In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave the question of limitation for determination in those fresh proceedings if issued.
After considering the principle in Birkett v James that it is exceptional to strike out an action for want of prosecution if the limitation has not expired, Lord Justice Staughton said: ‘It seems to me that the House of Lords was not there considering a case where it was open to doubt and serious argument whether the cause of action would be time barred if a fresh writ were issued. In such a case it may well be that the interests of justice are best served by dismissing the action for want of prosecution, leaving it to the plaintiff, if he chooses to do so and if he has the funds, to start a fresh action. The alternative is that masters, and judges on appeal and even this court, may become embroiled, on an application to dismiss for want of prosecution, in long and elaborate arguments as to whether some future action, if it were brought, would be time barred. There is a good deal to be said for the view that masters should not have that task forced upon them when the problem may never arise and, if it does arise, could perhaps more conveniently be considered in another way.’
Judges:
Lord Justice Staughton
Citations:
[1990] 1 WLR 343, [1990] 1 All ER 1040
Jurisdiction:
England and Wales
Citing:
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
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 . .
Cited by:
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.
Equity
Updated: 30 April 2022; Ref: scu.235773