Colm Granahan t/a C G Roofing and General Builders and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine
• Judgment Date: 12 March 2015
• Neutral Citation: [2015] IECA 58
• Court: Court of Appeal (Ireland)
• Date: 12 March 2015

Granahan t/a CG Roofing & General Builders v Mercury Engineering

Colm Granahan T/A C G Roofing and General Builders

Plaintiff/Appellant

and

Mercury Engineering

Defendant/Respondent

[2015] IECA 58

Peart J.

Irvine J.

Mahon J.

Appeal No.: 80/2014

THE COURT OF APPEAL

Appeal – Inordinate and inexcusable delay – Balance of justice

Facts The plaintiff commenced proceedings in relation to an alleged agreement made between the parties in 2008 whereby the plaintiff agreed to supply painting and labouring services to the defendant at the Corrib Gas project site at Bellanaboy, Co. Mayo. The defendant allegedly breached the terms of the contract and brought the arrangement to a premature end, as a result of which the plaintiff claimed it was entitled to recover damages. The defendant denied all the alleged wrongdoings. Relying on a report created by its accountants, the plaintiff”s loss of earnings and bonuses were well in excess of the jurisdiction of the Circuit Court. The proceedings were therefore transferred to the High Court. The defendant issued a motion to dismiss the plaintiff”s claim for want of prosecution and/or on the grounds of inordinate and inexcusable delay.

Held The judge considered and applied the principles which govern the circumstances in which proceedings may be struck out for delay, laid down in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. The judge indicated the conclusion of the High Court judge that the plaintiff had been guilty of inordinate delay in the prosecution of the proceedings was well founded. He said that while there was no delay in the commencement of the proceedings, there were several significant periods of inactivity thereafter. The defendant contended that it would suffer significant prejudice if the action was to be allowed to proceed. The prejudice to the plaintiff in having its claim dismissed and its constitutional right of access to the court revoked was balanced against the prejudice likely to be visited upon the defendant if the action was to be allowed to proceed. The judge concluded the balance of justice was not achieved in the dismissal of the plaintiff”s claim.

-The balance of justice favoured allowing the claim proceed

-Appeal allowed

Introduction

1 1. This is an appeal against the judgment and order of the High Court (Kearns P.) delivered on 10 ^th November, 2014 whereby he dismissed the plaintiff's claim on the grounds of inordinate and inexcusable delay.

Background facts

2 2. By Civil Bill dated 29 ^th May, 2009 the plaintiff/appellant commenced proceedings in the Circuit Court, Western Circuit, in respect of an agreement allegedly made between the parties in 2008 whereby the plaintiff agreed to supply painting and labouring services to the defendant at the Corrib Gas project site at Bellanaboy, Co. Mayo. The defendant allegedly breached the terms of the contract and brought the arrangement to a premature end as a result whereof the plaintiff claimed an entitlement to recover damages confined to the jurisdiction of the Circuit Court.

3 3. A defence was delivered on 23 ^rd November, 2009 wherein the defendant denied all of the plaintiff's allegations of wrongdoing, loss and damage. Thereafter, a notice for particulars was raised by the defendant on 4 ^th December, 2009 and the replies thereto were delivered by the plaintiff on 13 ^th January, 2010.

4 4. By order of the Circuit Court dated 31 ^st May, 2011 the proceedings were, following a contested application brought by the plaintiff, transferred to the High Court. In that regard the plaintiff relied upon a report from his accountants, Messrs. Cahill and Trautt Ltd., which advised that, based on the contract terms alleged and the expected completion date of July, 2009, the plaintiff's claim for loss of earnings and bonuses arising from the defendant's alleged breach of contract could be stated to be well in excess of the jurisdiction of the Circuit Court.

5 5. By Order of the Master of the High Court made on 3 ^rd November, 2011, the proceedings were formally adopted into the High Court. On 6 ^th December, 2012 the plaintiff raised particulars arising from the defendant's defence and later on 17 ^th January, 2013 issued a notice of intention to proceed.

6 6. The plaintiff changed his solicitors in November, 2013 at which stage his present solicitors, Claffey Gannon, came on record on his behalf. They served a notice of intention to proceed on 31 ^st January, 2014 along with a letter seeking voluntary discovery. In response, the defendant issued a motion to dismiss the plaintiff's claim for want of prosecution and/or on the grounds of inordinate and inexcusable delay. At the hearing of that motion on 10 ^th November, 2014 the relief sought was granted on the latter basis. Judgment of the High Court

7 7. From the agreed note of the decision of the learned High Court judge it is clear that, following a consideration of the relevant case law pertaining to applications to dismiss proceedings on the grounds of delay, he was satisfied that the plaintiff had indeed been guilty of inordinate and inexcusable delay. He then proceeded to consider, as was his obligation, whether, notwithstanding such a finding, the balance of justice lay in favour or against the dismissal of the claim, an issue he resolved in the defendant's favour.

Principles to be applied

8 8. The principles which govern the circumstances in which proceedings may be struck out for delay are not in dispute on the present appeal and it is therefore unnecessary to set them out in great detail. Suffice to state that the relevant principles were first comprehensively described by Finlay P. in Rainsford v, Limerick Corporation [1995] 2 I.L.R.M. 561 and later approved of by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where Hamilton C.J. stated as follows:-

"The principles of law relevant to the consideration of the issues raised on this appeal may be summarised as follows: -"

(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking 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 judgement 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 substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to defendant's reputation and business."

9 9. There are innumerable other decisions of much more recent vintage which consider these principles and which express disquiet about the courts' heretofore excessive indulgence when dealing with stale claims and which advise of the need for much greater consideration to be given to the courts' own constitutional obligations and compliance with Ireland's obligations under Article 6.1 of the European Convention on Human Rights. An example of this type of approach to delay is to be found in the decision of Hardiman J. in Gilroy v. Flynn [2005] 1 I.R.L.M. 290 where at pp. 293 - 294 he stated as follows:-

"[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued."

....[F]ollowing such cases as McMullan v. Ireland [ECHR 422 97/98. 29 ^th July, 2004] and the European Convention on Human Rights Act, 2003, the Courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time."

10 10. In his judgments in Stephens v. Paul Flynn Ltd. [2005] IEHC 148 and Rodenhuis & Verloop BV v. HDS Energy Ltd. [2011] 1. I.R. 611, the latter decision being one relied on by the High Court judge in reaching his conclusions in the present case, Clarke J. also questioned whether there should be a recalibration of the criteria by reference to which the actions of the parties might be judged. He stated that while the overall test and applicable principles remain...