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Commercial LawCommercial LitigationNewsTaking a Step in a Proceeding after Lengthy Delay

18 March 2021

In Queensland, all parties to a legal proceeding impliedly undertake to the court and to the other parties to proceed with the action in an expeditious way and of which rule 5 of the Uniform Civil Procedure Rules (UCPR) advises that parties to a proceeding must act in an expeditious way.

One of the ways this is achieved is pursuant to Rule 389(2) of the UCPR which requires that, should a party not take a step in a proceeding for two (2) years, a new step may only be taken with the leave of the Court. In a similar vein, if two (2) years have passed since the last step was taken in a proceeding, the Court may dismiss the proceeding for want of procedure (pursuant to the Court’s inherent jurisdiction or section 22 of the Civil Proceedings Act 2011 (Qld)).

What does a Court consider when exercising its discretion to grant leave for a party to proceed or dismiss a proceeding for want of prosecution?

Although there are no rigid rules for, and all relevant circumstances of a particular case should be taken into account, there are a number of factors that a Court will consider in exercising its discretion (per the decision of the Court of Appeal in Tyler v Custom Credit Corp Ltd [2000] QCA 178), including:

  1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  1. how long ago the litigation was commenced or causes of action were added;
  1. what prospects the plaintiff has of success in the action;
  1. whether or not there has been disobedience of Court orders or directions;
  1. whether or not the litigation has been characterised by periods of delay;
  1. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  1. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  1. whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  1. how far the litigation has progressed;
  1. whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  1. whether there is a satisfactory explanation for the delay; and
  1. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

Perhaps the most relevant factor is that of potential injustice and unfairness to one of the parties as a consequence of an unexplained, undue delay. A Court will be reluctant to allow an action to proceed if it does involve injustice and unfairness.

If you are a party to legal proceedings involving a lengthy period of delay, we would strongly recommend seeking legal advice regarding the need to seek leave of the Court to proceed (if you are a Plaintiff) or making an application to dismiss a proceeding (if you are a Defendant).

Article written by Andrew Herzig of our Brisbane office.