Wycliffe Baird v David Goldgar and four others (St Christopher and Nevis)

Applications to strike out an appeal for want of prosecution and for abuse of process engage related but distinct tests. Want of prosecution is assessed principally by the length of the delay, its reasons, its effect, and the merits, applying a non-exhaustive and proportionate approach. Abuse of process requires an additional feature making the delay abusive, such as warehousing or wholesale disregard of the court’s rules and orders. Strike out is a sanction of last resort. The court should consider alternative sanctions and explain why strike out is proportionate. In appellate cases, prejudice caused by delay is ordinarily prejudice to the respondent, while prejudice caused by the strike-out order is considered separately through the merits and proportionality assessment.

The appellant’s claim concerned a 1989 option agreement for the purchase of land in Saint Christopher and Nevis. After a trial, Carter J dismissed the claim on 30 July 2019. The appellant filed a notice of appeal, but the record was not filed until 20 March 2023, although it was due by 12 June 2020 at the latest.

The Court of Appeal of the Eastern Caribbean Supreme Court found the delay inordinate, inexcusable and prejudicial. On 22 December 2023 it struck out the appeal for abuse of process and want of prosecution. The appellant appealed to the Privy Council. The central issues were whether the two grounds required the same test and whether the Court of Appeal had erred in applying them.

Appeal dismissed. The Court of Appeal was entitled to strike out the appeal under both grounds and had not misdirected itself or erred in law.

1. Want of prosecution. Appellate delay involving failure to comply with a rule, practice direction or order is ordinarily addressed under Rule 26.3(1)(a) of the Civil Procedure Rules of the Eastern Caribbean Supreme Court 2000. The four-part test in The Barbuda Council v The Attorney General—length of delay, reasons for delay, merits and prejudice to the litigants—was an appropriate guide. It was not exhaustive. Depending on the case, relevant matters could include whether the failure was intentional, whether it could be remedied within a reasonable time, responsibility for the default, effects on other litigants and proceedings, and any contribution by the other party.
2. Strike out is a draconian sanction and a last resort. Proportionality and available alternatives should be considered, preferably expressly, with reasons explaining why strike out is appropriate. The Court of Appeal had nevertheless addressed proportionality in substance, given its assessment of the arguable appeal, the serious consequences of strike out and the limited alternatives proposed.
3. Abuse of process. Delay, even if inordinate and inexcusable, is not by itself an abuse. Under Rule 26.3(1)(c), there must be an additional factor. Relevant examples include an intention not to prosecute, the three forms of warehousing identified in the judgment, and wholesale disregard of the rules of court. The abuse-of-process inquiry focuses principally on non-compliance with rules, directions and orders, the reasons for it, and what it shows about the appellant’s attitude to the court’s processes.
4. The two tests overlap but are not identical. The Court of Appeal had made findings demonstrating a widespread disregard of the rules, including failure to seek an extension, file an incomplete record or otherwise progress the appeal. Those findings supported strike out for abuse as well as want of prosecution. Prejudice caused by the delay was properly assessed chiefly by reference to the respondents; prejudice caused by the strike-out order was considered through the arguability and proportionality assessment.

The Board advised His Majesty that the appeal should be dismissed.

• Privy Council: Appeal dismissed. The Board held that the Court of Appeal had applied legally correct, distinct tests for want of prosecution and abuse of process and was entitled to strike out the appeal.
• Court of Appeal of the Eastern Caribbean Supreme Court: On 22 December 2023, appeal struck out for abuse of process and want of prosecution; stay of execution set aside.
• Eastern Caribbean Supreme Court, Carter J: On 30 July 2019, the underlying claim was dismissed.