High Court dismisses solicitor's strike-out application due to lack of prejudice from inordinate delay in negligence claim.

[2016] IEHC 34

THE HIGH COURT

[2005 No. 736 P]

BETWEEN

OLIVER HUGHES AND FABOLA LIMITED

Plaintiffs/Respondents

AND

MICHAEL CUSACK

practising under the title and style of Michael E Cusack And Co.

Defendant/Applicant

JUDGMENT of Ms. Justice Murphy delivered the 25th day of January, 2016.

1. The case at the core of this application arises from a claim of professional negligence and breach of contract made by the

respondents against the applicant, in his capacity as solicitor, arising from the investigation of title in relation to a premises acquired

by the respondents, at Crossguns Bridge, Prospect Road, Dublin. The proceedings were issued by way of a plenary summons dated

25th February, 2005. The applicant, Mr. Michael Cusack, now seeks an order pursuant to Order 122 Rule 11 striking out or dismissing

the proceedings for want of prosecution or an order pursuant to the inherent jurisdiction of the Court dismissing the proceedings on

the grounds of inordinate and/or inexcusable delay on the part of the respondents.

Background

2. In or about February 2001, the respondents purchased a premises at Crossguns Bridge for the purpose of developing a licensed

premises on the site. The respondents retained the applicant in his capacity as solicitor. The applicant was tasked, as per the

retainer, with investigating the title to the property in order to ensure that good title thereto was acquired. According to the

respondents’ Statement of Claim, acting on the faith of an express and/or an implied representation of the defendant that the title to

the lands was good and marketable, the respondents completed the purchase of the site in 2001 and began their development.

3. By letter dated 4th March, 2003, C.I.E. wrote to the second named respondent, informing it that a portion of the land measuring

approximately 250m2 was held by the respondents under a yearly tenancy agreement dated 23rd January, 1930 and that “same can

be determined if again required by CIE for operating purposes”. Thus, it transpired that the respondents had apparently only acquired

a possessory title to that portion of the property in question.

4. The property in issue was the old Glasnevin Station House. The applicant avers that Replies to Particulars furnished by the

respondents on 26th September, 2011 stated that the old station house had been integrated into the pub in the course of the

development and subsequent to the notification from C.I.E..

5. . The total cost of the project, exclusive of VAT was €7,041,515.83. This included the purchase price of the lands in the sum of

€1,587,172.50, expenditure totalling some €5,218,569.98, exclusive of VAT, and additional costs of €235,773.35, according to the

respondents’ Statement of Claim.

6. On 25th February, 2005 the respondents issued a plenary summons against the applicant, claiming breach of contract and

professional negligence in respect of the latter’s failure to uncover the existence of C.I.E.’s interests in the land in question in the

course of his investigation as to the title.

7. The applicant contends that the respondents have delayed in prosecuting their claim; that that delay has been both inordinate and

inexcusable and that, therefore, the Court should exercise its inherent discretion to dismiss the respondent’s claim for an abuse of

process or, alternatively, strike out the claim for want of prosecution as per the powers provided by Order 122, Rule 11 of the Rules

of the Superior Courts.

Chronology of the Proceedings

8. The plenary summons issued on 25th February, 2005 and an appearance was entered on behalf of the applicant on 12th April,

2005. The respondents’ Statement of claim was delivered on 14th April 2005, followed by the applicant’s defence on 22nd May, 2006.

9. An exchange of open correspondence between the solicitors for the parties occurred between 22nd May, 2006 and 19th February,

2007. This correspondence related to the duty on a plaintiff to mitigate loss and suggestions from the defendant as to how best this

might be achieved. There was no meeting of minds between the parties on the proposed solutions and, according to the applicant,

the correspondence ended with the plaintiff/respondent’s solicitor indicating his intention to seek counsel’s advices on the last

proposal of the defendant/applicant. There was no further communication between the parties until the respondents served a notice

of intention to proceed on 14th May, 2010, some three and a quarter years following the last correspondence. On 21st February,

2011 the respondents delivered a Reply to the Defence and, on the 28th February, 2011, they raised a Notice for Particulars and

made a request for voluntary discovery.

10. The respondents’ Notice for Particulars was initially responded to by letter from the applicant’s solicitors, Vincent & Beatty, dated

11th March, 2011 which stated:-

“On the 27th February 2007 you wrote to us acknowledging our letter of the 19th February 2007 and you informed us

that you had referred the matter to Counsel.

We did not hear back from you in relation to Counsel’s opinion on our letter of the 15th February 2007, so this letter

remains unanswered.

For ease of reference we enclose a copy of our letter of the 19th February 2007 and will await hearing from you in

relation to it.

In the meantime we believe that you should take certain steps in relation to this action to comply with the High Court

Rules in view of the fact that it has been dormant for over four years”.

