Baird v Goldgar: Privy Council clarifies strike-out tests for appellate delay

The Judicial Committee of the Privy Council has dismissed an appeal arising from a claim more than 33 years old, taking the opportunity to set out authoritative guidance on the legal tests applicable when a court considers striking out an appeal for want of prosecution or abuse of process.

In Wycliffe Baird v David Goldgar and four others [2026] UKPC 23, the Board held that the two grounds for strike-out are legally distinct and require separate analysis, albeit with some factual overlap. The judgement, delivered on 4 June 2026 by Lord Hamblen, marks an important clarification of appellate procedure across the Eastern Caribbean Supreme Court ("ECSC") jurisdiction.

Background

The underlying claim arose from an option agreement signed in 1989 for the purchase of approximately 175 acres of land in St Christopher and Nevis, with a closing date of 19 February 1991. When the transaction did not complete, the appellant filed proceedings in 1993. The matter proceeded through a preliminary issues hearing in 2009 and a full trial before Carter J, whose judgement dismissing the claim was handed down in July 2019.

A notice of appeal was filed in September 2019. The appellant received the hearing transcripts in April 2020, which triggered a deadline of 12 June 2020 to file the record of appeal. The record was not filed until 20 March 2023, a delay of approximately two years and nine months. No adequate explanation was offered for much of that period, and the appellant failed to comply with a court order directing him to file the record by September 2022.

The Court of Appeal struck out the appeal in December 2023, finding the delay inordinate, inexcusable and prejudicial, and holding that the appeal constituted both an abuse of process and a want of prosecution.

The legal tests

The Privy Council confirmed that the established four-part test drawn from Barbuda Council v The Attorney General (2004) applies to applications to strike out for want of prosecution. That test directs attention to the length of the delay, the reasons for it, the merits of the appeal, and prejudice to the litigants. The Board endorsed its continued use while adding two important qualifications.

First, the four-part test is not exhaustive. Depending on the circumstances, courts may also consider whether the non-compliance was intentional, whether it is attributable to the party or their legal representative, and the broader effect of the delay on other court users and proceedings.

Second, proportionality must form part of the analysis. Courts should expressly consider whether alternative sanctions short of strike-out were available and adequate, and explain why the more extreme course was warranted.

For abuse of process, the position is materially different. Delay, even if inordinate and inexcusable, does not of itself constitute abuse. Something more is required, typically a further factor such as an intention to warehouse the proceedings, or a wholesale disregard for court rules and orders. The Board endorsed the approach of the English courts on this point, noting that a claimant who decides unilaterally to pause proceedings without the consent of the opposing party or the approval of the court is not automatically acting abusively, depending on the strength of the reason and the length of the pause.

Application to the facts

The Court of Appeal's strike-out was upheld on both grounds. The appellant had sat on the transcripts for over fifteen months without informing the respondents he had received them, ignored a court order to file the record, and failed to take any of the steps available to him, such as applying for an extension of time or filing an incomplete record pending correction.

The Board acknowledged the appellant held an arguable, if not strong, appeal and that strike-out is a sanction of last resort. However, the Court of Appeal had correctly appreciated those matters before reaching its conclusion.

The respondents had meanwhile been deprived of access to approximately US$10 million held in court pursuant to a stay of execution. That sum, along with accumulated interest, has remained frozen for the duration of the appeal proceedings.

The appeal was dismissed.