Recaptulating:-
default has been intentional and contumelious; or
the delay was “inordinate and inexcusable”, therefore
a substantial risk that it is not possible to have a fair trial
An appellant court will seldom interfere with the dicretion of the judge in 1st instant unless the judge took into account the irrelevant factors, failed to take into account relevant factors, or has reached the conclusion that no reasonable judge could have reached, that his decision can be interfered with on appeal - see per Lord Diplock in Birkett at 317 E-G.
In Department of Transport v Chris Smaller Limited [1989] 1 WLR 1197 at 1120C, Lord Griffiths said that the Judicial Committee of the House of Lords “will only re-examine” a decision not to strike out for want of prosecution upheld by the Court of Appeal “in exceptional circumstances”
That is, it is not the function of an appellate court to carry out its own balancing exercise.
Application – 2 case studies
Lyons J, in Privy Council Appeal No 43 of 2006, Conticorp S.A. & 3 Ors v The Central Bank of Ecuador & 3 Ors, an appeal from the Bahamas, carefully described the history of these proceedings and directed himself in accordance with the principles laid down in Birkett. He then concluded that the delay of some six and a half years between the issue of proceedings and the taking out of the appellant’s summons to strike out was not “contumelious”, and, while he considered that it was “arguable” that the delay was “inordinate”, he did not consider that it was “inexcusable”. If the delay was inexcusable, he was doubtful whether it had given rise to a substantial risk that there could not be a fair trial. Although the Court of Appeal appear to have thought that their reasons for dismissing the appeal on this ground were different from those of the Judge, their grounds were very similar. They considered that there had been “undue delay in bringing the action to trial”, but that, once one apportioned the blame for this delay between the plaintiffs and the defendants, the delay for which the plaintiffs were responsible was insufficiently great to be characterised as “inordinate and inexcusable”, and in any event, the defendants had failed to establish that any delay that had occurred had resulted in any unfair prejudice to them.
In Malaysia, Chin Vui Khet v Progressive Insurance Bhd , Ian Chin J stated that
“A case will only be struck out if the court is satisfied that not only that there had been inordinate and inexcusable delay but also that the delay has given rise to a substantial risk that a fair trial is not possible. In the present case there is no question of any intentional or contumelious conduct since there was no disobedience to any peremptory order. Since establishing prejudice is necessary before the application can succeed if remains to be examined what prejudice the Defendants could possibly have suffered. Generally, the Defendants alluded to their inability to trace the other Defendant against whom judgment was already obtained for the purpose of getting him to testify for the Defendants and that a lot of the events have to be recalled from memory which is not possible due to the long passage of time. But we are dealing, as a result of the defence raised, with a matter of the construction of an indemnity to determine whether it is uncertain as alleged by the Defendants. For the purpose, the instrument will be looked at and that is not dependent on any oral recollection and such will not play any part. It is the same with the issue of consideration which again is not dependent on any recollection from memory. So too, the question of whether the Plaintiff had already recovered certain sum which should go towards diminution of the Plaintiff’s claim. Therefore there is no substance in the Defendants’ contention that they have been prejudiced. In so far as the matter hanging over the head, it does not really matter since they are not professionals whose reputation will be at stake. In this regard the magistrate was correct in her view that this case depended much on documents and she was correct in exercising her discretion not to strike out the claim”
