Unfortunately, this scenario is by no means rare and practitioners may well be asked to advise on the prospects of obtaining an order dismissing proceedings against their clients on grounds of delay. Whether the proceedings concern a purely commercial dispute or a personal injuries claim against a commercial entity, the challenge for the court will be the same. As Henchy J. explained in his Supreme Court judgment in O'Domhnaill v Merrick':
"In all cases the problem of the court would seem to be to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."
Numerous questions spring to mind in relation to striking such a balance: What principles or tests will the court apply? Is there more than one approach which the court can, take to the issue of delay? If proceedings were commenced within the relevant Statute of Limitations period, is delay of any relevance? Will the fact that the plaintiff is not personally to blame for delay prevent the proceedings from being dismissed? To what extent can the court's jurisdiction to strike out proceedings be used to punish those who delay? Can a plaintiff's socio-economic background ever be a factor in excusing delay? Can the court expect a different standard from a large corporation involved in a commercial dispute, as opposed to a poorly resourced litigant? Will the reputational damage caused by long-delayed proceedings feature in the court's decision-making? Can the court strike out proceedings even where the defendant can identify no specific prejudice resulting from the delay? This article looks at the approach of the superior courts to the issue, of delay in the context of applications to dismiss legal proceedings, and attempts to address these types of questions. As well as identifying certain principles which emerge from the jurisprudence, it is intended to refer to the facts in a number of cases in the hope that it will provide some practical guidance for practitioners. Some of the cases discussed concern exclusively commercial disputes. Others involve personal injuries actions, be they against corporate bodies or individuals. However, the principles which emerge from the authorities are applicable across the spectrum of civil proceedings and, therefore, highly relevant to commercial clients and those who advise them.
Rules of the superior courts
As a starting point, we see that delay, as a basis for applying to court to dismiss a claim, is specifically addressed in the Rules of the Superior Courts (RSC).Order 27 r.1 RSC states:
"If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, subject to the provision of rule 1A, at the expiration of that time, apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of the first such application, the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just; and on the hearing of any subsequent application, the Court shall order the action to be dismissed as aforesaid, unless the Court is satisfied that special circumstance's (to be recifed in the order) exist which explain and justify the failure"
Furthermore, Ord.122 r.11 RSC provides as follows:
"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."
Convention for the protection of human rights and fundamental freedoms
Ireland also has obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention"), by virtue of the enactment of the European Convention on Human Rights Act 2003. Among the provisions in the Convention is art.6.1, which states:
"In the determination of his civil rights and obligations....everyone is entitled to a....hearing within a reasonable time."
Ireland's obligations under the Convention have been made clear in cases such as McMullen v Ireland and the jurisprudence in this area would suggest that, independent of the parties to proceedings, the courts have an obligation to ensure the timely resolution of matters brought before them.
Special facts and particular circumstances
Notwithstanding these provisions, it should not be assumed that because a statement of claim is not delivered on time, or there has been inaction on the part of a plaintiff for the two years referred to in Ord.122 r.11 RSC, the court is necessarily going to dismiss the claim. As Ó Dalaigh C.J. observed almost half a century ago in Dowd v Kerry County Council:
"It is, of course, desirable that the timetable as laid down in the rules should be adhered to, but the question remains whether the delay and consequent prejudice, in the special facts of the case, are such as to make if unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action."
Given the uniqueness of each case, there can be no hard and fast rule when it comes to the court's response to delay. As the Supreme Court stressed over three decades ago, "whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case".
Patently and grossly unfair
The seminal 1984 decision in O'Domhnaill v Merrick concerned a cause of action which arose in 1961. For the purposes of the plaintiff's proceedings, the relevant limitation period was accepted as expiring in 1981. A plenary summons issued in September 1977 but no statement of claim was delivered. In May 1982, the Master of the High Court made an order extending the time for delivery of a statement of claim. Following an appeal to the High Court, the Master's order was discharged and the plaintiff's action was dismissed for want of prosecution. On appeal to the Supreme Court, a majority held that it would not be reasonable to require the defendant to defend the action. As Henchy J. put it:
"Although the plaintiff's claim is not statute barred, I would hold that the lapse of 24 years between the cause of action and the hearing of the complaint-a delay which is virtually entirely the fault of the plaintiff or her advisers-is so patently and grossly unfair to the defendant that her claim to have the case against her dismissed is unanswerable."
Puts justice to the hazard
Elsewhere in his judgment in O'Domhnaill, Henchy J. explained the principles underpinning the Supreme Court's decision, emphasising that the interests of justice may require a case to be dismissed where the passage of time has resulted in a real risk of an unfair trial or unjust result:
"While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road traffic accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant who has not in any material or substantial way contributed to the delay should be freed from the palpable unfairness of such a trial."
Thus, we see that principles emerging from O'Domhnaill revolve around the court's duty to ensure basic fairness and avoid injustice, the focus being squarely on the position of the defendant and whether it would be unfair if they had to face a trial of the delayed claim.
Fair trial no longer possible
Henchy J.'s comments in O'Domhnaill echo those made 16 years earlier by Diplock L.J. in Allen v Sir Alfred McAlpine and Sons Ltd, where his Lordship explained the rationale underlying the jurisdiction of the court to dismiss proceedings on grounds of delay as follows:
"The chances of the court's being able to find what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the court as to what happened generally lies. But there may come a time when the interval between the events alleged to constitute the cause of action and the trial of the action is so prolonged that there is a substantial risk that a fair trial of the issues will be no longer possible. When this stage has been reached, the public interest in the administration of justice demands that the action should not be allowed to proceed."
