Diarmuid Vaughan (as administrator of the estate of donal Vaughan deceased) v Philip English and Bill Leahy Practising Under the Title and Style of English Leahy Solicitors

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 19 May 2023
• Neutral Citation: [2023] IEHC 281
• Court: High Court
• Docket Number: Record No: 2013/1670P

Between:-

Diarmuid Vaughan (as administrator of the estate of donal Vaughan deceased)

Plaintiff

and

Philip English and Bill Leahy Practising Under the Title and Style of English Leahy Solicitors

Defendants

[2023] IEHC 281

Record No: 2013/1670P

THE HIGH COURT

Professional negligence – Want of prosecution – Inordinate and inexcusable delay – Defendants seeking to dismiss the plaintiff’s case for want of prosecution – Whether there was inordinate and inexcusable delay

Facts: The defendants, Mr English and Mr Leahy practising under the title and style of English Leahy Solicitors, applied to the High Court to dismiss the plaintiff’s case for want of prosecution on the grounds of inordinate and inexcusable delay. The present plaintiff, Mr Vaughan, was the son of the late Mr Vaughan and the administrator of his estate. The late Mr Vaughan died in July 2020 and the proceedings were reconstituted in the present plaintiff’s name in October 2021. The case was a professional negligence action concerning legal services provided by the defendant firm of solicitors to the late Mr Vaughan in relation to the termination of his employment with Dublin Airport Authority in October 2007.

Held by Ferriter J that the delay in the prosecution of the proceedings particularly in the period between the notice of intention to proceed of November 2017 and the second notice of intention to proceed of October 2021, a period of some four years, was inordinate. In Ferriter J’s view, there was inexcusable delay between October 2017 and the obtaining of an order on 5 October 2021 reconstituting the proceedings and the service of a notice of intention to proceed shortly thereafter on 15 October 2021. Ferriter J held that the delay in the period of four years from the point in October 2017 at which Senior Counsel for the late plaintiff certified the case as ready for trial (a point at which all pleadings had closed, discovery had been completed and consultations had been had with medical advisors) to the reconstitution of the proceedings in October 2021 was largely inexcusable. Ferriter J noted that while it was clear from the plaintiff’s solicitor’s narrative that there were attempts on the part of the plaintiff’s solicitor to progress an appointment for the plaintiff with a medical expert during that period, no such appointment occurred prior to the plaintiff’s death in July 2020. It seemed to Ferriter J that, despite reasonable efforts by the plaintiff’s solicitor, the plaintiff himself was not accommodating in respect of attempts to set up an appointment with the medical expert. While Ferriter J would make reasonable allowance for the time necessary to bring an application to reconstitute the proceedings following the death of the plaintiff, this in fact did not occur for some 15 months. Ferriter J noted that throughout the four-year period from October 2017 to October 2021 neither the late Mr Vaughan nor the present plaintiff ever, at any point, through their solicitors sought to communicate the reasons for not setting the case down when, from the defendants’ perspective, the matter was long since ready for trial. Accordingly, in Ferriter J’s view, it was proper to approach the application on the basis that a good portion of the four-year delay between October 2017 and October 2021 was not excusable for the purposes of the application of the Primor test: Primor v Stokes Kennedy Crowley [1996] 2 IR 459. In Ferriter J’s view, the balance of justice on the facts in light of the likely prejudice to the defendants flowing from the unavailability through death of the late Mr Vaughan was such as to favour dismissing the proceedings.

Ferriter J made an order striking out the plaintiff’s proceedings.

Application granted.

Judgment of Mr Justice Cian Ferriter delivered this 19 ^th day of May 2023

Introduction

1 This is an application by the defendants to dismiss the plaintiff's case for want of prosecution on the grounds of inordinate and inexcusable delay. The present plaintiff is the son of the late Donal Vaughan and the administrator of his estate. The late Mr. Vaughan died in July 2020 and the proceedings were reconstituted in the present plaintiff's name in October 2021. The case is a professional negligence action concerning legal services provided by the defendant firm of solicitors to the late Mr. Vaughan in relation to the termination of his employment with Dublin Airport Authority (“DAA”) in October 2007. For ease, and unless the context otherwise makes clear, I will refer to the late Mr. Vaughan as “the plaintiff”.

