Gerald J.P. Stephens v Paul Flynn Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 28 April 2005
• Neutral Citation: [2005] IEHC 148
• Court: High Court
• Docket Number: [No. 17460P/2001
• Date: 28 April 2005

STEPHENS v PAUL FLYNN LTD

BETWEEN

GERALD J.P. STEPHENS

PLAINTIFF

AND

PAUL FLYNN LIMITED

DEFENDANT

[2005] IEHC 148

[No. 17460P/2001

THE HIGH COURT

PRACTICE AND PROCEDURE:

Delay

Contract - Delay - Dismissal of proceedings for want of prosecution - Test - Whether delay inordinate and inexcusable - Whether inordinate and inexcusable delay in commencement of proceedings a factor - Balance of justice - Rainsford v Limerick Corporation [1995] 1 ILRM 561; Hogan v Jones 1 ILRM 512 and Gilroy v Flynn (Unrep, SC, 3/12/2004) followed - Proceedings dismissed (2001/17460P - Clarke J - 28/4/2005) [2005] IEHC 148 Stephens v Paul Flynn Ltd.

Facts: the plaintiff commenced proceedings in November 2002 against the defendant in respect of a cause of action which arose in December 1995. The statement of claim was delivered in November 2003. It was contended by the plaintiff that the reason for the delay in delivering the statement of claim was difficulty in obtaining reports from expert witnesses. The defendant applied to the Master of the High Court to dismiss the proceedings for want of prosecution. The plaintiff appealed against the order of the Master which directed that his claim be dismissed for want of prosecution on the grounds of the inordinate and inexcusable delay in the commencement and prosecution of the proceedings.

Held by Clarke J in affirming the order of the Master but varying same by deleting the reference to “commencement” that the two central tests were whether the delay in question was inordinate and inexcusable and if so, where the balance of justice lay. Inordinate and inexcusable delay in the commencement of proceedings was not, in itself, a factor allowing the dismissal of proceedings for want of prosecution though it was a factor to be considered in determining where the balance of justice lay. Accordingly, there was a heavy onus on the plaintiff to proceed with extra diligence in processing the proceedings having regard to the fact that delay of almost six years had been allowed to occur prior to the issuance of the proceedings. In light of that fact, the delay in filing a statement of claim was inordinate. As the plaintiff had not offered any realistic explanation as to why it should have taken the expert so long to produce a report, the delay was also inexcusable. The balance of justice favoured the dismissal of the proceedings.

Reporter: P.C.

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

HOGAN & ORS v JONES & ORS 1994 1 ILRM 512 1994/4/946

BIRKETT v JAMES 1978 AC 297 1977 3 WLR 38 1977 2 AER 801

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269

PRIMOR PLC (PMPA) v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

MCMULLEN v IRELAND UNREP ECHR 29.7.2004 (APPLICATION NO 42297/98)

Mr. Justice Clarke

1 In this case the Plaintiff appeals against an order of the Master of the High Court of 14th October, 2004. That order directed that the Plaintiff's claim "do stand dismissed for want of prosecution on the grounds of the inordinate and inexcusable delay on the part of the plaintiff in the commencement and prosecution of the proceedings". There was a previous order made by the court (O'Neill J.) on 19th March, 2002. That order refused certain relief sought by the Defendant (who was the moving party) and reserved costs. Nothing now turns on that order. However, certain matters remain in controversy as to what actually happened in this court on that date which I will address in the course of reviewing the history of the case.

The Case

2 It is common case that the Plaintiff employed the Defendant to construct a substantial house at Thornhill Manor, Hollymount in County Mayo. Disputes appear to have arisen between the parties in the course of the project. The Defendant complained that the Plaintiff failed to make payments in accordance with the contract entered into between the parties while the Plaintiff complained about delay in the construction process and the quality of certain of the works carried out. Matters appear to have come to a head on 5th December, 1995 when, it is common case, the Defendant boarded up the front door of the dwelling house then under construction. On the Defendant's case this was done in order to protect his position given the entitlement which he asserts he had under the contract to cease work when payment was in significant arrears. A hotly disputed altercation then arose during which the Plaintiff alleges and the Defendant denies that the Plaintiff was assaulted by the principal of the Defendant company.