Denial of justice
In Allen, a construction company building a power station was sued by the widow of an employee who died after falling 35 feet through a hole in the building's floor. The employer claimed that the condition of the floor was the responsibility of a third party contractor. The proceedings were issued in July 1960 and, in October 1967, Chapman J. dismissed the plaintiff's appeal from the order of Master Elton, made in May 1967, striking out the proceedings for want of prosecution. The plaintiff appealed. In his judgment, Lord Denning, then Master of the Rolls, made it clear that "the widow had undoubtedly a good claim against the employers, McAlpines, for breach of statutory duty". However, this fact alone did not save the proceedings from being dismissed. Nor did the fact that the delay was the fault of the plaintiff's solicitors, rather than the plaintiff personally, prevent the court from dismissing the case where a fair trial was no longer possible. As his Lordship explained, in a judgment which also cites the practical consequences of the delay:
"In all the circumstances, I think the delay was so great as to amount to a denial of justice. It is a matter for great concern that a widow, who had a good claim for compensation, should have been kept out of it for so long, especially at a time when it would have been of the most use to her. She suffered a grievous wrong by the death of her husband. She has now suffered another grievous wrong by the delays of her own solicitors. The employers too have been gravely prejudiced by the delay. They had a claim for contribution or indemnity from the third party. That claim depended on an investigation of facts which took place nearly nine years ago. The delay has been so great that two out of six witnesses cannot now be traced and the memory of the other four must be greatly impaired. It is impossible to have a fair trial after so long a time. The judge struck out the action. I would not disturb his decision."
Inherent jurisdiction and the statute of limitations
Thus, it seems that the court enjoys an inherent jurisdiction, in the interests of justice, to dismiss a claim where the length of time which has elapsed between the events giving rise to the proceedings and the likely hearing date is so great that it would be unjust to call upon the defendant in question to have to defend the action. Significantly, this jurisdiction is exercisable even if the proceedings in question were brought within the relevant time limit set out in the Statute of Limitations and even if the plaintiff is not to blame, in a personal sense, for the delay. As Finlay C.J. put it in Toal v Duignan (No.2):
"I adhere to the view....that the 'court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give the Oireachtas a supremacy over the courts which is inconsistent with the Constitution. If the courts were to be deprived of the right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an unjust result merely by reason of the fact that the Oireachtas has provided a time limit which in the particular case has not been breached would be to accept a legislative intervention- in what is one of the most fundamental rights and obligations of a court to do ultimate justice between the parties before it."
Impossible to defend
In Toal (No.2), the Supreme Court held in 1991 that proceedings against the eighth-named defendant in the case should be dismissed, in circumstances where the cause of action against her was an alleged failure to provide adequate advice 20 years earlier. Despite having made what the court found to be "extremely exhaustive
inquiries", the defendant in question could locate no form of written record of any assistance to her concerning
the events giving rise to the claim. At a remove of two decades, the court held that the defendant "would find it
virtually impossible to defend herself against the particular allegations that are now being made". The court's
decision highlights the competing interests at play and the balancing act which the court engages in, the interests of justice being the touchstone. As Finlay C.J. put it:
"Notwithstanding the clear interest of the plaintiff to try and maintain these proceedings against this defendant, and notwithstanding the prejudice which a dismissal of his action against this defendant may involve, I am satisfied that the balance of justice is in favour of dismissing this claim."
Construction project
Two years after the decision in Toal (No.2), the High Court considered an application to strike out a claim
alleging negligence and breach of contract concerning the establishment and construction of factory premises
in Ireland at the invitation of the IDA. In Celtic Ceramics Ltd v Industrial Development Authority, the events
giving rise to the proceedings took place in 1982, but proceedings were not issued until 1988. A statement of
claim was delivered in August 1989 and an application to dismiss the claim for want of prosecution was brought in
February 1992. In granting the application and dismissing the proceedings, O'Hanlon J. found that there had been "inordinate" and "inexcusable" delay on the part of the plaintiffs, both in relation to commencing the proceedings and in the prosecution of the action.
Foreign-based paintiffs
In the court's view, none of the reasons proffered, including the fact that the plaintiffs were resident outside of the
jurisdiction, could justify the delay. As O'Hanlon J. put it:
"Reference is....made to the fact that some of the plaintiffs are Spanish and are located in Spain, and that much of the documentation has to be translated from Spanish or Italian; that a change of solicitors had taken place with a delay in recovering files from the former solicitors, and then collating them, but no dates or times are put forward to indicate how these general pleas of difficulties could justify the delay of so many years in bringing proceedings and in carrying them forward once they had been initiated."
Professional standing and competence under attack
The court also recognised an issue of concern to many commercial entities who must operate in business with
litigation hanging over their heads. O'Hanlon J. found that, as a result of the delay, serious threats to the professional standing and reputation of the defendants remained unresolved for a considerable length of time and this was contrary to implied constitutional principles of basic fairness of procedures. As O'Hanlon J. explained:
"It seems very unfair and unjust that persons whose professional standing and competence are under attack should be left with litigation hanging over their heads for years by reason of inordinate and inexcusable delay on the part of a plaintiff and I would respectively echo the views expressed by Henchy J. in Sheehan v Amond that it should be possible to invoke 'implied constitutional principles of basic fairness of procedures' to bring about the termination of such proceedings."
In addition to finding that the delay was both inordinate and inexcusable, O'Hanlon J. held that each of the defendants had been prejudiced in a material respect by this delay and the court was satisfied that the balance of justice lay in favour of dismissing the proceedings.
Prejudice
In relation to the type of prejudice which would justify the striking out of an action for want of prosecution, O'Hanlon J. drew on comments by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd. There, having analysed a number of English and Commonwealth decisions concerning the nature of prejudice which would justify dismissal of proceedings, his Lordship found as follows:
"These authorities clearly establish that prejudice may be of varying kinds and it is not confined to prejudice affecting the actual conduct of the trial. It will be foolish to attempt to define or categorise the type of prejudice justifying striking out an action, but there can be no doubt that if the defendants had been able to establish significant damage to their business interests, flowing directly from the culpable delay of 13 months after the issue of the writ, a judge would have been entitled to regard it as prejudice justifying striking out the action. I would, however, express a note of caution against allowing the mere fact of the anxiety that accompanies any litigation being regarded as of itself a sufficient prejudice to justify striking out an action."
O'Hanlon J. also relied on the following analysis by Lord Griffiths in relation to the requisite extent of prejudice
caused by post-commencement delay, where pre-commencement delay has already prejudiced a defendant:
"If the defendant has suffered prejudice as a result of such delay before issue of the writ, he will only have to show something more than minimal additional prejudice as a result of the post-writ delay to justify striking out the action."
