High Court strikes out claim for inordinate and inexcusable delay despite some defendant delays.

[2017] IEHC 345

THE HIGH COURT

RECORD NO: 2011/9050 P

SEAN MCANDREW

PLAINTIFF

AND

ENYA EGAN PRACTICING UNDER THE STYLE AND TITLE OF EGAN DAUGHTER AND CO. SOLICITORS

DEFENDANT

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 13th February, 2017

1. The issue before the Court in the present case is whether the plaintiff’s claim should be struck out for want of prosecution and on

grounds of inordinate and inexcusable delay. The substantive proceedings brought by the plaintiff involve claims relating to matters

said to have occurred in the course of the defendant’s acting in her capacity as a solicitor with regard to the conveyance of a

dwelling house. The present issue arose by way of motion brought by the defendant, and while the plaintiff was respondent to the

motion and the defendant was the applicant on the motion, I think it will be clearer if I refer to the parties by their positions in the

substantive proceedings i.e. Mr. McAndrew as the plaintiff and Ms. Egan as the defendant throughout this judgment.

The history of the proceedings

2. The plenary summons was issued on the 10th October, 2011. An appearance was entered by the defendant on the 21st November,

2011. The defendant raised a notice for particulars on the 30th July, 2012, and a defence was delivered on the same date. The

plaintiff replied to the notice for particulars on the 10th August, 2012. A request for particulars was subsequently raised by solicitors

for the plaintiff on the 14th August, 2012. This was responded to by solicitors for the defendant by replies dated the 7th January,

2013, a delay of almost five months. In the interim period, counsel for the plaintiff issued a motion to direct the defendant to reply to

the plaintiff’s notice for particulars, pursuant to a notice dated the 22nd November, 2012, which motion was struck out on consent by

Moriarty J. in the High Court on the 4th February, 2013, replies having been furnished by that time.

3. Two requests for voluntary discovery were made by the defendant; the first, on the 11th March, 2013, and a second, the date of

which is not known to the Court. These were followed by a request for voluntary discovery from the plaintiff, dated the 22nd May,

2013, which was complied with by an affidavit of discovery sworn by the defendant on the 4th July, 2013. An affidavit of discovery of

the plaintiff was sworn on the 7th October, 2013.

4. The period of delay of which the defendant complains in the present motion is the period of time which has elapsed since the final

affidavit of discovery sworn by the plaintiff on the 7th October, 2013. The present motion issued in November, 2015, and was not

heard until the 13th February, 2017.

5. The plaintiff filed three affidavits by way of response to the motion. In the first he averred to the difficulties he faced obtaining

new solicitors. The second contained much material that was irrelevant to the issue the subject of the motion, and instead related to

issues he wishes to ventilate in relation to the substantive proceedings. In the third, he raised objections to the motion based on

alleged attempts by the defendant to intimidate him by sending him Notices of Trial and, he alleges, by attempting to force him to

withdraw his cases. The plaintiff in oral submission also sought to assert certain facts and raise matters which were not contained in

the affidavits. This is not uncommon in the case of a litigant in person. However, in accordance with the normal procedure, the Court,

in considering this motion, has regard only to (a) facts sworn to on affidavit, and (b) facts and issues which were relevant to the

issues raised by the motion, namely whether there was a want of prosecution in breach of the Rules of the Superior Courts, and

whether there had been inordinate and inexcusable delay in advancing the plaintiff’s proceedings.

Alleged delay from the 7th October, 2013

6. As noted above, the defendant’s last step in the proceedings was the swearing of an affidavit of discovery on the 7th October,

2013. The correspondence exhibited to the Court show that letters sent by the defendant’s solicitors contained requests that the

plaintiff furnish the documentation referred to in his affidavit of discovery and, subsequently, expressed an eagerness on their part to

have the matter fixed for hearing with some expedition pursuant to instructions from their client. The plaintiff’s responses referred to

difficulties faced by him in obtaining legal assistance. As this issue is central to his explanation for the delay in the proceedings, it will

be explored more fully below. While there was little in the way of continuous dialogue between the parties, the exhibited

correspondence, set out below, gives some indication of the steps taken by the parties to advance proceedings throughout the

period of claimed delay.

7. Solicitors for the defendant wrote to the plaintiff on the 22nd October, 2013, saying, inter alia,

“We note that during the aforementioned telephone conversation with Ms. Beggs of our office, you indicated that you

would furnish us with the documentation listed in your Affidavit of Discovery sworn on the 7th of October 2013 by the

18th of October 2013. We note that we have yet to receive the documentation referred to in your Affidavit of Discovery

and we look forward to receiving same as soon as possible.”

8. The defendant’s solicitors again wrote to the plaintiff on the 12th February, 2014, referring to the letter of the 22nd October and

stating “We note that we have not received said documentation and accordingly we now enclose Notice to Produce by way of service

on you.” A notice to produce was duly enclosed with that letter.

9. The plaintiff responded by letter of the 27th February, 2014, stating that “I am endeavouring to obtain the services of a Solicitor. I

hope to be in a position to respond to your letter within three weeks.” No such response was received within this time frame. The

defendant’s solicitors wrote, again, to the plaintiff in March 2014 and stated, inter alia, the following:

“whilst we appreciate the difficulty you are encountering in retaining new solicitors, these proceedings are now on-going

since 2011 and have yet to be set down for Hearing. In those circumstances, our instructions are to proceed to press this

matter on for hearing as soon as possible. Accordingly, we confirm that we will wait a further period of three weeks from

the date hereof prior to issuing a Notice of Motion for inspection of the documents listed in out Notice to Produce.

We trust that you note the position and that no further correspondence will be issued to you following the expiry of the

deadline set out in this letter and we will proceed to file our Motion once the timeline as set out in this letter has

elapsed.”

10. A further letter was sent by the defendant’s solicitors to the plaintiff on 8th July, 2014, which noted that the letter of 12th

February, 2014, had never been substantively responded to, nor the notice to produce complied with, and requesting either a detailed

identification of each document to be discovered by the plaintiff or a full copy of discovery documentation as listed in the affidavit of

discovery. The letter further stated that in the event that same was not furnished within 7 days the defendant’s solicitors would be

seeking instructions to set the matter down for trial.

11. At issue in the correspondence which followed was having the proceedings, along with another set of proceedings involving the

same parties, set down for trial. A letter of the 7th November, 2014, from the defendant’s solicitors, noted that in the circumstances

where the plaintiff had failed to serve notice of trial and have the matters set down for hearing, “we proceeded to serve Notice of

Trial and set both of the above matters down for Hearing. We enclose copy Notice of Trial in both matters for your attention.” It also

noted that certificate of readiness had also been filed in both cases and a copy of same was enclosed. It concluded “We confirm that

our instructions are to proceed to apply for a Hearing date in this matter at the earliest possible opportunity. In this respect, please

confirm whether there are any dates between now and 30 July 2015 which are not convenient for you.” Absent a response from the

plaintiff, this request to confirm availability was reiterated in a letter from the defendant’s solicitors in a letter dated the 23rd

February, 2015.

12. The plaintiff responded to this letter by way of letter dated the 20th March, 2015 stating,

“In relation to the above matters I am not in any position to proceed with any hearing/s due to my seeking to bring on

Record Solicitor and Counsel. As you are aware, my former Solicitors GM Solicitors ceased to practice and I am without

legal advice. In the coming weeks or months you will receive correspondence relative to proceedings being moved

forward.”

13. The defendant’s solicitors responded on the 10th April, 2015, and referred to the plaintiff’s letter of the 27th February, 2014, and

a contemporaneous conversation between the plaintiff and the defendant’s solicitors, which indicated that the plaintiff was at that

stage endeavouring to obtain the services of a solicitor. It stated,

“[w]e note that you have been without legal representation for in excess of a year at this point in time. We would

suggest that you have had ample opportunity to instruct new solicitors to act for you in this matter and it is simply not

acceptable from our client’s perspective that you now write to us indicating that you continue to seek new legal

representation.”

