Greenwich Project Holdings Ltd v Con Cronin

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 20 January 2021
• Neutral Citation: [2021] IEHC 33
• Date: 20 January 2021
• Docket Number: RECORD NUMBER: 2014/7709P
• Court: High Court

Between

Greenwich Project Holdings Limited

Plaintiff

and

Con Cronin

Defendant

[2021] IEHC 33

RECORD NUMBER: 2014/7709P

THE HIGH COURT

Damages – Breach of contract – Strike out – Parents seeking a strike out of the plaintiff’s claim for want of compliance with the order of 8 July 2019 – Whether the balance of justice favoured dismissal

Facts: A plenary summons was issued on 1 September 2014 whereby the plaintiff, Greenwich Product Holdings Ltd, sought: (a) damages for breach of contract; and (b) orders directing the production of documentation. On 6 February 2019, the defendant, Mr Cronin, brought a motion seeking to strike out the plaintiff’s claim for want of prosecution and/or inordinate and inexcusable delay, and in the alternative an order striking out the plaintiff’s claim for want of prosecution pursuant to Order 122 of the RSC. That motion was heard on 8 July 2019 by Jordan J and he refused to strike out the plaintiff’s case for delay. Jordan J considered that there was some delay because he indicated he would award the costs of the motion to the defendant on the basis that the defendant was entitled to bring the motion and ordered as follows: “The court doth direct that the plaintiff do within 4 calendar months of the date hereof take all steps necessary to apply to have the matter listed for hearing”. The defendant applied to the High Court by way of notice of motion of 21 February 2020 seeking three different reliefs. The first sought a strike out of the plaintiff’s claim for want of compliance with the order of Jordan J of 8 July 2019, the second a strike out for inordinate and/or inexcusable delay and/or want of prosecution and the third a strike out pursuant to the inherent jurisdiction of the Court in the interests of justice.

Held by Hyland J that to allow the plaintiff to maintain these proceedings would fundamentally undermine the aim of ensuring that the legal system appropriately sanctions a significant, material or persistent procedural failure to comply with orders imposed to address delay. Hyland J noted that the plaintiff had ignored the order to date and was proposing to do so for some considerable period into the future. In those circumstances, Hyland J could not conceive of a lesser sanction that would nonetheless be effective in achieving the aim sought. In Hyland J’s view, the balance of justice clearly favoured dismissal and it was a proportionate response.

Hyland J held that she would strike out the plaintiff’s claim because of failure to comply with the order of 8 July 2019.

Application granted.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 20 January 2021

Introduction

1 This is an application brought by way of notice of motion of 21 February 2020 seeking three different reliefs. The first seeks a strike out of the plaintiff's claim for want of compliance with the Order of Jordan J. of 8 July 2019, the second a strike out for inordinate and/or inexcusable delay and/or want of prosecution and the third a strike out pursuant to the inherent jurisdiction of the Court in the interests of justice.

Legal principles applicable to strike out for want of compliance

2 In respect of the first relief, I have very helpfully been directed by counsel for the plaintiff to the decision of the Supreme Court in the case of Tracey v. McDowell [2016] IESC 44 where the Court considered the nature of the test applicable when an application is brought to strike out proceedings for failure to comply with a court direction in the context of delay. Because applications of this sort are less common than applications for dismissal for delay simpliciter, I will identify the applicable principles flowing from Tracey before addressing the particular facts of this case.

3 Clarke J. identifies the applicable test at paragraphs 5.2 and 5.3, noting that the response of a court to a procedural failure should be proportionate, and a case should only be struck out “ in response to procedural failure where, in all the circumstances, that failure is sufficiently serious or persistent to justify the action concerned”, while recognising that there will be cases where it will be proportionate to take such action.

4 He explains the rationale for such a course is, inter alia because of the obligation on the State to ensure that litigation is conducted in a timely fashion. Accordingly, there must be sufficient sanctions available to a court for failure to comply with orders or directions made designed to ensure the orderly and timely progress of litigation.

5 At paragraph 5.7 he identifies the obligation on a court as follows:

“Where there is a specific failure to comply with a court direction, the Court must assess how serious and significant the failure is, whether it is persistent and whether there is any legitimate explanation for the failure concerned. In the light of those and any other relevant factors, the Court must then determine what sanction or consequence is proportionate”.