11. A Notice for Particulars was raised by the applicant on 6th September, 2011, to which the respondents replied on 26th

September, 2011 and having clarified a number of matters, supplied further replies on 3rd October, 2011.

12. On 1st February, 2012, the applicant’s solicitors sent a notice for Further and Better Particulars relating to the issue of damages

and to perceived discrepancies between the respondent’s replies to particulars of 26th September, 2011 and those of 3rd October,

2011. This Notice went unanswered for two years and replies were eventually furnished on 19th March, 2014, at a time when the

applicant had sworn his grounding affidavit for the purpose of this application.

13. On 3rd February, 2012 the respondents sought further details pertaining to the discovery documents furnished to them. On that

same date, the respondents sent a notice to admit facts, which the applicant admitted on 23rd July, 2012.

14. As regards the request for discovery, an exchange of correspondence; namely, the respondents’ letter of 3rd February, 2012, the

applicant’s response on 21st May, 2012, a further letter from the respondents dated 30th July, and the applicant’s response thereto

dated 13th August, 2012, necessitated the swearing of a supplemental affidavit of discovery.

15. By letter dated 26th July, 2013, the applicant’s solicitors sought a Reply to the Notice for Particulars of 1st February, 2012. In a

letter dated 2nd August 2013, the respondent’s solicitors issued a third Notice of Intention to Proceed, affixed to which was a cover

later which stated:-“We will deliver the Plaintiffs’ Replies at the expiration of one month from the date of this Notice”.

16. The letter of 2nd August, 2013 also noted that that the applicant’s solicitors:-

“had not yet provided us with the [Applicant’s] Supplemental Affidavit of Discovery taking account of the additional

documentation furnished by you to us under cover of your letters dated the 21st May, 2012 and the 13th August, 2012.”

17. The applicant’s supplemental affidavit of discovery was sworn on 23rd September, 2013, according to the affidavit of the

respondent.

18. A further request for replies to the applicant’s particulars was made via letter dated 25th November, 2013, to which the

respondents’ solicitors replied by letter dated 20th December, 2013. This letter stated that they would be meeting with their client

after the holiday period, and confirmed that the respondents’ solicitors would “furnish [the Applicant] with the outstanding replies

thereafter”.

19. The applicant’s solicitor again sought replies to particulars via email dated 16th January, 2014. No replies were forthcoming and

the applicant served his motion to strike out the proceedings on the respondents’ solicitors on 6th March, 2014. Replies to the

requests for particulars were subsequently delivered by the respondents on 19th March, 2014.

Submissions - Delay

20. The applicant contends that there has been an inordinate and inexcusable delay on the part of the respondents in prosecuting

the proceedings in question. In support of his contention, the applicant draws the Court’s attention to a number of time periods in the

chronology of the proceedings.

21. The applicant states that the date on which the respondent’s cause of action accrued is either 3rd August, 2001 – the date on

which the purchase of the premises was completed – or 4th March, 2003 – the date on which C.I.E. sent the letter notifying the

respondents of its interests in the land and seeking information as to what works were being carried out by the respondents thereon.

22. The respondent’s plenary summons was not issued until 25th February, 2005; after they had expended €5,454,343.33 on the

development of the property. The statement of claim was not delivered until 14th April, 2005. The applicant contends that this delay

is inordinate and that there is no evidence which explains the delay. Therefore, it is the applicant’s position that the delay is

inexcusable.

23. The applicant also notes that the respondents carried on with, and ultimately completed, the development of the public house,

notwithstanding their receipt of the letter from C.I.E. dated 4th March, 2003. As evidenced in the respondents’ reply to a request for

particulars dated 3rd October, 2011, the total costs expended by the respondents due or up to March 2003 are confirmed to be

€2,523,788.23. The applicants therefore note that the costs expended after March 2003 amount to almost €3 million.

24. A defence was delivered by the applicant on 22nd May, 2006. Although there was some correspondence between the parties

between that date and early 2007 and a Notice of Intention to Proceed issued on 14th May, 2010, the applicant notes that nothing

was done to prosecute the respondents’ claim between the applicant’s delivery of the defence on 22nd May, 2006 and the

respondents’ reply to the defence delivered on 21st February, 2011 – a period of almost five years. The applicant contends that the

delay here is again inordinate. He further contends, that the delay is accompanied by no financial or other disadvantages that might

explain the delay and is thus, inexcusable.

25. Although the applicant concedes that a Notice of Intention to Proceed was served by the respondents during this five year

period, on 14th May, 2010, he submits that his contention that nothing has been done by the respondent to prosecute his case over

the five-year period specified remains valid, since such a notice does not constitute a “proceedings” within the meaning of Order 122,

Rule 11 of the Rules of the Superior Court.

26. The applicant further notes that following further replies to the applicant’s request for particulars dated 6th September, 2011,

which were made by the respondents on 3rd October, 2011, the respondents again delayed in prosecuting their case until 3rd

February, 2012 when they sought additional information pertaining to their own request for particulars as well voluntary discovery,

which had been made on 28th February 2011. He contends that this amounts to a further inordinate and inexcusable delay on the

part of the applicant.

