Want of Prosecution

An application to a judge to dismiss a law suit alleging that the litigant has inexcusably delayed moving the litigation along and that under the circumstances, the litigation ought to be dismissed.

The leading case on want of prosecution is a British decision of 1969, Allen v. Sir Alfred McAlpine & Sons, which sets out a three part test:

• inordinate delay,

• that this inordinate delay is inexcusable.  As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable; and

• defendants are likely to be seriously prejudiced by the delay.

From Royal Bank of Canada v Jones 2000 BCSC 520:

"The burden of proof with respect to serious prejudice ... simply put (is that) once the defendant has established that the delay complained of has been inordinate and is inexcusable, a rebuttable presumption of prejudice arises.

"A court hearing a want of prosecution application must dismiss the action for want of prosecution unless the plaintiff establishes on a balance of probabilities that the defendant has not suffered prejudice or that other circumstances would make it unjust to terminate the action.  Thus, the defendant need only establish that there has been inordinate delay.

"Once established, the inferences is that the delay is inexcusable less the plaintiff has presented some excuse.  Serious prejudice will be presumed to the defendant unless the plaintiff rebuts that presumption."

In Lindholm v. Pollen, Justice Gow wrote these words of wisdom:

"The animating principle lying back of any system of administration of justice is that litigation be proceeded with diligence and expedition.  This principle is expressed in (the rules of court) that the object of the Rules ... is to secure the just, speedy and inexpensive determination of every proceeding on its merits and echoed in s. 11 of the Charter of Rights and Freedoms, which speaks of the right to be tried within a reasonable time.

"A just determination can only be attained if an action is tried while the facts are still within the recollection of the witnesses."

Research/Further Reading:

• Allen v. Sir Alfred McAlpine & Sons 1 All ER 543 (1969)
• Busse v.Chertkow 1999 BCCA 313
• Lindholm v. Pollen 3 BCLR 2d 23 (1986, BCSC)
• Royal Bank of Canada v Jones 2000 BCSC 520