Solicitors' negligence
Sheehan v Amond, which O'Hanlon J. referred to in Celtic Ceramics, concerned the defendant's application
to dismiss proceedings nine years after serving a formal defence and 17 years after the events giving rise to the
claim. The Supreme Court's judgment was highly critical of the failure by the plaintiff's solicitor to progress the claim, and characterised this as "seeming negligence". As well as being a salutary reminder of a practitioner's obligations, the judgment emphasises the principle of fundamental fairness and the court's willingness to dismiss a claim if the delay means that having to face a trial would be unfair to a defendant. In his judgment, Henchy J. put it as follows:
"Not one word of evidence was tendered in the High Court by, or on behalf of, the plaintiff's solicitor to explain, justify or even make understandable the manner in which he had allowed the plaintiff's case to acquire the appearance of extinction, or to suggest why the defendant should be expected to cope with a claim which had become enmeshed in the cobwebs of history. Nevertheless, although the evidence of inactivity and of seeming negligence was all on one side (i,e. that of the plaintiff's solicitor), the High Court judge allowed the action to proceed provided notice of trial was served within one week. Understandably, the defendant has appealed against that decision. In effect, his counsel submits that it would be contrary to the fundamentals of fair court procedures if, after what would be at least 17 years after the accident in question, the defendant were to be expected to mount an effective defence against a claim which the plaintiff's solicitor has inexplicably allowed so to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation. For my part find the defendant's appeal unanswerable."
Broad principles
By the time Finlay P., as he then was, heard the defendants' application to dismiss the proceedings for
want of prosecution in Rainsford v Limerick Corporation, a period of eight years had elapsed since the events
giving rise to the claim. Proceedings had been issued within two years of the cause of action arising, but the
court was satisfied that the post-commencement delay was inordinate. It is clear from the judgment that the
court had considerable sympathy for the plaintiff, who had severe health difficulties and was not to blame, in
a personal sense, for the delay. Of relevance too was the fact that the plaintiff's solicitor had been seriously ill
and subsequently died. Nevertheless, these factors did not excuse the delay and the court went on to consider
where the balance of justice lay. Having reviewed several authorities from Allen onwards, Finlay P. identified a set of clear principles in the following terms:
"It is possible to elucidate certain broad principles which are material to the facts of this case and which would appear to constitute the legal principles underlying this problem of the dismissal of an action for want of prosecution or the permitting by the extension of time for pleading of it to continue in this country at present: (1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings. (2) Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings. (3) Even where the delay has been both inordinate and inexcusable the court must further proceed to 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. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion. (4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the court's discretion."
Chances of a major injustice
Applying these principles, Finlay P. came to the conclusion that the balance of justice lay in favour of permitting the action to proceed. Significantly, Finlay P. found that there did not appear to be any real prejudice to the defendants in ascertaining and defending on the issue of damages. As regards the failure of recollection of witnesses, the court felt that it was difficult to say with certainty how much that might affect the defendants any more than it might affect the plaintiff and his witnesses. In extending the time for the filing of a statement of claim, Finlay P, found that:
"The chances of a major injustice being done to the plaintiff were the action now to be dismissed [are] significantly greater than the chance that a major injustice would be done to the defendants by allowing it to proceed."
Lansdowne Road
Hogan v Jones involved proceedings concerning the former west stand at the IRFU's Lansdowne Road
grounds. The relevant contract had been signed in June 1977 and a certificate of practical completion of the works issued in March 1978. In 1982, High Court proceedings were issued against the architects, engineers and
builders of the stand alleging negligence in its design and construction. A plenary summons was served in October 1982 and a statement of claim was delivered in January 1984. A defence by the builders was delivered in February 1988. During the period 1988-1992, the plaintiffs delayed for approximately two years on two separate occasions in relation to replying to notices for particulars. A notice of trial was served in November 1989 and a certificate of readiness in relation to the case issued in June 1993. In July 1993, the third-named defendant brought a motion to dismiss the plaintiffs' claim against it for want of prosecution.
Jurisdiction is not to punish
It fell to Murphy J. to decide the matter in 1994, approximately 16 years after the alleged wrongdoing by
the defendants. In a judgment which analysed several authorities but did not look specifically at O'Domhnaill, Murphy J, applied the Rainsford principles, and refused to strike out the proceedings. In the course of his judgment, Murphy J. stressed that the purpose of a strike out order is not punitive:
"The draconian penalty of dismissing proceedings as against a particular defendant in circumstances which will wholly defeat that claim of the plaintiff is not an order which is made with a view to punishing a party for his dilatoriness in proceeding with the action or for his failure to meet some artificial regime. The order is made only where it is necessary to protect the legitimate interests of the party sued and in particular his constitutional right to a trial in accordance with fair procedures."
A late start
Despite refusing to dismiss the proceedings in question, Murphy J. cited, with approval, principles expressed by
Lord Diplock in Birkett v James concerning delay in commencing proceedings and the added burden placed
on a plaintiff in such circumstances:
"It follows a fortiori from what I have already said in relation to the effects of statutes of limitation on the powers of the court to dismiss actions for want of prosecution that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced by the consequent lack of early notice of the claim against him, the fading recollections of his potential witnesses, their death or their untraceability. To justify dismissal of an action for want of prosecution, the delay relied on must relate to the time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in light of the time that has already passed before the writ was issued."
Whereas delay prior to the commencement of proceedings, which are issued within the relevant Statute of Limitations period, may not justify dismissal for want of prosecution, it is submitted that pre-commencement delay will be very relevant to the court's exercise of its jurisdiction to strike out a claim in the interests of justice, applying the principles emerging from O'Domhnaill. The existence of these two approaches is one of the notable features emerging from an analysis of the response of the courts to delay, something this article will return to later.
Primor Plc v Stokes Kennedy Crowley
Many practitioners will be familiar with the 1996 decision in Primor Plc v Stokes Kennedy Crowley. The key facts can be summarised as follows. The defendant acted as auditor for the plaintiff in relation to the financial year ending 31 December 1978. The plaintiff issued proceedings in December 1984 claiming, inter alia, that the defendant had failed to carry out its obligations in a prudent and careful manner. Proceedings were served the following year and a statement of claim was not delivered until January 1986. A defence was delivered in January 1991, shortly after which cross-orders for discovery were made, on consent. In February 1994, the High Court (O'Hanlon J.) refused the defendant's application to dismiss the claim for want of prosecution, finding that, although the plaintiff had been guilty of inordinate and inexcusable delay, the fact that the defendant had sought a cross-order for discovery in January 1991 and the fact that the plaintiff had incurred considerable expense in complying with the order, stopped the defendant from obtaining a dismissal of the proceedings. The defendant appealed to the Supreme Court, as did another firm of accountants who were named in a second set of proceedings also brought by the plaintiff, in which similar allegations were made in respect of the following financial year.
