Voisin and Co -v- Kerschbaumer [2008] JRC 087 (29 May 2008)

Voisin and Co -v- Kerschbaumer [2008] JRC 087 (29 May 2008)

There is a matter of general importance regarding the test for striking out for delay, and the Royal Court failed to address a material argument. Leave to appeal is therefore granted.

Citation
[2008] JRC 087
Parties
Applicant: Mr Benest; Respondent: Unknown (Respondent)
Jurisdiction
Jersey
Judgment Date
29 May 2008
Procedural Posture
Application for Leave to Appeal / Leave to Appeal Hearing
Outcome
leave to appeal granted
Legal Topics
Strike Out for Delay, Abuse of Process, Appeal Grounds
Civil Procedure Strike Out for Delay Abuse of Process Appeal Grounds

Case Brief

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Parties

Mr Benest

Applicant

Unknown (Respondent)

Respondent

Procedural Posture

Application for Leave to Appeal / Leave to Appeal Hearing

Legal Issues

  1. 1 Whether the established Birkett v James test for striking out for delay should be reconsidered or replaced by a more flexible approach
  2. 2 Whether inordinate and inexcusable delay alone can justify striking out as an abuse of process without the need to show prejudice or impossibility of fair trial
  3. 3 Whether the Royal Court failed to address a material argument raised by the applicant

Ratio Decidendi

There is a matter of general importance regarding the test for striking out for delay, and the Royal Court failed to address a material argument. Leave to appeal is therefore granted.

Court Disposition

leave to appeal granted

Orders

  • Costs ordered in the appeal