Striking out of proceedings was wrong where a less draconian option was available

Court of Appeal – appeal against orders dismissing proceedings and refusing to re-open same – application to revisit brought on the basis that certain correspondence was not opened during the course of the hearing which ought to be considered – lis pendens vacated – National Asset Management Agency appointed the Statutory Receiver – certain properties offered for sale by public auction – following execution of the contract the Statutory Receiver served a Notice of Intention to Rescind on the appellant – plenary summons seeking relief for breach of contract – claimed Statutory Receiver/vendor had not discharged obligations under Special Conditions of the contract – had not secured information that works were competed legally and with proper permission – substantive remedy sought was damages – defence held that contract of sale was lawfully rescinded – no reply to defence seeking to defeat claim of recission – order made vacating the lis pendens – strike out for inordinate and inexcusable delay in the prosecution of proceedings – dismissal proceedings on basis of procedural non-compliance with Directions Order – specific performance not sought – principle of proportionality – High Court ordered dismissal of proceedings – appellant indicated they intended on consolidating proceedings with other proceedings seeking specific performance six years after institution of proceedings – doctrine of laches – major procedural non-compliance – judge had to take the pleadings as she found them – reasons advances for failure to comply with directions were inadequate – risk of future delays also considered – judge reviewed the totality of the conduct of litigation from its inception when considering delay – alternative measures short of dismissal – Order 19, rule 28 of the Rules of the Superior Court – absence of exhibits – delays in complying with directions derived from a miscalculation as to the relevant time period and time afforded to comply with them – less draconian option was available that better met the justice of the case – balance of justice required that the appellant ought to be permitted to pursue a claim which will amount to a documents case – trial judge fell into error in considering the specific performance proceedings in the course of the proportionality exercise – appeal allowed in respect of the order dismissing the appellant’s claim for want of prosecution – order refusing to re-visit proceedings upheld.