Elaboration of the Rainsford principles
In allowing the appeals and dismissing the proceedings for want of prosecution, Hamilton C.J. set out, in
some considerable detail, the legal principles relevant to an application to strike out proceedings for want of
prosecution. Elaborating on the principles laid down in Rainsford, Hamilton C.J. gave very detailed guidance
as follows:
"The principles of law relating 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 where 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, (viii) 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."
Three-limb test
As we can see from the foregoing, Primor essentially lays down a three-limb test, in that the court must ask:
(1) Is the delay inordinate? (2) Is the delay inexcusable? (3) If the delay is both inordinate and inexcusable, is the
balance of justice in favour of, or against, the case being allowed to proceed?
Inordinate delay
Practitioners may well have encountered situations where, when faced with an application to dismiss delayed
proceedings, a plaintiff acknowledges that their delay has been inordinate and concentrates instead on trying
to excuse the delay or argue that the balance of justice still favours the action being allowed to proceed. Even
if the first limb of the Primor test tends to be the least controversial, guidance as to the meaning of inordinate
delay emerges from the authorities. On 19 July 2012, Cooke J. delivered his decision in Framus Lfd v C.R.H.
Plc, which concerned applications by the defendants to dismiss proceedings against them on the grounds of
inordinate and inexcusable delay. The plenary summons in question had been issued on 1 December 1996 but, as Cooke J. observed in the first lines of his judgment, the matter lay "dormant" since at least 2006. During the course of his decision, which comprehensively summarised previous case law, Cooke J. held that, "[i]n its ordinary meaning, delay is 'inordinate' when it is irregular, outside normal limits, immoderate or excessive". Cooke J. was satisfied that the plaintiffs' delay, particularly some five years during which the plaintiffs took no step in the action subsequent to the making of discovery, was "manifestly inordinate". Nor was the delay excusable. The court also found prejudice to the defendants arising from the non-availability of some key witnesses and the very probable difficulties of recollection of others, and dismissed the action.
Inexcusable delay
The reasons proffered by plaintiffs, in an attempt to excuse delay, will naturally stem from the individual factors in
each case and, therefore, are as varied as the different circumstances in different proceedings. This article aims to refer to a range of these excuses when discussing the key facts in a number of authorities. For example, in Desmond v M.G.N. Ltd, the plaintiff claimed that the reason for the delay was legal advice given to him not to progress the proceedings in question, in circumstances where issues to which the proceedings related also formed part of the subject matter of the Moriarty Tribunal. Nevertheless, the Supreme Court regarded the delay as inexcusable, criticising the plaintiff for not informing the defendant of the foregoing and for unilaterally failing to progress his action for tactical reasons. However, applying the balance of justice test, the majority allowed the case to proceed.
Socio-economic background
When applying the Primor test, is the court permitted to have regard to the socio-economic background of a
plainfiff in order to determine what constitutes inexcusable delay? For instance, can the court apply a less rigorous standard as to what is inexcusable delay on the part of someone from a very disadvantaged background, than the court would apply to a plaintiff hailing from a more advantaged environment? This very issue has arisen in cases which pre-date and post-date Primor.
Economically and socially deprived
Four years before the Primor decision, in Guerin v Guerin Costello J. was asked to place a stay in 1992 on legal proceedings which had been commenced in 1984, where the cause of action arose 20 years earlier, in 1964 when the plaintiff was a minor. The court found that the delay in instituting the proceedings was certainly inordinate. However, a key issue in the case was whether the court should excuse the delay in circumstances where, because of their disadvantaged social background, neither the plaintiff's parents nor the plaintiff realised that there was a cause of action until 1984 when the plaintiff, by chance, had a casual conversation with a solicitor. In deciding that the inordinate delay should be excused by the court, Costello J. relied on the following fact:
"The plaintiff's family lived in one of the poorest sectors of the community, the permanently unemployed....Theirs was an economically and socially deprived world from which the world so familiar to lawyers in which people sue and are sued was remote and arcane."
Destituteness
Two decades later, in Comcast International Holdings Ltd v Minister for Public Enterprise, the Supreme Court considered an appeal by the plaintiffs against a High Court decision striking out proceedings which arose from matters investigated by the Moriarty Tribunal. During the course of her judgment, Denham C.J. held that the Primor case accurately stated the law to be applied. She found on the facts that there was at least acquiescence by the State defendants in relation to the delay in question and held that the interests of justice permitted the delay to be considered excusable. Individual judgments by others members of the Supreme Court concurred in the decision to allow the appeals and permit the three sets of proceedings, all of which were originally commenced in 2001, to continue. In his judgment, McKechnie J. made specific reference to the Guerin decision as follows:
"In a powerful understanding of the disadvantaged and with a deep insight of the deprivation under which they labour, Costello J. excused the delay by reference to the plaintiff and his family's destituteness in virtually every aspect of their existence, including their living, financial and educational circumstances....Given their particular circumstances it was held that the delay, although undoubtedly inordinate, was in the judge's view excusable."
Same delay, different treatment
McKechnie J. in Comcast elaborated on the theme, emphasising that in different circumstances different
standards may be expected and accepted:
"My point is utterly simple. In the situation under discussion, justice is best achieved by letting it react to given facts. The same period of delay, in different cases, may demand different treatment. Justice is not always referenced to the highest bar. If that were the case, the wealthy, powerful, and the influential would set it: That should not be allowed. Justice sets its own bar. A failure of the average man and his average lawyer to match the gold standard of their opposite in society and in practice must not be necessarily condemned."
Commercial disputes
This theme was echoed by Clarke J. in his judgment in the same case, in which he emphasised that the court
will not be blind to what might be termed "inequality of arms" when it comes to looking at whether delay should
be excused. He put it as follows:
"I should express my agreement with a number of the observations made....by McKechnie J. in his judgment in this case. First, I agree fully with the comments made by reference to Guerin v. Guerin....The circumstances of the parties and, in particular, any disparity in the resources available to the parties must always be a factor which the court takes into account. The degree of expedition and compliance with time limits which could properly be expected of large corporations involved in commercial disputes cannot reasonably be required of poorly resourced or otherwise disadvantaged litigants."
