Grant v The Minister for Communications, Marine and Natural Resources

• Jurisdiction: Ireland
• Judge: Ms. Justice Pilkington
• Judgment Date: 26 June 2019
• Neutral Citation: [2019] IEHC 468
• Court: High Court
• Docket Number: [2003 No. 9169 P]
• Date: 26 June 2019

[2019] IEHC 468

THE HIGH COURT

Pilkington J.

[2003 No. 9169 P]

BETWEEN

RICHARD GRANT, GURTEL LIMITED

AND

LASTA MARA TEORANTA

PLAINTIFFS

AND

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendants seeking an order dismissing the plaintiffs’ claim for want of prosecution – Whether the balance of justice lay in granting the defendants’ application

Facts: The business of the plaintiffs, Mr Grant, Gurtel Ltd and Lasta Mara Teoranta, was that of ship operator at various locations off the Atlantic coast. Throughout its operations they had been obliged to apply for various licences and the like in respect of the operation of its vessels and business. Complaints were raised in relation to decisions affecting their vessels and business generally which had been taken by the first defendant, the Minister for Communications, Marine and Natural Resources. The plaintiffs claimed that the decisions of the defendants, the Minister, Ireland and the Attorney General, have been unlawful, unjust or unfair, a breach of European law amounting to, amongst other matters, misfeasance in public office, and/or a breach of the plaintiffs’ rights, including breaches of constitutional rights. Issues were also pleaded regarding the transposition of the relevant EU directive into Irish law and breaches of Human Rights under the EU convention. The defendants, by motion dated 8 November 2018, sought the following reliefs: (a) an order pursuant to RSC O. 122 dismissing the plaintiffs’ claim for want of prosecution; (b) in the alternative, an order pursuant to the inherent jurisdiction of the High Court dismissing the plaintiffs’ claims for want of prosecution and/or on the grounds of inordinate, unconscionable and/or excessive delays.

Held by Pilkington J that this case was one where the criteria in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 could be applied to the facts and she did not consider that the criteria to seek a strike out of the proceedings within O’Domhnaill v Merrick [1984] IR 151 (and the jurisprudence following that decision) had been satisfied.

Pilkington J held that, whilst she found, adopting the Primor criteria, that the plaintiffs had delayed in their prosecution of this litigation and that this delay was both inordinate and inexcusable, the balance of justice lay in refusing the defendants’ application.

Application refused.

JUDGMENT of Ms. Justice Pilkington delivered on the 26th day of June, 2019.

1 The defendants by motion dated 8 November 2018 seek the following reliefs; -

(a) An order pursuant to RSC O. 122 dismissing the plaintiffs' claim for want of prosecution.

(b) In the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the plaintiffs' claims for want of prosecution and/or on the grounds of inordinate, unconscionable and /or excessive delays.

2 By way of a brief summary of this matter; the plaintiffs' business is that of ship operator at various locations off the Atlantic coast. Throughout its operations they have been obliged to apply for various licences and the like in respect of the operation of its vessels and business. Complaints are raised in relation to decisions affecting their vessels and business generally which have been taken by the first named defendant.

3 The plaintiffs' claim that the decisions of the defendants have been unlawful, unjust or unfair, a breach of European law amounting to, amongst other matters, misfeasance in public office, and /or a breach of the plaintiffs' rights, including breaches of constitutional rights. Issues are also pleaded regarding the transposition of the relevant EU directive into Irish law and breaches of Human Rights under the EU convention.

4 As much will turn upon the factual background of these proceedings commenced almost sixteen years ago on 1 August 2003, it is necessary to initially consider this factual background.

Background

5 The plaintiffs issued a plenary summons on 1 August 2003. The substantive reliefs sought run to 47 paragraphs in respect of events which appear to have taken place from about 1997/1998 up to 2003.

6 An appearance was entered on 11 August 2003 and a statement of claim delivered on the 30 July 2004. The statement of claim runs to some 32 pages and appears to seek 51 substantive reliefs.

7 A notice for particulars was raised on the 19th day of January 2005 and was replied to by the plaintiffs on the 23rd day of June 2006.

8 The defence was delivered on the 12th day of March 2007.

9 On the 28th day of March 2007, the plaintiffs delivered an amended statement of claim. It now runs to some 42 pages seeking some 71 substantive reliefs.

