Irish Water v Hypertrust Ltd, Desmond Reddy, Brian Reddy and O'Rourke Well Drilling Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Creedon
• Judgment Date: 15 April 2021
• Neutral Citation: [2021] IEHC 323
• Court: High Court
• Docket Number: [RECORD NO. 2017 3067]

Between

Irish Water

Plaintiff

and

Hypertrust Ltd., Desmond Reddy, Brian Reddy and O'Rourke Well Drilling Ltd.

Defendants

[2021] IEHC 323

[RECORD NO. 2017 3067]

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – First defendant seeking an order dismissing the plaintiff’s claim as against the first defendant – Whether there had been inordinate and inexcusable delay

Facts: The second and third defendants, Messrs Reddy, by indenture dated the 7th February, 2000, purchased from the first defendant, Hypertrust Ltd., the plot of ground situated at Brewery Road, Stillorgan Co. Dublin, adjoining the premises known as the Leopardstown Inn. In or around January or February 2014 the first, second and/or third defendants entered into an agreement with the fourth defendant, O’Rourke Well Drilling Ltd., to engage in drilling a borehole(s) on the land owned by the second and third defendants to source a private water supply for the benefit of the defendants in particular in respect of the operation of the Leopardstown Inn. Pursuant to said agreement, on or about the 10th February 2014, the fourth defendant used a specialised drilling rig for the purposes of drilling the said boreholes. The fourth defendant drilled a six–inch borehole to a depth of approximately 9 to 10 metres, when as a result, the drill struck and breached the water mains below, causing water to gush from the pipeline. The first defendant applied to the High Court seeking inter alia the following reliefs: (a) an order pursuant to the inherent jurisdiction of the High Court dismissing the claim of the plaintiff, Irish Water, as against the first defendant on the basis of inordinate and inexcusable delay; (b) an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts, dismissing the claim of the plaintiff as against the first defendant for want of prosecution, there having been no valid proceedings for more than two years; (c) an order pursuant to O. 27, r. 1 of the Rules of the Superior Courts, dismissing the claim of the plaintiff as against the first defendant for want of prosecution by reason of the failure on the part of the plaintiff to deliver a valid statement of claim; (d) if necessary, an order pursuant to O. 124, r. 1 and/or O. 122, r. 11 of the Rules of the Superior Courts 1986 and/or the inherent jurisdiction of the High Court striking out the statement of claim dated the 31st January 2019 by reason of the failure on the part of the plaintiff to serve a notice of intention to proceed.

Held by Creedon J that the court was satisfied that there had been no inordinate and inexcusable delay under the first limb of Primor plc. v Stokes Kennedy Crowley [1996] 2 IR 459 such as would warrant a dismissal of the proceedings and although in those circumstances it was not required to consider the balance of justice under the second limb of the test, it was satisfied on the facts that there was no prejudice such that would warrant a dismissal.

Creedon J refused all of the reliefs sought. The court reserved the issue of costs to the hearing of the action.

Reliefs refused.

JUDGMENT of Ms. Justice Creedon delivered on the 15th day of April 2021;

Background

1 This matter came before this Court by way of Notice of Motion wherein the first named defendant is seeking inter alia the following reliefs:-

• (a) An order pursuant to the inherent jurisdiction of the High Court dismissing the claim of the plaintiff as against the first named defendant on the basis of inordinate and inexcusable delay;

• (b) An order pursuant to O. 122, r. 11 of the Rules of the Superior Courts, dismissing the claim of the plaintiff as against the first named defendant for want of prosecution, there having been no valid proceedings herein for more than two years;

• (c) An order pursuant to O. 27, r. 1 of the Rules of the Superior Courts, dismissing the Claim of the plaintiff as against the first named defendant for want of prosecution by reason of the failure on the part of the plaintiff to deliver a valid Statement of Claim;

• (d) If necessary, an order pursuant to O. 124, r. 1 and/or O. 122, r. 11 of the Rules of the Superior Courts 1986 and/or the inherent jurisdiction of the High Court striking out the Statement of Claim dated the 31st January 2019 by reason of the failure on the part of the plaintiff to serve a notice of intention to proceed.