Commercial enterprises
A focus by the court on the resources available to a commercial entity involved in commercial litigation, in the
context of the speed reasonably expected of it, is not a new development. Fifteen years ago, in Silverdale and Hewett's Travel Agencies v ltaliatour, Finnegan J, suggested that a substantial commercial enterprise is expected to pursue commercial litigation expeditiously, and a failure to do so would be culpable delay. Finnegan J. put it as follows:
"In considering a party's personal blameworthiness, one must look at the circumstances of the party. The plaintiff in the present case is a considerable commercial enterprise and must be expected to pursue litigation of a commercial nature with reasonable expedition and to that end take steps to ensure that its legal advisors act in an appropriately expeditious manner."
Statement of claim
As we have seen; whether delay is "inordinate" will always depend on the particular circumstances of the case in
question. However, the authorities provide some guidance as to periods of delay likely to be considered inordinate, in relation to delivery of a statement of claim. In addition to the examples already touched on, we see that in O'Connor v John Player & Sons Ltd, Quirke J. held that a delay of four years and 11 months between issuing a plenary summons and delivering a statement of claim undoubtedly constituted inordinate delay. In Comcast, Clarke J. held that "[e]ven in complicated cases; where the formulation of a detailed statement of claim would undoubtedly take some time, delays of a fraction of five years have been considered inordinate"
Involvement in other litigation
Many commercial law practitioners will have corporate clients involved in several ongoing cases at the same time. What, then, of the court's attitude to one case being delayed due to a focus on another? In Truck and
Machinery Sales Ltd v General Accidenf Fire and Life Assurance Corp PIc, the plaintiff suggested that its delay
was excusable due to the fact that it had been distracted by involvement in other litigation. Commenting on this,
Geoghegan J. had the following to say:
"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."
"Parking" litigation
In his decision in Comcast, Clarke J. took the view that a party wishing to "park" its claim pending the outcome of
some extraneous event cannot rely on a unilateral decision by it to do so as an excuse for its delay. He offered the following explanation:
"It seems to me that a party, who wishes to adopt what might, in ordinary circumstances, be considered to be an unorthodox approach to litigation (such as by putting the proceedings on hold pending some event), is required to, at a minimum, place on record with all other parties to the litigation, that that course of action is being adopted. It does not seem to me that it is legitimate for a party to adopt an unorthodox approach to litigation on a unilateral basis. Unorthodox action signalled contemporaneously and not contested at the time is likely to be more readily accepted by the court as providing an excuse than the same action taken unilaterally and only referred to after the event as retrospectively providing an explanation."
Acquiescence
We saw earlier in Comcast that acquiescence on the part of a defendant may render inordinate delay excusable.
It also seems clear that acquiescence on the part of a defendant in relation to delay which the defendant later seeks to rely upon, as a basis for an application to strike out proceedings, will be highly relevant to a determination of where the balance of justice lies. In Muchwood v McGuinness - a case where significant delays arose in the context of an action for alleged breach of contract, misrepresentation, breach of warranty and breach of fiduciary duty - Dunne J. commented as follows:
"It seems to me that in the context of considering the balance of justice, the critical issues to consider are whether the delay or conduct on the part of the defendants could be said to amount to acquiescence on the part of the defendants in the plaintiff's delay and whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to have caused serious prejudice to the defendants."
Sleeping dogs
Thus, there may be adverse consequences for inaction or acquiescence on the part of a defendant. Inaction,
however understandable, carries risk for any defendant who decides to "let sleeping dogs lie", as Ó Dálaigh C.J.
pointed out in Dowd:
"I wish to add two further general observations. First, in weighing the extent of one party's delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution....the adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances, it is acted upon by a defendant in the hope that he will 'get by' without having to face the peril of being decreed. Litigation is a two party operation and the conduct of both parties should be looked at."
Ordinary people
In a more recent judgment delivered on 28 February 2014 in Vernon v AIBP Ltd, Barrett J. considered the
defendant's application to dismiss the plaintiff's case for want of prosecution, in circumstances where proceedings
were issued in November 2001. From 2004, there had been no activity in the case although the court noted that,
between 2004 and 2012, the plaintiff suffered from ill health and a range of misfortunes. It was accepted by counsel for the plaintiff that the delay following the commencement of the proceedings was indeed inordinate. However, the plaintiff's counsel urged the court to have regard to the plaintiff's socio-economic background, as well as to certain personal and family misfortunes which she had endured, as a basis for excusing the delay. Echoing the court's approach 22 years earlier in Guerin, Barrett J. took the following view:
"AIBP has contended that the jurisprudence as regards delay in the prosecution of proceedings has evolved since the decision in Guerin. However, it appears to the court that it is as true today as it was when Guerin was decided that so-called 'ordinary' people may be guilty of perhaps unordinary delay which is not inexcusable when attributable to them, but would be inexcusable if attributable to someone hailing from a more advantaged background. There is nothing in the jurisprudence of the Supreme Court to which the court was referred and which is applied in the present case, that contravenes this truth."
Two tests
Applying the Primor test, Barrett J. found that, although inordinate, the delay was excusable and, that being so, the third limb of the test, concerning the balance of justice, did not arise. However, Barrett J. then turned to the decision in O'Domhnaill, which invites the court to strike a balance between the plaintiff's need to carry on the delayed claim and the defendant's basic right not to have to meet a claim which they could not reasonably be expected to defend. On the basis that both lines of authority remained valid, Barrett J. then applied a second test, under the O'Domhnaill principles, and found that Ms Vernon's case was not a claim which AIBP could not reasonably be expected to defend. Accordingly, the application to dismiss the plaintiff's claim was rejected.
Two strands
The proposition that there are two parallel approaches to delay which the courts are entitled to take is also evident from the judgment of McKechnie J. in Comcast. There, he referred to the "two strands" to the court's inherent jurisdiction. McKechnie J. also commented on the jurisdiction of the court, having regard to the specific RSC which address delay. He put matters as follows:
"The basis of the relief being sought is stated in the alternative, firstly, on the delay being inordinate and inexcusable, and secondly, by reason of such delay justice requires the dismissal of the proceedings. The Motions may thus be classified as seeking, a dismissal for want of prosecution and in the interests of justice. Apart from these two strands, I know of no other approach in the present context. The jurisdiction invoked is said to be inherent to the court: no mention is made in the Motions of the Rules of the Superior Courts (the 'Rules'), in particular neither O 27 R1 nor O 122 R11 are mentioned. Even if they had I consider the underlying jurisdiction to be the same."
