Glancré Teoranta v Seamus Cafferkey

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 24 June 2004
• Neutral Citation: [2004] IEHC 123
• Court: High Court
• Docket Number: [2002 No.579 S.P.]
• Date: 24 June 2004

[2004] IEHC 123

THE HIGH COURT

RECORD NO.1991 4171 P

HC 229/04

SEAN O'LEARY v. AGRICULTURAL CREDIT CORP PLC & REYNOLDS MCCARRON

BETWEEN

SEAN O'LEARY

and

AGRICULTURAL CREDIT CORPORATION PLC AND REYNOLDS McCARRON

DEFENDANTS

Citations:

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

CONVEYANCING ACT 1881

CONVEYANCING ACT 1882

CONVEYANCING ACT 1911

Abstract:

Practice and Procedure - Delay - Dismissal of proceedings - Want of prosecution - Inherent jurisdiction - Application to dismiss proceedings on grounds of delay - Whether balance of justice against case proceeding - Whether claim should be dismissed for want of prosecution.

Facts: the plaintiff instituted proceedings seeking damages against the first defendant in 1991 on the basis that the receiver who had been appointed over his lands by the first defendant was guilty of misfeasance and mismanagement and the first defendant was vicariously liable therefor. He also alleged that the first defendant was guilty of breach of agreement and sold his lands at an undervalue after obtaining an order for possession thereof. He did not deliver a statement of claim until 2001. In 2003, the first defendant brought a motion seeking to have the action dismissed on the grounds of inordinate and inexcusable delay by the plaintiff in the prosecution of the proceedings.

Held by Kelly J in dismissing the first and second part of the plaintiff's claim but in refusing to dismiss the third part of the claim in relation to the sale of the plaintiff's lands at an undervalue that a court had an inherent jurisdiction to control its own procedures and dismiss a claim when the interests of justice so required. That when exercising such jurisdiction, the delay complained of had to be both inordinate and inexcusable. To allow that part of the claim relating to the first defendant's vicarious liability for the receiver would involve a real and serious risk of an unfair trial as the evidence of the receiver, which was unavailable due to the lapse of time, would have been crucial to the proper defence of the claim. The delay in relation to the third part of the claim had not so prejudiced the first defendant as to run the risk of an unfair trial as the first defendant had or ought to have had in its possession, documents and witnesses which would enable it to defend that aspect of the proceedings.

Reporter: P.C.

1 Mr. Justice Kelly delivered on the 24th day of June 2004

INTRODUCTION

2 These proceedings were commenced on the 20 ^th March, 1991. They relate to events which took place between 1985 and 1989. The proceedings were never served on the second defendant. A purported service which was effected on the 15 ^th November, 2000 was set aside by Johnson J. on the 23 ^rd July, 2001.

3 The proceedings were served on the first defendant, (the bank), and an appearance was entered by it on the 8 ^th May, 1991. Over ten years later on the 11 ^th May, 2001 the Statement of Claim was delivered. That defendant's defence was delivered on the 15 ^thApril, 2002 following a motion for judgment which was heard on the 11 ^th March, 2002 when time for so doing was extended by consent by Smyth J.

4 On the 20 ^th June, 2003 the bank brought the motion with which I am concerned seeking to have the plaintiff's action dismissed because of inordinate and inexcusable delay on the part of the plaintiff in the prosecution of the proceedings. That motion came to hearing before me on Thursday last.

THE PLAINTIFF'S CASE

5 In his Statement of Claim the plaintiff alleges that he was the owner of lands in Broadway, Co. Wexford. 30.5 acres had a registered title whilst the remaining 20 acres were unregistered.

6 On the 2 ^nd November, 1977 the plaintiff granted a charge over his registered lands to the bank as security for all present and future advances made by it to him.

