Birkett -v- James; HL 1977

The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and (b) such delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues or is such as is likely to cause or to have caused prejudice to the defendants. In addition the court has a general inherent power to strike out an action in cases of a deliberate failure to comply with a peremptory order of the court. Again, however, the power is a discretionary one albeit a narrowly circumscribed one. It does not matter whether it is the plaintiff or his lawyers at fault, the effect on the defendant is the same.
Lord Diplock said: ‘delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party’.

Court: HL
Date: 01-Jan-1977
Judges: Lord Diplock
References: [1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38
Cases Cited:
Cited By:

Leave a Comment

Filed under Litigation Practice

Leave a Reply