Doyle v Foley

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 08 August 2022
• Neutral Citation: [2022] IECA 193
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2021/302

Between

Ray Doyle

Plaintiff/Appellant

and

Joseph Foley

Defendant/Respondent

[2022] IECA 193

Barniville P.

Edwards J.

Costello J.

Court of Appeal Record Number: 2021/302

High Court Record Number: 2013/814P

THE COURT OF APPEAL

CIVIL

Breach of contract – Negligence – Inordinate and inexcusable delay – Appellant appealing against the judgment and order striking out his claim for inordinate and inexcusable delay – Whether the balance of justice lay in favour of dismissing the proceedings

Facts: The plaintiff/appellant, Mr Doyle, issued a plenary summons on 28 January 2013 claiming damages for breach of contract, negligence and breach of duty and the specific performance of the express and/or implied terms of the contract agreed as between the plaintiff of the one part and the defendant/respondent, Mr Foley, of the second part in respect of the ownership of a stallion. The plaintiff appealed to the Court of Appeal against the judgment and order of the High Court (O’Regan J) of 9 November 2021 striking out the plaintiff’s claim for inordinate and inexcusable delay. In debate with the members of the court, counsel for the plaintiff conceded that the period of delay was inordinate. He argued that it was excusable upon four grounds: (1) the period of time taken up with the taxation of the costs of the interim injunction; (2) the ill health of the plaintiff; (3) the ill health of the plaintiff’s solicitor; and (4) the response of the defendant to the proposed application to remit the proceedings to the Circuit Court and in particular the lack of clarity in the position of the defendant. He submitted that the first three grounds taken together amounted to an excuse in respect of the period between July 2014 and April 2018 and he also relied upon the inaction of the defendant during that period. As regards the second period, he argued that the trial judge erred in drawing an analogy with a limitation period and that at all times the plaintiff was engaging with the defendant and endeavouring to progress the litigation. If the court came to consider the balance of justice, he said the balance of justice tilted in favour of the plaintiff by reason of the inaction of the defendant; it was clear that the plaintiff was trying to move the case on and the defendant delayed in issuing the motion to dismiss the proceedings for the delay. He also said that the defendant had acquiesced in the manner in which the proceedings had been progressed by the plaintiff. He said it was possible to have a fair trial; the case was entirely documentary, and it was based upon accounts produced by the defendant. It was submitted that the defendant’s case was insufficient to establish either moderate or marginal prejudice. In particular, it was pointed out that the defendant had not detailed any steps he had taken to try to identify potential witnesses who then may not be available therefore the plea was just a general averment that this may be difficult.

Held by Costello J that the explanations offered by the plaintiff to justify or excuse the delay did not excuse the delay. She held that the issue of recovering the costs of an interim injunction were not relevant to the progressing of the proceedings. She held that the evidence of the ill health of the plaintiff and his solicitor was not sufficient to explain why the case could not proceed between July/August 2014 and April 2018, especially when the plaintiff and his solicitor were apparently able to progress the proceedings both before and after the period of delay between 2014 and 2018. She held that there was no real excuse for the periods of delay in issuing a motion to remit the proceedings to the Circuit Court after the service of a notice of intention to proceed in April 2018, which delay was largely repeated in relation to the second notice of intention to proceed and the second motion to remit the proceedings. She held that the defendant had established moderate prejudice if the case were to proceed to trial based upon the general prejudice inherent in a trial in respect of matters which occurred between 2008 and 2011 and which would require critical issues to be resolved by oral testimony.

Costello J held that the balance of justice lay in granting the relief sought in the High Court. She refused the appeal. It was her provisional view that the defendant was entitled to his costs.

Appeal dismissed.

No Redactions Needed

JUDGMENT of Ms. Justice Costello delivered on the 8 ^th day of August 2022

Introduction

1 . This is an appeal against the Judgment and Order of the High Court (O'Regan J.) of 9 November 2021 striking out the plaintiff's claim for inordinate and inexcusable delay. I shall refer to the parties as the plaintiff and the defendant throughout this judgment.

Background

2 . The plaintiff's claim arises out of a Syndicate Agreement in 2008 by which the plaintiff purchased a share in a stallion standing at the defendant's stud farm in County Carlow.