It then reiterated that the defendant was seeking hearing dates for both matters at the earliest opportunity. It went on to set out

that a further four weeks would be provided to allow for the attainment of legal representation by the plaintiff, after which period, if

the defendant had not heard from the plaintiff or his new solicitors and received a notice of change of solicitor, the defendant would

be proceeding to apply for hearing dates.

14. On the same date, the 10th April, 2015, solicitors for the defendant issued a second letter to the plaintiff, suggesting an

alternative course for the resolution of the proceedings; to “compromise both sets of proceedings.” It was prefaced with a reiteration

of the defendant’s position, namely that she had no liability to the plaintiff in either set of proceedings and that the proceedings were

without merit, before proposing as follows: “she will bear her own substantial legal costs in defending both sets of proceedings in the

event that you formally withdraw both sets of proceedings against her.” This received no response from the plaintiff.

15. A Notice of Trial was issued in respect of the proceedings, the subject matter of the present motion, at the behest of the

defendant, dated the 23rd October, 2014, on which date a certificate of readiness, dated the 10th October, 2014, was also filed by

the defendant’s solicitors.

Prejudice

16. In the grounding affidavit of Mr. Corcoran, he stated the following in relation to the claimed prejudice to the defendant, arising

from the delay of the plaintiff:-

“I say that the subject matter of the proceedings relates to matters that occurred more than a decade ago. I say the

delay by the Plaintiff is prejudicial to the Defendant in its defence of the proceedings. In particular, I say that Mr Peter

West, the co-Defendant to the original Arbitration proceedings the subject matter of the present negligence proceedings

against my client, would have been an integral witness at the hearing of this action. Unfortunately, Mr Peter West died on

the 5th day of August 2014. I say furthermore that it is likely that other witnesses are no longer available and that their

recollection of events has dimmed over time.”

The plaintiff’s difficulty obtaining legal advice

17. A notice of appointment of solicitor, dated the 20th March, 2012, setting out that G.M. Solicitors of County Longford were

retained by the plaintiff to act on his behalf, was filed in respect of the proceedings. A notice of discharge of solicitor, filed on the

20th May, 2013, provides that that firm of solicitors was discharged by the plaintiff.

18. The plaintiff indicated in his letters, set out above, that around the time of the 27th February, 2014, he was “endeavouring to

obtain the services of a Solicitor.” In a letter sent by him to the defendant’s solicitors on the 20th March, 2015 he stated:

“In relation to the above matters I am not in any position to proceed with any hearing/s due to my seeking to bring on

Record Solicitor and Counsel. As you are aware, my former Solicitors GM Solicitors ceased to practice and I am without

legal advice. In the coming weeks or months you will receive correspondence relative to proceedings being moved

forward.”

19. The plaintiff stated in his affidavit of the 22nd December, 2015:

“the deponent say that he went to a firm of solicitor in 2014 and on viewing the file they declined to take on the case by

letter 10th December 2014. The deponent then went to another firm of solicitor in or about March 2015 and on viewing

the file they declined to take the case by letter dated March 11th 2015. Other solicitors were contacted but, all could not

help. At present, the deponent is now in contact with another firm of solicitors in Dublin who have requested the file for

viewing.”

20. It appears that at some point, from 2016 onwards, the plaintiff obtained the assistance of a McKenzie friend who was present at

the hearing of this motion before the Court.

Applicable Legal Principles

21. In the present motion, the defendant seeks to have the proceedings dismissed on grounds of inordinate and inexcusable delay and

want of prosecution. The first ground, the allegation of inordinate and inexcusable delay on the part of the plaintiff, invokes the

Court’s inherent jurisdiction and requires a balance to be struck between the interests of the plaintiff in having his case heard, and

that of the defendant to have the case heard expeditiously. The onus of proof in the motion rests with the defendant.

22. The law in this area is anchored to the long standing principles enunciated in Rainsford v Limerick Corporation [1995] 2 ILRM 561

and Primor plc. v Stokes Kennedy Crowley [1996] 2 I.R.459. In his judgment in Primor, Hamilton C.J. approved the principles set out

by Finlay P. in Rainsford and summarised the applicable principles of law as follows:

“The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:—

(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests

of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of

prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether,

in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it

unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's

action,

(iii) any delay on the part of the defendant — because litigation is a two party operation, the conduct

of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the

defendant in the plaintiff's delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in

pursuing the action does not, in law, constitute an absolute bar preventing the defendant from

obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising

his discretion whether or not to strike out the claim, the weight to be attached to such conduct

depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely

to cause or have caused serious prejudice to the defendant,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be

other than that merely caused by the delay, including damage to a defendant's reputation and

business.”

