Dooley v Clancy Project Management Ltd Trading as Clancy Construction
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 21 June 2022 |
| Neutral Citation | [2022] IEHC 468 |
| Court | High Court |
| Docket Number | [2011 5235 P] |
and
By Order of the Court
[2022] IEHC 468
[2011 5235 P]
THE HIGH COURT
Frivolous and vexatious claim – Inordinate and inexcusable delay – Balance of justice – Second defendant seeking an order striking out the plaintiff’s claim – Whether there was inexcusable and/or inordinate delay
Facts: The plaintiff, Mr Dooley, on 10 June 2011, issued a plenary summons against the first defendant, Clancy Project Management Ltd, making a claim for “damages for loss, damage, business disruption, inconvenience and distress occasioned to the Plaintiff by reason of the negligence and/or nuisance and/or breach of contract and/or breach of duty and/or trespass”. The second defendant, Mulcahy McDonagh & Partners Ltd, was joined by order made on 29 October 2013. On 22 June 2021, the second defendant’s solicitors issued a motion which was initially returnable for 13 October 2011 seeking the following relief: (i) an order pursuant to the inherent jurisdiction of the High Court striking out the plaintiff’s claim against the second defendant as being frivolous and vexatious and/or as disclosing no reasonable cause of action and/or as having no reasonable or arguable prospect of success and/or as clearly unsustainable and/or as bound to fail by reason of the second defendant having no involvement in the matters giving rise to the proceedings; (ii) further and/or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim against the second defendant on the grounds of inexcusable and/or inordinate delay; (iii) an order releasing the second defendant from its implied obligations of confidentiality in relation to the documents listed in the affidavit of the plaintiff sworn on 13 April 2021 and any further documents discovered by the plaintiff to the second defendant in the proceedings for the purposes of enabling copies of the said documents and the affidavit of discovery of the plaintiff to be provided to the solicitors on record for the second defendant as sued by the plaintiff and/or Ocean Point Development Company in related proceedings entitled The High Court record nos. 2011/6564 P and 2014/7827 P for the purposes of deployment in aid of the defences of the second defendant in those proceedings.
Held by Heslin J that the ‘bar’ which the second defendant faced in the application for the primary relief was undoubtedly a very high one. Heslin J held that the application could not be a form of summary hearing in circumstances where the Court could not resolve disputes of fact which the various affidavits disclosed and which touched on issues of central importance to the dispute, including (i) what did or did not occur at a meeting in mid-2006 (be that in May or June); (ii) the question of Mr Walsh’s authority, ostensible or actual; and (iii) the circumstances in which the plaintiff tendered a cheque to the second defendant in 2006. As regards the secondary relief, Heslin J held that the plaintiff had undoubtedly been guilty of inordinate and inexcusable delay, with his claim being ‘saved’ by only a fine margin on an application of the ‘balance of justice’ test. Heslin J held that very considerable weight had to be given to acquiescence on the part of the second defendant, as well as to conduct which induced the plaintiff to expend additional time and resources on progressing the proceedings toward a trial, knowing the potential prejudice to it but plainly taking the view, by its actions, that meeting the plaintiff’s claim ‘squarely’ and progressing the matter towards a trial was the optimum way to deal with matters. Heslin J held that what merit the underlying claim had was something which remained to be determined, in the context of a testing of competing witness testimony, with issues such as the significance of the statute of limitations also being for determination in the future. Heslin J held that these were all issues for a trial judge.
Heslin J held that the justice of the situation was best met by reserving the costs of the motion to the trial.
Application refused.
JUDGMENT of Mr. Justice Mark Heslin delivered on the 21 st day of June 2022
. On 10 June 2011, Mr. Dooley issued a plenary summons against the First Defendant making a claim for “ damages for loss, damage, business disruption, inconvenience and distress occasioned to the Plaintiff by reason of the negligence and/or nuisance and/or breach of contract and/or breach of duty and/or trespass…”. The Second Defendant was joined by order made on 29 October 2013.
. The background concerns a development initiated in 2006 at Courtown Harbour, Co. Wexford and the proceedings concern the Plaintiff's claim in respect of damage to “Skipper's Pub”, owned by the Plaintiff, arising from works to an adjacent property in the context of the said project.
