Once the main proceedings had become moot, iPoint Marketing’s (iPoint) counterclaim remained the sole issue in dispute. In response to the protracted litigation, Primall Media (Primall) applied to dismiss the counterclaim for want of prosecution, arguing that iPoint had failed to pursue it diligently. The court accepted that the delay was substantial, particularly as the counterclaim had been pending for more than a decade, and described the litigation as “slow, uneven and often unsatisfactory”. However, it emphasised that delay alone does not justify dismissal. The critical question is whether the delay demonstrates a failure to prosecute the matter.

The court’s findings

The court found that the counterclaim continued to progress through amendments, discovery, case-management processes and settlement engagements. Although progress was slow, there was no indication that the claim had been abandoned. The court therefore dismissed Primall’s application. The judgment confirms that, even where a counterclaim has been pending for an extensive period, significant delay is not, without more, decisive.

Regarding the explanation for the delay, the court accepted that some periods of inactivity were inadequately explained and reiterated that settlement negotiations do not suspend a litigant’s duty to prosecute its case diligently. At the same time, it held that an unsatisfactory explanation does not, alone, justify dismissal. Rather, the explanation forms part of a broader inquiry into whether the conduct amounts to an abuse of process or has rendered it unjust for the litigation to continue. The case therefore illustrates that courts assess delay contextually rather than treating the absence of a complete explanation as determinative.

Prejudice was central to the court’s reasoning. Primall argued that the passage of time had resulted in unavailable witnesses, faded memories and lost physical evidence. The court accepted that this caused real prejudice and made some aspects of the counterclaim more difficult to defend, but emphasised that the decisive question is whether the prejudice is so severe that a fair trial is no longer possible. Adopting a granular, issue-specific approach, the court distinguished between different aspects of the counterclaim and held that prejudice affecting some issues did not justify dismissing the claim in its entirety. Although the delay had weakened parts of the case, other issues remained capable of proper adjudication. The threshold for dismissal was therefore not met, underscoring that dismissal will generally be justified only where the proceedings as a whole can no longer be fairly adjudicated.

Lastly, the court also considered the conduct of the party seeking dismissal. While reaffirming that the primary responsibility for prosecuting a claim rests with the claimant, it noted that the opposing party had not fully used the available procedural mechanisms to bring the matter to finality. This was a relevant factor in the overall fairness assessment.

Taken together, the judgment confirms that dismissal for want of prosecution remains an exceptional remedy. Even substantial delay, an inadequate explanation and demonstrable prejudice will not necessarily justify dismissal. The decisive enquiry is whether, viewed holistically, the delay has resulted in such serious unfairness or prejudice that allowing the matter to proceed would be contrary to the interests of justice.