Hughes and anor v Cusack

JudgeMcKechnie J.,MacMenamin J.,Dunne J.
Judgment Date25 May 2017
Neutral Citation[2017] IESCDET 49
CourtSupreme Court
Date25 May 2017

[2017] IESCDET 49



McKechnie J.

MacMenamin J.

Dunne J.



MICHAEL CUSACK practising under the style and title of MICHAEL E. CUSACK & CO.

RESULT: The Court does not grant leave to the Applicants to appeal to this Court from the Court of Appeal.


This determination relates to an application for leave to appeal to the Supreme Court from an ex tempore judgment of the Court of Appeal (Ryan P.) delivered on the 27 th February, 2017, and from the resulting Order of that Court dated the 27 th February, 2017, and perfected on the 28 th February, 2017.


Helen Hughes, as personal representative of the Estate of Oliver Hughes, deceased, and Fabola Limited, together referred to as ‘the applicants’, seek leave to appeal to this Court from the said judgment and Order of the Court of Appeal. If successful, the title of the proceedings regarding the late Mr. Hughes will have to be re-constituted.


Michael Cusack, referred to in this Determination as ‘the respondent’, opposes the application for leave to appeal and asks this Court to dismiss the appeal.


The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° of the Constitution and many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.


Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

This application arises from a judgment and Order of the Court of Appeal striking out the applicants” action for reasons of delay. The underlying case relates to a claim of professional negligence and breach of contract made by the applicants against the respondent, in his capacity as a solicitor, arising from his investigation of title in relation to a premises acquired by the applicants at Crossguns Bridge, Prospect Road, Dublin.


In or about February, 2001, the applicants purchased a property at the said location for the purpose of developing a licensed premises on the said site. They retained the respondent to act for them in his capacity as a solicitor, in respect of the said transaction. He was tasked with investigating the title to the property in order to ensure that good title thereto was acquired. Acting on an express and/or implied representation from their solicitor that the title furnished was a good and marketable one, the applicants completed the purchase in 2001 and began their development. However, by letter dated the 4 th March, 2003, CIE wrote to Fabola Ltd informing it that a portion of the land measuring approximately 250m 2 was held only under a yearly tenancy agreement dated the 23 rd January, 1930, and that ‘same can be determined if again required by CIE for operating purposes.’ Therefore the applicants had apparently not acquired the type of title that they had intended or expected.


The applicants initiated their action against the respondent by plenary summons dated the 25 th February, 2005, claiming professional negligence and breach of contract in respect of the respondent's failure to uncover the existence of CIE's interest in the land in question. A detailed chronology of the course of the proceedings thereafter is set out at paras. 8-19 of the judgment of the High Court delivered on the application to strike out the claim for want of prosecution ( [2016] I.E.H.C. 34). It is necessary only to highlight some of the more significant dates and events.


An appearance was entered on the 12 th April, 2005: the Statement of Claim was delivered on the 14 th April, 2005, followed by the respondent's Defence on the 22 nd May, 2006. This was followed by an exchange of correspondence between the parties” solicitors between May, 2006 and February, 2007. There was no further communication until the applicants served a Notice of Intention to Proceed – the first of several – on the 14 th May, 2010. This was followed by a Reply to the Defence on the 21 st February, 2011, and, on the 28 th February, 2011, by a Notice for Particulars and a request for voluntary discovery. On the 6 th September, 2011, the respondent raised a Notice for Particulars, which was replied to on the 26 th September, 2011, with further replies supplied on the 3 rd October, 2011. On the 1 st February, 2012, the respondent's solicitors sent a notice for Further and Better Particulars; replies thereto were furnished on the 19 th March, 2014. By that stage the respondent had, on the 6 th March, 2014, served his motion to strike out the proceedings on the applicants” solicitors. There was also further correspondence relating to discovery and to particulars.


As noted, the respondent applied to the High Court seeking to have the Court exercise its inherent jurisdiction to strike out the claim for an abuse of process, or, alternatively, to strike out the proceedings for want of prosecution (O.122, r.11 RSC). The respondent contended that the applicants had delayed in prosecuting the action; that such delay had been both inordinate and inexcusable; and that the Court should therefore strike out the claim.


The judgment of the High Court (Murphy J) on this application was delivered on the 25 th January, 2016. The learned judge held that the principles to be applied by a court in considering whether to exercise its discretion to strike out proceedings are well settled and are as set out in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, as endorsed in Comcast International Holdings Incorporated v. Minister for Public Enterprise & Others [2012] I.E.S.C. 50.


Murphy J did not consider that the applicants had delayed in instituting the claim, nor that there had been delay in responding to the respondent's Notice for Further Particulars. However, the learned judge was satisfied that there had been delay from the filing of the Defence in May, 2006 to the applicants” Reply to the Defence in February, 2011, and that this was not mitigated by the service of a Notice of Intention...

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