Inordinate Delay in UK Law

To justify dismissal of an action for want of prosecution the delay relied upon must relate to time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.

The position, now, is that the court must address the application to strike out the second action with the overriding objective of the CPR in mind – and must consider whether the claimant's wish to have "second bite at the cherry" outweighs the need to allot its own limited resources to other cases.

But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay.

The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action.

For this purpose a causal link must be proved between the delay and the inability to have a fair trial or other prejudice, as the case may be.

As I said in Sweeney's case (1974) 1 W. L. R. 208, theplaintiff is not entitled to delay as of right for four years from the accident, three years before issuing the writ and another year for service. It is his duty, once the writ is issued, to serve it promptly and get on with it promptly. So in this case it was the duty of the plaintiff, having issued the writ, to serve it promptly and to proceed with the case with expedition.

In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed.