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Tucker v Hamilton Properties Ltd
In a ruling handed down just before Christmas, Justice Shade Subair Williams struck out a Statement of Claim for abuse of process and dismissed the civil proceedings for want of prosecution because of litigation delay caused by the plaintiff.1
In 2017, Subair WilliamsJ had granted the plaintiff leave to amend his pleadings,2 yet by the time the defendant brought its strike-out application in 2025 he still had not amended his Statement of Claim despite knowing that the proceedings could not progress until he amended.3
In making her December 2025 ruling, Subair WilliamsJ was unable to find that the delay caused by the plaintiff was deliberate and/or absent of any sincere intention to pursue the claim and bring the proceedings to completion. She did, however, hold that the plaintiff's failure to amend his pleadings blatantly disregarded her 2017 order, and that the plaintiff had thereby knowingly caused the delay. Subair WilliamsJ thus ruled that "the delay constitutes contumelious delay, even if narrowly so given the absence of any previous peremptory orders."4
Notably, although the plaintiff was self-represented at the strike-out hearing in 2025, for the entire duration of the delay he was represented by "two of Bermuda's most reputable law firms" and Subair Williams J also found that:
[T]here is no justification in my judgment, having regard to the level of legal assistance and representation provided, for the Plaintiff's failure to make good his pleaded case since December 2017.5
She also held that the delay was inordinate and inexcusable, and that a fair trial would no longer be possible.6
Contumelious delay in England
Subair WilliamsJ cited7 the leading case ofBirkett v James[1978] AC 297 (HL), where Lord Diplock set out the courts' jurisdiction to dismiss civil proceedings for want of prosecution at 318F–G:
The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff of his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
Clearly, in order to strike out proceedings for want of prosecution pursuant to principle(1) ofBirkett v James, a plaintiff's default in pursuing the claim must be both "intentionalandcontumelious" (underling added).
Subair WilliamsJ also cited8 Grovit v Doctor[1997]1WLR640 (HL), in which case Lord Woolf consideredBirkett v Jamesat 642H-643A and 647H-648A:
Although principle (1) links abuse of process with delay which is intentional and contumelious, the prevention of abuse of process has by itself long been a ground for the courts striking out or staying actions by virtue of their inherent jurisdiction irrespective of the question of delay and Lord Diplock's statement of the principles does not affect this separate ground for striking out or staying proceedings.
...
The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock inBirkett v. James[1978] A.C. 297. In this case once the conclusion was reached that the reason for delay was one which involved abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings.
Accordingly, while an abuse of process may be both intentional and contumelious so to bring it within principle (1) of theBirkett v Jamestest for want of prosecution, it can also be its own basis for striking out proceedings including where intentionality and contumacy are lacking. Such a distinction between contumelious conduct and abuse of process was also noted by ParkerLJ inCulbert v Stephen G Westwell & Co Ltd[1993] 1 PIQR P54 (CA) at P65-66 (a passage which Subair WilliamsJ included in her ruling9 in quoting from arguments Chief Justice Kawaley (as he then was) recited as put to him inHofer v Bermuda Hospitals Board[2015] Bda LR 75, at [35]):
An action may also be struck-out for contumelious conduct or abuse of the process of the Court or because a fair trial in the action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there has been a deliberate failure to comply with a specific order of the court. In my view however, a series of separate inordinate and inexcusable delays in complete disregard of the rules of Court and with full awareness of the consequences can also be properly regarded as contumelious conduct or, if not that, to an abuse of the process of the Court.
Contumelious delay in Bermuda
Subair Williams Jnoted in her ruling that, "The term contumelious... denotes disdainful or contemptuous conduct. In a general sense, delay of a contumelious nature is willful..."10 She considered the decision of acting justice Alexandra Wheatley inHSBC Bank of Bermuda Ltd v Vigilante[2024]BdaLR83(SC) and our case comment on it from last winter,11 where we asserted that it appeared to be the first reported civil case in Bermuda in which proceedings were struck out for delay because of the intentional and contumelious delay of the claiming party (in that case, in which a defendant failed to pursue its third-party claim for 9.5 years whilst the main action proceeded, the intentional and contumelious conduct was established by the defendant's evidence that "it seemed prudent and indeed reasonable to let sleeping dogs lie" in respect of the third party).
Subair Williams J went on to considerHofer v Bermuda Hospitals Board, where KawaleyCJ struck out an action which had been commenced 18.5 years previously. In our case comment onHSBC vVigilante, we noted that MrHofer's claim was struck out for abuse of process given the way the proceedings had been conducted; we expressed the view it was not struck out for contumelious delay, and we noted that there was no suggestion that the delay inHoferwas intentional.12 In contrast, Subair WilliamsJ questioned whetherHSBC v Vigilantewas the first reported civil case striking out a claim for contumelious conduct,13 holding:14
At para [52] of Kawaley CJ's ruling inHofer v Bermuda Hospitals Boardhe was expressly clear in stating that he did not strike out the claim on the alternative ground of prejudice to the defendant occasioned by inordinate and inexcusable delay. By implication, so it seems to me, Kawaley CJ found that the delay amounted to an abuse of process because it was contumelious.
