T-2455-91
Between:
UNIVERSAL
GRAPHICS LTD.,
Plaintiff,
-
and -
HER
MAJESTY THE QUEEN,
Defendant.
REASONS
FOR ORDER
JOHN A. HARGRAVE
PROTHONOTARY
These reasons arise out of
the Defendant's written Rule 324 motion, to dismiss for want of prosecution the
Plaintiff's action which was commenced in September of 1991. In the
alternative, the Defendant, who has provided her affidavit of documents and who
has asked for production of the Plaintiff's documents, but without any result,
seeks an order for production of documents. The Plaintiff, although given
ample notice both by letter and by service of the material, has ignored the
present motion. To so delay and ignore the Defendant, and indeed to ignore the
whole matter, including this motion, borders on an abuse of process. But more
important such insolent behaviour frustrates the reason for the existence of
courts as a place to which people may bring disputes for orderly resolution.
The usual approach to a want
of prosecution motion is to apply Birkett v. James (1978) A.C. 297 in
which the House of Lords approved the test set out by the Court of Appeal in Allen
v. Sir Alfred McAlpine & Sons Ltd. (1968), 2 Q.B. 229. While both Lord
Diplock and Lord Salmon wrote complementary concurring reasons, it is Lord
Salmon's explanation of the rule for striking out as a three part test, by
which the defendant must show inordinate delay, that the inordinate delay is
inexcusable and that the defendants are likely to be seriously prejudiced by
the delay, as set out at page 268, that is usually applied. It may be that
Lord Diplock's broader formation of the rule, with two separate and alternative
branches, requiring either intentional and contumelious default or inexcusable
delay giving rise to a substantial risk that a fair trial will not be possible
(page 259) is now the more relevant as it allows more freedom to deal with
delay, a real cost and problem in contemporary litigation. However, the test
that has been applied on many occasions by this Court is the three element test
enunciated by Lord Salmon. The success of an application to strike out, under
the rule in Allen v. Sir Alfred McAlpine as applied by the Federal Court
on a motion under Rule 440, depends on showing inordinate delay, lack of a
credible excuse and prejudice.
In the present instance
there is inordinate delay. No excuse has been tendered. But the Defendant,
who is spending tax payers' money to defend and to try to move the Plaintiff,
who seems to have no intention of proceeding with this action, cannot show
prejudice, other than that inherent in the passage of time, some six years
since the action was commenced.
Injustice can often result
from the strict application of the test, for a defendant may be unable to show
prejudice despite the passage of many years. This issue recently came before
the House of Lords in Grovit v. Doctor (1997) 1 W.L.R. 640.
In Grovit v. Doctor the
plaintiff brought an action in defamation against seven defendants as to an
admitted publication of a statement said, by the defendants, to be justified.
The trial judge, in 1992, at which time the plaintiff had done nothing for two
years, found an element of prejudice, but the critical point in his decision to
strike out the action was the lack of interest shown by the plaintiff in
pursuing an action which was virtually dead in the water. The trial judge
referred to the action, by a plaintiff who had no intention of proceeding, as
intolerable, yet recognized that there had been no real prejudice in the way
the word is applied in the context of striking out. As a rhetorical question,
the trial judge asked:
"Does that mean
that the courts are powerless unless the defendant can show prejudice? It is
said that the sword of Damocles argument only ought to be used or acceded to in
exceptional cases. I do regard this as a case where the court is fully
entitled to say that the very existence of an action which the plaintiff has no
interest in pursuing is intolerable and there is no reason why defendants, some
of whom are no longer in any way connected with the corporation and may (to
their great relief) not have to be concerned with any of the other litigation,
should still have this hanging over them." (quoted from the House of Lords
decision at page 646)
The trial judge struck out the action.
