Campbell-Sharp Associates Ltd v MVMBNI JV Ltd and Others

• Jurisdiction: Ireland
• Judge: Hanna J.
• Judgment Date: 31 July 2013
• Neutral Citation: [2013] IEHC 470
• Court: High Court
• Date: 31 July 2013

Campbell-Sharp Associates Ltd v MVMBNI JV Ltd & Railway Procurement Agency

BETWEEN:

CAMPBELL-SHARP ASSOCIATES LIMITED

PLAINTIFFS

AND

MVMBNI JV LIMITED AND RAILWAY PROCUREMENT AGENCY

DEFENDANTS

COMPREHEND LIMITED

AND

MVMBNI JV LIMITED AND RAILWAY PROCUREMENT AGENCY

IDARLS LIMITED

AND

MVMBNI JV LIMITED AND RAILWAY PROCUREMENT AGENCY

[2013] IEHC 470

[No. 547P/2004]

[No. 3591P/2004]

[No. 18771P/2004]

THE HIGH COURT

PRACTICE AND PROCEDURE

Dismissal of proceedings

Application to dismiss on grounds of inordinate and inexcusable delay - Inherent jurisdiction of court - Delay on part of defendants - Prejudice - Reliance on documentary evidence - Whether inordinate delay - Whether delay excusable - Whether mutual understanding or implied agreement - Whether balance of justice favoured continuance of proceedings - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 465 and Comcast International Holdings Inc v Minister for Public Enterprise [2012] IESC 50, (Unrep, SC, 17/10/2012) applied - Rodenhuis and Verloop BV v HDS Energy Ltd [2010] IEHC 465, [2011] 1 IR 611; Roebuck v Mungovin [1994] 2 AC 224; Dowd v Kerry County Council [1970] IR 27; Rainsford v Limerick Corporation [1995] 2 ILRM 561; Roderick Rogers v Michelin Tyre plc and Michelin Pensions Trust (No 2) [2005] IEHC 294, (Unrep, Clarke J, 28/6/2005); Trill v Sacher [1993] 1 WLR 1379 and McBrearty v The North Western Health Board and Others [2010] IESC 27, (Unrep, SC, 10/5/2010) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 122, r 11 - Application dismissed (2004/547P, 2004/3591P and 2004/18771P - Hanna J - 31/7/2013) [2013] IEHC 470

Campbell-Sharp Associates Ltd v MVMBNI JV Ltd

Facts: These proceedings concerned a motion brought by the defendants for the substantive actions brought by the plaintiffs to be dismissed pursuant to the inherent jurisdiction of the court, on the basis that the claims were of inordinate and inexcusable delay, or pursuant to Order 122, Rule 11 of the Rules of the Superior Courts for want of prosecution. In separate proceedings, the plaintiffs had claimed that the defendants” conduct in constructing the Luas Green Line between the 6th July 2001 and the 27th June 2004 had given rise to a nuisance in the form of persistently high levels of noise, vibrations, dirt, dust and grime and the obstruction of access to the plaintiffs' premises. It was also said that the dirt, dust and grime had encroached onto the plaintiffs” premises thus constituting trespass. Finally, it was said that the defendants” had carried out the work in a negligent manner for an unreasonable period of time.

The plaintiffs admitted that there had been some delay in processing the proceedings, but it was argued that the delays were not inordinate or inexcusable. The actions brought by Comprehend Ltd and Idarls Ltd were broadly similar, with only a few variations in regards to the chronology of events. The actions were commenced by plenary summons on the 24th March 2004 and the 15th September 2004 respectively. The action brought by Campbell-Sharp Associates Ltd was commenced by plenary summons on the 16th January 2004.

Held by Hanna J that the test to be applied to the facts of the present case to measure the delay was that formulated in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459. In that case, it was held that in assessing a delay in a case, the court had to consider whether the delay has been inordinate, whether such delay was inexcusable, and even if the delay has been inordinate and inexcusable, what possible action of the court was in the interests of justice.

In regards to the actions of Comprehend Ltd and Idarls Ltd, it was clear that there had been significant delays on the part of the plaintiffs in providing and seeking discovery. The plaintiffs had delayed providing discovery from 2006 to 2008 and delayed seeking discovery from 2006 to 2012. In the case of Comprehends Ltd, the discovery that was provided was inadequate and was not properly rectified until 2011. Further, both of these plaintiffs had only sought discovery for the first time in 2011. It was, therefore, clear that there had been inordinate delay. Likewise, it was held that Campbell-Sharp Associates Ltd had been guilty of inordinate delay in that it failed to serve a statement of claim until the 8 ^th June 2012.

