Read the full judgment text of CACV 35/2000 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 19 May 2000 before Hon Rogers JA, Woo JA.
Civil procedure — Dismissal for want of prosecution — Inordinate and inexcusable delay — Whether delay caused serious prejudice or risk to fair trial — Sub-contractor claim for variation work under partly oral contract — Evidence of witness availability — Exercise of discretion to strike out. The plaintiff commenced proceedings in 1994 against Honeywell Limited for unpaid works at Times Square under a partly oral and partly written 1991 contract. The action experienced repeated, lengthy delays. The trial judge struck out the action in January 2000 for want of prosecution citing inordinate and inexcusable delay causing prejudice to the defendant’s defence due to difficulty of witness evidence. On appeal, the Court considered whether the delay warranted striking out the claim under the test in Birkett v. James [1978] AC 297, focusing on whether the delay risked an unfair trial or serious prejudice. The Court held that although delay was proven, the defendant failed to establish sufficient prejudice from witness unavailability or reluctance directly caused by the delay. The defendant's inability to obtain statements was more attributable to its own failure to act promptly. Accordingly, the exercise of discretion in striking out was flawed. The appeal was allowed and the dismissal order set aside, with costs in lower court to stand and plaintiff granted costs of appeal.
Legal issues: Whether the action should be struck out for want of prosecution
Outcome: Appeal allowed; order dismissing action for want of prosecution set aside
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