Dismissal for Delay

Table of Contents

Overview

Because litigation is left in the hands of the parties and is dependent on their initiative, there is a risk that delay is encouraged. The parties may feel they can get away with it. The courts may indulge it by giving adjournments. This may mean that parties take advantage of this possibility. The courts have indicated that it is necessary in a system left up to the parties to progress proceedings, for the court to make it clear that there will not be endless indulgence of delay.

The courts emphasise that they have a duty to ensure that proceedings are conducted with due expedition. The penalty of dismissing proceedings for delay is not a means of punishment for dilatory handling of the proceedings. It is made where it is necessary to protect the legitimate interests of the party affected and his Constitutional right to fair procedures.

A long delay may mean that witnesses are no longer available or that their memories have faded. Written documents may no longer exist. It may be less easy to give an accurate account of events. Witnesses may not be found or available. The fact that litigation is pending for a long period may cast a shadow on a person’s professional career. Each of these may be relevant factors.

The conduct of the defendant is relevant. If the defendant has himself delayed, this will weaken his application. If the defendant has acquiesced in delay or induced the plaintiff to incur further expense in continuing the action, this may counter what would otherwise be a basis for dismissal.

If the defendant can establish culpable delay on the part of the plaintiff prior to the commencement of proceedings, the defendant may succeed in an application to dismiss the claim, if he or she can establish on the balance of probabilities that there is a real and substantial risk of an unfair trial or unjust result.

Regardless of whether the delay is pre- or post-commencement of proceedings, where a defendant establishes inordinate and inexcusable delay on the part of the plaintiff, the defendant may ask the court to dismiss the proceedings where the balance of justice requires. This is a lower standard than where there is a real and substantial risk of an unfair and unjust result.

Inordinate Delay

The courts have an inherent jurisdiction to control their own procedures and to dismiss the claim if the interests of justice require them to do so. It must, in the first instance, be established by the party seeking dismissal of proceedings for want of prosecution that the delay was inordinate and inexcusable. Even where the delay has been inordinate and inexcusable, the court exercises judgement on whether in its discretion on the facts, the balance of justice is in favour of or against the case proceeding case.

A period of delay that is considered inordinate in one case might not be regarded as such in another. Factors that excuse delay in one case may be ineffective in another. The delay will be regarded as inordinate if it is excessive or out of the ordinary.

The fact that a step is not taken in the time prescribed by the rules does not mean that the defendant can obtain an order dismissing the proceedings. What is or is not inordinate delay depends on the whole facts in the circumstances. Each case differs.

What constitutes an inordinate delay is a matter of interpretation in the circumstances. An inordinate delay will generally be one of several years. The delay before the institute of proceedings itself will also be relevant. The excusability of the delay depends on the circumstances. If there are no good reasons for the delay, the courts may dismiss proceedings.The courts balance the interest of the parties in exercising their discretion.

Before & During Proceedings

Some courts have taken the view that the period between the time that the claim arose and the date the proceedings commenced is not material in this context. However, other courts have taken the approach, based on the court’s inherent jurisdiction, that a delay in the commencement of proceedings may, in itself or in conjunction with the further post-commencement delay, be relevant to the jurisdiction to dismiss the proceedings.

There have been diverging views on the issue of delay before and during proceedings. In some cases, the Statute of Limitation allows significant time in which to start proceedings, particularly in the case of infants, certain types of negligence and abuse.

Where a summons is issued close to the expiration of the limitation period provided for the claim, there is an onus on the proceeding plaintiff to proceed with greater diligence and with more expedition than if they had commenced the case at an earlier date.

Regardless of whether the delay is pre-or post-commencement of proceedings where a plaintiff establishes inordinate and inexcusable delay on the part of the plaintiff, the defendant may be asked the court to dismiss the proceedings where the balance of justice requires

Inexcusable delay

The delay may be inexcusable even if it is not inordinate. There must be a real and justifiable excuse for delay. The onus is on the defendant to show there is no reasonable or credible explanation to account for or excuse the delay.

What is excusable or not depends on the circumstances. The excuse should relate in some way to the proceedings because the other party should not be expected to wait till issues unconnected with the litigation is resolved. Nonetheless surrounding circumstances including excuses based on extraneous matters are taken into account.

Historically the plaintiff’s difficult circumstances were taken into account to a greater extent. There is less tolerance for this in more recent times.

The courts have regard to the context of the proceedings. The same period of delay in different cases may demand different treatment.

The degree of expedition in compliance with time limits which could properly be expected of a large corporation involved in commercial disputes, would not necessarily be required of a poorly resourced or otherwise disadvantaged party. The latter may have to resort for representation to small firms which frequently accepting instructions without guarantee of payment.

A number of authorities have indicated a reluctance to find sufficient excuse in the fact that delay had been attributed to a plaintiff’s legal advisers. The general rule is that responsibility rests with the plaintiff for failure to expedite matters in such circumstances. Personal blameworthiness of the plaintiff is a matter which may be considered in the court’s discretion.

Where the plaintiff had difficulty in obtaining legal representation in the first place, this may be taken into account. However, there is an onus on the plaintiff to advance proceedings, even if where he or he is legally represented. There may be an onus in particular cases to pressurise their legal team and if necessary find an alternative legal team.

Justice Excuses Delay

Even where there has been an ordinate and an inexcusable delay, the courts have discretion to decide whether on the facts, the balance of justice requires that the case be dismissed. The courts will have regard to basic fair procedures.

