Cooney -v- Mann 13-Feb-2006 [2006] JCA 025 (13 February 2006)

judgment the COMMISSIONER: 1. This is an appeal from the Order of the Master dated 8 th November 2005 and the reasons which he gave on the same day. The Court notes that Counsel, quite properly in the view of the Court, have agreed to the Commissioner sitting alone without Jurats as this is a question of judicial discretion.

2. Counsel are agreed that whilst the Court has a full discretion due weight must be given to the decision of the Master. The test is agreed as that which was used by the Master in Shtun v Zalejski [1996] 3 All ER 411 as follows: "11. (i) In a case where there has been no contumelious conduct by the plaintiff, the Court, if it is to strike out an action for want of prosecution, must be satisfied (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and (b) that such delay will give rise to substantial risk that it is not possible to have a fair trial of the issues in the action or is such as it likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiff, or between each other, as between them and a third party." 3. It is quite clear there has been a very long delay - possibly due to the injuries having taken many years to receive treatment. It may here be pertinent to remark that despite the desire of the Court of Appeal to have a single trial a split trial might have been sought. Nothing however was done and I have no difficulty in agreeing with the Master that there was an inordinate and indeed deplorable delay.

4. I have no reason to dissent from the view of the Master that the delay was inexcusable. However, I note, as does the Master in paragraph 16 of this finding that the prescription period in contract has not yet expired and that the action would seem to lie namely in contract.

5. In such circumstances delay in the view of the Court would have to be exceptional. Further the Court agrees with the findings and reasoning of the Master in paragraphs 17, 18 and 19 of his finding and has no reason to dissent from his findings or, in the exercise of the Courts discretion to come to a different conclusion.

6. The appeal is therefore dismissed and the Master's decision upheld.

7. Perhaps the Court may add at this point that the mere fact that this appeal is dismissed does not, it would seem, at any rate at first sight, bar further application to strike out if matters do not now proceed with expedition. [Discussion followed on costs]. Authorities Shtun v Zalejski [1996] 3 All ER 411. Page Last Updated: 26 Jun 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII