O'Brien v Brooks P/A Collins Brooks & Associates Solicitors

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 13 June 2022
• Neutral Citation: [2022] IEHC 355
• Court: High Court
• Docket Number: [2012-11270-P]

Between

Dermot O'Brien

Plaintiff

and

Thomas J. Brooks, Richard Barrett and Veronica Collins (Practising Under the Style and Title of Collins Brooks and Associates Solicitors)

Defendants

[2022] IEHC 355

[2012-11270-P]

THE HIGH COURT

Negligence – Damages – Delay – Defendants seeking to dismiss the plaintiff’s claim – Whether the delays in the case were inordinate and inexcusable

Facts: The plaintiff, Mr O’Brien, issued a plenary summons in person on 7 November 2012, claiming damages against the defendants, Mr Brooks, Mr Barrett and Ms Collins, arising from what he claimed was their negligence and breach of duties in dealing with certain property transactions on his behalf in around 2007. The defendants applied to the High Court to overturn a decision of the Master of the High Court of 18 May 2021 refusing to dismiss the plaintiff’s claim for want of prosecution. The defendants identified four separate periods of delay as follows: (i) pre-commencement delay from 2007 to 2012; (ii) November 2012 to May 2014, a period of some three and a half years; and (iii) a lengthy period of delay of some four and a half years from 14 November 2014, from when the plaintiff wrote his warning letter in relation to the defence which led to the filing of the defence on the 4 December 2014, until the plaintiff sought voluntary discovery by letter dated 11 June 2019. The plaintiff sought to excuse the delay taken to deliver his statement of claim in March 2013 by reference to the complexity of the issues, and of dealing with the 32-paragraph notice for particulars. He said he encountered difficulties in securing an accountant’s report, and that there were issues arising from the retirement of his financial advisor. He sought to rely on his status as a lay litigant until 2018. The plaintiff laid heavy emphasis on the defendants’ conduct and the defendants’ letter of 22 April 2015, which he said he had no recollection of receiving. He said he never agreed to make discovery in respect of the categories contained in that letter, and he criticised the defendants for not having issued the motion which was threatened in that letter. He highlighted that the defendants in their letter of 12 June 2019 did not warn that they were going to issue a motion to strike out the entire proceedings for delay, but instead as recently as June 2019 indicated that they would be pursuing discovery by way of motion. The plaintiff said the defendants did not signal their intention to issue a motion to dismiss for want of prosecution but simply indicated that he should agree to the discovery to avoid a motion. He also highlighted the absence of any prejudice asserted by the defendants in their letter.

Held by Bolger J that the delays in the case were both inordinate and inexcusable. However, she did not consider that the balance of justice lay in favour of dismissing the proceedings, as she did not consider that the defendants had identified any sufficient prejudice arising from that delay such as may give rise to an unfair trial. She held that this was a case in which the documentary evidence would be significant albeit it would not be the only source of evidence. She found that there was no evidence presented by the defendants as to why any of their witnesses may be unavailable, or of any attempts to address any such difficulties from when they were first made aware of the proceedings. She was not satisfied that the defendants had established sufficient evidence of a risk they would suffer an unfair trial that could outweigh the prejudice to the plaintiff of striking out the proceedings. She found support for this approach in the decisions of the Court of Appeal in Sullivan v HSE [2021] IECA 287 and of the Supreme Court in Mangan v Dockery [2020] IESC 67, where proceedings were permitted to continue in spite of very lengthy periods of delay.

Bolger J refused the defendants’ application to dismiss. Her indicative view on costs was that the plaintiff, having succeeded in defending the application to dismiss, was entitled to his costs.

Application refused.

DECISION of Ms. Justice Bolger dated the 13th day of June, 2022

1 This is an application by the defendants to overturn a decision of the Master of the High Court of 18 May 2021 refusing to dismiss the plaintiff's claim for want of prosecution. For the reasons set out below I refuse the defendants' application.

2 The parties agree on the legal principles to be applied as developed by the Supreme Court in Primor Plc v. Superintendent Foley [1996] 2 IR 459 and by the Court of Appeal in Millerick v. Minister for Finance [2016] IECA 206 and Cassidy v. Provinciate [2015] IECA 74. The defendants must establish that the delay was both inordinate and inexcusable and that the balance of justice favours dismissing the proceedings. An important factor in determining the balance of justice will be the defendant's ability to prove that they would suffer prejudice, and even a modest prejudice may suffice.

Background

3 The plaintiff issued a plenary summons in person on 7 November 2012, claiming damages against the defendants arising from what he claims was their negligence and breach of duties in dealing with certain property transactions on his behalf in around 2007. On 22 April 2013, the defendants issued a motion to dismiss the plaintiff's proceedings for failure to deliver a statement of claim. A statement of claim was delivered on 20 May 2013. The defendants raised a notice for particulars on 6 June 2013 and later issued a motion seeking to dismiss the plaintiff's proceedings for failure to reply, which was heard on 16 December 2013. Time was extended for the delivery of replies. The plaintiff did not reply within the extended period, and the defendants had to issue a second motion to dismiss the proceedings for failure to reply, which came on for hearing on 12 May 2014, by which time the plaintiff had delivered his replies. The defendants delivered a defence on 4 December 2014, and sought voluntary discovery by letter dated 22 April 2015, to which the plaintiff did not respond. The plaintiff took no further steps until 16 November 2018, when he filed notice of his intention to proceed, and at that point in time he was legally represented. There was no further engagement from the plaintiff's solicitors until they sent a letter on 11 June 2019 seeking voluntary discovery, but did not give any reason for the category of documentation sought. The defendants claim that this request for voluntary discovery was inadequate. The defendants' solicitors wrote to the plaintiff's solicitors on 12 June 2019 reminding them of the defendants' request for voluntary discovery, to which the plaintiff's solicitors replied by way of a holding letter dated 27 June 2019. The defendants' solicitors responded to that by letter dated 3 July 2019, setting out the protracted nature of the proceedings. At that point in time, seven years had elapsed since...