27. Finally, the applicant drew the Court’s attention to the period between the applicant’s Notice for Particulars on 1st February, 2012

and the respondents’ reply to same on 19th March, 2014. The applicant submits that this delay, in excess of two years, must amount

to an inordinate delay and, as it is unexplained by the respondents, is also inexcusable. The applicant also submits that these replies

were only delivered as a reaction to the issuing of the motion herein on 6th March, 2014.

Applicant’s Submissions – The Law

28. The applicant notes that the power of the Court to strike out proceedings for want of prosecution on the grounds of delay,

results both from an inherent jurisdiction to do so where that delay has been inordinate and inexcusable, and from Order 122, Rule 11

of the Rules of the Superior Court 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 proceedings 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…”

29. In outlining the law in this area, the applicant cites the general principles to be applied by the Court as laid down by Hamilton CJ

in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459:-

“(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.”

30. The Primor principles were affirmed by Denham CJ in the Supreme Court in Comcast International Holdings Incorporated v.

Minister for Public Enterprises & Anor [2012] IESC 50:-

“The nature of an inordinate and inexcusable delay requires to be considered in all the circumstances of the case. Thus,

the factors of each case require to be analysed.

In addition, in recent times there has been an acknowledgement that cases may not be let lie, in a laissez faire attitude,

for the parties to move. There is a requirement to ensure that cases are progressed reasonably. This approach has

been the subject of litigation in Ireland and has also been addressed by the European Court on Human Rights. For

example, in Price and Lowe v. The United Kingdom, 43185/98, there was an application alleging a violation of Article 6 of

the Convention in connection with the length of the proceedings at issue. Article 6 provides:-

“In the determination of his civil rights and obligations…everyone is entitled to a…hearing within a reasonable

time…”

The ECtHR reiterated that the reasonableness of the length of the proceedings must be addressed in the light of the

circumstances of the case, and having regard to the criteria laid down in the Court’s case law, in particular:

-The complexity of the case,

-The conduct of the applicant,

-The conduct of the relevant authorities, and

-The importance of what is at stake for the applicant in the litigation.

The Court held that the manner in which a State provides for mechanisms to comply with this requirement – whether by

way of increasing the number of judges, or by automatic time-limits and directions, or by some other method – is for

the State to decide. In this case the domestic law is that stated in Primor, where the factors identified by Hamilton CJ,

as set out previously, are not dissimilar to the criteria set out in Price.”

31. The view of the Supreme Court in Comcast was that the delay was, in the circumstances, an excusable one. However, the

applicant contends that Comcast can be distinguished since it was an unusual case which involved delay arising from the plaintiff’s

decision to await the outcome of an Oireachtas enquiry into the granting of a mobile licence before taking action in furtherance of the

proceedings. The unique circumstances of the case were described by Denham C.J. at paragraphs 40 and 42 of that judgment.

32. In Comcast, questions also arose as to whether or not the Primor principles would have to be recalibrated in light of the coming

into effect of the European Convention on Human Rights Act 2003. However, the applicant points out that this argument did not find

favour with the Supreme Court in Comcast and draws the Court’s attention to the judgment of McKechnie J. in which he considered,

inter alia, the judgments of Geoghegan J. and Macken J. in Desmond v MGN Ltd [2009] 1 IR 737, and of Geoghegan J. in McBrearty

and Others v North Western Health Board and Others [2010] IESC 27. Both judges were of the view that the Primor principles had

stood the test of time and that there was no justification for any major departure from these established and well-tried principles.

McKechnie J. in Comcast stated as follows:-

“I have looked closely at this issue in the instant case, only because the absence of comment may otherwise be taken,

as representing a view which I do not hold. My views coincide with those referred to in the previous paragraph [ie the

views of Geoghegan J. and Macken J.]. I therefore see no reason, at least at this stage, for any formal reassessment of

how Primor should be applied. No-one, so far as I am aware, has suggested that the three limb approach established in

such cases should be substantially altered or that any matter or factor heretofore relevant should be omitted from

future consideration. In fact it should immediately be said that Clarke J in Rogers acknowledged that this suggested shift

of emphasis did not envisage any change in the matters to be considered but rather involved an adjustment within the

existing practice. Even so, in my view, when both inordinate and inexcusable delay is being considered and when the

balance of justice is being looked at, the court always has a discretion in its evaluation of the presenting circumstances,

from which the ultimate decision is made. That discretion is, and in my opinion should, remain sufficiently flexible to deal

with any situation or event: in its application to date I know of no case where it could be legitimately argued or

suggested that the result arrived at was the wrong one or was an unjust one.”

