Dooley v Patterson Bannon Architects Ltd ; Ocean Point Development Company Ltd [(in Receivership)] v Patterson Bannon Architects Ltd
|Mr. Justice Mark Heslin
|20 December 2021
| IEHC 857
|[Record No. 2011/6564 P]
 IEHC 857
[Record No. 2011/6564 P]
[Record No. 2014/7827 P]
THE HIGH COURT
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 the plenary summons in July 2011, in response to which appearances were delivered promptly, the plaintiff took no meaningful action to progress his claim throughout the remainder of 2011 and throughout the entire of 2012 and that was the status quo as the year turned.
. On 3 rd April, 2013, the first named defendant raised a notice for particulars. This was obviously not a step taken by the plaintiff to progress his claim. Whether it was this which prompted the plaintiff into action or not, it is a matter of fact that on 23 rd May, 2013, the plaintiff issued a notice of intention to proceed and, on 4 th June, 2013, the plaintiff furnished replies to the first named defendant's notice for particulars. To reply to the first named defendant's particulars was not, however, to progress the plaintiff's claim against the third named defendant in any way. On 8 th August, 2013, a defence was delivered by the second named defendant. On 19 th September, 2013, a further notice for particulars was raised by the first named defendant and, on 26 th September, 2013, the plaintiff raised a notice for particulars in relation to the defence delivered by the second named defendant.
. It is appropriate to observe that two years, three months and two weeks elapsed between the plenary summons being issued on 19 th July, 2011 and the service, on 5 th November, 2013 of the plaintiff's statement of claim on the third named defendant. Later in this judgment, I will examine the plaintiff's affidavits in some detail but nowhere does the plaintiff offer any reason to explain this significant period of delay prior to service of the statement of claim on the third named defendant. As I observed earlier, it is fair to say that, until service of the 5 th November, 2013 statement of claim, the third named defendant did not have specific details of the nature of the claim being made against it by the plaintiff. Although it is no function of this Court, in the context of this application, to make any findings in respect of the underlying proceedings, it is necessary to have an understanding of their nature and the relevant timescale involved insofar as the dispute is concerned. That requires an analysis of the pleaded claim and I now turn to look at the statement of claim, following which I will resume looking at the progress of the proceedings.
. A reading of the statement of claim indicates that the proceedings concern a development undertaken by the plaintiff in Courtown, Co. Wexford. The plaintiff pleads that the first named defendant provides architectural services; the second named defendant carries on the business of consulting engineers; the third named defendant carries on business of project managers; the fourth named defendant carries on the business of quantity surveying; and the fifth named defendant is a firm of building contractors. The plaintiff pleads that he is the registered owner of a public house, nightclub and fast food complex known as the Courtown Entertainment Complex which he purchased in or around May 2003. The plaintiff pleads that, in early 2004, he began to look at alternative business opportunities for...
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