. I will presently look at the claim as pleaded as well as at the manner in which it has been progressed. The Second Defendant has pleaded inter alia that it never carried out project management work for the Plaintiff and has denied that it ever owed the Plaintiff a duty of care in relation to any project management services. The Second Defendant's position is that it should never have been joined into the proceedings; that it did not carry out project management services as alleged by the Plaintiff; and that a separate project management company, namely MMP Project Management Limited (“MMP PM”), which is part of the same corporate group as the Second Defendant, was engaged to provide limited, post-tender project management services in relation to the relevant project in or around 23 May 2006.
. On 22 June 2021, the Second Defendant's solicitors issued a motion which was initially returnable for 13 October 2011 seeking the following relief:
(i) An order pursuant to the inherent jurisdiction of this Court striking out the Plaintiff's claim against the Second Defendant as being frivolous and vexatious and/or as disclosing no reasonable cause of action and/or as having no reasonable or arguable prospect of success and/or as clearly unsustainable and/or as bound to fail by reason of the Second Defendant having no involvement in the matters giving rise to these proceedings;
(ii) Further and/or in the alternative, an order pursuant to the inherent jurisdiction of this Court dismissing the Plaintiff's claim against the Second Defendant on the grounds of inexcusable and/or inordinate delay;
(iii) An order releasing the Second Defendant from its implied obligations of confidentiality in relation to the documents listed in the affidavit of the Plaintiff sworn on 13 April 2021 and any further documents discovered by the Plaintiff to the Second Defendant in these proceedings for the purposes of enabling copies of the said documents and the affidavit of discovery of the Plaintiff to be provided to the solicitors on record for the Second Defendant as sued by the Plaintiff and/or Ocean Point Development Company in related proceedings entitled The High Court record nos. 2011/6564 P and 2014/7827 P for the purposes of deployment in aid of the defences of the Second Defendant in those proceedings.
. The reference to proceedings under record no. 2011/6564 P is a reference to separate legal proceedings initiated by Mr. Dooley, in 2011, against 5 defendants (including both of the defendants in the present proceedings) arising from the relevant Wexford development. The title to same is as follows: Francis Dooley v Patterson Bannon Architects Limited (in Liquidation), P.H. McCarthy Consulting Engineers Limited, Mulcahy McDonagh & Partners Limited, CMPTNR Consultancy Limited t/a Callan Maguire Partnership, Clancy Project Management Limited t/a Clancy Construction (hereinafter “the Dooley proceedings”). Record No. 2014/7827 P concerns separate proceedings, issued in 2014, against the same 5 defendants by Ocean Point Development Company Limited (hereinafter “the Ocean Point proceedings”) in relation to the same development. In December 2021, I gave judgment in respect of motions seeking to dismiss the Dooley and Ocean point proceedings on delay grounds. Messrs. Ronan Daly Jermyn solicitors represent Mulcahy McDonagh & Partners Limited in both the Dooley proceedings and in the Ocean Point proceedings. There are separate insurers and solicitors acting for Mulcahy McDonagh & Partners Limited in the present proceedings, in which Messrs DWF solicitors represent the Second Defendant. I now turn to look at the claim made in the present proceedings and the progress of same since they were commenced in 2011. For ease of reference, I will look at matters in chronological order.
. The Plaintiff issued a plenary summons on 10 June 2011 which named only the First Defendant and made a claim for damages for loss, damage, business disruption, inconvenience and distress by reason of negligence, nuisance, breach of contract, breach of duty and/or trespass. Plainly, this was not a step taken to progress a claim against the Second Defendant who was not named in the proceedings as originally issued.
. On 04 July 2011, an Appearance was entered by Messrs. McCann FitzGerald, solicitors on behalf of the First Defendant. Other than the foregoing, the Plaintiff took no step to progress the proceedings in 2011.
. The Plaintiff took no steps to progress the proceedings throughout 2012. On 15 November 2012, a Notice of Change of Solicitors was filed in the High Court Central Office confirming that Manus Bray & Co solicitors had been appointed for the Plaintiff.
. The Plaintiff took no step to progress the proceedings in 2013 until his solicitors issued a Notice of Intention to Proceed, which was filed in the High Court Central Office on 23 May 2013. The...
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