33. In addition, the applicant cites the judgment of O’Malley J. in O’Carroll v EBS [2013] IEHC 30, in which the judgments of

McKechnie J. and Clarke J. in Comcast were considered, in support of the view that the Primor test has been unaltered by the

European Convention on Human Rights Act 2003.

34. The applicant also draws the court to the judgment of Clarke J. in Comcast in which he considered the third limb of the Primor

test – the issue of the balance of justice. Clarke J. cited his own decision in Stephens v. Paul Flynn Limited [2005] IESC 148 where he

stated as follows:-

“He [the moving party] has not, however, been able to point to any specific witness who is no longer available. It must

also be taken into account that there are, apparently, statements of the relevant witnesses to the events of the 5th

December, 1995 taken by the Gardaí on the occasion in question. That being said an issue as to the credibility of

witnesses (which will almost certainly arise) will be all the more difficult of resolution where those witnesses are being

asked to recollect matters that occurred so long ago. While the prejudice may not be quite as great as the Defendant

contends for, I am satisfied that it will nonetheless be of some significance.”

35. The applicant further cites the decision of McMenamin J in Lismore Builders Ltd (In Receivership) v. Bank of Ireland Finance Ltd &

Anor [2013] IESC 6, in which the judge held that the Primor principles must be applied sequentially: the Court must first enquire as to

whether there has been inordinate delay and then as to whether such delay is inexcusable; before applying the balance of justice

test as to whether it is proper for the Court to dismiss the claim.

36. The case of Biss v. Lambeth Health Authority [1978] 1 WLR 382 is referred to briefly by the applicant in support of his contention

that prejudice comes in many guises and that, as per Geoffrey Lane L.J., “there are many ways in which defendants may be

prejudiced by continual delay”.

37. Finally, the applicant submits that, independently of any recalibration, the Court retains the jurisdiction to strike out a claim, even

without prejudice, if the delay is inordinate and inexcusable, if the Court finds that in allowing the case to proceed to trial is not in

the public interest. Such a jurisdiction was endorsed by Hogan J. in the case of John Donnellan v. Westport Textiles Ltd (In Voluntary

Liquidation) and Minister for Defence [2011] IEHC 11, in which he cited with approval the judgment of Peart J in Byrne v. Minister for

Defence [2005] IEHC 147.

Applicant’s Submissions – Balance Of Justice

41. Insofar as the balance of justice is concerned the applicant contends that there is a risk of prejudice in allowing the case to

proceed fifteen years after the conveyance.

42. The applicant firstly points to the replies to particulars of October 2011, which, he contends, emphasise the level of evidence

that may need to be adduced at trial regarding quantum and the building project relating to the premises. He contends that this is an

issue in the case due to the respondents’ decision to press ahead with their development notwithstanding the letter from C.I.E. in

March 2003. The applicant submits therefore that he will need to examine the respondents’ witnesses regarding the state of play of

the build in March 2003 and the decision to spend almost a further €3 million subsequently. He notes that the issue of the build spend

and the question of whether the pub might have been built around the material C.I.E. land will all be issues at trial. Therefore, the

design team, construction company, subcontractors and all decision-makers will need to be cross-examined at a trial some thirteen

years after the event.

43. The applicant also submits that the Court should note that there is no evidence that CIE will ever need to use the land such that

the loss is only perceived or contingent.

44. The applicant also alleged potential prejudice arising from the fact that since the specialised counsel retained by him commenced

practice in 1972, it was not known whether she would be in practice or retired when this matter comes to trial.

45. The applicant also contends that the continuation of the action has caused and continues to cause damage to his reputation. He

has informed the Court that he practiced as a solicitor until recently and is now retired with his good name intact. He claims that the

“reputational disaster”, he considers to have been caused by the proceedings, has been hanging over him since February 2005.

Respondents’ Submissions – Synopsis

46. It is the respondents’ contention that, although the delay on their part has been somewhat lengthy, as per the Primor principles it

is not inexcusable. The respondents proffer an explanation for their delay, whilst also emphasising that at all times their clear intention

was to proceed with the litigation, an intention exemplified by the various Notices of Intention to Proceed that have been served on

the applicant, in spite of the admitted tardiness on the part of the respondent.

47. The respondents further submit that even if the Court is of the opinion that their delay has been inordinate and/or inexcusable,

the balance of justice lies in favour of allowing them to proceed with their case.

48. Furthermore, the respondents draw the Court’s attention to conduct on the part of the applicant which makes him also guilty of

delay, and point out that delay on the part of the defendant is a factor which the courts must take into account in considering where

the balance of justice lies.

Respondents’ Submissions – Explanation For The Delay

49. The respondents concede that there has been delay in the prosecution of their claim, but deny that the delay is inordinate and/or

inexcusable.

50. In this regard, the respondents point to the case of Lismore Builders Ltd (In Receivership) v Bank of Ireland & Ors [2013] IESC 6

in which McMenamin J. held that:-

“[E]ven ascribing blame where it lies, the fundamental question remains as to whether the appellants have been guilty of

inordinate and inexcusable delay. It is not sufficient to point to the very substantial period of the time in question.”