3 On the above basis the Plaintiff claims that he was entitled to, and did in fact, treat the actions of the Defendant as a repudiation of the contract which repudiation he accepted. In those circumstances he sues, in substance, for damages for wrongful repudiation which he measures as the cost of completing the building (including the cost of remedying the alleged defects) less the balance which remained unpaid as of the date of the alleged repudiation of the original contract price.

4 It would appear, therefore, that if this action were to go to trial the principal issues would be the following:-

5 (a) the factual circumstances surrounding the events leading to and on 5th December, 1995 insofar as they are material to the question of whether the Plaintiff was entitled to treat the Defendant as having repudiated the contract. Apart from the hotly contested events which occurred on the site on that day the other facts which seem, at this stage, to be likely to be relevant concern the progress of the contract, the extent to which there had been significant defects in the workmanship, and the payment record of the Plaintiff.

6 (b) Secondly in the event that the Plaintiff were to succeed in persuading the court that the contract had come to an end by virtue of his acceptance of a repudiation thereof by the Defendant the question of the quantum of his claim would arise which would necessitate a consideration of the work done up to the point of the termination of activity on site by the Defendant, the reasonable costs of completing the works contracted for including the remedying of any defective workmanship and, perhaps, the extent to which it would be necessary in any such calculation as is contended for by the Plaintiff to take into account the possibility that the true value of the contracted works may have been varied by virtue of alterations in the requirements of the Plaintiff or other factors not attributable to the Defendant and recoverable under the contractual terms agreed between the Plaintiff and the Defendant.

The Proceedings

7 The first striking matter which needs to be noted is that the proceedings herein were not commenced until 29th November, 2002. I am mindful of the fact that in the course of the hearing counsel for the Defendant made clear that it would be the Defendant's intention, if the Plaintiff is permitted to proceed with the action, to plead the Statute of Limitations. Given that the matter of the applicability of the Statute was not argued before me I would wish to be careful not to express any view on the merits or otherwise of such a defence. However it should be noted that even on the basis of the Plaintiff's Contentions the cause of action arose on 5th December, 1995 by virtue of the wrongful repudiation of the contract by the Defendant and thus the proceedings were, at best, issued just a few days short of the expiry of the limitation period of six years. A memorandum of appearance was entered on behalf of the Defendant dated 30th January, 2002 requesting the delivery of a Statement of Claim. No statement of claim was delivered within the time prescribed for so doing in the Rules of the Superior Courts. By letter dated 14th February, 2002 the Defendant's solicitors wrote a reminder to the Plaintiff's solicitors in respect of the statement of claim. A reply was received on 20th February which drew attention to the fact that junior counsel had withdrawn from the case. In the course of the hearing it became clear that the withdrawal of junior counsel was as a result of an objection on the part of the Defendant by reason of a previous professional involvement on the part of junior counsel.

8 At or around that time the Defendant brought an application in respect of a contention relating to the receipt of abusive phone calls which ultimately was determined by O'Neill J. on 19th March, 2002. The following day the Defendant's solicitors again wrote to the Plaintiff's solicitors requesting the outstanding Statement of Claim. That letter further threatened a motion to compel delivery. In a reply of 26th March, 2002 the Plaintiff's solicitors indicated that they were currently preparing a Statement of Claim and arranging a consultation to facilitate same. An intervening phone call would appear to have occurred followed by a letter of 10th July, 2002 again seeking a Statement of Claim. There was no reply to that letter.

9 The Statement of Claim was finally delivered on 27th November, 2003 after a period in excess of a year and four months during which there appears to have been no contact between the parties” respective solicitors. It is accepted that the Statement of Claim was not, in a technical sense, validly delivered by virtue of the fact that no notice of intention to proceed had been served by the Plaintiff and that a period of one year had elapsed since the last step in the action.

10 It is contended that the reason for the delay in the preparation of the Statement of Claim was the difficulty encountered in obtaining necessary reports from expert witnesses instructed on behalf of the Plaintiff which reports were necessary to enable the proper particularisation of the...