Icebird Ltd v Winegardner (The Bahamas)

Factual and Procedural Background

The Appellant owns Lot 11 in Block 1 of “The Estate,” while the Respondent owns Lot 3 in Block 5 of the same development. The Appellant claims a right-of-way over a roadway that traverses the Respondent’s land and leads to the beach. Alleging obstruction since approximately 1998, the Appellant issued a writ on 28 July 2000 seeking injunctive relief, damages, and other remedies. Leave to amend the writ was granted on 29 November 2001 (filed on 16 January 2002), but no further steps were taken for more than two years.

On 16 February 2004 the Respondent applied to strike out the action for want of prosecution. Judge Lyons heard the application on 1 February 2006 and, on 7 February 2006, struck out the claim. The Court of Appeal (Judge Sawyer and Judge Osadebay, Judge Longley dissenting) affirmed the strike-out on 24 November 2006. The present judgment is the determination of the final appeal.

Legal Issues Presented

1. Whether the Appellant’s delay in prosecuting the action was so inordinate and inexcusable as to justify striking out the claim.
2. Whether the delay constituted an abuse of the court’s process.
3. Whether the delay created a substantial risk of an unfair trial or caused serious prejudice to the Respondent.

Arguments of the Parties

Respondent's Arguments

• The Appellant failed to serve a Summons for Directions within the prescribed time, evidencing an inordinate and inexcusable delay.
• The ongoing litigation allegedly “blighted” the title of Lot 3, causing serious prejudice.
• The delay created a substantial risk that a fair trial was no longer possible.
• The Appellant’s conduct amounted to an abuse of process and an affront to the authority of the court.

Appellant's Arguments

• The delay, though lengthy, did not prejudice the Respondent or endanger the prospect of a fair trial.
• Any prejudice claimed by the Respondent was speculative and unsupported by evidence.
• Alternative case-management measures short of striking out—such as an “unless order” or immediate directions—were available and appropriate.

Table of Precedents Cited

Court's Reasoning and Analysis

The tribunal agreed that the Appellant’s delay was “inordinate and inexcusable” but held that this alone did not justify striking out the claim. Applying Birkett v James, it found:

• Prejudice: No evidence showed that the Respondent’s ability to deal with her land or to secure a fair trial had been materially impaired. Mere “blight” or anxiety linked to pending litigation was insufficient.
• Fair Trial Risk: The factual issues—principally whether the right-of-way had been abandoned and related covenant questions—could still be tried fairly. Relevant documentary instruments dated from 1954 and 1968, and witness evidence from 1988 onward remained available.
• Abuse of Process: Unlike in Grovit v Doctor, Judge Lyons made no finding that the Appellant had lost interest in the litigation. Without such evidence, mere delay did not equate to abuse.

The tribunal observed that alternative case-management tools were available, such as issuing an “unless order” compelling the Appellant to seek directions immediately. Consequently, the drastic remedy of striking out was disproportionate.

Holding and Implications

APPEAL ALLOWED. The orders of Judge Lyons and the Court of Appeal are set aside. The Appellant must issue a Summons for Directions within 14 days and pursue an expedited timetable. Costs were ordered on an indemnity basis: the Appellant pays the Respondent’s costs of the strike-out application; the Respondent pays the Appellant’s costs of the appellate stages.

Implications are confined to the parties: the action is reinstated and directed toward trial. The decision re-affirms existing principles in Birkett v James without creating new precedent.