Celtic Ceramics Ltd v Industrial Development Authority

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 3185
• Docket Number: Record No. 1961P/1988
• Court: High Court
• Date: 01 January 1993

CELTIC CERAMICS LTD v. IDA

BETWEEN

CELTIC CERAMICS LIMITED COMPLEJO INDUSTRIAL CERAMICO O DENSE S.A. ENRIQUE ENRICH, LORIS SERRA AND SALVADOR GIMENO

PLAINTIFFS

AND

THE INDUSTRIAL DEVELOPMENT AUTHORITY AND KENNETH HUNT, OTHERWISE W. KENNETH HUNT

DEFENDANTS

1992 WJSC-HC 3185

Record No. 1961P/1988

THE HIGH COURT

Synopsis:

ACTION

Dismissal

Defence - Prejudice - Claim - Prosecution - Diligence - Absence - Delay before and after issue of summons - Prejudicial effect on business and professional interests of defendant - Rules of the Superior Courts, 1986, order 63, r. 1(8) - (1988/1961 P - O'Hanlon J. - 9/9/92) - [1993] ILRM 248

|Celtic Ceramics Ltd. v. Industrial Development Authority|

DELAY

Claim

Prosecution - Diligence - Absence - Delay before and after issue of summons _ Prejudicial effect on business and professional interests of defendant - Claim dismissed for want of prosecution - (1988/1961 P - O'Hanlon J. - 9/9/92) - [1993] ILRM 248

|Celtic Ceramics Ltd. v. Industrial Development Authority|

PRACTICE

Action

Dismissal - Claim - Prosecution - Diligence - Absence - Delay before and after issue of summons - Prejudicial effect on business and professional interests of defendant - Claim dismissed for want of prosecution - (1988/1961 P - O'Hanlon J. - 9/9/92) - [1993] ILRM 248

|Celtic Ceramics Ltd. v. Industrial Development Authority|

Citations:

SHEEHAN V AMOND 1982 IR 235

O DOMHNAILL V MERRICK 1984 IR 151

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

TOAL V DUIGNAN 1991 ILRM 135

ALLEN V MCALPINE 1968 1 AER 543

BISS V LAMBETH SOUTHWARK & LEWISHAM HEALTH AUTHORITY 1978 2 AER 125

TOLLEY V MORRIS 1979 2 AER 561

PRESIDENT OF INDIA & UNION OF INDIA V JOAN SHAW & SONS LTD 1977 121 SJ 795

EAGIL TRUST LTD V PIGOTT-BROWN 1985 3 AER 119

BIRKETT V JAMES 1977 2 AER 808

1 Judgment delivered by O'Hanlon J. the 9th day of September, 1992.

2 This is an application to dismiss for want of prosecution an action for damages brought by the Plaintiffs against the Defendants based on allegations of negligence and breach of contract.

3 It is claimed in the Statement of Claim that the first-named Defendant, The Industrial Development Authority, made contact in Spain with the third and fourth-named Plaintiffs, directors and shareholders of the second-named Plaintiff, in the year 1980, with proposals for the establishment of a new industry in Ireland.

4 These proposals were of interest to the said Plaintiffs and to the second-named Plaintiff, the Spanish corporate body which they represented, and to the fifth-named Plaintiff who was also a director and shareholder. Further meetings took place in Ireland leading to a decision by the second, third, fourth and fifth-named Plaintiffs to establish a factory in Ireland for the manufacture of ceramic products.

5 The Plaintiffs say that on the recommendation of the Industrial Development Authority, the second-named Defendant was engaged to act as Architect for the project and Mr. Michael Corkery as Solicitor. An Irish company - the first-named Plaintiff - was incorporated on the 29th December, 1980, to carry through the proposal and to carry on the business in Ireland.

6 Initially the factory was intended to be built at Ringaskiddy, Co. Cork, but it was later decided, in or about the month of February, 1981, that an alternative site would be provided by the Industrial Development Authority at Little Island and Rohan Group Limited were employed to build the factory.

7 The Plaintiffs claim that it again became necessary to change to a different site in or about the month of March, 1982, as the first site made available in Little Island proved unsuitable, and the Plaintiffs claim to have incurred very substantial additional costs by reason of this unexpected development.

8 They further claim that the Defendants and each of them were guilty of negligence and breach of duty throughout the whole transaction relating to the building of the factory and the establishment of the industry, as a result of which the Plaintiffs claim that they incurred further costs in excess of £1m. and were caused loss and damage under a number of different headings which are referred to in the Statement of Claim.