23. It was confirmed by Clarke J. giving judgment in this Court in Stephens v Paul Flynn Limited [2005] IEHC 148, that the cumulative

test remains as follows:-

“(a) Ascertain whether the delay in question is inordinate and inexcusable; and

(b) If it is so established, the Court must decide where the balance of justice lies.”

Notwithstanding this, the area of delay has moved on somewhat since the above decisions and the case law on this issue is

voluminous. The developments have recently been aptly summed by Irvine J. in her judgment in the case of Granahan T/A C G Roofing

and General Builders v Mercury Engineering [2015] IECA 58:-

“9. There are innumerable other decisions of much more recent vintage which consider these principles and which express

disquiet about the courts' heretofore excessive indulgence when dealing with stale claims and which advise of the need

for much greater consideration to be given to the courts' own constitutional obligations and compliance with Ireland's

obligations under Article 6.1 of the European Convention on Human Rights. An example of this type of approach to delay is

to be found in the decision of Hardiman J. in Gilroy v. Flynn [2005] 1 I.R.L.M. 290 where at pp. 293 – 294 he stated as

follows:-

‘[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attach

to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action

accrued. ….[F]ollowing such cases as McMullan v. Ireland [ECHR 422 97/98. 29th July, 2004] and the European

Convention on Human Rights Act, 2003, the Courts, quite independently of the action or inaction of the parties,

have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.’

10.In his judgments in Stephens v. Paul Flynn Ltd. [2005] IEHC 148 and Rodenhuis & Verloop BV v. HDS Energy Ltd.

[2011] 1. I.R. 611, the latter decision being one relied on by the High Court judge in reaching his conclusions in the

present case, Clarke J. also questioned whether there should be a recalibration of the criteria by reference to which the

actions of the parties might be judged. He stated that while the overall test and applicable principles remain the same,

the application of those principles might require some tightening up to avoid excessive indulgence. At para. 11 of his

judgment he advised as follows:-

‘It seems to me, therefore, that it is necessary, in a system where the initiative is left largely up to the parties to

progress proceedings, for the courts to make clear that there will not be an excessive indulgence of delay, because

if the courts do not make that clear, it follows that the courts' actions will encourage delay and, thus, will

encourage a situation where cases will not be completed within the sort of times which would be consistent with

compliance with Ireland's obligations under the European Convention on Human Rights.’

11.It is accordingly now well accepted that the Irish courts are under a Convention based obligation to ensure that all

proceedings, including civil proceedings, are concluded within a reasonable time. This means that any court dealing with

an application to dismiss a claim on the grounds of delay must be vigilant and factor into its consideration, not only its

own constitutional obligations but Ireland's obligations under Article 6 of the Convention.”

As outlined by Irvine J., there has been a degree of recalibration of the weight to be attached to the interest of a party to a trial with

reasonable expedition in line with not only constitutional obligations but also the obligations placed on the Courts by Article 6 of the

Convention and the European Convention on Human Rights Act, 2003. Referring to the changes in this context, Mr. Justice Hardiman,

in his judgment in Gilroy v Flynn [2005] 1 I.L.R.M. 290, stated that “comfortable assumptions on the part of a minority of litigants of

almost endless indulgence must end” and that the case law, including Rainsford and Primor,

“will fall to be determined in light of the countervailing considerations also mentioned above and others and may not prove

as easy an escape from the consequences of dilatoriness as the dilatory may hope. The principles they enunciate may

themselves be revisited in an appropriate case. In particular, the assumption that even grave delay will not lead to the

dismissal of an action if it is not on the part of the plaintiff personally, but of a professional adviser, may prove to be an

unreliable one.”

