Diamrem Ltd v Clare County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 06 March 2023
• Neutral Citation: [2023] IECA 49
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/245

Between/

Diamrem Limited

Plaintiff/Appellant

and

Clare County Council

Defendant/Respondent

[2023] IECA 49

Collins J.

Haughton J.

Butler J.

Appeal Number: 2021/245

High Court Record Number: 2017/5599P

THE COURT OF APPEAL

Prosecution – Inordinate and inexcusable delay – Balance of justice – Plaintiff appealing against the decision dismissing its claim – Whether there was inordinate and inexcusable delay in the prosecution of the action

Facts: The plaintiff, Diamrem Ltd, appealed to the Court of Appeal against the decision of the High Court (Twomey J) dismissing the plaintiff’s claim on the grounds of inordinate and inexcusable delay in the prosecution of the action. The delay in issue between the last step taken in the proceedings (the filing of an appearance on behalf of the defendant, Clare County Council, on 17 July 2017) and the issuing of the defendant’s motion on 15 May 2019 was a period of just under 22 months. There was relatively little dispute between the parties as to whether a delay of 22 months should be regarded as inordinate, with the plaintiff implicitly accepting that it was although not formally conceding the point. The plaintiff relied on four factors to excuse the delay, all of which were rejected by the trial judge. The plaintiff took issue with the trial judge’s approach contending that each factor was considered separately and in reference to the entire 22 month period of delay rather than being examined both separately and cumulatively and asking whether, singularly or cumulatively, they could excuse any portion of the delay.

Held by Butler J that, on the facts of the case the litigation was in its very early stages and depended on the delivery of a statement of claim by the plaintiff in order to progress; a delay of 22 months in delivery of that statement of claim was, by any standards, inordinate. Having considered the four factors relied on by the plaintiff, namely freedom of information requests, proceedings issued under s. 160 of the Planning and Development Act 2000, the change of legal team and the receipt of legal advice to amend the plenary summons after judgment in the s. 160 proceedings, Butler J was inclined, on balance, to treat the delay in the case as being excusable. The Court was cognisant of the fact that the respondent did not take any steps to ensure the advancement of the proceedings by the plaintiff during the period complained of. Accepting that at all times the legal onus was on the plaintiff to act and there was no specific obligation on the respondent to compel the plaintiff to act, Butler J held that it was nonetheless open to the respondent to take steps to ameliorate the prejudice which was allegedly being caused to it and it failed to do so. Butler J held that as the plenary summons had been served on the defendant, it was open to the respondent to being a motion under Order 27 of the Rules of the Superior Courts in order to procure the delivery of a statement of claim. Butler J noted that the respondent said in correspondence that it intended to bring a motion and then it did not do so. Butler J noted that the respondent understood why the plaintiff had not progressed the proceedings. Butler J noted that the parties and their solicitors were in continuous, intermittent contact in relation to the s. 160 proceedings. Butler J noted that the period of delay, although inordinate, was still one calculated in months rather than years. Consequently, were Butler J not minded to treat the plaintiff’s delay as excusable, she would in any event have declined to strike out the proceedings on the basis that the balance of justice did not warrant doing so.

Butler J held that the plaintiff’s appeal should be allowed. As the plaintiff has been entirely successful in his appeal, Butler J’s provisional view was that it should be entitled to the costs of the appeal. As the proceedings were no longer being struck out, it seemed to Butler J to follow that the order made in the respondent’s favour for the costs of the proceedings should be set aside. Butler J proposed making an order for the plaintiff’s costs of the appeal to include the costs of the High Court and an order setting aside all of the other costs orders made by the High Court.

Appeal allowed.