9 The costs of acquiring the land and building the factory were to be met in part by the first-named Plaintiff out of its own resources; in part by 25% grant from the IDA; and the balance was to be provided by way of loan by the Industrial Credit Company Limited. The first-named Plaintiff was unable to meet the payments to Rohan Construction Limited as they fell due. Notice of termination of the building contract was given by Rohan Construction Limited on the 2nd March, 1983, pursuant to the provisions of Clause 34 (a), followed by the issue of proceedings which resulted in judgment being given for the amount due by the first-named Plaintiff. On the 5th February, 1988, the Industrial Credit Company appointed James Barber as receiver of the first-named Plaintiff.

10 The chronological sequence of events insofar as the present proceedings are concerned, appears to be as follows:-

11 The construction work appears to have ceased late in 1982 or early in the year 1983 and on some unspecified date thereafter Rohan Construction Company Limited obtained judgment against the first-named Plaintiff for the amount due to them.

12 The Plenary Summons in the present proceedings was issued on the 29th February, 1988, but for some unexplained reason was not served until the 24th October, 1988.

13 An appearance was entered on behalf of the second-named Defendant on the 25th October, 1988. The date of entry of appearance by the first-named Defendant is not clear but in this case service of the Plenary Summons was accepted on the 17th November, 1988, with an undertaking to enter an appearance within the prescribed time.

14 Nothing further happened until the 21st August, 1989, when the Statement of Claim was served on the Defendants.

15 A Notice for Particulars was served on behalf of the second-named Defendant, dated the 11th September, 1989, and an even more lengthy Notice for Particulars dated 24 November, 1989, was prepared on behalf of the first-named Defendant and served (apparently) on the 27th November, 1989.

16 Thereafter, nothing happened either by way of reply to either Notice for Particulars, or further steps in the proceedings, until a Notice of Motion was served on behalf of the second-named Defendant, dated the 20th February, 1992, and on behalf of the first-named Defendant, dated the 5th March, 1992, in each case giving notice of an intended application to the Master of the High Court for an Order dismissing the Plaintiffs' claim for want of prosecution.

17 This evoked a response to the two notices for further particulars, the reply to the second-named Defendant's Notice for Particulars dated 6th March, 1992, and to the first-named Defendant's Notice for Particulars dated 25th March, 1992.

18 The applications to dismiss for want of prosecution then came on before the Master of the High Court and were dismissed by him, in each case with costs in favour of the Defendant/Applicant, and from such dismiss the matter comes before the High Court by way of appeal taken on behalf of each of the Defendants.

19 Brian M. Gallagher, one of the Principals of the firm of solicitors now representing the Plaintiffs, swore a number of Affidavits to explain the delay that had occurred in processing the claims, and there are Affidavits by solicitors representing the Defendants in support of the applications to dismiss the claims for want of prosecution.

20 For the Defendants, the most significant averments are as follow:

"The delay on the part of the Plaintiffs has been extremely prejudicial to (the second-named) Defendant's position and its ability to defend the claim herein. More than a decade has expired since the Second Named Defendant was involved with the project with the obvious difficulties arising in relation to the ability of the Second Named Defendant's employees to recollect events relating to the project. In fact I am instructed that two of the Second Named Defendant's employees, Denis Cullinan and Paul Murphy, have left the employ of the Second Named Defendant. In these circumstances it is clear that the Second Named Defendant is now at a considerable disadvantage as a result of the delay on the Plaintiff's part in prosecuting this claim."

21 (Affidavit of Michael J. O'Reilly)

"The First-Named Defendant has been and continues to be prejudiced by the delay in these proceedings. Over ten years has elapsed from the date of the matters referred to in the Statement of Claim. Not only does the First Named Defendant have difficulty in obtaining witnesses due to the delay and of ensuring that such witnesses have a recollection of the factual matters but the First Named Defendant has been particularly prejudiced by the fact that one of its witnesses has died. The passage of time, the difficulty of recollection and the death of one of its witnesses has resulted in the clear prejudice to the First Named Defendant and has placed the First-Named Defendant at a disadvantage in endeavouring to defend these proceedings."

22 (Affidavit of Hilary J. Prentice)

"I have had a search undertaken in the Companies Office in relation to the First-Named Plaintiff, Celtic Ceramics Limited. The results of the search are that the company was struck off on the 26 October 1990 and dissolved by Notice dated 6 November 1990....

In relation to the defence of this action, it now transpires that a witness named Eddie Egan (and who I understand would have been in a position to give evidence in this matter) has died... Clearly the fact of Mr. Egan's death has hampered the Second-Named Defendant in its ability to interview all relevant witnesses and prepare for the defence of this action".

23 (Supplemental Affidavit...