Cranston v Mothersill

• Jurisdiction: Cayman Islands
• Judge: (Levers, J.)
• Judgment Date: 07 June 2005
• Court: Grand Court (Cayman Islands)
• Date: 07 June 2005

Grand Court

(Levers, J.)

CRANSTON

and

M.R. MOTHERSILL and L. MOTHERSILL

Mrs. R.C. Whittaker-Myles for the plaintiff;

R.H. Jones for the first and second defendants;

S.T. McCann for the third party.

Cases cited:

(1) Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229; [1968] 1 All E.R. 543, applied.

(2) Birkett v. James, [1978] A.C. 297; [1977] 2 All E.R. 801, applied.

(3) Martin v. Turner, [1970] 1 W.L.R. 82; [1970] 1 All E.R. 256; [1969] 2 Lloyd”s Rep. 551, applied.

Civil Procedure-dismissal for want of prosecution-delay-defendant to show probability of serious prejudice or unfair trial to justify dismissal-absence of parties from jurisdiction, whereabouts unknown, difficulty in locating and obtaining statements from witnesses after 9 years to be considered-plaintiff”s disability not special factor to be considered in relation to delay

The defendants applied for the plaintiff”s personal injury claim to be struck out for want of prosecution.

In March 1996 the (then minor) plaintiff suffered serious injuries in a traffic accident allegedly caused by the defendants” negligence, though the defendants blamed the third party. In February 1999 an action was commenced by the plaintiff”s mother. Subsequently, three notices of intention to proceed were filed by the attorneys, in 2001, 2002 and 2004, in the hope that this would give the plaintiff, who had spent considerable time in prison and had been delinquent in pursuing the matter, time to give them instructions.

The defendants submitted that (a) there had been inordinate delay in prosecuting the action by which they were severely prejudiced, as the first defendant had left the jurisdiction and could not be compelled to return, and witnesses who would have testified as to the accident could no longer be found-in particular, the third party was no longer in the jurisdiction; (b) as the defendants did not admit liability, which was in issue, the first defendant had to be present to give evidence, as his written statement to the police would not suffice; and (c) no special consideration could be given to the facts that the victim of the accident was an infant or severely injured at the time of the accident.

The plaintiff submitted in reply that (a) the delay was not inordinate or inexcusable as he was a minor at the time of the accident and was seriously injured; (b) when he reached majority he took over responsibility for the suit from his mother, but was slow in giving instructions; (c) the application for third party proceedings was only filed on July 6th, 1999; (d) the third party proceedings were not pursued as vigorously as they should have been; (e) a court order might persuade the first defendant to return to the jurisdiction even though he could not be compelled to return; (f) the suit was one between the plaintiff and the defendants and the absence of the third party should not be considered a

prejudice to the defendants; and (g) the first defendant and the third party could in fact be contacted.

Held, striking out the proceedings for want of prosecution:

As a result of the prolonged delay, a fair trial would not be possible and the defendants would be seriously prejudiced. The factors taken into account when deciding whether to discontinue the action included the absence of the third party and first defendant from the jurisdiction and the difficulty in...