Universal Graphics Ltd. v. Canada
T-2455-91
Hargrave P.
18/8/97
6 pp.
Six-year unexplained delay by plaintiff apparently lacking any intention to proceed with action-Plaintiff, although given ample notice, ignoring present motion-Application of three-part test for striking out in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.), approved in Birkett v. James, [1978] A.C. 297 (H.L.)-(1) Inordinate delay-(2) No excuse tendered-(3) No prejudice to defendant other than that inherent in passage of time-Strict application of test often resulting in injustice as defendant may be unable to show prejudice despite passage of many years-In Grovit v. Doctor, [1997] 1 W.L.R. 640 (H.L.) Trial Judge finding element of prejudice, striking out defamation action after plaintiff doing nothing for two years, because of lack of interest shown by plaintiff in pursuing action-Action by plaintiff with no intention of proceeding referred to as "intolerable"-Court of Appeal upholding trial judge's decision, but finding prejudice in fact of delay resulting from abuse of process-House of Lords, criticizing serious prejudice branch of test, as undermining Court's power to strike out proceedings as sanction against delay, thus prolonging litigation, and as definition of prejudice too strict-House of Lords noting need for change as principles laid down in Birkett v. James unsatisfactory, inadequate, too lenient to deal effectively with delays-House of Lords avoiding prejudice branch of test by holding need not show prejudice to have action dismissed for want of prosecution if abuse of process, and delay of over two years by plaintiff amounting to abuse of process-Evidence as to inactivity of plaintiff may support application to dismiss for want of prosecution, but if abuse of process not necessary to establish want of prosecution-Leaving open question whether action might be dismissed for want of prosecution where evidence falling short of that required under traditional test-Action struck out by reason of inordinate delay by plaintiff who not only tenders no excuse, but shows no interest.