51. The respondents’ explanation for the delay on their part was that the first named respondent was involved in a protracted dispute

with one of the directors of the second named respondent, a Mr. Frank Ennis. Mr. Ennis served as an architect and project manager,

in relation to the property which is the subject matter of these proceedings. The respondent contends that Mr. Ennis was an integral

figure to the project, as he applied for all planning permission and undertook the day to day management of the site until completion.

52. A Settlement Agreement was reached between the first named respondent and Mr. Ennis on 23rd January, 2013 whereby Mr.

Ennis agreed inter alia to provide all necessary help and information in order to expedite the within proceedings. However, despite this

Settlement Agreement, it became necessary to issue legal proceedings in order to enforce it. The matter was due for trial before Kelly

J. on 22nd July, 2014 but, due to the length of the case, the matter was put back to 28th January, 2015.

53. The respondents contend that this dispute has been time consuming and involved issues which affected matters in the present

proceedings, the net effect of which is that they have been unable to diligently prosecute their claim. Accordingly, the respondents

argue that the delay on their part is excusable.

54. In support of the view that a party’s involvement in other litigation may be taken into account as a possible mitigating factor in

respect of a delay, the respondents cite the decision of Laffoy J. in Corcoran v McArdle [2009] IEHC 265. Although in that particular

case the defendant’s preoccupation with other proceedings involving the plaintiff was not held to be sufficient to excuse his delay,

the Court did consider that the existence of a professional and business relationship between the plaintiff and defendant was a factor

to be taken into account in determining where the balance of justice lies. In response to a similar argument in Truck and Machinery

Sales Limited v. General Accident and Anor. (Unreported, High Court, 12th November, 1999) Geoghegan J. held as follows:

“Strictly speaking it would seem to me that the excuses relied on should relate in some way to the actual proceedings in

hand because an opposing party can hardly be expected to stand aside and wait while the other party resolves its

problems which have nothing to do with the litigation.

Nevertheless I am satisfied that all the surrounding circumstances including so called excuses based on extraneous

activities must to some extent be taken into account and weighed in the balance in finally considering whether justice

requires that the action be struck out or allowed to proceed”.

Respondents’ Submissions – Delay On The Part Of The Applicant

55. The respondents point out that the applicant, himself, was guilty of delay. They note that a Defence was not filed on behalf of

the applicant until 22nd May, 2006 – some thirteen months after the respondents issued their Statement of Claim on 14th April, 2005.

They also note that the applicant did not raise a Notice for Particulars until 6th September, 2011 – some six and a half years after

delivery of the Statement of Claim. The respondents also point out that they incurred further expense in furnishing replies thereto.

56. Furthermore, the respondents point to the fact that the applicant’s affidavit of discovery was not sworn until 9th September,

2011, some seven months after the respondents sought discovery in a letter dated 28th February, 2011. The applicant’s supplemental

affidavit of discovery was not sworn until 23rd September 2013, some two years after his first affidavit was sworn and two and a half

years after the initial request. Again, the respondents note that they incurred further expenses in dealing therewith.

57. As regards the relevant law in this area, the respondents cite the Primor principles as laid down by Hamilton C.J. and set out at

paragraph 30 above. The respondents also point to the decision in O’Connor v. John Player and Sons Ltd [2004] 2 ILRM 321 in which

Quirke J. elaborated upon the Primor principles and stated that the following issues are to be considered in assessing where the

balance of justice lies in cases of this nature:-

“A. The conduct of the defendants since the commencement of the proceedings for the purpose of establishing (a)

whether any delay or conduct on the part of the defendant amounted to acquiescence in the plaintiff’s delay and (b)

whether the defendants were guilty of conduct which induced the plaintiff to incur further expense in pursuing the

action;

B. Whether the delay was likely to cause or has caused serious prejudice to the defendants (a) of a kind that made the

provision of a fair trial impossible or (b) of a kind that made it unfair to the defendant to allow the action to proceed and

made it just to strike out the action, and;

C. Whether having regard to the implied constitutional principle of basic fairness of procedures, the plaintiff’s claim

against the defendants should be allowed to proceed or should be dismissed.”

58. Thus, the respondents submit that it is clear from both the Primor principles and Quirke J.’s elaboration thereon, that delay on the

part of the defendant is also a relevant factor to be taken into account.

59. Such a view finds further expression in Dowd v Kerry County Council [1970] IR 27, in which O Dalaigh J. stated that:-

“[I]n weighing the extent of one party’s delay, the court should not leave out of account the inactivity of the other

party…”

and that:-

“[L]itigation is a two party operation and the conduct of both parties should be looked at.”

