Ebor SA v Incat and Anor

In December, 1992 the plaintiff issued an Order of Justice which was duly served on the defendants. In simple terms, the plaintiff claims that the defendants are in breach of an oral agreement made in 1991 whereby, in exchange for the plaintiff procuring funding for the first defendant, the plaintiff would be given shares in the first defendant and representation on its board of directors.

The action was placed on the pending list at the instance of the defendants. In its answer and counterclaim the first defendant, whilst accepting that there was an agreement, disputes its terms. In addition, the first defendant counterclaims for misrepresentation. The second defendant in his answer denies being party to the agreement alleged. A reply was filed by the plaintiff in March 1993 to the pleadings of both defendants. Further and better particulars of the first defendant's answer and counterclaim were provided in July 1993. All procedural activity in the action then ceased.

On 26th March, 1996 Advocate Sinel wrote to Advocate Le Cocq expressing concern at the delay in progressing matters. On 19th April, 1996 Advocate Le Cocq replied saying that Advocate Sinel's letter had been forwarded for instructions. No further reply was sent to Advocate Sinel . No further action in the case was taken by any of the parties.

On 18th June, 1999, after requisite notice had been given to the parties by the Deputy Judicial Greffier , the action was dismissed pursuant to Rule 6/20(1) of the Royal Court Rules 1992. Rule 6/20(1) states as follows:-

"6/20.-(1) Where, at the expiration of five years from the date on which an action was placed on the pending list, the action has not been set down on the hearing list, the Court may, of its own motion, after giving not less than 28 days' notice in writing to all the parties to the action, order that the action, and any related counterclaim and/or third party claim, be dismissed."