6 At paragraph 5.8 Clarke J. observes that there may be cases where, while the overall delay would not warrant the dismissal of proceedings for inordinate and inexcusable delay, nonetheless a significant or persistent failure to comply with orders might justify dismissal as a proportionate consequence of non-compliance. At paragraph 7.7, he notes that the question remains as to whether a dismissal rather than some lesser measure was within the range of proportionate responses which it was open to the Court to take in the circumstances of the case. He goes on to say that the Court is required to determine where the balance of justice lies.

7 Importantly, in Tracey, it was held that the dismissal was a disproportionate sanction given that the plaintiffs had made some attempt (albeit not a satisfactory one) to comply with the relevant direction of the trial judge i.e. that detailed expert medical evidence should be adduced to support the assertion that the case could not proceed because of the illness of Mr Tracey. Ultimately, Clarke J. concluded at paragraph 7.9 that, given that the plaintiffs had progressed the relevant proceedings in a timely fashion up to that point and had provided some additional medical information, the dismissal of the proceedings was a disproportionate sanction. He observed that if there had been no advance in the medical evidence notwithstanding the directions of the trial judge, it may have been proportionate to dismiss the proceedings.

Factual background and chronology

Pleadings

8 It appears from the pleadings that on 7 May 2014, following a public auction, the parties entered into an agreement whereby the defendant acting in his capacity as a statutory receiver over Greenwich Court, Rathmines, Dublin 6 (“the Property”), agreed to sell to Pat Moloughney (in trust) the Property. The plaintiff, of whom Pat Moloughney is a director, has pleaded that it was a term of the contract that the defendant would, prior to completion, procure that the opening in the gable wall of number 4 Greenwich Court would be closed up. The plaintiff alleges that there were various obligations on the defendant in respect of planning permission arising from said works.

9 A plenary summons was issued on 1 September 2014 whereby the plaintiff sought

(a) Damages for breach of contract; and

(b) Orders directing the production of documentation.

10 On 5 May 2015, some nine months after the issue of the plenary summons, a statement of claim was delivered. On 16 June 2015 a notice for particulars was delivered by the defendant. On 7 October 2015, replies to those notices were delivered by the plaintiff. A schedule of damages was attached to those replies, identifying the estimated projected profit foregone at €880,000.

11 On 22 October 2015 a defence was delivered. The nature of this defence is important. It pleaded the contract had been rescinded because the purchaser had raised certain requisitions on the planning matters, notwithstanding the exclusion of any warranty pursuant to General Condition 36 and Special Condition 11 (l). (The latter provides inter alia that the purchaser shall make no objection or raise any requisition or inquiry in relation to the existence or absence or adequacy of planning permission). Despite the notice of intention to rescind, the purchaser declined to withdraw the said objection and the defendant rescinded the contract on 30 July 2014.

12 Curiously, no reference is made in the statement of claim to the rescission or purported rescission. No relief was included seeking to challenge the rescission or enforce the contract by way of specific performance. Rather, as identified above, the claim was exclusively for damages.

Motion to vacate lis pendens

13 After delivery of the defence, no steps were taken by the plaintiff. Almost three years went by. Then on 7 September 2018 the defendant brought a notice of motion seeking to vacate a lis pendens that the plaintiff had registered over the Property. By order of 26 November 2018, Cross J. granted the relief sought and vacated the lis pendens.

14 Following that decision, the plaintiff did nothing. On 6 February 2019, the defendant brought a motion seeking to strike out the plaintiff's claim for want of prosecution and/or inordinate and inexcusable delay, and in the alternative an order striking out the plaintiff's claim for want of prosecution pursuant to Order 122 of the RSC.

Order of Jordan J. of 8 July 2019

15 This motion was heard on 8 July 2019 by Jordan J. and he refused to strike out the plaintiff's case for delay. There is no note of his ex tempore judgment but there is some measure of agreement between the parties that he had doubts as to whether the delay was inordinate, tending to consider that it was not. I am told that the attendance note of the defendant's solicitor (not exhibited) records that he observed that even if he had concluded the delay was inordinate, he...