Studio Glamour v A.S. Farebrother & Co. Ltd [1974] FijiLawRp 26; [1974] 20 FLR 120 (14 November 1974)

[1974] 20 FLR 120

COURT OF APPEAL

Civil Jurisdiction

STUDIO GLAMOUR

V

A. S. FAREBROTHER & CO. LTD

Gould V.P., Marsack J.A., Henry J.A.

25th October, 4th November

Practice and procedure — application to dismiss action for want of prosecution — whether &lay on appellant's part had severely prejudiced the feasibility of a fair trial — Rules of the Supreme Court 1968 0.2 r.2, 0.3 rs.5, 6, 0.19 r.1.

Six years had elapsed between the issue by the appellant of the writ of summons for breach of contract and the service of the statement of claim. Three months after service, the solicitors for the respondent issued a summons to dismiss the action for want of prosecution and the judge made such an order on the grounds of the delay on the part of the appellant which had seriously prejudiced the feasibility of a fair trial.

Held: 1. The fact that the respondent had accepted service of the statement of claim did not deprive him of his right to apply to set it aside for irregularity; nor did the fact that the respondent was guilty of some delay after receiving the notice of intention to proceed as it was insignificant when compared to that of the appellant.

2. The correct general principles applicable to proceedings of this nature were set out in Allen v McAlpine [1968] 1 All ER 543. The respondent must show that there had been inordinate and inexcusable delay, and that he was likely to be seriously prejudiced by that delay.
3. Although the case was not free from difficulties, a high degree of blame must be attributable to the appellant for the delay and the Court would not interfere with the judge's decision unless satisfied that he was wrong.

Other eases referred to:

Ernest Lyon v William Sturges & Co. [1918] 1 KB 326.

Clough v Clough [1968] 1 All ER 1179; [1968] 1 WLR 525.

Austin Securities Ltd. v Northgate & English Stores Ltd. [1969] 2 All ER 753; [1969] 1 WLR 529.

Reggentin v Beechotme Bakeries Ltd. [1968] 2 QB 276; (1967) 111 SJ 216.

Appeal from the order of the Supreme Court dismissing an action for want of prosecution.

K. C. Ramraka for the appellant.

I. C. Bond for the respondent.

4th November 1974.

The following judgments were read:

GOULD V.P.: