Icebird Ltd v Winegardner
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 02 June 2009 |
| Neutral Citation | [2009] UKPC 24 |
| Court | Privy Council |
| Docket Number | Appeal No 72 of 2007 |
| Date | 02 June 2009 |
[2009] UKPC 24
Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
Lord Mance
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Scott of Foscote]
Icebird Ltd, the appellant, is the fee simple owner of Lot No. 11 in Block No. 1 of Lyford Cay Estate, New Providence. The respondent, Alicia Winegardner, is the fee simple owner of Lot 3 in Block 5 of the same Lyford Cay Estate. The appellant, as the owner of its Lot No. 11, claims the benefit of a right of way over a roadway running from its property down to the beach. The servient land forms part of the respondent's Lot 3.
The appellant alleges that from about 1998 the respondent has been obstructing in various ways the appellant's right of way and, by a writ endorsed with a Statement of Claim and dated 28 July 2000, the appellant commenced proceedings against the respondent for injunctive relief, damages and other relief. The respondent entered an appearance on 28 September 2000 and served a Defence on 20 October 2000. On 7 December 2000 the appellant applied by summons for leave to amend its writ and Statement of Claim. By an Order dated 29 November 2001 (but not perfected and filed until 16 January 2002) the leave sought was granted and the appellant filed the amended Writ and Statement of Claim. Their Lordships have not been told why it took nearly a year from the issue of the application for leave to amend for the Order granting leave to be made.
Thereafter nothing was done for over two years to further the prosecution of the action. The inaction came to an end on 16 February 2004 when the respondent issued a summons for an order that the Writ be struck out and the action dismissed for want of prosecution. After some further delay, referred to in an affidavit sworn on 26 January 2006 on behalf of the respondent by a partner in the firm of attorneys acting for her, the strike-out application was heard by Lyons J on 1 February 2006. The grounds relied on by the respondent, based on a continuing failure by the appellant to serve a Summons for Directions within the time prescribed by Rules of Court, were (i) inordinate and inexcusable delay by the appellant in the prosecution of the action, (ii) serious prejudice likely to be suffered by the respondent as a result of the delay, (iii) a substantial risk that there could no longer be a fair trial and (iv) that the appellant's "conduct amounts to an abuse of the process of the Court and an affront to the Court's authority".
Lyons J gave judgment on 7 February 2006. He characterised the delay occasioned by the appellant as "inordinate", an adjective that their Lordships think was well-justified, took the view that no satisfactory excuse for the delay had been offered, a view with which their Lordships concur, and expressed the opinion that the respondent was "severely prejudiced" by the delay because the existence of the litigation constituted a blight on the title of Lot 3. In the absence of any evidence from the respondent that the litigation had in any way obstructed or hindered any dealings with Lot 3 that she had had in mind or had caused her any other species of prejudice, their Lordships are unable to concur in this opinion. The natural worry and anxiety that may be expected to attend litigation does not, absent some very special features of which some evidence would be necessary, constitute "severe prejudice" so as to justify without more a strike-out for delay in prosecuting an action. However, Lyons J struck-out the action on the inordinate and inexcusable delay and the severe prejudice grounds. He said nothing about the fair trial or abuse of process grounds.
The appellant appealed but, on 24 November 2006, the Court of Appeal by a majority (Sawyer P and Osadebay JA, Longley JA dissenting) dismissed the appeal. The majority's judgment was given by Osadebay JA, with Sawyer P concurring. Osadebay JA agreed that the appellant had been guilty of inordinate and inexcusable delay and, in this respect going further than Lyons J had gone, expressed the view that the delay constituted an abuse of the process of the court because "the appellant evinced no intention of carrying the case to trial" (para.36), He cited in support of this view Grovit v Doctor [1997] 1 WLR 640 where the House of Lords had held that for a plaintiff to commence and to continue litigation which he had no intention to bring to a conclusion could constitute an abuse of process.
Grovit v Doctor was a case in which the plaintiff had commenced a defamation action against seven defendants. Each had admitted publication but had pleaded justification as a defence. The claims against the fourth to seventh defendants had been dismissed by consent. The third defendant had gone into liquidation and was presumably no longer worth suing. The remaining two defendants, acting in person, applied for the action to be struck-out for want of prosecution. The plaintiff's delay in proceeding with the case against the remaining two defendants was, as in the present case, somewhat over two years and the judge before whom the defendants' strike-out application was heard was "quite satisfied … on the evidence that [the appellant] has had literally no interest in pursuing this litigation". He added:
"… the very existence of an action which the plaintiff has no interest in pursuing is intolerable" (see p.646 B to D).
An appeal to the Court of Appeal failed and there was a further appeal to the House of Lords. Lord Woolf, whose speech was concurred in by the other members of the Appellate Committee, was satisfied that the judge and the Court of Appeal had been entitled to come to the conclusion that the plaintiff had lost interest in proceeding against the two remaining defendants (see at 647 F/G). He said (at 647 G to H)
"This conduct on the part of the appellant constituted an abuse of process. 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."
Their Lordships respectfully concur in the approach taken by the House in Grovit v Doctor. There had been over two years delay when nothing had been done to prosecute the action. This was because the plaintiff had "literally no interest in actively pursuing this litigation". The deputy judge had so found on the evidence. As Lord Woolf noted, delay in prosecuting an action and abuse of process are separate and distinct grounds on which an application to strike-out the action may be made but may sometimes overlap. Want of prosecution for an inordinate and inexcusable period may justify a striking-out order but "if there is an abuse of process, it is not strictly necessary to establish want of prosecution." (647H). Where, however, there is nothing to justify a strike-out order other than a long delay for which the plaintiff can be held responsible, the requisite extent or quality of the delay necessary to justify the order ought not, in their...
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