Read the full judgment text of HCPI 1375/2000 on BabelCite. This High Court CFI judgment was delivered on 15 February 2006 before Master KWAN.
Civil procedure – striking out for want of prosecution – personal injuries action – inordinate and inexcusable delay – substantial risk of unfair trial or serious prejudice – burden of proof. Plaintiff was run down in a bus depot on 25 October 1999 by a vehicle driven by the 1st defendant, an employee of the 2nd defendant, and suffered personal injuries – judgment on liability entered for the plaintiff on 8 January 2001 with damages to be assessed – Check List Review hearings held in April and July 2002 – a discovery dispute adjourned for argument on a date to be fixed – no step taken to fix a date and the action went to sleep for over three years – defendants took out summons on 20 September 2005 to dismiss for want of prosecution. Whether the delay was inordinate and inexcusable – plaintiff admitted inordinate delay but not inexcusable delay – no affirmation was filed by the plaintiff despite being given two chances – no credible excuse offered – delay held to be inordinate and inexcusable. Whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or causes serious prejudice to the defendants – general burden of proof on the defendant – defendant's only evidence was a paragraph in solicitor's affirmation containing general allegations without particulars – mere assertion of prejudice in an affidavit is insufficient (per Hornagold v Fairclough Building Ltd) – complaints of fading witness memory, unreliable earnings records, uncertainty as to exposure on damages and costs, and changing economic conditions were unsubstantiated or curable at trial by reference to witness statements, contemporary records, and adjustments for interest and inflation by the trial judge. Held: application to strike out for want of prosecution refused. Court invoked residual and inherent power to ensure justice – plaintiff's solicitor ordered to fix a Check List Review within 7 days for directions on assessment of damages. Costs of the striking out application to the plaintiff in any event (nisi).
Legal issues: Whether the plaintiff's delay was inordinate and inexcusable · Whether the delay caused substantial risk of unfair trial or serious prejudice to defendants
Outcome: Defendants' application to dismiss the action for want of prosecution refused.
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