60. Similarly, McMenamin J. in Lismore Builders, held that:-

“The onus to progress proceedings does not only lie on one side. I consider that these [the defendants’ delay in

delivering their respective defences] are countervailing factors which, albeit not, strictly speaking, acquiescence, cannot

be ignored.”

61. Fennelly J. in Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510 distinguished between culpable delay in taking any step in

the action and mere failure to apply to have the plaintiff’s claim dismissed. In the present case, the respondents submit that the

applicant must be guilty of culpable delay in that it took him almost three years to make discovery and six and a half years to raise a

Notice for Particulars on the respondents’ Statement of Claim.

62. The respondents further cite the decision of Muchwood Management Ltd v McGuiness [2010] IEHC 185 in this regard. In that

case, Dunne J held that, although there had been delay causing prejudice to the defendants, the defendants’ own delay amounted to

an acquiescence:-

“Having regard to the Primor principles to which I have referred already, I would have to say that this is a case in which

it is impossible to ignore the delay on the part of the defendants. I would go further and say that there has been

acquiescence by the defendants in the delay in this case. They initiated, participated in and delayed the process of

discovery to an extent that it is difficult to understand even taking into account that the events at issue go back as far

as 1990, relate to a tour in 1995 and deal with events on both sides of the Atlantic. Given that position, I am reluctant

at this point in time to make an order dismissing these proceedings for want of prosecution.”

63. It is the respondents’ contention that the total delay on the part of the defendant is of such a degree as to amount to an

acquiescence, as per the findings of Dunne J in Muchwood.

Respondents’ Submissions – Balance Of Justice/Prejudice

64. The respondents submit that, as per the Primor principles and the relevant subsequent case law, the conduct of the parties to

the proceedings is a valid consideration for the Court in assessing where the balance of justice lies. Thus, for the reasons outlined

already, the delay on the part of the applicant in these proceedings is a factor that should draw the Court to the conclusion that the

balance of justice lies in favour of allowing the litigation to proceed.

65. The respondents further submit that such a conclusion must be balanced against a consideration as to the degree of prejudice

that may befall the other party in the event of an inordinate delay.

66. In that respect, the respondents reject the applicant’s contention that he has been prejudiced by the delay in this case. Although

the applicant has suggested that a great deal of the evidence for the hearing will depend on the time-weathered ability of various

witnesses to recall particular events, the respondents are of the view that the oral testimony will centre around what they call the

“paper title” to the property in question. The respondents note that the documents in question have been in existence since at least

1930. According to the respondents, there is no suggestion of loss or damage that is incapable of identification, there are no

witnesses contended to be unavailable and no articulation of any specific issues insofar as the impact of the passage of time on

witnesses’ memory may be concerned. Indeed, in Manning v National House Building Guarantee Company Ltd & Ors [2011] IEHC 98

the Court was of the view that no prejudice had been suffered by the defendants because the relevant evidence which would decide

the case would be in the form of easily replicated evidence rather than the testimony of any one specific witness.

67. Moreover, the applicant has intimated that various key personnel, such as architects and builders, may not be available to give

evidence. The respondents, however, point out that the applicant cannot confirm whether or not this will actually be the case and

that, on that basis, he cannot point to any real prejudice against him.

68. The respondent advances the same argument in respect of the specialist counsel to whom the applicant referred in his affidavit

dated 6th March. 2014. This counsel, who commenced practice in 1972, was engaged by the applicant for the purposes of advising in

relation to the investigation into title, including the possessory title which is the subject matter of these proceedings. While the

respondent accepts that the counsel in question has been in practice for a significant period, they note that the applicant cannot

confirm that she will not now be available for hearing.

69. The respondents further cite the judgment of Dunne J. in Jackson v. MJELR [2010] IEHC 194 in which she noted that the delay

itself must be causative of the prejudice. They contend, in that respect, that the supposed prejudice suffered by the applicant is no

more than an “apprehended prejudice”.

70. The respondents also point to the fact that proceedings have progressed to the stage where pleadings are closed and discovery

has been made by the parties, which, they say, is further indicative of an absence of prejudice. The matter, they say, can be set

down for hearing immediately. The current state of the proceedings can thus be distinguished from cases where, for instance, a

Statement of Claim has not been served or some other procedural step is required to be taken.

71. Ultimately, it is submitted by the respondents that, taking all of the foregoing points into account, to have their claim struck out

at this juncture would constitute, in the words of McMenamin J in Lismore Builders, “…too draconian a remedy”.

Decision of the Court

72. The purpose of the Court’s discretion to dismiss for want of prosecution is to safeguard a defendant’s right to a fair trial. Delay

can defeat that right. Delay can hamper or inhibit a defendant in his defence. Witnesses who might have been available at an earlier

time might no longer be available. Even if available, their memory of the events, may be compromised. Evidence previously available

may now be irretrievably lost. These are some instances of the many ways in which delay may adversely impact on fair trial rights.