Particular circumstances may make it unfair to the defendant to allow the action to proceed after a long and inexcusable delay. The conduct of both parties will be considered. If parties have acquiesced in or consented to the delay, this would be a factor against dismissal. Ultimately, the prejudice to a fair trial is the most important factor.

Even where there is an inordinate and inexcusable delay, the court must exercise discretion and decide whether on the facts of the particular case, the balance of justice is in favour of dismissal or permitting the action to proceed. The court’s assessment of the balance of justice does not involve a free-floating enquiry divorced from the delay that has been established. The nature and extent of the delays are critical considerations in the balance of justice.

Litigants in person may be vulnerable and unfamiliar with court proceedings. Traditionally, judges have demonstrated courtesy to patients towards their position. However the fact that they are litigants in person does not mean that they are entitled to be treated in a manner which is preferential to other litigants who are represented.

Factors

In considering whether to allow the action to proceed or strike out the action, the court may take into consideration

the implied Constitutional principles of fair procedures
whether delay and consequent prejudice on the special facts of the case are such as to make it unfair to the defendant
any delay on the part of the defendant; because litigation is a two-way operation the conduct of both parties should be looked at
whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay; the fact that conduct by the defendant induces the plaintiff to incur further expense in pursuing the action does not in law constitute an absolute bar preventing the defendant from obtaining a striking out order but it is a relevant factor to be taken into account by the judge in exercising the discretion whether or not to strike out the claim the weight to be attached to such conduct depending upon all the circumstances of the particular case
whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to have caused serious prejudice to the defendant
the fact that the prejudice to the defendant above might arise in many other than that merely caused by delay including damage to a defendant’s reputation and business

The balance of justice will take into account the conduct of the defendant since the commencement of the proceedings for the purpose of establishing

whether any delay on the part of the defendant amounted to acquiescence in the plaintiff’s delay and whether the defendants were guilty of any conduct which induced the plaintiff to incur further expense in pursuing the action
whether the delay was likely to cause or has caused serious prejudice to the defendant of a kind that made the provision of a fair trial impossible or a kind that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action
whether having regard to the implied constitutional principle of basic fairness of procedure, the plaintiff’s claim against the defendant should be allowed to proceed or be dismissed

Generally the onus of proof lies on the party who seeks to strike out proceedings. However, the courts take a more subtle approach. The author of the delay is not to be absolved from fault unless they point to some countervailing circumstances that the court considers sufficient to negate the effect of their delay.

Prejudice to the defendant

When the court has to consider the balance of justice the extent of prejudice to the defendant caused by delay needs to be assessed. If the prejudice to the defendant’s capacity to defend the case brought against them is caused by inordinate or inexcusable delay on the part of the plaintiff and as a result a fair trial cannot now be held, the defendant should not be prejudiced by further delay which would inevitably be caused by a long and difficult hearing of the action

Whether prejudice will justify the dismissal of the claim or whether something more serious must be established, depends on the circumstances including the nature and extent of the delay involved, the nature of the claim of the defence and the conduct of the proceedings.

The absence of any specific prejudice may be a material factor in the court’s assessment. However, this does not necessarily mean that the absence of prejudice excludes finding that dismissal is warranted. General prejudice may suffice. The case law suggests that the form of general prejudice most commonly relied on is the difficulty that witnesses may have in giving evidence and the difficulty that courts may have in resolving conflicts of evidence relating to events that have taken place many years before the trial.

Where inordinate and inexcusable delay is demonstrated, there has to be a causal connection between that delay and the matters relied on for the purpose of establishing that the balance of justice warrants the dismissal of the claim. The defendant cannot rely on matters which do not result from the plaintiff’s delay.

Conduct of Defendant

The defendant’s conduct may be relevant where the plaintiff seeks to have the proceedings dismissed. Delay by the defendant may be taken into account. The courts distinguish between failure to take a step positively and the failure to take steps requiring the plaintiff to act. As much litigation withers on the vine and never proceeds, to require a defendant to take positive steps to prod the plaintiff into action would not necessarily be appropriate.

Relevant factors include circumstances such as

the character of the defendant whether public or private
whether it is a representative of the public or an institution which it serves and
the nature of the issues.

The defendants action or lack of it may contribute to the delay of which he later complains. The defendant is not generally accountable for delay unless he or she bears some responsibility for the conduct of the proceedings and ensuring the timely progress of litigation. Where it fails to take steps to press the plaintiff, this may be taken into account.

Where the plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, the subsequent conduct by the defendant which induces the plaintiff to incur further expenses in pursuing the action, does not constitute an absolute bar preventing the defendant from obtaining a striking out order. It is a relevant factor to be taken into account.

Court Rules

Where there has been no proceeding or step in a legal action for more than a year, a party who desires to proceed must give at least one month’s notice to the other of his intention to proceed. Where there has been an inactivity for two years, the defendant may apply to have the case dismissed at the court’s discretion. The application is made to the Master of the High Court.

Proceedings may be dismissed by reason of delay or lack of progress on the part of the plaintiff. A defendant may bring an application to dismiss proceedings where the plaintiff has defaulted in delivering a statement of claim. A defendant may apply to have proceedings dismissed for want of prosecution or by reason of other failures on the part of the plaintiff during the course of the proceedings.

An application can be made to dismiss proceedings on the basis that the plaintiff has not taken steps to progress the case for two years. The courts may dismiss proceedings where there has been an inexcusable and inordinate delay. Cases will not be readily struck out, by reason of delay. The primary motivation for striking out proceedings is the prejudice caused to the defendant due to the passage of time. The purpose is not to punish the plaintiff/claimant.