Faherty v Minister for Defence and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE FEENEY
• Judgment Date: 22 October 2007
• Neutral Citation: [2007] IEHC 371
• Docket Number: Case No. 6782P/1998
• Court: High Court
• Date: 22 October 2007

[2007] IEHC 371

THE HIGH COURT

DUBLIN

Case No. 6782P/1998

Faherty v Min for Defence & Ors

MICHAEL FAHERTY

PLAINTIFF

and

MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

PRIMOR PLC (PMPA) v FREANEY & STOKES KENNEDY CROWLEY 1996 2 IR 459

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

GILROY v FLYNN 2005 1 ILRM 290

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

BARRY v IRELAND 2005 ECHR 865

VAN DIJK THEORY & PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 4ED 2006 PARA 10.7.3

PRACTICE AND PROCEDURE

Dismiss claim

Want of prosecution - Delay - Factors to be considered - Whether delay inordinate and inexcusable - Whether balance of justice requiring that proceedings be dismissed - Conduct of parties - Whether delay giving rise to real risk of prejudice to applicant in conduct of proceedings - Exercise of discretion - Primor v Stokes Kennedy Crowley [1996] 2 IR 459 applied - Proceedings struck out (1998/6782P - Feeney J - 22/10/2007) [2007] IEHC 371

Faherty v Minister for Defence

1 JUDGMENT DELIVERED BY MR. JUSTICE FEENEY ON MONDAY, 22 OCTOBER 2007

APPEARANCES

Solicitors for Plaintiff:

McAllister O'Connor

Abbey Road

Navan

Co. Meath

Solicitors for Defendants:

MS. PAULA BURKE

CORRIGAN & CORRIGAN

3, ST. ANDREW STREET

DUBLIN 2

2 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

MR. JUSTICE FEENEY DELIVERED JUDGMENT AS FOLLOWS ON TUESDAY, 22ND OCTOBER 2007

3 REGISTRAR: In the matter of Faherty -v- Minister for Defence and others for judgment.

4 MR. JUSTICE FEENEY: This is an application brought by Notice of Motion by the Defendants for an Order pursuant to the inherent jurisdiction of the Court dismissing the Plaintiff's claim as against the Defendants on the grounds of inordinate and inexcusable delay in the prosecution of the proceedings.

5 The history and chronology of the proceedings and the nature of the claim can be ascertained from the grounding affidavit of Paula Burke and the replying affidavit of the Plaintiff and from the exhibits therein and from the Pleadings. The history and chronology of the individual case is, as always, central in considering an application to strike out for inordinate and inexcusable delay.

6 The first and central authority to assist and guide the Court is Primor -V- Stokes Kennedy Crowley [1996] 2IR. That case makes it clear that the primary consideration for the Court is:

"To deal with the essential justice of the case before them."

7 In that case the Supreme Court laid out and identified the general principles to be applied having reviewed the leading authorities and did so at pages 475 and 476 of the judgment of Hamilton CJ.

8 The principles to be applied were identified as:

9 (a) the Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

10 (b) it must be in the first instance be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof that the delay was inordinate and inexcusable;

11 (c) even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceedings of the case;

12 (d) in considering this latter obligation the Court is entitled to take into consideration and have regard to:

1. The implied constitutional principles of basic fairness of procedures;

13 2. Whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the Defendant to allow the action to proceed and to make it just to strike out the Plaintiff's action;

14 3. Any delay on the part of the Defendant because litigation is a two party operation, the conduct of both parties should be looked at;

15 4. Whether any delay or conduct of the Defendant amounts to acquiesce on the part of the Defendant in the Plaintiff's delay;

16 5. The fact and conduct by the Defendant which induces the Plaintiff to incur further expenses;

17 6. Whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendant;

18 7. The fact that the prejudice to the Defendant referred to in 6 may arise in many ways other than merely caused by delay, including damage to the Defendant's reputation and business.

19 This Court will apply those principles to the facts of this case. Those principles have been consistently applied. Even after the enactment of the European Convention on Human Rights Act 2003 as is stated in the judgment of Clarke J in stephens -v- Paul Flynn Ltd., an unreported judgment of 28 April 2005:

"The basic questions which the Court has to address remain the same."

20 Page 7 of that judgment.

21 The two central tests are identified on the basis that the Court should: 1. Ascertain whether the delay in question is inordinate and inexcusable; 2. If it is so established the Court must decide where the balance of justice lies.

22 However, in addressing the second of those two issues it is clear that following a Supreme Court decision in Gilroy -v- Mary Flynn [2005] 1ILRM 290 that the weight or emphasis to be given to the various factors in the assessment of the balance of justice and the actual length of time which might be excused must be viewed in the light of the conditions now prevailing. As Clarke J said in Stephens at page 8 of his judgment:

"Delay which would have been tolerated may now be regarded as inordinate."

23 And:

"Excuses which suffice may no longer be accepted."

24 As Clarke J concluded the balance of justice may be tilted in favour of imposing greater obligation of expedition.

25 Those developments arose not only from the 2003 Act, the European Convention on Human Rights, and the applicability of that Convention to Irish domestic law, but also from an amendment to Order 27 demonstrating a more critical approach to unexplained or unjustified delay. The European Court has emphasised the effect and importance of Article 6(1) of the European Convention on Human Rights and following on such decisions as Barry -v- Ireland ECHR judgment of 15 December 2005, it is the case that the national courts, inspective of the approach of the parties, are obliged to ensure that all proceedings are completed within a reasonable time frame.

26 The approach of the European Court on human rights is succinctly set down and...