DISPUTE RESOLUTION: ARBITRATION ASSIGNMENT = Q5 - Essay Example

A good starting point in to be found in the ruling of Lord Diplock in Brikett v. James [1978]. In this case Lord Diplock held that on an application to dismiss an action for inordinate and inexcusable delay the courts should only exercise its discretion if it ‘is satisfied either (1) that the default has been intentional and contumelious…or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or 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…’ (Brikett 1978) The principles enunciated by Lord Diplock in Brikett’s case are well established and are the proper guidelines for an arbitrator to follow when exercising his power to strike out under Section 43 of the Arbitration Act 1996.

In Practice Statement (Judicial Precedent) {1996] lord Griffiths said the main issue for consideration is the prejudice caused by the delay to the defendant’s right to a fair trial. (Practice Statement [1996]) In a later case, the House of Lords indorsed the findings of both Lord Diplock and Lord Griffiths. (Grovitt 1997) The House of Lords went even further in broadening the powers of a tribunal or court by frowning upon delay itself as sufficient grounds to infer a want of prosecution. In Govitt’s case the appellant filed an action for damages for libel, the appellant permitted his case to remain dormant for a period in excess of two years.

Lord Woolf, in delivering the majority decision of the House of Lords, stated that such delay on the part of the appellant was tantamount to ‘an abuse of the process’ of the court. (Govitt 1997) ‘The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process.’ (Govitt 1997) This ruling has the effect of merely requiring