Cayman Grand Court: strike out powers will be used where appropriate

In the recent decision of Clemmings v Mon Desir [2026] CIGC (Civ) 25, the Cayman Islands Grand Court has reminded litigants that it can and will exercise its power to strike out a claim for want of prosecution where there is inexcusable and inordinate delay which causes prejudice and render a fair trial no longer possible.

The decision comes just 18 months after the 2025 decision in Watler v Patino [2025] CIGC (Civ) 2, in which the Court struck out proceedings as an abuse of process because it inferred that the plaintiffs had no genuine intention to prosecute their claims through to their conclusion. 

Strike out jurisdiction and relevant legal principles 

The Cayman Islands Grand Court has discretionary jurisdiction to strike out a pleading under GCR O.18 r.19 and its inherent jurisdiction. The most common grounds are:

1. the fair trial of the action is prejudiced due to a want of prosecution

2. that the claim is otherwise an abuse of process

Want of prosecution

The two bases for striking out a claim for want of prosecution are:

1. contumelious default of a court order

2. inordinate and inexcusable delay, preventing a fair trial or prejudicing a defendant

"Inordinate" in this case means a delay materially longer than the time usually regarded as acceptable and the applicable limitation period has expired. The specific inordinate delay must either (but it can also be both):

• give rise to a substantial risk that it is not possible to have a fair trial

• be likely to cause or have caused serious prejudice to the defendant

Abuse of process

An abuse of process can be inferred if a plaintiff has no bona fide intention to prosecute a claim and bring it to a conclusion, justifying striking out the claim. Under this ground it is not necessary to show any prejudice accruing to the defendant and the expiry of the limitation period is not strictly necessary.

Clemmings v Mon Desir [2026] CIGC (Civ) 25

The presiding judge, the Honourable Justice Walters (Acting) heard an application by Dr Michelle Mon Desir (the Defendant) to strike out a medical negligence claim for want of prosecution and on the basis that it was an abuse of process.

The proceedings were issued in March 2018, two days before the expiration of the limitation period. The last step taken was the filing of the Defendant's defence in November 2019. It was common ground that there had been inordinate delay after the expiry of the limitation period.

Walters J found that there was evidence of serious prejudice to the Defendant caused by the delay - the most obvious was the risk of the loss of memory. The Court also considered that the Defendant had suffered stress and anxiety. Ordinarily, this would not on its own be sufficient, but in an exceptional case such as this, where a professional’s reputation was in jeopardy over a prolonged period, it constituted a material factor in the Court's decision.

Walters J declined to infer that the Mr Clemmings (the Plaintiff) had no genuine intention to pursue the claim but struck out the action for want of prosecution on the basis that there had been inordinate delay, causing prejudice to the Defendant and rendering a fair trial no longer possible.

Watler v Patino [2025] CIGC (Civ) 2

In Watler v Patino, the presiding judge, the Honourable Justice Asif heard Mrs Patino’s (the Defendant) summons to strike out Ms Watler's and Mr Jackon's claims (the Plaintiffs) claims on the same two alternative grounds: for want of prosecution and abuse of process.

The Court remarked that this concerned a "most appalling case of procedural delay". The proceedings were commenced 24 years ago, and the relevant period of delay was 19 years and 10 months. There had been several 12 month periods within the overall period of delay where there was complete inactivity.

The Court held that the Plaintiffs' failure to advance the case in accordance with anything approaching the usual timescales was exacerbated by:

• the claim being pursued was based upon serious fraud allegations, placing a high duty on a litigant to progress the claim to a timely conclusion

• the Plaintiffs' enjoyment of an inhibition (akin to an injunction) on a parcel of land, preventing the Defendant from taking any steps in relation to the parcel since 2001

• the Plaintiffs' failure to file any evidence to apologise for, explain or excuse their conduct

The Court found that the only inference it could draw from the Plaintiffs' behaviour was that they had never had a bona fide intention to prosecute the action to a conclusion and, accordingly, had no hesitation in striking the claim out as an abuse of process.

Asif J also held he would have struck out the claim for want of prosecution had he not struck the claim out as an abuse of process on the basis that the delay:

• was inordinate and inexcusable

• created a substantial risk that a fair trial was no longer possible (particularly in circumstances where two key witnesses were now deceased)

• the periods of culpable delay have caused serious prejudice to the Defendant

Key takeaways

Both decisions demonstrate that the Court requires litigants to comply with their duty to assist the Court in furthering the overriding objective and will not hesitate to strike out claims on available grounds where the relevant legal test has been met. 

In relation to striking out on the basis that the claim is an abuse of process, Walters v Patino confirms that if the Court can draw inference from a plaintiff's conduct and any period of delay or inactivity that there is no genuine intention to prosecute the claim through to a conclusion, it is not necessary to establish that prejudice has been caused or that a fair trial is no longer possible (as is required when striking out for want of prosecution). Nor is it strictly necessary for the limitation period to have expired. However, as Asif J confirmed in Walters v Patino, the relief is unlikely to be granted in that situation unless the plaintiff's conduct is particularly egregious. 

In relation to striking out for want of prosecution, the period of delay prior to limitation expiring will not be considered for calculating the culpable period of delay. However, where a claim is issued close to the limitation deadline, a plaintiff assumes a heightened duty to prosecute diligently, and even relatively shorter delays after the limitation period expires may be treated as inordinate. On this ground it is necessary to establish that the culpable delay has either caused prejudice or a fair trial to no longer be possible. As in Clemmings v Mon Desir, the most obvious example of prejudice can arise from the deterioration in key witnesses' memories.

A conclusion that there is prejudice can easily be drawn in cases concerning substantial delay and where witness evidence is key to the issues to be determined. Prejudice may also arise from the detrimental impact the delay in prosecuting the claim has on a defendant's professional or financial interests.

Taken together these cases highlight the availability of two parallel jurisdictions which can come to the aid of a frustrated defendant suffering the impediment of a plaintiff who will not progress their claim. Which jurisdiction will be of more assistance will depend on the facts and circumstances of the case, but in an appropriate case a defendant can apply to strike out a claim on both grounds, as was done in both Walters v Patino and Clemmings v Mon Desir.

Finally, defendants should heed the cautionary guidance given by Asif J in Walters v Patino that while defendants may permissibly “let sleeping dogs lie” rather than advancing the case, the court may treat prolonged inaction by both parties as a factor weighing against strike out.

How Ogier can help

Ogier’s Dispute Resolution team regularly advises on strike out applications and procedural strategy in the Cayman Islands. Contact our team with any questions about these developments or how they may affect your matter.

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This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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