73. The principles to be applied by a court in considering whether to exercise its discretion to strike out proceedings are well settled

and are as set out in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 as recently endorsed by the Supreme Court in Comcast

International Holdings Incorporated v. Minister for Public Enterprises & Anor [2012] IESC 50.

Delay

74. Applying the primor principles to the facts of this case, the Court must first determine whether there has been inordinate delay by

the plaintiffs in prosecuting their claim. The Applicant submits that the respondent’s delay in issuing proceedings until the 25th

February 2005 in circumstances where its alleged cause of action arose either on the completion of the purchase of the property in

August 2001 or at the latest on the notification to it of the claim of C.I.E in March 2003, amounts to ‘inordinate delay’. The Court

does not accept that submission. These proceedings were issued within the statutory time limit for such a claim. The legislature has

seen fit to provide a time limit of six years within which to bring a claim for loss and damage arising from negligence and/or breach of

contract. A claim brought within the statutory period provided cannot therefore in the Court’s view give rise to a finding of ‘inordinate

delay’. Delay in issuing proceedings can however, come into the equation if the Court is carrying out the balancing exercise envisaged

by the last part of the Primor test.

75. Secondly, the applicant maintains that the delay from 22nd May, 2006 being the date on which it filed its Defence, to the 21

February, 2011 when the respondent filed a Reply to the Defence is inordinate, even allowing for the fact that there was

correspondence between the parties on the question of mitigation of loss up to the 19th February, 2007. The Court accepts the

applicant’s submission in this regard and finds that the respondents’ delay in prosecuting their claim was inordinate. That finding is not

mitigated in any way by the respondent’s service of a Notice of Intention to Proceed dated14th May, 2010, particularly when they did

not in fact proceed one month after the service of that Notice. The fact is that the issues in the case were in effect joined by May

2006, when the applicant filed his Defence. While the Court does not criticise either party for engaging in attempts to mitigate

potential loss, which efforts took place between the date of filing of the Defence in May 2006 and February 2007, thereafter, having

at least by inference rejected the applicants suggestions, the onus was on the respondents to get on with the claim. They did not do

so. Four years elapsed before the Reply to Defence was filed on the 21st February, 2011. By any yardstick such delay is inordinate.

76. The applicant has further submitted that the respondents’ delay of two years in replying to the applicants Notice for Further and

Better Particulars in the context of the earlier delays also amounts to inordinate and inexcusable delay. The Court does not agree.

Once the proceedings were reactivated in February 2011, matters proceeded at a slow pace on both sides. The issue of the

particulars sought by the applicant overlapped to some extent with the issue of discovery sought by the respondents. Neither party

appears to the Court to have brought any sense of urgency to the proceedings during this period, so that while there was a delay of

two years in filing the replies to the applicant’s Notice for Particulars, the Court does not consider that to be ‘inordinate’ delay in the

overall context of the conduct of the proceedings from 2011 to 2014.

77. The Court having found the respondents’ delay in prosecuting its claim between 2007 and 2011 to be inordinate, must next

consider whether that delay was excusable. The excuse proffered for the delay is that during this period the first respondent was

involved in a protracted dispute with a co-director of the second respondent, a Mr. Frank Ennis. Mr. Ennis had been the architect and

project manager for the development of the property the subject matter of the proceedings. It was he who had had day to day

management of the site and it was he who had applied for all necessary permissions. The dispute inter se was, according to the

evidence, settled in January 2013 and one of the terms was that Mr. Ennis would render all appropriate assistance in prosecuting this

claim. Again, according to the evidence, it became necessary to issue proceedings to enforce that settlement. While this

disagreement between the plaintiffs/respondents explains the reason for the delay, it does not in the Court’s view excuse it. The

plaintiffs/ respondents chose to issue these proceedings. Having done so, it is for them to prosecute their claim with appropriate

dispatch. There are procedural mechanisms for ensuring that the evidence of a recalcitrant witness is available to a Court of trial.

Much of the evidence in the possession of Mr Ennis appears to be documentary in nature and is likely to be capable of being proved

by parties other than Mr. Ennis. In any event the Court has no evidence that any steps were taken or even proposed by the

respondents to address the difficulties posed by the alleged non-co-operation of Mr Ennis. In these circumstances, as matters stand,

the Court is satisfied that the period of delay between 2007 and 2011, is both inordinate and inexcusable.

Balance of Justice

78. Where, as in this case, the Court has found that the respondent’s delay was both inordinate and inexcusable the Court must

further proceed to exercise a judgment on whether in its discretion on the facts of the case, the balance of justice lies in favour of,

or against, the proceeding of the case. In the Primor test at (d) (page 9 above) the Supreme Court set out a number of factors to

be considered in weighing the balance of justice. This list is not exhaustive and different considerations may apply on the facts of any

particular case. What does not change however, is the overarching requirement that a trial be fair, as guaranteed by the

Constitution. Thus, if by reason of the inordinate and inexcusable delay, a defendant cannot get a fair trial then the Court should

exercise its discretion to dismiss.

