Gerald J.P. Stephens v Paul Flynn Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 25 February 2008
• Neutral Citation: [2008] IESC 4
• Court: Supreme Court
• Docket Number: [S.C. No. 204 of 2005],[Record No. 2005/204]
• Date: 25 February 2008

BETWEEN

GERALD J. P. STEPHENS

PLAINTIFF/APPELLANT

AND

PAUL FLYNN LIMITED

DEFENDANT/RESPONDENT

Kearns J.

Macken J.

Finnegan J.

[Record No. 2005/204]

THE SUPREME COURT

Abstract:

Practice and procedure - Delay - Delivery Statement of Claim - Complexity - New evidence - Distress to defendant - Appeal from High Court - Twenty month delay -European Convention on Human Rights

: An appeal was taken from the decision of the High Court where the plaintiffs claim had been dismissed on grounds of inordinate and inexcusable delay. The dispute arose between the parties arising from a claim for wrongful repudiation of a building contract relating to 1995. The proceedings were commenced in 2001. A twenty month delay in delivering a statement of claim was alleged to be excessive.

Held by the Supreme Court per Kearns J. that the Supreme Court on appeal would not interfere lightly with a decision of the High Court. The delay here was totally unsustainable and the complexity of the case did not justify the delay here. The explanation for the delay had not held up. The defendants had been caused anxiety by the institution of proceedings and the conduct of the plaintiff.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Kearns delivered the 25th day of February, 2008

2 This is an appeal from a decision of the High Court (Clarke J.) delivered on 28th April, 2005, whereby it was directed that the plaintiff's claim be dismissed for want of prosecution on the grounds of the inordinate and inexcusable delay on the part of the plaintiff in the prosecution of the proceedings.

3 It is common case that the plaintiff employed the defendant company to construct a substantial house at Thornhill Manor, Hollymount, Co. Mayo. The contract for same was contained in an agreement in writing dated 9th December, 1994. The original contract price under the terms of the building agreement was EUR355,215.58, inclusive of V.A.T. Unhappy differences arose between the parties towards the conclusion of the project. The defendant complained that the plaintiff failed to make payments in accordance with the contract entered into, while the plaintiff in turn complained about delay in the construction process and about the quality of certain of the works carried out. Matters came to a head on 5th December, 1995, when the defendant boarded up the front door of the dwelling house then under construction. Mr. Paul Flynn, principal of the defendant company, contends that 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. The plaintiff elected to treat the actions of the defendant as a repudiation of the contract which repudiation he accepted. In the High Court the issues between the parties were summarised by Clarke J. as follows:

4 "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 effects) less the balance which remained unpaid as of the date of the alleged repudiation of the original contract price.

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

• (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.

• (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."

6 The present proceedings were commenced on 29th November, 2001, which was just within the applicable six year limitation period. An appearance was entered on behalf of the defendant on 30th January, 2002, requesting the delivery of a Statement of Claim. 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 thereto was received on 20th February, 2002, which drew attention to the fact that junior counsel had withdrawn from the case.

7 By Notice of Motion dated 14th March, 2002, the defendant sought an order directing the plaintiff to deliver a Statement of Claim. Other relief was also sought at that time, including an injunction restraining the plaintiff from making abusive telephone calls to Mr. Flynn or from approaching within five hundred metres of his residence. By order dated 19th March, 2002, the High Court (O'Neill J.) declined to grant any injunction and made no formal order in respect of the delivery of a Statement of Claim. It seems clear, however, that some agreement between the respective sides was reached in that respect, although it is not clear at this stage whether any formal undertaking was given by or on behalf of the plaintiff in this regard. By letter dated 20th March, 2002, the defendant's solicitors wrote to the plaintiff's solicitors requesting the outstanding Statement of Claim and threatening a motion to compel delivery. Replying on 26th March, 2002, the plaintiff's solicitors advised that they were arranging a consultation to facilitate same. On 21st May, 2002, the plaintiff's solicitors wrote to the defendant's solicitors as follows:

8 "I refer to the above and telephone conversation of even date wherein I advised that the delay in furnishing a Statement of Claim is due to the fact that my client's engineer is in fact in hospital.

9 I have once again written to my client requesting his engineers report and have stressed the urgency with same."

10 On 10th July, 2002, the defendant's solicitors wrote to say that if there were no developments they would be obliged to bring a motion concerning the production of the plaintiffs Statement of Claim.

11 The Statement of Claim was ultimately delivered sixteen months later on 27th November, 2003. No Notice of Intention to Proceed had been served by the plaintiff, although a period of more than one year had elapsed since the last step in the action.

12 The only reason offered for the delay in the preparation of a Statement of Claim was the difficulty encountered in obtaining information from the plaintiff's engineer, Mr. Cyril Kelly, because of his supposed illness and hospitalisation. In June, 2004 the present Notice of Motion issued seeking dismissal of the plaintiff's claim for want of prosecution.

13 It is appropriate at this stage to refer to the further development which took place in this case subsequent to the hearing in the High Court before Clarke J. These factors are deposed to in an affidavit sworn by Mr. Kevin Rooney, the defendant's solicitor, on the 18th January, 2008. He states that on 28th February, 2007, he had occasion to telephone Mr. Cyril Kelly in relation to an unrelated action. In the course of his discussion with Mr. Kelly he mentioned the issue and duration of his illness and hospitalisation in 2002 and 2003. He was extremely surprised when informed by Mr. Kelly

14 that he had not been in hospital or even ill at the time when the plaintiff had sworn that he was unable to furnish the report required to enable the completion and delivery of the Statement of Claim.

15 The Plaintiff filed an affidavit sworn on 31st January, 2008, in response. In it he accepts that an averment of his contained in his affidavit sworn on 24th September, 2004, was an "error" and is incorrect. In swearing his affidavit before this Court, the plaintiff maintains that he had no independent knowledge of Mr. Kelly's medical situation in September, 2004 when he swore his earlier affidavit. He states:

16 "During my final review of that affidavit (i.e. the affidavit of September, 2004) 1 read the entry reference to Mr. Kelly's hospitalisation and 1 specifically asked both Mr. Bourke and his assistant, Ms. Maria Quinn, the source of this entry. My recollection is that Ms. Quinn responded that she learned of it in a telephone conversation with Mr. Kelly. My reliance on the veracity of this averment was totally predicated upon information provided to me by Mr. Bourke and Ms. Quinn."

17 Just before the appeal in this case was due to commence, a further application was brought on behalf of the plaintiff to admit some further correspondence touching on this particular issue. There being no objection, the Court acceded to this request.

18 That correspondence commences with a letter dated 26th March, 2002, from Mr. Kevin Bourke to the plaintiff informing the plaintiff that a date had been arranged for a particular consultation and that it was "vital' that Mr. Kelly be in attendance. The letter continues:

19 "I would be obliged if you would make contact with Mr. Kelly and ascertain if he will be in a position to travel to Dublin on Wednesday, 10th April, 2002, for the...