Cornelius Faulkner, Johanna Faulkner, James Faulkner (A Minor), William Faulkner (A Minor), Lisa Faulkner (A Minor), Martin Faulkner (A Minor), Christina Faulkner (A Minor), Mary Bridget Faulkner (A Minor) and Tina Faulkner (A Minor) Suing by their Mother and Next Friend Johanna Faulkner v Limerick City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 12 March 2021
• Neutral Citation: [2021] IEHC 184
• Docket Number: [2003 No. 9114 P]
• Date: 2021
• Court: High Court

Between

Cornelius Faulkner, Johanna Faulkner, James Faulkner (A Minor), William Faulkner (A Minor), Lisa Faulkner (A Minor), Martin Faulkner (A Minor), Christina Faulkner (A Minor), Mary Bridget Faulkner (A Minor) and Tina Faulkner (A Minor) Suing by their Mother and Next Friend Johanna Faulkner

Plaintiffs

and

Limerick City Council

Defendant

[2021] IEHC 184

[2003 No. 9114 P]

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendant seeking an order dismissing the plaintiffs’ claim for want of prosecution – Whether there was inordinate and/or inexcusable delay

Facts: The plaintiffs, the Faulkners, claimed that the defendant, Limerick City Council, negligently and in breach of duty (including breach of statutory duty) provided a halting site which was “grossly unfit for human habitation and which is not in accordance with any acceptable standards, including, but not limited to, any guidelines in respect of provision and/or maintenance of traveller accommodation”. By notice of motion, dated 10 January 2020, the defendant applied to the High Court for a number of reliefs, being: (1) an order pursuant to the inherent jurisdiction of the court dismissing the plaintiffs’ claim for want of prosecution on the grounds of inordinate and/or inexcusable delay; and (2) an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts dismissing the plaintiffs’ claim.

Held by Meenan J that it was manifestly clear in this case that the delay was inordinate; proceedings were initiated in July, 2003, in excess of 17 years prior to the hearing of the motion. Meenan J held that no credible explanation had been given as to why the plaintiffs’ solicitors did not bring the proceedings to a conclusion in a timely way; not even the basic steps were taken to amend the proceedings given the death of the second plaintiff and the attainment of majority by the other plaintiffs. Meenan J therefore concluded that the delay in the proceedings was both inordinate and inexcusable. Meenan J held that by both engaging in the discovery process and arranging a joint inspection of the halting site, the defendant induced the plaintiffs to incur further expense in pursuing their action; this was at a time, many years, after a number of witnesses for the defendant were no longer available. Meenan J therefore reached the conclusion that the defendant itself was guilty of delay in bringing the application, acquiesced in the plaintiffs’ delay and encouraged the plaintiffs to incur further expense. Meenan J noted that the defendant delivered an amended defence on 30 May 2012 pleading the Statute of Limitations Act 1957 (as amended). Meenan J held that given this plea was made at a time when certain witnesses were no longer available to the defendant, not to have sought the trial of a preliminary issue on the Statute of Limitations and, indeed, issued a motion seeking the reliefs was culpable delay on the part of the defendant.

Meenan J held that by reason of the foregoing, though there had been both inordinate and inexcusable delay on the part of the plaintiffs in prosecuting their action, the balance of justice lay against granting the relief sought by the defendant.

Reliefs refused.

Judgment of Mr. Justice Meenan delivered on the 12th day of March, 2021

Background

1 By notice of motion, dated 10 January 2020, the defendant has applied to the Court for a number of reliefs, being:-

• 1. An order pursuant to the inherent jurisdiction of the court dismissing the plaintiffs' claim for want of prosecution on the grounds of inordinate and/or inexcusable delay; and

• 2. An order pursuant to O. 122, r. 11 of the Rules of the Superior Courts dismissing the plaintiffs' claim.

2 The Statement of Claim in these proceedings was delivered on 4 May 2005, following a motion by the defendant to dismiss for want of prosecution for failing to do so. The Statement of Claim states that the plaintiffs (who are members of the Travelling Community) reside at Longpavement Halting Site (the halting site) in the City of Limerick. It is alleged that the defendant was at all material times the owner of and/or responsible for the construction, maintenance and control of the halting site.

3 The substance of the plaintiffs' claim is that the defendant negligently and in breach of duty (including breach of statutory duty) provided a halting site which was “ grossly unfit for human habitation and which is not in accordance with any acceptable standards, including, but not limited to, any guidelines in respect of provision and/or maintenance of traveller accommodation”.

4 The Statement of Claim then sets out in detail particulars of the manner in which it is alleged the halting site was grossly unfit for human habitation.

Chronology of proceedings

5 I will not set out every step that was taken in these proceedings over the last seventeen years or so, but I will detail the material steps that were taken and when they were taken:-

• (i) Plenary summons issued 31 July 2003;

• (ii) Statement of Claim delivered 4 May 2005 (following a motion from the defendant);

• (iii) Particulars raised and replied to September, 2005 – March, 2007;

• (iv) Defence delivered 7 October 2009 (following issue of a motion seeking judgment in default of defence);

• (v) Further particulars and replies July, 2010; August, 2010; and August, 2011;

• (vi) Notice of trial served July, 2010;

• (vii) 21 May 2012 defendant granted liberty to deliver an amended Defence pleading the Statute of Limitations Act, 1957 (as amended);

• (viii) September, 2012 and July, 2013, motion seeking an order compelling the plaintiffs to comply with the provisions of S.I. 391/1998 and an order directing them to do so;

• (ix) September, 2012, notice of motion seeking discovery of the plaintiffs' medical records;

• (x) Notice of motion, July, 2015, issued by the plaintiffs compelling the defendant to make discovery;

• (xi) Order, July, 2015, directing the plaintiffs to make discovery;

• (xii) Notice of motion, November, 2015, seeking to have the defendant's Defence struck out for failure to make discovery and an order of Court of 3 March 2016 striking out the plaintiffs' motion to have the Defence struck out for failure to make discovery; and

• (xiii) An affidavit of discovery by the defendant was furnished on 24 May 2016.

6 In addition to the various steps in the proceedings, there was correspondence between the parties seeking to arrange an inspection of the halting site. This took place in the course of 2017. Ultimately, a joint inspection took place on 13 December 2017. The report was furnished by the plaintiffs' expert on 22 January 2018.

7 A notice of intention to proceed was served by the Solicitors for the plaintiffs on 28 August 2019, and this appears to have prompted the within motion.

8 In the many years since the initiation of the proceedings in July, 2003, the second named plaintiff died, on 27 October 2004. All seven of the plaintiffs who were minors at the time proceedings were initiated have reached their majority, the youngest plaintiff having reached her majority on 17 November 2012. No step has been taken to amend the proceedings to reflect these events.

Principles to be applied

9 There have been numerous authorities on the jurisdiction of the courts to dismiss actions for want of prosecution. I will refer to only two authorities. Firstly, the oft cited passage of Hamilton C.J. in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where it is stated:-

“The principles of law relevant 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 when 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,...