79. On the particular facts of this case the Court is satisfied that the applicant’s right to a fair trial has not been impaired by the

inordinate and inexcusable delay of the respondents. The core of the case relates to title to property. All of the documents upon

which that title is based, dating back to the 1930s, and upon which the applicant allegedly advised the respondents, are available.

Thus liability in the case will depend largely on expert testimony and legal argument as to the effect of those documents and whether

or not there was proper investigation of that title.

80. In this regard, as an example of potential prejudice, the applicant expressed ignorance of whether the specialist counsel who

advised on the title would be available to give evidence at the trial. This averment borders on the disingenuous, in that at the time of

swearing of the grounding affidavit, said counsel was recorded as being a member of the Law Library. Indeed the counsel concerned is

still so registered for 2015/16. Even if that counsel were unfortunately to ‘shuffle off this mortal coil’ before trial, the work done and

advices furnished would still be available for consideration by a Court of trial.

81. The applicant may be on somewhat firmer ground in asserting some prejudice on the issue of damages. The evidence suggests

that following notification to the respondents of a third party claim to an interest in the property in March 2003 the respondents

without apparently notifying the applicant, continued with the development and expended a further sum of in excess of €3 million

thereon. The applicant complains that at this remove it will be difficult to assess what was spent in the development of the property

and when and what if anything the applicant should be potentially liable for. It appears to the Court that this potential problem is

more perceived than real, but if the Court is wrong on this aspect and the applicant is genuinely prejudiced on the issue of damages,

then the Court is satisfied that any Court of trial in assessing damages would take that factor into account, and would not penalise

the applicant for the respondent’s delay.

82. Somewhat ironically, in respect of the issue of damages, it seems to the Court that the delay which has occurred, may in fact

have inured to the benefit of the applicant. It is now almost thirteen years since C.I.E. asserted that the respondents were merely

yearly tenants. Since then the respondents have unequivocally asserted ownership by building on the property and incorporating it

into their overall development, without it appears any complaint or action by CIE. This will be a matter for the Court of trial to assess

in due course and the Court is not making any determination in that respect, but is merely noting the irony that sometimes delay can

be beneficial to the person complaining of it.

83. Another factor in the Court’s decision is the fact that over the nine years that these proceedings have been trundling along, there

has never once been even a suggestion that the delays which were occurring were prejudicial to the applicant, up to the time this

Motion to dismiss was issued. When the proceedings were reactivated by the respondents in February 2011, having lain dormant for

four years, the solicitors for the applicant expressed surprise but only because the last position in the case had been that the

respondents’ solicitor was to discuss their suggestion re mitigation of loss with his counsel. There was no complaint about the delay

per se or any suggestion of prejudice. In fact in the last line of their letter, of 11th March, 2011, the applicant’s solicitors remind the

respondents’ solicitor of the need to comply with the High Court rules in view of the fact that the case had been dormant for over

four years. Similarly, when the solicitors for the applicants were looking for the respondent’s replies to his Notice for Particulars of 1st

February, 2012, they did so in a rather desultory fashion and never once suggested that their client was being in anyway prejudiced

by the respondents’ failure to progress matters. The applicants solicitors sent three short letters over two years, seeking the replies,

the first dated 26th July, 2013, eighteen months after the Notice was served; the second dated 25th November, 2013 threatening a

motion to compel replies and the third by email dated 16th January, 2014 affording a further 14 days in which to reply and threatening

a motion in default. While the respondents were clearly not being diligent in prosecuting their claim there was no intimation that such

want of diligence was affecting or prejudicing the applicant’s ability to defend the claim.

84. Finally, the applicant, relying on clause (d) vii of the Primor test which states;

“(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.”

has asserted that the continuation of the action has caused and continues to cause damage to his reputation. This asserted

‘reputational disaster’ has he says been hanging over him since 2005. The Court is not persuaded by this submission. Firstly, it was

made for the first time in the current application. At no stage was it asserted on the applicant’s behalf that his reputation or his

business was being damaged by the respondent’s claim. Furthermore, the Court notes that there is no counterclaim in respect of any

such damage.

85. The applicant is now retired with, as he says, his good name intact. The Court does not accept that a finding against him on this

claim would amount to ‘reputational damage’. There is no doubt in the Court’s mind, that thirty or forty years ago in this state, a claim

of negligence or breach of contract against any professional would have been viewed as personally damaging. But the world has

moved on and there is now an appreciation that even the best and most competent professionals can on occasions make mistakes.

That is why most competent professionals carry professional indemnity insurance so as to ensure that if a mistake is made, that

insofar as money can rectify a mistake, that money will be available. The Court does of course appreciate that the applicant would

prefer not to be in this position and that there is stress involved in being the subject of litigation. For that reason the Court is willing

to recommend that as this matter is now ready for hearing, it should be given such priority as may be available.