Guernsey Law Reports 2007–08 GLR Note 15
OGIER v. GRAND HAVRE HOLDINGS LIMITED
COURT OF APPEAL (Sumption, Steel and McNeill, JJ.A.): September 25th, 2007
Civil Procedure—dismissal for want of prosecution—delay
The appellant’s cause of action was in respect of dilapidations to her hotel premises caused when she sub-let it to the respondent in March 1989 (with a one-year renewal until May 1990), with an associated claim for damages for consequential loss—as she was then unable to secure an appropriate classification from the Tourist Board, the cash flow problems she experienced meant that she was unable to pay her rent, her landlord terminated her lease and she was unable to continue her hotel business. She did not, however, commence proceedings against the respondent until April 1997 and maintained that the delay was primarily caused by her difficulties in obtaining legal aid and partly by her need to pursue separate proceedings against her landlord relating to the termination of her lease. Nevertheless, after she had been granted legal aid (for legal advice) in 2002, she was advised by her advocate that the action was without merit and she took no steps to progress the action until January 2005, when it came before the Royal Court on her application for directions. It held that (a) the action had undoubtedly become périmé because no procedural steps had been taken in court for a year and a day, though, without giving reasons, it said that it would in its discretion have restored the action to the roll (under the Royal Court Civil Rules 1989, r.50); but (b) it did not do so because it considered that it should be struck out for want of prosecution (under r.36(1) of the Rules).
Held: (1) There was a basic illogicality in the decision to strike out the action when the court would at the same time have been willing to restore it to the roll. Although the procedures of péremption and striking out for want of prosecution were distinct, the criteria to be applied were similar in both—in particular, whether a long delay was excusable or prejudicial—and it would be only in very rare cases that a court could hold both views at the same time. No reasons had been given here for the court’s willingness to do so.
(2) The only question remaining was whether the court had misdirected itself on the striking-out issue and there was no suggestion that it had. The well-established test was applied—whether the delay had been inordinate, inexcusable and prejudicial to the defendant—and the court below had not erred in principle. It appeared that the appellant’s difficulties in obtaining legal aid were largely caused by her failure to investigate the evidence that would be available to support her allegations and, once her advocate had done this, he advised her that the action was without merit. There were clearly serious difficulties of causation and remoteness in her claim against the respondent for consequential loss. Moreover, the delay was now inordinate—a trial now would be held 17 or 18 years after the relevant events and 11 years after the commencement of the action—and a delay of this magnitude, when extensive oral evidence would be needed at the trial, created a substantial risk that the trial could not be fair.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR Note 15