Guernsey Legal Resources

    In considering an application to strike out an action where there has been inordinate delay, the court should consider what prejudicial effect striking out might have on either party. It should take into account the issues in the case; the evidence available and how far this will be oral or documentary; the time which has elapsed since the relevant events; the degree of prejudice which was, or is likely to have been, suffered in the period before the tabling of the cause; the degree of prejudice which has been, or is likely to have been, caused by the delay; and whether there is a substantial risk that it would not be possible to have a fair trial of the issues in the action (Shtun v. Zalejska, [1996] 1 W.L.R. 1270, dicta of Neill, L.J. applied).

    The burden of establishing inordinate delay rests on the defendant; if this is done successfully, it will generally be the plaintiff who must establish a reasonable excuse for it (Scanfield v. Carr, Royal Ct., August 16th, 2002, unreported, dicta of Day, Deputy Bailiff followed). Delay after the tabling of the cause can be added to any earlier delay, and if the court concludes that the total delay has been inordinate and inexcusable, and no reasonable excuse has been given, it will then look to the defendant to establish substantial prejudice as a result of the delays (Trill v. Sacher, [1993] 1 W.L.R. 1379, dicta of Neill, L.J. followed).

    In a case in which péremption would apply, the remedy would be barred although the action would survive—in contrast, for example, to a successful plea of prescription, which would extinguish the cause of action completely.