Read more about: Latest news, Litigation, Privy Council Appeals,
11 June 2026
Olivia Peake and Simon Kiely examine the Privy Council’s decision in Baird v Goldgar, which clarifies the distinct tests for striking out an appeal for want of prosecution and abuse of process in the Eastern Caribbean, and reinforces judicial willingness to act robustly where delay has become inordinate.
The Judicial Committee has upheld a decision of the Court of Appeal of the Eastern Caribbean Supreme Court to strike out a claim issued more than three decades ago. The claim was struck out on the grounds of both abuse of process and want of prosecution, in circumstances of substantial and prolonged delay.
The procedural history of the case has a Dickensian quality. The matter originated from a 1989 option agreement for the sale of land at Majors Bay in St Kitts to the Appellant, which fell due for completion in 1991, but did not close as he did not have the funds to complete and had not finalised other transactional arrangements.
In 1993 the Appellant issued a claim for specific performance or damages. In 2009 the High Court held that it was the Appellant who had failed to close the transaction and, in 2019, the claim was dismissed. The Appellant brought an appeal to the Court of Appeal and was required – pursuant to the procedural rules – to file the record of appeal by 12 June 2020. He failed to do so until 20 March 2023. The Respondents applied to strike out or dismiss the appeal for abuse of process or want of prosecution. The Court of Appeal found the delay to be “inordinate, inexcusable and prejudicial” and struck out the appeal in December 2023.
The Appellant sought permission to appeal to the Judicial Committee. In granting permission, the Court of Appeal sought guidance from the Board as to the correct tests to be applied to determine whether to strike out an appeal for abuse of process or want of prosecution.
A central issue in the appeal was whether the same test applies to strike out for (i) want of prosecution and (ii) abuse of process. The Board clarified that whilst there is some overlap, the tests are not the same.
The Civil Procedure Rules of the Eastern Caribbean Supreme Court (“ECSC CPR”), modelled on the England and Wales version, empower the court to strike out an appeal where there is a failure to comply with a rule, practice direction or order.
The Board endorsed the “four-part test” set out in Barbuda Council v Attorney General (unreported) to determine whether the delay makes it appropriate to strike out the appeal on this basis, in which the following factors were relevant:
However, the Board emphasised that this test is not exhaustive and a flexible approach should be adopted. Additional factors – such as whether the failure to comply which led to the delay was intentional, whether it can be remedied in a reasonable time, whether it was due to the party or the party’s legal representative and the impact on other litigants/proceedings – may also be relevant.
The Board also stressed that strike out remains a “last resort” and it is important for courts to show, preferably expressly, that proportionality has been taken into account.
Whilst recognising that the Court of Appeal had not explicitly referred to proportionality, the Board was satisfied that the serious consequences of strike out had been “well in mind” given the sanction had been described as a “nuclear weapon”. It had also been correct to focus on prejudice to the respondents given prejudice to the appellant is taken into account as a natural consequence of the order the court makes, particularly if it involves strike out.
Strike out for abuse of process is expressly provided for in the ECSC CPR. In the absence of any established practice for dealing with such cases in the Eastern Caribbean, the Board turned to the approach in England and Wales for useful guidance. Delay, even if inordinate and inexcusable, is not in itself an abuse of process, but may amount to abuse if combined with some other factor, such as:
Whilst the Court of Appeal did not specifically consider whether there were factors which made the delay an abuse, the Board found it had effectively concluded that there had been a widespread disregard of the rules by accepting that the Appellant had demonstrated an “indifferent attitude” to the pursuit of the appeal (including by failing to take steps to avoid the striking out of his appeal, such as seeking an extension of time or filing an incomplete record).
The case confirms that in applications for strike out, the focus of the want of prosecution test is the length of delay, reasons for it and its effects; whereas the abuse of process test focuses on non-compliance with court rules, directions and orders, the reasons for it, and what it demonstrates about the appellant’s attitude to the processes of the court.
When applied to this case, the Board had little difficulty upholding the strike out on both grounds, bringing to a close what it referred to as a “remarkably stale claim”.
Thankfully, active case management by the courts means that delays of this duration are now relatively rare (both in the UK and Eastern Caribbean). As the Board observed, “significant delays are not meant to occur. Litigation is no longer left to the parties to conduct at the pace they wish”. It is reassuring to know that – on the rare occasions that such egregious delay is uncovered – the courts will act robustly in bringing matters to a close (unlike their fictional Dickensian counterparts!).
Sharpe Pritchard was pleased to act as Privy Council agent for the Respondents to the appeal on instructions from Morton Robinson LP – with David Halpern KC and Midge Morton appearing as Counsel.
For all our latest news, insights and events, subscribe to our newsletter.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.
Senior Professional Support Lawyer