In determining whether the periods of delay in the actions of Comprehend Ltd and Idarls Ltd were inexcusable, the plaintiffs submitted that the delay was justified because the discovery sought was substantial, very detailed, and involved accounts and bank statements of another company. In regards to the delay in seeking discovery, the plaintiffs argued that particular difficulties arose in obtaining appropriate experts to investigate the claim and assist in the formulation of the request; in particular, the first two firms of engineers that the plaintiffs instructed withdrew from the case after it became apparent that they did not possess the knowledge to provide an expert report. However, it was determined that the plaintiffs” delay was inexcusable because even though it was understandable that an expert might be needed to help formulate a request for discovery, it was clear that the plaintiffs had allowed significant time to lapse between instructing engineers, even when they had been informed by an engineering firm at an early stage that they were unable to act. It was also clear that in regards to the third engineering firm, they were instructed in July 2010 but no request for discovery was served until June 2011. Campbell-Sharp Associates Ltd had argued that the delay in their case was excusable because it believed that an understanding existed with the defendants whereby the Comprehends Ltd and Idarls Ltd cases would proceed first before its action was pursued. It was held that there was insufficient evidence to show such an agreement existed. It was pointed out, however, that the lack of response and non-engagement of the defendants when the agreement was proposed by Campbell-Sharp Associates Ltd could have been intentionally carried out to confuse the plaintiff, which might have a bearing on the last consideration in the case.

The final consideration was whether it was in the interests of justice to accede to the application. It was evident that the defendants had been partly responsible for the delay in the case. Although such delay was not a bar to the defendants in bringing the motion to dismiss, it was held that the delay that they had created was significant and inexcusable in itself. It was further held that there had been no prejudice caused to the defendants because they had been in a position to ensure that all relevant documentation in relation to the construction of the Luas works had been maintained and to obtain witness statements. Effectively, the defendants had failed to show that the plaintiffs” delays had created a situation where they would be unable to obtain a fair trial; therefore, the balance of justice favoured the refusal of the relief sought.

Application dismissed.

RSC O.122 r11

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

COMCAST INTERNATIONAL HOLDINGS INC v MIN FOR PUBLIC ENTERPRISE UNREP SUPREME 17.10.2012 2012/7/1702 2012 IESC 50

RODENHUIS & VERLOOP BV v HDS ENERGY LTD 2011 1 IR 611 2010/45/11317 2010 IEHC 465

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURT 3RD ED 2012 PARA 15.08

DESMOND v MGN LTD 2009 1 IR 737 2008/11/2410 2008 IESC 56

KATEGROVE LTD (IN RECEIVERSHIP) & ORS v ANGLO IRISH BANK CORPORATION PLC & O'BRIEN UNREP CLARKE 5.7.2006 2006/31/6555 2006 IEHC 210

ROEBUCK v MUNGOVIN 1994 2 AC 224

DOWD v KERRY COUNTY CO 1970 IR 27

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561 1981/7/1121

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

TRILL v SACHER 1993 3 AER 961 1993 1 WLR 1379

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

1 JUDGMENT of Hanna J. delivered on the 31st day of July, 2013

2 This is an application by the defendants to dismiss proceedings pursuant to the inherent jurisdiction of the Court on grounds of inordinate and inexcusable delay or pursuant to Order 122, Rule 11 for want of prosecution. The plaintiffs' claim for damages arises out of the construction of the Luas Green Line between 6 ^th July, 2001 and 27 ^th June, 2004 which the plaintiffs allege gave rise to a nuisance (persistently high levels of noise, vibrations, dirt, dust and grime and the obstruction of access to the plaintiffs' premises). It is also alleged that the dirt, dust and grime resulting from the works encroached upon the plaintiffs' premises constituting a trespass. It is claimed that the works were carried out in a negligent manner for an excessive and unreasonable period of time.

3 By notice of motion dated 26 ^th November, 2012 the defendants claim the following reliefs:

4 1. An order pursuant to the inherent jurisdiction of the Honourable Court dismissing the within proceedings on the ground of inordinate and unreasonable delay in the prosecution of the same;

5 2. An order pursuant to Order 122, Rule 11 of the Rules of the Superior Courts 1986 dismissing the plaintiff's claim for want of prosecution;

6 3. In the alternative, an order directing the plaintiff to take such steps as may be prescribed within such period as may be limited by the Honourable Court, in default whereof the proceedings herein shall stand dismissed without further order;

7 4. Such further and other order as this Honourable Court shall deem necessary or appropriate; and

8 5. An order for costs

Background Facts

9 The first named defendant, MVMBNI JV Limited, is the contractor appointed by...