Dooley v Patterson Bannon Architects Ltd ; Ocean Point Development Company Ltd [(in Receivership)] v Patterson Bannon Architects Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2022] IEHC 504 |
| Court | High Court |
| Docket Number | [Record No. 2011/6564 P] |
[Record No. 2011/6564 P]
[Record No. 2014/7827 P]
THE HIGH COURT
Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Third defendant seeking an order dismissing the plaintiffs’ claims – Whether there was inexcusable and/or inordinate delay
Facts: Messrs. Ronan Daly Jermyn, solicitors for the third defendant, Mulcahy McDonagh & Partners Ltd, on 6th August, 2019, issued a motion, which was initially returnable for 18th November, 2019 seeking, inter alia, the following relief: (1) an order pursuant to the inherent jurisdiction of the High Court dismissing the plaintiff’s claim for inexcusable and/or inordinate delay; (2) further, and/or in the alternative, an order pursuant to Order 122, rule 11 of the Rules of the Superior Courts (as amended) dismissing the plaintiff’s claim for want of prosecution. Motions seeking similar reliefs were issued on behalf of the third defendant in two sets of proceedings. The first bears Record No. 2011/6564P (the Dooley proceedings), wherein Mr Dooley was the plaintiff. The second set of proceedings, bearing Record No. 2014/7827P (the Ocean Point proceedings) were brought against the same five defendants, and the plaintiff was Ocean Point Development Company Ltd (in receivership) (Ocean Point). Mr Dooley was the director and shareholder of Ocean Point, a company incorporated in or around 16th August, 2006, which company went into receivership on 5th March, 2009. It was averred by Mr Dooley that, in separate proceedings, he was challenging the relevant receivership but it was also averred by Mr Dooley that he was authorised to bring the proceedings under Record No. 2014/7827P by the relevant receiver, Mr Ferris. Both of the foregoing motions were listed together for hearing.
Held by Heslin J that inordinate and inexcusable delay had been established in both cases and the factors taken into account in determining where the balance lay included real prejudice which had flowed from the plaintiff’s delay: both general or moderate prejudice, insofar as the likely degrading of witness memories; and specific prejudice, as regards the third defendant’s reputation and professional indemnity insurance. Heslin J held that, by contrast, the plaintiff had not advanced, in either case, anything which amounted to “countervailing circumstances”. Heslin J held that the plaintiff had not put forward anything “weighty” which would argue for a different outcome to the balance of justice assessment. In Heslin J’s view the balance of justice was undoubtedly in favour of granting the relief sought by the third defendant and dismissing the plaintiff’s claims in both cases. Heslin J held that the outcome of a careful consideration of where the balance of justice lay did not come down to “fine margins”. In Heslin J’s view, the balance of justice tilted very strongly and very clearly in favour of the dismissal of the Dooley and Ocean Point proceedings on a proper application of the Primor principles: Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. Heslin J held that the third defendant was entitled to an order dismissing the plaintiff’s claim in each of the proceedings.
Heslin J’s preliminary view on the issue of costs was that he saw nothing which would justify the Court from departing from the “normal rule”, i.e. that costs should “follow the event”.
Relief granted.
JUDGMENT of Mr. Justice Mark Heslin delivered on the day 20 th day of December, 2021
. The backdrop to the present applications concerns a commercial development initiated by Mr. Francis Dooley at Courtown, Co. Wexford in 2006 and legal proceedings arising therefrom. The matter comes before the Court in circumstances where, on 6 th August, 2019, Messrs. Ronan Daly Jermyn (“RDJ”), solicitors for the third named defendant, Mulcahy McDonagh & Partners Ltd., issued a motion, which was initially returnable for 18 th November, 2019 seeking, inter alia, the following relief:-
“(1) An order pursuant to the inherent jurisdiction of This Honourable Court dismissing the plaintiff's claim for inexcusable and/or inordinate delay;
(2) Further, and/or in the alternative, an order pursuant to Order 122, rule 11 of the Rules of the Superior Courts (as amended) dismissing the plaintiff's claim for want of prosecution.”