O'Domhnaill and Primor tests contrasted
If it is settled law that the Primor test remains the appropriate approach to an application to dismiss a case for failure to prosecute the proceedings, it can also be said that a slightly different set of principles, stemming
from the decision in O'Domhnaill, continue to inform how the courts look at an application to dismiss proceedings in the interests of justice. The fact that the court has such an inherent jurisdiction has been re-stated a number of times, including by McKechnie J. in Comcast, where he both commented on the nature of the jurisdiction and identified the features of the relevant test in the following terms:
"That the courts have such an inherent jurisdiction cannot be doubted. It surfaced in O'Domhnaill, was further established in Toal (No. 1) and Toal (No. 2) and since then, in several cases, has been accepted without question. It has a somewhat distinct basis and separate existence from Primor, but many of the matters relevant for its application are common to both. The test to be applied has been described variously such as, by reason of lapse of time or delay: (i) is there a real and serious risk of an unfair trial, and/or of an unjust result; (ii) is there a clear and patent injustice in asking the defendant to defend; or (iii) does it place an inexcusable and unfair burden on such defendant to so defend?"
McKechnie J.'s articulation of the O'Domhnaill test mirrors precisely the formulation proposed by Finlay Geoghegan J. in her judgment, seven years earlier, in Manning v Benspn & Hedges Ltd. Having set out the above test, Finlay Geoghegan J. suggested that the factors to be considered in relation to each element of the test might include the following:
"1. Has the defendant contributed to the lapse of time. 2. The nature of the claims. 3. The probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues. 4. The nature of the principal evidence; in particular whether there will be oral evidence. 5. The availability of relevant witnesses. 6. The length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and the probable trial date."
A wider jurisdiction than Primor
Comparing both tests shows that Primor focuses on the plaintiff's conduct before moving to the defendant's
position, whereas O'Domhnaill concentrates on the defendant, and whether they would suffer a patent
injustice or unfair burden if required to meet the delayed claim. This distinction, as well as other features of the
court's jurisdiction under the O'Domhnaill principles, was explained by McKechnie J. in Comcast as follows:
"There are a number of features to this jurisdiction which are worthy of note: firstly that it applies even if the proceedings are instituted within the statutory period prescribed for by the Oireachtas; secondly, that a defendant can succeed in avoiding a merit hearing even where a plaintiff is entirely blameless for the delay, in either a personal or a vicarious sense; and thirdly, that the time period looked at, commences from the date of the alleged wrongful acts and continues to the anticipated date of trial. In addition however, it also has the distinct feature of its focus being on the defendant: as appears from the descriptive nature of the test as given, the criterion essentially is defendant directed. This is in stark contrast to the Primor principles where the positions of both are equally considered. It is therefore clear that this is a wider jurisdiction than Primor with a lower threshold to surmount before its successful invocation. That distinction, coupled with the others as identified, makes this jurisdiction one which should be sparsely used and little availed of."
Different tests, different results?
As we have seen from the Primor test, if the court is satisfied that the delay in question, although inordinate,
is excusable, there are no grounds for dismissing the proceedings and no necessity for the court to proceed
to the third limb of the test, concerning where the balance of justice lies. However, in light of the existence
of a parallel jurisdiction under O'Domhnaill to dismiss legal proceedings in the interests of justice, applying a
somewhat different and more defendant focused test, a question arises as to whether the differing tests could
produce two different results? An affirmative answer emerges from the decision of Hogan J. in Donnellan Westport Textiles Ltd (In Voluntary Liquidation). The case concerned proceedings commenced in September 2000 which were served in May 2002. A notice for particulars was delivered in 2005 but not replied to by the plaintiff until August 2010. However, the events giving rise to the claim went back as far as 1973. The defendants applied to strike out the proceedings but did not identify any particular prejudice arising from the delay. It was accepted that the plaintiff would.suffer prejudice if he was deprived of the entitlement to pursue his claim.
Primor not an exclusive test
The defendants argued that, even in the absence of specific prejudice, the court retained an inherent discretion
to strike out proceedings for gross delay. Hogan J. held that the delay was both inordinate and inexcusable.
He went on to find that there were two separate, albeit overlapping, lines of authority. He described the test in
Primor as the starting place in relation to motions of this kind but held that Primor does not represent an exclusive
test. Having reviewed a number of decisions, including, in particular, the judgment of Geoghegan J. in McBrearty
v Northwestern Health Board, Hogan J. put matters as follows:
"....Geoghegan J. expressly confirmed that the Primor principles were not to be regarded as exclusive or all-encompassing and....that the Court's constitutionally derived inherent jurisdiction could be exercised even though some elements of the Primor test had not been established. If this is correct, then it follows that in an appropriate case, this Court can strike out proceedings, even though the third limb of the Primor test might not have been established, where, for example, no specific prejudice to the defendants has been established."
Prejudice to the public interest
Having also looked in some detail at the decision of Peart J. in Byrne v Minister for Defence, in which the concept
of prejudice to the public interest, as opposed to specific prejudice to a defendant, was examined, Hogan J. struck out the claim before him and held, inter alia, the following:
"... B. The Supreme Court's decision in McBrearty confirms that the Primor rules are not exhaustive and all-encompassing, but that the courts enjoy a separate and distinct constitutionally derived inherent jurisdiction to protect the proper administration of justice. C. Even if one assumes in the plaintiff's favour that no specific prejudice has been caused to the State defendants by this delay, the lapse of time between the events complained of and the present day is so enormous that the courts simply cannot fulfil their constitutional mandate of administering justice in a case such as this. D. The judicial duty to ensure the timely administration of justice which is derived from Article 34.1 and Re Haughey-style basic fairness of procedures (which is in turn derived from Article 40.3.1) extends to protecting the public interest. The delay in the present [case] is prejudicial to that public interest for ail the reasons set out by Peart J. in Byrne v. Minister for Defence...."
Public interest defined
Thus, undue delay by a plaintiff is capable of prejudicing the public interest, even if the defendant's interest was
not specifically prejudiced. In Byrne, Peart J. explained in detail the nature of the public interest which is
compromised by delay:
"There is a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up the valuable and important time of the courts, and thereby reduce the availability of that much used and needed resource to plaintiffs and defendants who have acted promptly in the conduct of their litigation, as well as increase the cost of the Court Service, and through that body to the taxpayers, of providing a service of access to the courts which serves best the public interest."