24. The second ground for dismissal of the proceedings relied upon by the defendant is want of prosecution. This ground is governed

by Order 122, Rule 11 of the Rules of the Superior Courts which provides as follows:

“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who

desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in

which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to

dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter

to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or

summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a

proceeding within this rule.” (emphasis added)

Application of the principles to the present case

Was the delay inordinate?

25. The delay complained of is the period since the 7th October, 2013, the date on which the final affidavit of discovery was sworn

by the plaintiff, to the present. The correspondence exhibited by the parties, set out above, supports the assertion that no steps

were taken by the plaintiff during this period to directly advance the proceedings and the plaintiff has adduced no evidence to the

contrary. The period of inactivity complained of amounts to approximately 3 years, 4 months. I note that the motion to strike out was

issued in 2015, which was met with continued delay by the plaintiff, and was not heard until the 13th February, 2017. It seems to me

that the period of delay was inordinate.

Was the delay excusable?

26. The reason advanced by the plaintiff for the delay in advancing the proceedings is the difficulty he encountered in obtaining

solicitor and counsel.

27. A number of authorities show that the courts are reluctant to find sufficient excuse in the fact that delay can be attributed to a

plaintiff’s legal advisers. These authorities demonstrate the general rule that responsibility will rest with the plaintiff for failure to

expedite matters in such circumstances, although the personal blameworthiness of the plaintiff is a matter which may be considered in

the exercise of a court’s discretion (see the comments of Finlay P. in Rainsford). Comments of similar effect were made by

MacMenamin J. in McBrearty v North Western Health Board [2007] IEHC 431, when he said,

“I consider that even (as here) in the circumstances of an absence of culpability on the part of the plaintiff, culpability

may nonetheless be imputed to the plaintiff by virtue of delay on the part of his solicitors in the determination as to

whether or not the delay was inexcusable. Different considerations apply, however, in the third aspect of the test, that

of ‘balance of justice’.”

These cases illustrate that the responsibility for advancing his or her case lies at the door of the plaintiff. Although these comments

were made in circumstances where legal representation has been obtained by the litigating party, in my view they are also relevant to

situations such as the present, where the difficulty lies in retaining legal representation in the first place. If there is an onus on a

plaintiff to advance their proceedings even where he or she is legally represented, there must be a similar onus to do so where he or

she is not, provided a reasonable period of time to find a new legal team has been allowed to pass. Much more than a reasonable

period in that regard has elapsed in the present case, and the plaintiff is not entitled to stall the proceedings indefinitely while he

searches for a new legal team. There comes a point where he must accept that he has to deal with the proceedings even without a

legal team.

The balance of justice

28. In determining where the balance of justice lies in this case, the Court is cognisant of the non-exhaustive list of factors set out

by Hamilton C.J. in Primor, quoted above, as well as the evolving jurisprudence on the need to hear cases within a reasonable time,

owing to obligations placed on the courts pursuant to Article 6 of the European Convention on Human Rights and the European

Convention on Human Rights Act, 2003.

29. In relation to the claimed prejudice, I also take account of the impact of the delay on the ability of the defendant to produce

witness evidence at hearing and note, in particular, the death of a witness, Mr. Peter West, in 2014.

30. The plaintiff requested that I take note of the delays attributable to the defendant in advancing the proceedings. In particular, he

drew attention to the fact that the defendant did not respond to the plaintiff’s request for particulars of the 14th August, 2012, for a

period in excess of four months, and did so only after the plaintiff brought a motion in the High Court. While any such delay is

undesirable, it was not of such an order, nor did it constitute any part of a general pattern on the part of the defendant, such that it

could be fairly offset against the substantial delay on the part of the plaintiff since he swore his affidavit of discovery.

31. In light of the above, and in consideration of the circumstances as a whole, I find that the plaintiff’s claim should be struck out for

inordinate and inexcusable delay.

32. The defendant also made an application under Order 122, Rule 11 of the Rules of the Superior Courts to have the proceedings

dismissed for want of prosecution, no steps having been taken by the plaintiff in excess of two years from the last step in the

proceedings. Having heard the evidence in this matter, I find that the defendant is also entitled to the relief sought on this ground.