant, such as the unavailability of witnesses to justify the dismissal. After 4 years however, the Court has determined that it is not necessary for the Defendant to show any prejudice to it, for a party to be successful. For anything beyond 5 years of complete activity a plaintiff cannot now expect to resist a motion to dismiss save in the most exception of circumstances unless the plaintiff can show “a pressing exigency of justice that requires that the case be permitted to go to trial”. The judgment represents an important milestone in procedure, which has relevance for both practitioners and parties to litigation, whatever side of the fence they find themselves.
