O'Doherty P/A McEntee & O'Doherty v Finnegan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 17 June 2022 |
| Neutral Citation | [2022] IEHC 368 |
| Court | High Court |
| Docket Number | [2012/3684 S] |
[2022] IEHC 368
[2012/3684 S]
THE HIGH COURT
Summary judgment – Inordinate and inexcusable delay – Balance of justice – Defendants seeking to dismiss the proceedings for delay – Whether the balance of justice lay in favour of dismissing the proceedings
Facts: The plaintiff, Mr O’Doherty, was a solicitor who was engaged by the defendants, Mr and Ms Finnegan, to act for them in High Court proceedings arising from defects in the construction of their home. The defendants settled that case by direct engagement with one of the other party’s solicitors for an all-in amount (i.e. inclusive of compensation and costs) of approximately €317,000 from which the defendants agreed to pay €53,000 towards the costs of one of the other parties. The defendants did not make any payment to the plaintiff in respect of his costs or the expenses he had incurred on outlay, counsel and engaging expert witnesses. The plaintiff furnished a final bill of costs to the defendants on 17 July 2007, which the defendants declined to pay. The plaintiff referred that bill to taxation and a lesser amount was allowed by the Taxing Master. The defendants refused to pay those costs and the plaintiff issued proceedings by way of summary summons on 27 September 2012, seeking judgment in the amount of €183,971.56, being the amount allowed on taxation less some small payments that the defendants had paid on account in 2004 and 2006, along with interest and costs. There had been considerable delay in progressing the claim, none of which was attributable to the defendants and some of which was acknowledged by the plaintiff as having been due to him and some of which he said was due to administrative difficulties he experienced with the Taxing Masters Office. The defendants applied to the High Court seeking to dismiss the proceedings for delay. The defendants suffered considerable stress as a result of the defects in their house and the uncertainty that this caused for them, which was the subject matter of the proceedings they engaged the plaintiff to bring for them. They said that their stress had been exacerbated by the plaintiff’s delay in progressing the proceedings. The defendants intended to defend and counterclaim for what they said was the plaintiff’s negligent advice to them and they exhibited a three-page chronology of events which they said would form the basis of their defence and counterclaim. Most of their chronology referred to letters, file notes and other documents. The defendants believed there would be significant disputed recollection in relation to the matters set out in the chronology and that this would make it difficult for them to obtain a fair trial on those issues after so many years. They did not identify any other witnesses they intended to call and did not specify the basis for their belief that there would be disputed recollections over the matters set out in their chronology. The defendants argued that the fact they were uninsured, in itself, constituted prejudice.
Held by Bolger J that she would refuse the application to strike out the proceedings for delay. Whilst the period of delay was inordinate, she was satisfied that it was excusable. She was not satisfied that the defendants had established prejudice from the delay, particularly given the documentary nature of their defence and proposed counterclaim. She held that the balance of justice was in favour of allowing the proceedings to continue given the greater prejudice that would be suffered by the plaintiff if they were to be dismissed. She held that this was subject to the plaintiff’s undertaking to file their motion for liberty to enter final judgment within two weeks of taking up the certificate of taxation and also to the plaintiff’s additional undertaking (similar to that given to the court in Truck and Machinery Sales Limited v General Accident Fire and Life Assurance Corporation plc [1999] IEHC 201) not to seek interest in respect of the period of delay attributable to the plaintiff, which she determined to have been the period between 2014-2017.
Bolger J’s indicative view was that costs should follow the cause and that the plaintiff was entitled to the costs of defending the application from the defendants with execution of any costs order to be stayed pending the outcome of the proceedings.
Application refused.
JUDGMENT of Ms. Justice Bolger delivered on the 17th day of June, 2022
This is the defendant's application to dismiss the proceedings for delay. The court must establish:-
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(1) Has there been inordinate delay?
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(2) If so, is that delay excusable?
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(3) If the delay is both inordinate and excusable, does the balance of justice lie in favour of dismissing the proceedings?
The plaintiff is a solicitor who was engaged by the defendants to act for them in High Court proceedings arising from defects in the construction of their home. The defendants settled that case by direct engagement with one of the other party's solicitors for an all-in amount (i.e. inclusive of compensation and costs) of approximately €317,000 from which the defendants agreed to pay €53,000 towards the costs of one of the other parties. The defendants did not make any payment to the plaintiff in respect of his costs or the expenses he had incurred on outlay, counsel and engaging expert witnesses.
The plaintiff furnished a final bill of costs to the defendants on 17 July 2007, which the defendants declined to pay. The plaintiff referred that bill to taxation and a lesser amount was allowed by the Taxing Master. The defendants refused to pay those costs and the plaintiff issued these proceedings by way of summary summons on 27 September 2012, seeking judgment in the amount of €183,971.56, being the amount allowed on taxation less some small payments that the defendants had paid on account in 2004 and 2006, along with interest and costs.
There has been considerable delay in progressing this claim, none of which is attributable to the defendants and some of which is acknowledged by the plaintiff as having been due to him and some of which he says were due to administrative difficulties he experienced with the Taxing Masters Office. During all those periods of delay, the plaintiff was engaged in correspondence with the defendants and filed a number of notices of intention to proceed (on 1 September 2014, 16 November 2015, 20 June 2017, 11 October 2018 and 14 October 2019). Whilst the plaintiff accepts that those notices do not constitute pleadings, it is clear that they, along with the plaintiff's correspondence, served to make the defendants aware at all times of the plaintiff's intention to proceed with this claim.
The periods of delay can be categorised as follows:
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(i) 2014–2017. The plaintiff says this was due to his inability to pay stamp duty of approximately €7,000 until 2017 which meant he could not extract the certificate of taxation.
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(ii) 2017–2020. The plaintiff says this not of his making but was due to administrative issues in the Taxing Masters Office which delayed him in taking up the certificate of taxation. The defendant contends this delay would not have happened had it not been for the plaintiff's earlier delay.
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(iii) March 2020 to the date of this application. The plaintiff says this delay was due to covid restrictions.
The certificate of taxation was eventually made available to the plaintiff by the Taxing Masters Office on the day of the hearing of this motion (17 February 2022), and the plaintiff's counsel confirmed the plaintiff's intention to discharge the payment due as soon as possible, and to file the motion seeking liberty to enter final judgment within two weeks thereafter.
The defendants made two separate complaints to the Law Society in relation to the plaintiff, neither of which were upheld. The defendants have also engaged with the media and, according to the plaintiff, have engaged in an online campaign of unfair and defamatory criticism of the plaintiff.
The defendants suffered considerable stress as a result of the defects in their house and the...
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