Motions seeking similar reliefs were issued on behalf of the third named defendant in two sets of proceedings. The first bears Record No. 2011/6564P, wherein Mr. Francis Dooley is the plaintiff. The second set of proceedings, bearing Record No. 2014/7827P are brought against the same five defendants, and the plaintiff is Ocean Point Development Company Ltd. (In Receivership) (“Ocean Point”). Mr. Dooley is the director and shareholder of Ocean Point, a company incorporated in or around 16 th August, 2006, which company went into receivership on 5 th March, 2009. It is averred by Mr. Dooley that, in separate proceedings, he is challenging the relevant receivership but, for present purposes, it is also averred by Mr. Dooley that he is authorised to bring the proceedings under Record No. 2014/7827P by the relevant receiver, Mr. Martin Ferris. Both of the foregoing motions were listed together for hearing. At the outset, Ms. O'Connell BL for the third named defendant and moving party indicated that, by agreement with Mr. Donelon BL for the relevant plaintiffs/respondents, it was appropriate that the motion in respect of proceedings under Record No. 2011/6564P be dealt with first and, for the purposes of this judgment, I propose to begin by looking at the application in respect of those proceedings. Reference in this judgment to “the Dooley proceedings” is a reference to the proceedings under Record No. 2011/6564P and reference to “the Ocean Point proceedings” is a reference to proceedings under Record No. 2014/7827P. Counsel for the third named defendant also indicated that, in circumstances where there is a dispute between the parties regarding the sending of a particular letter in November 2018, the relief pursued by the third named defendant is that at para. (1) of the relevant motion.
. The present applications took three days to hear (two days in February and a third day in November 2021). They concern two different sets of legal proceedings brought by two different plaintiffs. A range of diverse submissions were made with skill and no little ingenuity by the relevant counsel. In order to deal adequately with same, this judgment is, therefore, a very lengthy one. It seemed to me, however, that given the importance of the issues at play, it was necessary to set out in considerable detail the reasons for this Court's decision. In circumstances where there are great similarities between the pleas made in both sets of proceedings, this judgment also contains, of necessity, a certain amount of repetition. With apologies for that, I propose to look first at the Dooley proceedings and, for ease of reference, I propose to look at relevant events in chronological order.
. The plenary summons issued on 19 th July, 2011 and the record number of the proceedings bought by Mr. Dooley is 2011/6564P. The endorsement of claim states the following:-
“The plaintiff's claim is for:
(1) Damages for loss, damage, inconvenience, distress, interest and costs occasioned to the plaintiff by reason of any or all of the following; breach of contract, and/or negligence and/or breach of duty to include breach of statutory duty on the part of the defendants or each, either or all of them, their respective servants and agents.
(2) Interest pursuant to statute.
(3) Such further or other order as This Honourable Court shall deem fit and appropriate.
(4) The costs of and incidental to these proceedings.”
. Although a range of pleas are made in the foregoing manner, it is fair to say that the plenary summons does not contain specific details in relation to what is alleged to constitute the wrong on the part of the third named defendant. It is clear that a notice of appearance was filed, promptly, in response to service of the plenary summons. The pleadings contain a copy of the 11 th August, 2011 appearance entered by RDJ Solicitors for the third named defendant. It is not in dispute that appearances were filed on the 26th, 28 th and 29 th July, 2011 by the fifth, first and second named defendants respectively. The filing of an appearance by a defendant is obviously not a step taken by a plaintiff to progress his claim.
. Other than serving the plenary summons in July 2011, the plaintiff does not appear to have taken any step whatsoever to progress the case. The same comment applies throughout 2012 with the exception of a notice of change of solicitor, dated 1 st November, 2012 which gave notice that Messrs. Manus Brady & Co. Solicitors had come on record, whereas Messrs. Maples and Calder had previously been on record for the plaintiff. On 22 nd November, 2012, a notice of change of solicitor was served on behalf of the fifth named defendant, giving notice that Messrs. Tormeys Solicitors had come on record instead of Messrs. McCann Fitzgerald. The foregoing appears to be the only activity which took place in 2012. Thus, as a matter of fact, other than serving...
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