The court's response to prejudice to the public interest, as referred to by Peart J. in Byrne and Hogan J. in Donnellan, echoes the approach of Diplock L.J. half a century ago in Allen. As we saw earlier, Diplock L.J, took the view that where the delay between the cause of action and the trial is so great as to put justice to the hazard, "the public interest in the administration ofjustice demands" that the proceeding in question be dismissed.
Exceptional cases
Despite the fact that the court has the power to address delay under two distinct strands of authority, stemming
from O'Domhnaill and Primor, respectively, it seems clear that Primor should remain the primary approach. The fact that the alternative test under O'Domhnaill is appropriate only in exceptional circumstances has been made clear by the Supreme Court. As McKechnie J, stated in Comcast:
"....I fully agree with the words of Hogan J. in Donnellan v Westporf Textiles Limited (in Voluntary Liquidation) and the Minisfer for Defence, Ireland and the Attorney General [2011] IEHC 11 where in this context, the learned judge, having stated that such jurisdiction permits the court in an appropriate case to 'strike out proceedings even though the third limb of the Primor test might not have been established', went on to caution that, 'of course, such cases would have to be exceptional'. From my experience it seems that ever since this jurisdiction has became [sic] well established, it has routinely been included as an alternative relief by defendants in seeking to have actions dismissed for want of prosecution. I decry such a move. Given the capacity of Primor to deliver a just result, I cannot see any justification for its use as a matter of course. While I entirely acknowledge the importance of this jurisdiction and access to it, nonetheless its recourse in my view should be had only in the most exceptional circumstances."
Primor's limbs
We saw from the decision of Hogan J. in Donnellan that, in appropriate circumstances, a defendant who cannot
prove specific prejudice and fails to satisfy the third limb of the Primor test may nevertheless be able to invoke the
O'Domhnaill principles. What then of a defendant who does not even get as far as the third limb of Primot? For
instance, if the court holds that delay was inordinate but was excusable, can the defendant who fails the second
limb of Primor ever rely on the O'Domhnaill jurisprudence? Guidance was given recently by fhe Court of Appeal in
Cassidy v The Provincialate. The events giving rise to the proceedings in question went back to the late 1970s,
although High Court proceedings were not issued until 2012. Having carefully analysed a series of authorities,
Irvine J. then focused on the differences between the Primor and O'Domhnaill tests. Irvine J.'s decision makes
it clear that, in certain circumstances, O'Domhnaill can still be involved where inordinate delay is not inexcusable and, thus, a dismissal under the Primor test is not available. The judgment also clarifies the burden of proof facing a defendant in that situation:
"If they fail the Primor test because the plaintiff can excuse their delay, they can nonetheless urge the court to dismiss the proceedings on the grounds that they are at a real risk of an unfair trial. However, in that event the standard of proof will be a higher one than imposed by the third leg of the Primor test. Proof of moderate prejudice will not suffice. Nothing short of establishing prejudice likely to lead to a real risk of an unfair trial or just result will suffice. That this appears to be so seems only just and fair."
Significant caution
Later in her judgment, Irvine J. warned that the court's jurisdiction under O'Domhnaill should be used sparingly,
echoing the earlier views expressed by Hogan J. in Donnellan and McKechnie J. in Comcast. She put it as
follows:
"Considering its jurisdiction having regard to the test in O'Domhnaill, a court should exercise significant caution before granting an application which has the effect of revoking the plaintiff's constitutional right of access to the court. It should only grant such relief after a fulsome investigation of all the relevant circumstances and if fully satisfied that the defendant has discharged the burden of proving that if the action were to proceed that it would be placed at risk of an unfair trial or an unjust result."
On the facts, the Court of Appeal found that the death of a particular witness had caused gross prejudice to the
defendant and found that all three elements of the Primor test were satisfied. Going on to apply the O'Domhnaill
principles, the court found that the defendant would not only be at risk of an unfair trial but, in the court's view,
would enjoy no prospect whatsoever of a fair hearing or a just result. Hence the claim was dismissed.
Blameless plaintiff
The fact that there are two separate and distinct bases pursuant to which the court can, in appropriate circumstances, dismiss proceedings on delay grounds, as well as the rationale for their existence, was expressed
succinctly by Clarke J. in his judgment in Comcast. His comments underline that the O'Domhnaill test may be
availed of even where the plaintiff is blameless:
"There will be some cases where the degree of unfairness to a defendant (whether because of severe impairment in the ability to mount a defence or other factors) may be so great that even a blameless plaintiff may have to suffer their proceedings being dismissed."
That this is so surely highlights the various warnings from the court that the O'Domhnaill jurisdiction should be used with caution and in exceptional cases only. Given that a "blameless" plaintiff may, in certain circumstances, lose their constitutional right of access to court, the threshold facing a defendant in such circumstances is undoubtedly very onerous.
Article 6.1 of the convention
During the course of her judgment in Cassidy, Irvine J. also referenced Ireland's obligations under art.6.1
of the Convention, expressing the view that "the court when dealing with an application to dismiss a claim on
the grounds of delay, should factor into its consideration Ireland's obligations under Article 6.1 of the Convention".
As to what that means in practice, one might usefully look at the views expressed by Clarke J. seven years
earlier in Stephens v Paul Flynn Ltd. Commenting on the effect of art.6 on the courts application of the Primor
test, Clarke J., who was then in the High Court, stated:
"Delay which would have been tolerated may now be regarded as inordinate. Excuses which sufficed may no longer be accepted. The balance of justice may be tilted in favour of imposing [a] greater obligation of expedition and against the same level of prejudice as heretofore."
After going to the Supreme Court, Clarke J. revisited the issue four years later in his judgment in Comcast. There,
he restated the approach he had taken in Rodenhuis and Verloop 8. V. v HDS Energy Ltd, where he stressed that
although the Primor test did not require to be altered, there needed to be a tightening up of the application of its
principles, Clarke J. was clear that the overall test remains the same but felt that the application of the test needed to be "approached on a significantly less indulgent basis than heretofore".