With the greatest of respect to Subair WilliamsJ, we question whether KawaleyCJ implied that the delay inHoferwas contumelious. MrHofer was a foreign national residing abroad, whose neck had been broken and who had thus been rendered a quadriplegic whilst in the defendant's care.15 His claim was pursued on his behalf by a relation acting his "next friend" (akin to a litigation guardian),16 and KawaleyCJ noted his lack of funding and inability to obtain legal aid.17 Whilst KawaleyCJ had some criticism of the Legal Aid Committee, he had no criticism of the plaintiff's lawyers.18 We submit that lack of culpability on the part of MrHofer and his lawyers as found by KawaleyCJ is a notable distinction from the criticisms Subair WilliamsJ had of Mr Tucker (and potentially that of his lawyers) as quoted above.19 Kawaley CJ held that a fundamental question to be answered was:20
[W]hether or not a Plaintiff who delays an action due to lack of funding should be treated for practical purposes in [a] similar way to a Plaintiff who fails to diligently prosecute an action simply because of neglect... [or, put another way]
[W]hether or not it can be said to be an abuse of process where it appears that a Plaintiff has in effect no ability to bring the case to an effective conclusion.
KawaleyCJ found:21
[T]his action has been prosecuted overall in a way that amounts to an abuse of the process of the Court. And in saying that it is important for me to also clarify that this is an objective analysis that does not involve any criticism of the Plaintiff's present or past attorneys. I accept entirely that the Plaintiff as a German national has faced genuine difficulties in funding his claim. But those difficulties, it seems to me, bearing in mind the very fluid concept of abuse of process, cannot justify the Court in privileging the Plaintiff's right of access to the Court over the Defendant's corresponding fair hearing rights.
Given the distinction drawn between contumelious conduct and abuse of process inGrovit v DoctorandCulbert v Westwell & Co, that MrJustice Kawaley's finding of abuse of process was expressly not a criticism of the plaintiff's lawyers and that KawaleyCJ expressed sympathy for the plaintiff's challenges in funding his claim, it is difficult to see how the delay inHoferwas caused by intentional and contumelious conduct by so to bring it within principle(1) ofBirkett v James. In short, MrHofer's litigation conduct as set out by KawaleyCJ appears to lack the requisite degree of deliberateness and contumacy required to satisfy the first limb of want of prosecution. It should also be noted that KawaleyCJ subsequently considered his decision inHoferin striking out other proceedings for abuse of process, and made no mention therein that the conduct inHoferhad been contumelious but did note that inHofer"the delay complained of was clearly explained by reference to the plaintiff's lack of funds".22
Contumelious delay in The Bahamas
As quoted by Subair Williams J,23 inIcebird Ltd v Winegardner[2009]UKPC24 (Bahamas) at [7]–[8] the Judicial Committee of the Privy Council held thatBirkett v Jamesremained the leading authority for the approach to be taken to an application to strike-out an action for want of prosecution, and concurred in the approach taken inGrovit v Doctor. In concurring in respect ofGrovit, the Board held at [7]:
Where, however, there is nothing to justify a strike-out order other than a long delay for which the plaintiff can be held responsible, the requisite extent or quality of the delay necessary to justify the order ought not, in their Lordships' respectful opinion, to be reduced by categorising the delay as an abuse of process without clarity as to what it is that has transformed the delay into an abuse and, where necessary, evidential support.
We respectfully submit that, given the somewhatprecipitousnature of a finding of contumelious conduct, the same rationale should apply to principle(1) ofBirkett v Jamessuch that any ruling that litigation delay has been contumelious behooves the court to identify specifically the intentional and disdainful/contemptuous conduct.
Footnotes
1Tucker v Hamilton Properties Ltd[2025] SC Bda 133 at [83], [101]–[102].
2 Tucker v Hamilton Properties Ltd[2017] Bda LR 136 (SC).
3 Tucker(fn 1) at [82].
4 ibidat [81]–[83]. At [23], Subair WilliamsJ explained that peremptory order is sometimes termed an "unless order", i.e. unless a party does X by a certain date, that party will suffer consequence Y (e.g. in want-of-prosecution cases, the striking out of the proceedings).
5 ibidat [77].
6 ibidat [85]–[101]; see also [82].
7 ibidat [23]; see also [24].
8 ibidat [31]–[32]; see also [24].
9 ibidat [46].
10 ibidat [28].
11 ibidat [33]–[36];Don't let sleeping dogs lie: Intentional delay and contumelious conduct in civil litigation(Kennedys Law, 25February2025; Mondaq, 19March2025).
12 Fn 1 ofDon't let sleeping dogs lie, citing [52] ofHoferv Bermuda Hospitals Board[2015]BdaLR75. Cf fn 2 ofTucker(fn 1) at [36] where Subair WilliamsJ thought we had not referred in our case comment toHoferwhen, in fact, we had expressly considered it.
13 Tucker(fn 1) at [33].
14 ibidat [49].
15 Hoferat [2], [9];Tucker(fn 1) at [37].
16 Tucker(fn 1) at [38].
17 Hoferat [9], [23]–[26].
18 ibidat [25], [53].
19 Tucker(fn 1) at [77], see also [82]. Notably, it would not have been surprising for KawaleyCJ to have found MrHofer's prior lawyers the cause of significant delay, perhaps thereby providing him, having beenrendered quadriplegic and otherwise without sufficient means of pursuing a remedy,with a cause against his prior lawyers; on a successful appeal from a prior order striking out the plaintiff's claim inHofer v Bermuda Hospitals Board[2010]BdaLR16, Stuart-SmithJA had found at [47]–[48] ([1]–[2] of his dissent):
... [A]part from a period of some eighteen months between the entry of appearance by the defendant on the 16 February 1998 and service of the defence on the 28 July 1999, the entire delay in this case is the fault of the claimant's attorney. ...
... [I]t was a scandalous and all [the] more astonishing in the light of the defendant's warnings that if the matter was not progressed, an application to strike out for want of prosecution would be made.
20 Hofer(fn 12) at [28], [33].
21 ibidat [53].
22 Bailey v Wm E Meyer & Co Ltd[2017] Bda LR 5 at [20].
23 Tucker(fn 1) at [24]. The JCPC's judgment inIcebird Ltd v Winegardnerwas delivered by Lord Scott of Foscote.
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