7 By deeds of appointment in April and August 1985 the bank appointed a receiver over the rents and profits of the plaintiff's registered lands. That appointment was not published until the 25 ^th July, 1986. The receiver was John P. Kavanagh who was a partner in the second defendants. It is difficult to understand why Mr. Kavanagh was not named as a defendant in the proceedings since it was he who was appointed as receiver and not the firm to which he belonged. Indeed in a letter from the then solicitors for the bank to the plaintiff's then solicitors dated the 15 ^th May, 1991 it was expressly pointed out that it was Mr. Kavanagh who had been appointed receiver and not the second defendant. The letter went on to point out that the plaintiff ought to amend his summons accordingly. Despite that letter no amendment was made and as I have already indicated no valid service of the proceedings was ever effected upon the second defendant.

8 The statement of claim goes on to allege that the receiver in carrying out his functions owed a duty of care to the plaintiff to manage his registered lands and the fruit farming business which was being carried on by the plaintiff in such a manner as to preserve the value of the lands and to maximise the rents and profits generated therefrom. He is also alleged to have owed a duty to preserve and nurture the fruit plants growing thereon so as to maximise their output and to insure that the fruits produced by the plants were harvested in a timely and efficient manner. It is alleged that the receiver intermeddled in the running of the plaintiff's business in such a manner as to prevent the plaintiff from carrying it on but it is said the receiver did not himself carry on the business with reasonable skill, care and diligence. It is also alleged that the receiver interfered with the plaintiff's use and enjoyment of the unregistered lands and held himself out as having being appointed as receiver over them even though the plaintiffs indebtedness to the bank was not secured by a charge or mortgage of those lands. Particulars of these allegations are then set out in the Statement of Claim. The particulars include an allegation that the receiver went on holidays when the blackcurrant crop was to be harvested; that he failed to take steps to preserve the blackcurrant and strawberry plants after they fruited in 1986; that he failed to insure that the plants were nurtured with appropriate fertilizers and that in 1987 he abandoned the crops. Furthermore it is alleged that the receiver took no steps to manage the business of the plaintiff and attended at the lands on only one occasion during the receivership. The above summarises the first complaint which is made in the Statement of Claim.

9 The second complaint is that having had his business allegedly destroyed because of the misfeasance of the receiver it is said that in January, 1988 the plaintiff and his representatives negotiated an arrangement with the bank which involved leasing all his lands, both registered and unregistered, to one Bernard Keane for a term of ten years at a rent of IR£70.00 per acre thereby yielding a rental income of IR£3,500.00 per annum. He alleges that it was agreed that the entire of that sum would be paid to the bank during the term and at the expiry thereof the plaintiff's indebtedness to the bank would be discharged and the lands would be released to him. He alleges that a named servant or agent of the bank, one Seamus Codd, agreed to that proposal and that pursuant thereto, Bernard Keane went into possession of the lands and commenced to farm them.

10 The third part of the claim is to the effect that notwithstanding the agreement which I have already outlined, on the 28 ^thDecember, 1988 the bank purported to execute an order for possession against the plaintiff which had been obtained on the 10 ^thNovember, 1986. He contends that, despite the fact that the order related only to his registered lands, entry was made on all of the lands. Subsequently the bank and/or the receiver purported to sell the lands to the plaintiff's brother, Terence O'Leary, for an undisclosed price which was, it is alleged, less than the full value of the lands.

11 These three heads of complaint have resulted in claims for damages being formulated. The first damages claim is in respect of alleged mismanagement by the receiver. The second is for the breach of the agreement involving Mr. Keane and the third seeks damages for the sale of the lands at an under value.

THE LEGAL PRINCIPLES

12 Both sides agree that the legal principles which I have to apply on an application of this sort, involving as it does for the most part delay which has taken place subsequent to the commencement of proceedings, are those set out by the Supreme Court in its decision in Primor PLC v. Stokes Kennedy Crowley (1996) 2 IR 459.

13 That case affirmed that the court has an inherent jurisdiction to control its own procedure and to dismiss a claim when the interests of justice require it to do so.

14 The decision held that a party seeking an order of the type with which I am concerned must demonstrate that the delay complained of was both inordinate and inexcusable. Counsel on behalf of the plaintiff in the present proceedings very sensibly accepts that the delay in this case was both inordinate and inexcusable.

15 That being so I have to concern myself with the third part of the Primor test which was formulated by the Supreme Court in the following terms:-

"(c) Even where the delay has been both inordinate and inexcusable, the...