JuDGMENT

Eusoffe Abdoolcader J:

The Issue

No notice of trial has been given, no summons for directions issued, no discovery made and no steps whatsoever taken to set the action down for trial and proceed to a conclusive determination of the proceedings - all this coming on to 7 years after the institution of the suit which itself was some 10 years after the initial accrual of the cause of action on which the appellant's writ was founded, an aggregate of wellnigh 17 years. In the event the 2nd respondent with the ardent support of the lst respondent applied by summons on 5 May 1980 for the action to be dismissed for want of prosecution and B.T.H. Lee J acceded thereto and made an order accordingly on 18 October 1980.

The question for determination in this appeal is whether in the circumstances of this case in the light of the relevant principles of law there are any grounds for us to interfere with the exercise of his discretion by the learned Judge in making the order that he did.

The Law

It would perhaps be more convenient and appropriate in this case to transpose the normal sequence and deal with the principles of law arising for consideration and application to the facts of the matter before adverting to the history and factual background of these proceedings. The principles involved pertain to the dismissal of an action for want of prosecution and the circumstances in which an appellate Court will interfere with the discretion of a Court of first instance.

(a) Dismissal of action for want of prosecution

The House of Lords in Birkett v. James[1978] AC 297, 317, 326, approving the decision of the English Court of Appeal in a trilogy of appeals reported sub nomine Allen v. Sir Alfred McAlpine & Sons Ltd.[1968] 2 QB 229, 245, 268, held that the power of the Court to dismiss an action for want of prosecution should be exercised only where the plaintiff's default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyers' part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant but, other than in a case of contumelious conduct on the plaintiff's part, should not normally be exercised where the delay had not extended beyond the end of the limitation period for the cause of action, and the House further observed per curiamthat where a defendant is seriously prejudiced by a writ being issued long after the cause of action has accrued, albeit within the limitation period, the plaintiff must thereafter pursue his action with diligence and the action can only be dismissed (after expiry of the limitation period) for want of prosecution if the delay subsequent to the issue of the writ exceeds the time limits prescribed by the rules of Court and is inordinate and inexcusable having regard to the delay before the issue of the writ, and the delay after the issue of the writ has caused some additional prejudice to the defendant beyond that already suffered by him by reason of the delay in bringing the action. The House of Lords in Bremer Vulkan Schiffbau Und Maschinenfabrik v. South India Shipping Corporation[1981] 1 All ER 289; 2 WLR 141 again restated and discussed these principles but held they do not apply to arbitration proceedings.

We would specifically refer to the propositions enunciated by Salmon LJ, in Allen v. Sir Alfred McAlpine & Sons Ltd.[1968] 2 QB 229, 245, 268 (at p. 268) to the effect inter aliain relation to the inordinate delay being inexcusable that as a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable, and again with regard to the question of serious prejudice to defendants by the delay, that this may be prejudice at the trial of the issue between themselves and the plaintiff or between each other or between themselves and third parties, and that as a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial The decision o