Ericson and Others v Moloney Enterprises Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 20 January 2016
• Neutral Citation: [2016] IEHC 66
• Docket Number: [2001 No.14557P]
• Court: High Court
• Date: 20 January 2016

BETWEEN

MORAY ERICSON, PAMELA ERICSON, SHANE HANLON, ODETTE O'FLAHERTY, JAMES DOYLE, KATHLEEN MORRISON, GARRATH WHELAN, PATRICIA HANDRICK

PLAINTIFFS

AND

MOLONEY ENTERPRISES LIMITED

DEFENDANT

AND

BRENDAN GRIMES

THIRD PARTY

[2016] IEHC 66

[2001 No.14557P]

THE HIGH COURT

Practice & Procedures – O. 122, r. 11 of the Rules of the Superior Courts – Dismissal of proceedings – Delay – Risk of fair trial – Conduct of defendant

Facts: Following the initiation of the proceedings for trespassing by the plaintiffs against the defendant and then issuance of notice by the defendant to the third party alleging that the said trespass occurred due to mapping errors as the said maps were prepared by the notice party, the notice party now sought an order for striking off the claim of the defendant on account of delay.

Mr. Justice Gilligan granted an order for the dismissal of the defendant's proceedings against the third party. The Court held that before granting an order for striking off the case, the Court must see whether there was an inordinate and inexcusable delay and even if the delay had been inexcusable, the Court must weigh the balance of justice. The Court observed that the factors that were relevant in assessing the balance of justice were: the character of the plaintiff, the conduct of the defendant and the scope and ambit of the defendant's defence and counter claim. The Court found that there had been 10 years inordinate and inexcusable delay in prosecuting the present matter after delivering the notice of intention to proceed. The Court found that the since the defendant had settled the two proceedings namely, one with the plaintiff and the other with the solicitors in relation to the exclusion of the third party, the continuance of the present proceedings would be prejudicial to the interests of the third party as the third party whose claims were based upon his interactions with the solicitors.

JUDGMENT of Mr. Justice Gilligan delivered on the 20th day of January, 2016

1 In this application the third party seeks to dismiss the defendant's claim against him on the basis that (a) the claims advanced against the third party are unsustainable, bound to fail, and are frivolous and/or vexatious and further (b) that the defendant's claim should be dismissed on the basis of inordinate and inexcusable delay.

Background.

2 The defendant is the developer of certain residential houses in Skerries, County Dublin, which were developed in two phases, each phase consisting of five houses. The plaintiffs were the purchasers of four of the five houses in phase 1 and in October, 2001, they brought proceedings against the defendant alleging trespass. In particular, the plaintiffs alleged that the defendant did not retain any easements, rights and privileges in disposing of the relevant sites. Accordingly, the plaintiffs alleged that that part of the relevant road used by the defendant to access the five houses at phase 2, at a point beyond phase 1, was within their ownership and on that basis, the defendant was guilty of trespass in traversing the road.

3 The defendant delivered a defence which pleaded that a mapping error occurred which did not reflect the true intention of the parties and in that regard counterclaimed for rectification.

4 In October, 2002, the defendant sought and was granted leave to deliver a third party notice on Mr. Brendan Grimes. The defendant contended that the third party was retained to prepare maps, including the boundaries of the individual houses, for the purposes of the relevant development. In the third party statement of claim, as delivered on the 19th day of February, 2013, it is stated that the claim related to an entitlement to be indemnified against the plaintiff's claim or a contribution in respect of the plaintiff's claim. A defence and counterclaim was delivered on the 19th day of November, 2004, on behalf of the third party in which he denied the allegations made and, in addition, alleged that if any damage had been suffered by the defendant then it was due to the acts or omissions of Matthews Solicitors, the defendant's then solicitors who effected the conveyance of the houses at phase 1 of the development.

5 In or around 2003, the defendant instituted separate proceedings as against Matthews Solicitors (the ‘solicitor proceedings’.)