Lord Justice Evans, of the
Court of Appeal, suggested that abuse of process, referred to in Lord Diplock's
formulation of the rule for striking out, in Birkett v. James, at 318,
was a separate ground for striking out. The Court of Appeal upheld the trial
judge's decision, but from a slightly different perspective, finding prejudice
in the fact of delay resulting from an abuse of process. This abuse of
process, together with the protracted anxiety caused to the defendants amounted
to significant prejudice.
Lord Wolf, who wrote the
reasons for the House of Lords, touched upon criticisms of the serious
prejudice branch of the test, including an undermining of the Court's power to
strike out proceedings as a sanction against delay, thus prolonging
litigation; that the definition of prejudice is too strict, with little regard
paid to the anxiety caused to litigants as a result of delayed litigation; and
the dilemma of a defendant required, on the one hand, to show the recollection
of a witness has been adversely affected, but knowing that if the action is not
struck out the defendant has undermined its own case, by commenting adversely
about its witness. The House of Lords noted specific criticism and a need for
change both in substance and procedure for "... the principles laid down
in Birkett v. James are unsatisfactory and inadequate. They are far too
lenient to deal effectively with excessive delays. Moreover, they then breed
excessive further delays and costs in their application." (page 643). All
of these are practical considerations too often faced by defence counsel bent
on bringing some degree of certainty to the affairs of a client confronted by a
plaintiff who is not interested in moving an action in an orderly manner to a
conclusion.
The House of Lords
side-stepped the prejudice branch of the test from the Allen v. McAlpine and
Birkett v. James cases by pointing out that if there is an abuse of
process one need not show prejudice in order to have an action dismissed for
want of prosecution and that the delay of over two years, by the plaintiff, was
conduct amounting to an abuse of process:
"The courts exist
to enable parties to have their disputes resolved. To commence and 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 brought is entitled to apply to have the action struck out and if
justice so require (which will frequently be the case) the courts will dismiss
the action." (page 647).
This lead to the key
conclusion that evidence as to the inactivity of a plaintiff may support an
application to dismiss for want of prosecution, but if there is an abuse of
process it is not necessary to establish want of prosecution under the Allen
v. McAlpine and Birkett v. James test:
"The evidence
which was relied upon to establish the abuse of process may be the plaintiff's
inactivity. The same evidence will then no doubt be capable of supporting an
application to dismiss for want of prosecution. However, if there is an abuse
of process, it is not strictly necessary to establish want of prosecution under
either of the limbs identified by Lord Diplock in Birkett v. James (1978),
A.C. 297." (loc. cit.)
However, while the House of Lords
dismissed the plaintiff's appeal, thus upholding the striking out by the trial
judge, it left open the interesting point which the House of Lords felt had
been raised by the trial judge, whether an action might be dismissed for want
of prosecution where the evidence fell short of what is required under either
of the limbs of the traditional test. Lord Woolf, who wrote the judgment in
which the other Law Lords concurred, appreciated the reasons why the trial
judge believed he could adopt this approach, but preferred to leave the
question open until the issue might be fully argued on both sides.
Our Court has a substantial
number of actions on file which are long in the tooth. In some instances this
is a natural result of circumstances and subject matter. In other instances,
it may be the result of a plaintiff who has lost interest, but who is not
prepared to drop a proceeding, an exercise which continues to cost a defendant
in time, money and anxiety. The Court ought to be able to give relief in
appropriate circumstances without resorting to the fiction of discovering
prejudice by an assumption that the memories of witnesses have faded over time,
or worse, by requiring the defendant to show, in fact, that the memories of
witnesses have faded, thus prejudicing a defendant's position if the motion is
unsuccessful.
Here, there is a six year
unexplained delay by the Plaintiff who appears to have no intention of
proceeding with its action, but no indication of prejudice. This action is
struck out by reason of inordinate delay by the Plaintiff who not only tenders
no excuse, but also shows no interest.
(Sgd.)
"John A. Hargrave"
Prothonotary
Vancouver, British Columbia
August 18, 1997
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