10 I understand that no objection was raised to the delivery of this amended statement of claim. It does appear that the bulk of this amended pleading seeks to amend any of the matters pleaded within the initial pleading but rather (from paras. 74 to 79 of the amended statement of claim) pleads in respect of matters which have occurred since the original statement of claim was delivered – in other words taking matters forward from 2004 onwards with additional pleadings and reliefs sought in respect of that additional time period.

11 In June 2008, the third named plaintiff filed a notice of discontinuance.

12 The amended defence was delivered on the 8th day of February 2013.

13 A notice for further and better particulars was raised by the defendants on 17 February 2015 and replies were furnished on 13 January 2016.

14 In addition, the plaintiffs have filed a number of notices of intention to proceed dated 18 February 2009, 2 November 2012 and 7 February 2018 respectively. There have also been two notices of change of solicitor dated 2 November 2012 and 6 May 2016 respectively.

15 In June 2016, an application was brought before the court pursuant to RSC O. 56 (A) where the plaintiffs sought a reference to use the ADR process or in the alternative to facilitate the convening of a mediation conference.

16 Costello J. delivered a written judgment in respect of that application on 14 June 2016 ( [2016] IEHC 328). Within the judgment the learned judge confirmed that, in addition to the timetable of pleadings recited above, as at the date of her judgment she was informed that discovery was complete and the matter was ready to obtain a date for hearing. The judgment recites that the initial request for some form of ADR adjudication issued on the 16th February 2015, seven months thereafter the plaintiffs issued their motion pursuant to RSC O. 56 (A).

17 The court also invoked the judgments of Gilligan J. and on appeal Irvine J. in the case of Atlantic Shellfish Ltd. & anor. v. The County Council of the County of Cork & ors. [2015] IECA 283 where Irvine J. stated as follows: -

‘Further, for my part, I do not believe it is unreasonable for the party against whom complex legal claims have been made, and which may have ramifications that extend well beyond the confines of the proceedings and their parties, to maintain their entitlement to have those issues resolved by the court….’

18 Based upon the above Costello J. was satisfied that it was not unreasonable for the state defendants to maintain their entitlement to have the claim, involving as it does allegations of misfeasance of public office against a number of named department officials, resolved in court where their actions may be tested and (if the defendants' argument was accepted) vindicated in public. Finally, the court stated: -

‘In my opinion the issues in dispute between the parties are not amenable to being disposed of by the type of ADR proposed. The defendants' opposition to the plaintiffs' application is one which is entirely bona fide. I am therefore aware that any invitation issued from this court will be refused for good reason. In those circumstances, following the approach adopted by Gilligan J. in the High Court and that set out in the Court of Appeal in Atlantic Shellfish, I exercise my discretion under O. 56A, r.2 to refuse the relief sought in the notice of motion herein.’

The present application

19 One unusual feature of this matter is that the second named plaintiff was in fact dissolved in February 2018. It appears the dissolution took place some 21 days after the notice of intention to proceed was filed. I was informed by counsel for the plaintiffs that it was restored in November 2018. The reason for this oversight is unexplained but certainly unfortunate for plaintiffs seeking to resist an application of this type and where within their own correspondence, they assert their willingness to set this matter down for trial within time periods when the second named plaintiff was dissolved.

20 In respect of the defendants' application seeking a strike out of proceedings the grounding affidavit of Brian Hogan is sworn on 8 November 2018, that of the first named plaintiff on 28 November 2018 and a replying affidavit of Brian Hogan sworn on 6 December 2018.

21 Within the grounding affidavit of Brian Hogan, he avers that in his view the tenor of the plaintiffs' claim is to be found at paragraph 10 of the initial statement of claim. His affidavit then quotes extensively from paragraph 10 as follows: -

‘The plaintiffs, each and/or one of them had been subjected to a series of decisions by the first named defendant, its servants or agents, which were made either unlawfully or unjustly and/or unfairly discriminatorily and/or in breach of European law (including the law of the European Union and/or the European Convention on Human Rights and Fundamental Freedoms) and/or for the improper purpose of damaging the business of the plaintiffs each and/or any one of them and/or aiding the business of their competitors. Arising from the said decisions, the plaintiffs, each and/or...