6 In December, 2004, discovery was made by the third party to the defendant. On 21st February, 2006, a notice of intention to proceed was delivered to the third party but no steps were taken pursuant thereto. A further notice of intention to proceed was again delivered some eight years later, on 7th May, 2014. The instant application issued in November, 2014, and has been adjourned from time to time, finally coming before this Court on 7th October, 2015. In June, 2015, despite the existence of the present application, the defendant purported to deliver updated particulars of loss, a notice to produce, and a notice of trial in the third party action. Accordingly, the time between the date of the delivery of discovery by the third party, to the date the within application was brought, amounts to almost 10 years.

7 Order 122, Rule 11 of the Rules of the Superior Courts provide as follows:

‘In any cause of matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the respondent may apply to the court to dismiss the same for want of prosecution, and on hearing of such application, the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial though countermanded shall, be deemed a proceeding within this rule.’

8 There was a delay of eight years between the notice of intention to proceed against the third party in 2006 and the further notice of intention to proceed in May, 2014. Counsel for the defendant, Mr. McCarthy, however, submits that this delay can be explained by what occurred in the intervening period, namely the fact that a settlement of the action between the plaintiff and the defendant for €80,000.00 inclusive of costs took place in February, 2009, which enabled the conveyances in relation to the 5 houses which had been landlocked to be finalised and this process was only completed in 2013. Therefore, counsel submits that the delay was not inordinate, in the sense of being undue, unwarranted, or unreasonable.

9 Counsel for the third party, Ms. Smith, on the other hand, does not accept that the delay is limited to a period of eight years. While a notice of intention to proceed was delivered in 2006, no step was taken on foot thereof in the third party proceedings. In those circumstances, counsel submits that the relevant delay here is closer to ten years from the date the third party delivered discovery in December, 2004, to the May, 2014, notice of intention to proceed.

10 Counsel for the defendant submits that the delay (which, on their case, is only eight years) is excusable for two reasons. Firstly, it is contended that the defendant was entitled to wait for the determination of the solicitor proceedings which were issued in 2003 and not renewed until 2006. In 2006, Mr. Justice Peart renewed the plenary summons and an application was brought by the solicitors to have that renewal set aside. That application was refused by this Court (Dunne J.) on the 4th July, 2008. The High Court order was made and perfected in February, 2011. Matthews Solicitors sought to appeal against this order, which appeal came on for hearing before the Supreme Court on 22nd April, 2015, and the matter was compromised on that date, in the sum of €180,000.00 inclusive of costs.

11 In the context of the solicitor proceedings and, in particular, the period between 2003 and 2014, the defendant submits that it could not have progressed the third party claim until the appeal was determined, particularly since the third party herein in its defence and counterclaim contended that any breach of duty or negligence was on the part of Matthews Solicitors. On this point, counsel for the third party notes that the solicitor proceedings were brought by way of separate proceedings and not, as one would expect, joined as a third party to the within proceedings. Secondly, counsel contends that the position that the appeal on the solicitor proceedings had to be dealt with prior to the third party claim being advanced is entirely at odds with the explanation put forward by the defendant's solicitors in a letter dated 31st July, 2014, in which it was stated that the within proceedings and the solicitor proceedings ‘will have to be linked and heard together to save time and costs.’

12 It is further submitted by counsel for the third party that at no point did the defendant or its solicitors put the third party on notice that they were awaiting the outcome of the solicitor proceedings. Instead, the issue was only raised after the third party indicated, in 2014, an intention to bring an application to strike out for want of prosecution.

13 The second reason put forward by the defendant relates to the compromise of the proceedings with the plaintiffs. The defendant compromised the action with the plaintiffs in February, 2009. It is contended by counsel on behalf of the defendant that it was only at that point that the defendant was in a position to access the second phase of the development and complete the sale of the houses there. This occurred in or about 2013, when the houses in the second phase of the development were conveyed. In this regard, counsel for the third party queries why it...