UNAPPROVED

JUDGMENT of Ms. Justice Butler delivered on the 6 ^th day of March, 2023

Introduction:

1 . This is an appeal against the decision of the High Court (Twomey J. [2021] IEHC 408) dismissing the plaintiff's claim on the grounds of inordinate and inexcusable delay in the prosecution of the action. Twomey J. did not determine a further motion brought by the plaintiff seeking leave to amend its plenary summons which would necessitate joining additional parties (both as a co-plaintiff and as a co-defendant) on the basis that it was moot in light of his conclusion that the proceeding should be dismissed on the grounds of delay. On the opening of this appeal, counsel for the plaintiff indicated that he was withdrawing his cross motion against this finding so the only issue before the court on the appeal was that of delay.

2 . The delay in issue between the last step taken in the proceedings (the filing of an appearance on behalf of the respondent on 17 July 2017) and the issuing of the respondent's motion on 15 May 2019 is a period of just under 22 months. There is some dispute, which cannot be resolved on this appeal, as to when the cause of action arose and consequently the interval between the relevant events and any likely trial date. The plaintiff contends the cause of action arose in 2016 and that it was well within the permitted 6 year limitation period when it issued its proceedings on 20 June 2017. The defendant disagrees saying that the 2016 accrual date was artificially created by the plaintiff and that in reality the cause of action, if any, had already accrued in 2007. That issue does not fall for determination here. A similar plea was successfully advanced in related s.160 proceedings which are discussed further below. The period prior to the institution of the proceedings is not directly relevant to the respondent's motion which is based on the court's inherent jurisdiction in respect of delay in prosecuting its claim and on a default in pleading under O. 27 of the Rules of the Superior Courts.

3 . In order to consider the issues raised in this appeal I propose to outline firstly the nature of the dispute between the parties and secondly the progress of the litigation and of related litigation to date. I will then briefly address the relevant legal principles which, with one exception, were not really in dispute between the parties and I will look at how these were applied by the trial judge. Finally, I will consider how these principles should be applied on the facts of this case.

Dispute Between the Parties

4 . The dispute between the parties has its origin in the substantial re-development of a visitor centre at the Cliffs of Moher in County Clare. The respondent incorporated a company, wholly owned by it, which applied for and was granted planning permission for the development, ultimately by decision of An Bord Pleanála in December 2002. Apart from the structures comprising the visitor centre itself, the planning permission included 2 car parks. The visitor centre lies to the west of a roadway (the R478) which runs in a north/south direction along the coast at the location of the Cliffs of Moher. Under the planning permission a permanent car park with a capacity of approximately 250 spaces was to be built on the west side of the road immediately adjacent to the visitor centre. The planning permission also provided for a temporary car park on the eastern side of the road to be used in connection with the construction works and, until the completion of the western car park, by the general public. Significantly, the capacity of the eastern car park is almost double that of the western car park at approximately 480 spaces.

5 . Whilst the visitor centre was under construction, the plaintiff claims that the respondent's then Director of Services engaged in discussions with it both in 2004 and 2006 in respect of the provision of Park and Ride facilities. Broadly speaking, the Park and Ride scheme envisaged that members of the public would park in designated car parks at some remove from the Cliffs of Moher and be transported to the visitor centre in buses to be operated by the plaintiff. It is also claimed that at a meeting in 2010 the Director of Services indicated that a Park and Ride contract would be entered into by the respondent once the relevant sites were developed for that purpose. As a result, the plaintiff claims that a company associated with it purchased land at two locations (at Doolin and Liscannor), obtained planning permission for the development of Park and Ride facilities, developed the sites, entered into a contract with the respondent and obtained the necessary licenses to operate the buses along these routes.

6 . However, the plaintiff claims that it is unable to operate its Park and Ride business on an economic basis because, contrary to what the plaintiff claims is required by the planning permission and agreed by the respondent, the respondent and/or the operator of the visitor centre decided not to build the western car park and instead continued to use the larger eastern car park. There is some lack of clarity as to whether the plaintiff is claiming that its Park and Ride facility was to be provided alongside the smaller western car park or, alternatively, that when the respondent decided not to proceed with the construction of the western car park, all public access would be through the Park and Ride facilities with only limited parking for coaches and staff on-site. Either way the central complaint is that the continued use of the eastern car park with its capacity for 480 vehicles reduces the demand...