2 There is no dispute as to the legal principles applicable to a strike out application of this type, which are well settled, but there is a dispute as to the correct application of those principles to the facts.

Background

3 The late Mr. Vaughan was employed as a business intelligence manager with DAA from 7 August 2001 until the date of his negotiated discharge on 5 October 2007. His contract of employment with DAA included the following clause (“clause 12”):

“Clause 12: Premature retirement due to Sickness or Disability of a Permanent Nature

In the event of you having to retire prematurely due to ill-health or injury which in either case renders you in the opinion of the Company permanently incapable of continuing to perform your normal duties, you will be entitled to receive from the company a lump sum equivalent to three times your annual salary as defined in the preceding paragraph…”

4 The late Mr. Vaughan went out on sick leave from DAA in December 2004. It appears that the medical certificates supporting his sick leave indicated depression and anxiety as the reason for his inability to work during the sick leave period. It appears that he received treatment for depression from a consultant psychiatrist and also received treatment for alcohol abuse. He entered into negotiations with DAA in or about November 2006 with a view to terminating his employment with the company. He had a meeting with a senior executive in DAA on 24 November 2006 when the potential terms of his departure were discussed. He was then sent a “request for voluntary severance” document by DAA, with proposed departure terms, by letter of 15 December 2006. In that letter, he was advised that he should take legal advice prior to accepting the proposed severance package. He then engaged the defendant firm to advise him in relation to his severance. There ensued a period of negotiation between the first defendant and the DAA's solicitors which culminated in the late Mr. Vaughan entering a “receipt and discharge” agreement with DAA in October 2007 which involved a one-off severance payment of €55,000 together with waiver of arrears of a loan and contribution to his legal fees. The agreement records that the repayments were “paid by way of severance on grounds of ill health”. The agreement was expressed to be without any admission of liability on the part of DAA.

Pre-proceedings steps

5 No issue was raised by the late Mr. Vaughan with the severance in the years subsequent to his departure from DAA in October 2007. It appears that the late Mr. Vaughan made a subject access request to DAA in April 2012 seeking documents relating to the circumstances of his departure. He was furnished with documents in response to the request in August 2012 and he then issued these proceedings by plenary summons in February 2013 (having earlier issued proceedings against wrongly-named defendants in November 2012).

The proceedings

6 The nub of the claim in negligence against the defendant is that the defendant failed to identify clause 12 of the employment contract, failed to inform the late Mr. Vaughan of this clause and failed to call upon DAA to furnish him his entitlements pursuant to clause 12 and/or to rely on this clause in the severance negotiation process.

7 The late Mr. Vaughan pleaded that he performed his duties with DAA “with no complaint from either party up until 6 December 2004 from which date he was unable to perform his duties due to illness. This illness rendered it necessary for the plaintiff to leave his post due to ill health having rendered him incapable of continuing his normal duties on a permanent basis.” (statement of claim, para. 4).

8 He pleaded that, in March 2007, he retained the defendants for the express purpose of taking all necessary steps in the negotiation of a severance package for his exit from the company. The severance package negotiated was a one-off payment of €55,000, together with a loan repayment waiver of €13,941 and the defendants' legal fees of €1,500.

9 It is pleaded at paragraph 14 of the statement of claim that:

“Negligently and in breach of duty the Defendants failed to call upon the Plaintiff's employer to furnish the Plaintiff his entitlements as provided for pursuant to clause 12 of his contract of employment.”

10 The plaintiff's claim in the proceedings is for the sum of €323,221 being the difference between three years' salary (said to amount to €398,221) and the severance payment of €55,000.

11 In their Defence, the defendants specifically deny the content of para. 4 of the statement of claim “and in particular the statement that the plaintiff was unable to perform his duties due to illness and that this purported illness rendered it necessary for the plaintiff to leave his post due to ill health having rendered him incapable of continuing his normal duties on a permanent basis”. The defendants plead that “on the contrary the plaintiff was a recovering alcoholic on whose behalf a medical report was submitted to the human resources manager at DAA by Dr. Brendan Deasy on 2 June 2005 indicating that the plaintiff should be six months alcohol free before attempting to return to work”.

12 The defendants also specifically plead in their Defence that the plaintiff entered into negotiations with DAA for voluntary severance of his...