Hogan v Jones

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 12 January 1994
• Neutral Citation: 1994 WJSC-HC 946
• Court: High Court
• Docket Number: No. 10118p/1982
• Date: 12 January 1994

HOGAN v. JONES

BETWEEN

GABRIEL P.S. HOGAN & ORS

PLAINTIFFS

AND

I.P. JONES & ORS

FIRST NAMED DEFENDANTS

AND

R. EDMONDS & ORS

SECOND NAMED DEFENDANTS

AND

G. & T. CRAMPTON LIMITED

THIRD NAMED DEFENDANTS

1994 WJSC-HC 946

No. 10118p/1982

THE HIGH COURT

Synopsis:

ACTION

Dismissal

Defence - Prejudice - Claim - Prosecution - Diligence - Absence - Defendant - Quiescence - Relevance - Delay before and after issue of summons - Motion to dismiss action brought over ten years after issue of summons - (1982/10118 P - Murphy J. - 12/1/94)

|Hogan v. Jones|

DELAY

Claim

Prosecution - Diligence - Absence - Defendant - Quiescence - Dismissal of action for want of prosecution - Application by defendant - Motion brought more than ten years after issue of summons - (1982/10118 P - Murphy J. - 12/1/94)

|Hogan v. Jones|

PRACTICE

Action

Dismissal - Claim - Prosecution - Diligence - Absence - Defendant - Quiescence - Dismissal of action for want of prosecution - Application by defendant - Motion brought more than ten years after issue of summons - (1982/10118 P - Murphy J. - 12/1/94)

|Hogan v. Jones|

Citations:

ALLEN V MCALPINE 1968 1 AER 543

STOLLZNOW V CALVERT 1980 2 NSWLR 649

MEAD V DAY 1985 1 NZLR 100

DOWD V KERRY COUNTY CO 1970 IR 27

CELTIC CERAMICS LTD V IDA UNREP SUPREME 4.2.93

CELTIC CERAMICS LTD V IDA 1993 ILRM 248

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561 1981/7/1121

BIRKETT V JAMES 1977 2 AER 801

CALVERT V STOLLZNOW 1982 NSWLR 749

1 Judgment of Mr. Justice Francis D. Murphy delivered the 12th day of JANUARY 1994

2 This is an application on behalf of the thirdly named Defendants to have the proceedings herein dismissed as against them for want of prosecution.

3 The claim in this matter arises out of the design and construction of the west lower stand at the lands of the Irish Rugby Football Union (the Plaintiffs) at Lansdowne Road in the City of Dublin. It is alleged by the Plaintiffs that the stand was designed negligently by the first and secondly named Defendants, who are architects and engineers respectively, and erected negligently by the thirdly named Defendants, who are a well known firm of building contractors.

4 The contract for the construction of the stand is dated the 16th day of June 1977 and a Certificate of Practical Completion of the works was issued on the 6th of March 1978. It would appear to be common case that on or shortly after the completion of the works certain defects became apparent. Indeed, it is of importance to the present application to note that all of the parties appear to have participated in investigating these defects and carrying out or concurred in the carrying out of remedial works without, however, any party accepting liability for those defects.

5 It is obvious that a period of more than fifteen years has now elapsed since the wrongdoing alleged by the Plaintiffs in these proceedings occurred. A time lapse of that duration would fully justify the description "inordinate". Simply considering the number of years which have run since the cause of action arose, one might be justified in using even more critical terms. However, it is necessary to analyse how this delay occurred; to ascertain which of the parties by themselves or their agents were responsible for all or any part or parts of the delay and what effect the lapse of time has had on the constitutional right of the thirdly named Defendants to a fair trial of the matters in issue in these proceedings.

6 Some picture of the manner in which the case was processed and the stages at which significant delays occurred may be seen from the following calendar of dates:-

16th June 1977	- Building Contract
6th March 1978	- Certificate of Practical Completion
14th October 1982	- Plenary Summons issued
19th March 1984	- First Notice of Intention to Proceed
19th January 1984	- Statement of Claim
30th July 1987	- Demand by Plaintiff for Defence from third Defendants
January 1988	- Motion for Judgment in Default of Defence of thirdly named Defendants
26th February 1988	- Order for Discovery
2nd February 1988	- Defence of thirdly named Defendants
2nd February 1988	- Third Defendants Notice for Particulars
5th July 1989	- Third Defendants Affidavit of Discovery
20th November 1989	- Notice of Trial
8th December 1989	- Third Defendants Motion to Compel Replies to Particulars
25th January 1990	- Reply to Notice for Particulars
5th February 1990	- Notice Setting Down for Trial
5th February 1990	- Further Notice for Particulars
31st October 1990	- Motion for Further and Better Particulars
14th August 1992	- Particulars furnished
8th June 1993	- Certificate of Readiness
14th July 1993	- Motion to Dismiss for Want of Prosecution
15th July 1993	- Case Listed to Fix Date

7 The legal principles applicable in deciding whether proceedings should be dismissed for want of prosecution (or indeed pursuant to the inherent jurisdiction of the Courts) had been considered in many cases in England in comparatively recent years commencing with the decision in Allen v. McAlpine 1968 1 A.E.R. 543. Those decisions have been in turn reviewed and analysed helpfully in decisions of the Australian and New Zealand Courts including the decisions in Stollznow v. Calvert 1980 2 N.S.W.L.R. 649 and Mead v. Day 1985 1 N.Z.L.R. 100. However, the topic is amply covered in this country by a series of decisions of the Supreme Court reaching from Dowd v. Kerry County Council 1970 I.R. 27 to the unreported decision of the Supreme Court delivered on the 4th of February 1993 in Celtic Ceramics Limited and Others v. IDA affirming the decision of O'Hanlon J. reported in 1993 I.L.R.M. 248. Whilst other decisions (whether persuasive or binding) determine or illustrate particular points, I do not think that it is necessary to look further than the decisions in the Celtic Ceramics case to find the principles applicable to this application.

8 The basic principle approved in that case was ennunciated originally by Finlay C.J., then President of the High Court, in Rainsford v. Limerick Corporation in a judgment delivered by him on the 31st of July 1979 in the following terms:-

".. it is possible to elucidate certain broad principles which are material to the facts of this case and which would appear to constitute the legal principles underlying this problem of dismissal of an action for want of prosecution or the permitting (by the extension of time for pleading) of it to continue in this country at present:-"

(1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.

(2) Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings.

(3) Even where the delay has been both inordinate and inexcusable the Court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of, or against, the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the Court of its discretion.

(4) While the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the Court's discretion".

9 As appears from the calendar of dates set out above more than four years elapsed between the date in which the cause of action arose and the issue of the Plenary Summons. It may be that that lenghty delay could be explained or excused, if that were necessary, on the basis that remedial work was being carried out during the period by these Defendants albeit without admission of liability. However, both parties were agreed that this period of time did not fall to be taken into account in calculating whether or not inordinate delay had occurred but was a material consideration in considering the conduct of the Plaintiffs subsequent to the institution of the proceedings in accordance with a principle clearly stated by Lord Diplock in Birkett v. James 1977 2 A.E.R. 801 at 805 in the following terms:-

"It follows a fortiori from what I have already said in relation to the effects of statutes of limitation on the power of the Court to dismiss actions for want of prosecution, that time elapsed before the...