Primor is the primary test
In February of this year, the Supreme Court delivered its judgment in McGarry v Minister for Defence. In July
2010, the High Court (Hedigan J.) had dismissed the proceedings for want of prosecution, in circumstances
where the incidents giving rise to the proceedings occurred in 1981 and the proceedings were not commenced until 1996. The plaintiff appealed and, in dismissing the appeal and upholding the High Court's decision, MacMenamin J. made the following observations about the parallel bases for exercising the inherent jurisdiction of the court and the primacy of the Primor approach:
"The primary tests in applications of this type are whether the delay was inordinate, inexcusable, and where the balance of justice lies. There is, too, a further line of authority, discussed later, which posits an overarching test as to whether a claim is 'beyond the reach of fair litigation."
Overlapping strands
Later in his judgment, MacMenamin J. clarified matters even further:
"It is clear from the case law which has been cited to the Court, that two overlapping strands can be found in the jurisprudence. First, there are the authorities derived from the judgment of Henchy J. in O'Domhnaill v Merrick [1984] I.R. 151. This lays emphasis on the inherent duty of the courts, arising from the Constitution itself, to put an end to what are termed 'stale claims' in order to ensure the effective administration of justice and basic fairness of procedures. The second strand of authority derives from the judgment of this Court in Primor...."
MacMenamin J. noted that despite genuine efforts on the part of the defendants to try and obtain evidence, a
number of potential key witnesses were either deceased or untraceable and there was an absence of documentation. Applying the Primor principles, the court found the delay to be inordinate and inexcusable and, in view of the demonstrable and irretrievable prejudice, the balance of justice favoured the dismissal of the claim. Furthermore, under the O'Domhnaill test, the court was satisfied that the case was one where any hypothetical future hearing would be beyond the reach of fair litigation. In the court's view, the criteria under both strands of authority were satisfied, no matter how analysed or characterised.
Another 2016 decision
The fact that the Primor test is the primary approach regarding an application to dismiss proceedings on delay
grounds is also evident from the decision of Murphy J. of 25 January 2016 in Hughes v Cusack. The defendant
sought an order pursuant to Ord.122 r.11 RSC dismissing the proceedings for want of prosecution, or an order
pursuant to the inherent jurisdiction of the court dismissing the claim on the grounds of inordinate and/or inexcusable delay. The proceedings had been issued in February 2005 and concerned an allegation of professional negligence and breach of contract against the defendant, in his capacity as solicitor, arising from the investigation of title concerning a premises acquired by the plaintiffs in February 2001. On the facts before her, Murphy J. found the delay to be both inordinate and inexcusable but, applying the third limb of the Primor test, the court found that the balance of justice lay in favour of the case proceeding. At the core of the case was an investigation of title to property. The court was satisfied that all of the documents relating to the relevant title would be available for the trial, as would expert evidence concerning the investigations undertaken by the defendant. The case was determined without any reference to the second strand of jurisprudence emanating from O'Domhnaill.
Professional reputation
Of some interest, too, is the attitude taken by the court to the defendant's submission that the continuation of
the legal proceedings against him caused a "reputational disaster" which had been hanging over him since 2005.
Murphy J. offered the following views:
"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."
The court rejected the defendant's submission concerning damage to his reputation as constituting prejudice under the Primor test and also emphasised that no such claim had been made by the defendant in the period prior to the application to dismiss. The application to have the proceedings dismissed was rejected.
S.I. No. 255 of 2016
A very recent and highly significant legislative measure designed to tackle delay comprises S.I. No. 255 of
2016, which introduces a new Ord.63C into the RSC. In the writer's view, major congratulations are due to
the Minister for Justice and Equality and to the Superior Courts Rules Committee in relation to these new rules of
court which come into effect from 1 October 2016 and, in essence, will extend Commercial Court-type pre-trial
procedures to chancery, non-jury and other designated proceedings. Practitioners in these areas and their
clients can only welcome judicial intervention in the form of active case management and the consequent reduction in delays. As for cases which are not routinely subject to case management reviews and orders by the courts, the comments of Clarke J. in Rodenhuis remain apt:
"As long as it remains the case that the procedure in this jurisdiction is left largely in the hands of the parties, then it follows that the pace at which litigation will progress will be highly dependent on the initiative shown by those parties. To the extent that it becomes clear that parties will be significantly indulged even though they engage in delay, then that fact is only likely to encourage delay. If parties feel they can get away with it, and if that feeling is justified by the response of the courts, then there is likely to be more delay. 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."
The end of "endless indulgence"
These sentiments were shared by Hogan J. in his decision, in the same year, in Quinn v Faulkner:
"While as Charleton J. pointed out in Kelly v. Doyle [2010] IEHC 396 it would be wrong for the Court to strike out proceedings because of judicial disapproval, it must also be acknowledged that experience has also shown that the courts must also become more pro-active in terms of undue delay, since past judicial practices which had tolerated such inactivity on the part of litigants and which led to a culture of almost 'endless indulgence' towards delay led in turn to a situation where inordinate delay was all too common...."
An analysis of the jurisprudence reveals the development of two distinct strands of authority concerning the inherent jurisdiction of the courts to strike out proceedings on the grounds of delay. The principles identified in Rainsford and developed in Primor remain the court's primary approach when deciding an application to dismiss proceedings for want of prosecution. However, the line of authority going back to O'Domhnaill reveals a parallel approach which may be taken in appropriate cases, where the interests of justice require the dismissal of proceedings - typically where the period of time between the events giving rise to the claim, and a likely trial date, puts the proceedings beyond the reach of fair litigation. Other developments include the more stringent obligations imposed by Ord.27 r.1 RSC, as amended, and the jurisprudence which has developed in light of art.6.1 of the Convention. Taken together, it is fair to say that the judiciary is far less tolerant of delay than in the past and also conscious of independent obligations on the courts, including those created by Art.34.1 of the Constitution, to ensure that proceedings are dealt with expeditiously.
Conclusion
Practitioners and their clients have nothing to fear from the end of "endless indulgence" or "excessive indulgence
of delay" as referred to by Hogan J. and Clarke J. in Quinn and Rodenhuis respectively. On the contrary,
the checks and balances in the tests emerging from the jurisprudence reveal, not a "one size fits all" approach
by the courts to delay, but a focus on doing justice to individual circumstances. This, as well as an increase
in active case management by the courts, can only be welcomed by all who share the views of Henchy J. that,
"while justice delayed may not always be justice denied, it usually means justice diminished".