3 . The claim in the Statement of Claim was quite extensive and included an allegation that the defendant induced the plaintiff to invest in the stallion without the “genuine intent” properly to manage the stallion. In submissions to this court, counsel for the plaintiff confirmed that his case was not as pleaded in his Statement of Claim but was now limited to allegations that the defendant had mismanaged the stallion, that he had reduced the price of coverings without authorisation and that he had failed to recover fees in respect of coverings which were either not paid for or declared “not in foal” despite a subsequent sale of a foal or yearling being recorded as the progeny of the stallion for the years 2007–2010. Counsel accepted that the terms of the Syndicate Agreement furnished to the plaintiff's solicitors in 2014 reflected the syndicate agreement upon which the plaintiff purchased a share in the stallion, but he did not accept that this represented the entirety of the agreement between the parties. He said that terms were to be implied into the agreement arising from either an oral agreement between the plaintiff and the defendant or from the use and practice of the industry at the time.

4 . The stallion was transferred to a stud in France pursuant to a lease agreement in 2011 and it covered mares in France from that date. Ultimately, it was purchased by the French stud in August 2014. The plaintiff says that his alleged losses crystalised in 2011.

5 . The plaintiff issued a Plenary Summons on 28 January 2013 claiming damages for breach of contract, negligence and breach of duty and the specific performance “of the express and/or implied terms of the contract agreed as between the plaintiff of the one part and the defendant of the second part in respect of the ownership” of the stallion.

6 . The proceedings progressed at what might best be described as a leisurely pace. The defendant entered an appearance on 16 May 2013 and the plaintiff served a Notice of Change of Solicitor on 19 December 2013. This was followed up by the delivery of the Statement of Claim dated 15 January 2014, a year after the Plenary Summons issued. The defendant raised particulars on 15 February 2014 and on 3 March 2014 the defendant's solicitor filed a Notice of Change of Solicitor.

7 . On 26 June 2014, the plaintiff applied ex parte for an injunction restraining the defendant, his servants or agents from entering into any binding agreement for the sale of the stallion prior to the conclusion of the proceedings and other related relief. The plaintiff swore the affidavit grounding the application on 26 June 2014. Somewhat confusingly, in light of the fact that he had sued on an agreement whose terms differed to those in the written Syndicate Agreement, in that affidavit he averred that he purchased “a share in the stallion…on specified terms and conditions particulars of which were set out in writing.” He then exhibited a copy of the Syndicate Agreement. At para. 16 of his affidavit, he said that he had an arguable case against the defendant on the basis, inter alia, that:

“…By withholding critical information relating to the terms and conditions of the Syndicate Agreement, by failing to communicate with me as a syndicate member, by failing in his duty to properly manage the stallion and to account to me for income received, the defendant is in breach of the terms of the Syndicate Agreement.”

8 . These latter terms do not appear in the Syndicate Agreement he exhibited and accordingly can only be terms of the agreement if they can be implied or were the subject of a separate oral agreement between the parties.

9 . An interim injunction was granted from 26 June 2014 until 30 June 2014 restraining the defendant from entering into any binding agreement for the sale of the stallion prior to the conclusion of the proceedings and the other relief sought.

10 . The defendant swore a replying affidavit on 9 July 2014 and his solicitor swore an affidavit on 18 July 2014. The plaintiff replied to these affidavits on 21 July 2014.

11 . On 22 July 2014, by consent, the Interim Order was vacated, and the plaintiff was awarded the costs of the interim injunction against the defendant. The court made no order as to costs in relation to the application for an interlocutory injunction.

12 . On 4 August 2014, the plaintiff replied to the defendant's rejoinders on particulars and stated that the agreement between the parties was an oral agreement made between the plaintiff and the defendant in February 2007 where in exchange for €28,000 the plaintiff would receive a share in the stallion together with two coverings per annum. Thus, up to that date there appeared to be no difficulty with the plaintiff giving instructions or his solicitor acting on them.

13 . Thereafter, the proceedings ground to a halt. No step was taken for nearly four years until on 24 April 2018 the...