2 The plaintiff is a semi – state company established under the Water Services Act 2013, having its registered offices at Colvill House, 24–26 Talbot Street, Dublin 1. The plaintiff is responsible for water services within the State including inter alia, the public water mains at Brewery Road Stillorgan Co. Dublin which consists of a 1200 millimetre steel pipeline constructed approximately 7 to 10 metres deep, with sections under private property for which wayleaves were obtained by Dun Laoghaire Rathdown County Council.

3 The first named defendant is a limited liability company having its registered office at Leopardstown Inn, Brewery Road, Stillorgan Co. Dublin and at all material times hereto operated a licenced premises known as “the Leopardstown Inn”. The second and third named defendants were at all material times directors of the first named defendant and involved in the management of the Leopardstown Inn. The fourth named defendant is a well drilling contractor having its registered office at Hughes Blake, Clonhaston, Enniscorthy. Co. Wexford.

4 By indenture dated the 7th February, 2000, the second and third named defendants purchased from the first named defendant the plot of ground situated at Brewery Road adjoining the premises known as the Leopardstown Inn. At all material times there was an undeveloped narrow strip of land between Brewery Road and Carysfort Maretimo stream, access to which was from the car park of the Leopardstown Inn. The water mains ran through the aforesaid properties. In or around January or February 2014 the first, second and/or third named defendant entered into an agreement with the fourth named defendant to engage in drilling a borehole(s) on the land owned by the second and third named defendant to source a private water supply for the benefit of the defendants in particular in respect of the operation of the Leopardstown Inn.

5 Pursuant to said agreement, on or about the 10th of February 2014, on the lands of the second and third named defendant acting on the direction and/or instruction of the first, second and/or third named defendant and whilst also exercising its own professional skill and judgment, the fourth named defendant used a specialised drilling rig for the purposes of drilling the said boreholes. Using the said drill rig the fourth named defendant drilled a six – inch borehole to a depth of approximately 9 to 10 metres, when as a result, the drill struck and breached the water mains below, causing water to gush from the pipeline.

6 The background to these proceedings and their procedural history is detailed extensively in the following affidavits:-

• (a) The first affidavit of Mr. Stephen Cooney, director of Hypertrust, sworn on behalf of the first named defendant on 6th May 2020;

• (b) The first affidavit of Mr. Paul Fisher, solicitor in the firm Corrigan and Corrigan, on record for the plaintiff, sworn on the 2nd June 2020;

• (c) The second affidavit of Mr. Stephen Cooney, sworn on behalf of the first named defendant on the 10th September 2020 and;

• (d) The second affidavit of Mr. Paul Fisher, sworn on behalf of the plaintiff on the 22nd September, 2020.

Application of the first named defendant

7 The first named defendant opened its application with a brief outline of the substantive claim. They confirmed that the incident giving rise to these proceedings occurred on the 10th February, 2014 and that on the 22nd October, 2014, examinership proceedings in respect of the first named defendant were commenced in the High Court. On the 10th February, 2015, an order of the High Court was made confirming a scheme of arrangement of the first named defendant in the examinership proceedings. On the 18th May, 2015, the plaintiff initiated proceedings by way of Plenary Summons against the first named defendants arising from the incident (the previous proceedings).

8 The Plenary Summons in the previous proceedings expired without being served on the 18th May, 2016. On the 10th February, 2017, a Notice of Discontinuance was filed in respect of the previous proceedings. On the 4th April, 2017, the plaintiff initiated the current proceedings by way of Plenary Summons.

9 The first named defendant, then opened the law and in particular the threshold which must be met in order to succeed in an application for dismissal of proceedings on the basis of inordinate and excusable delay in the prosecution of proceedings. The first named defendant opened the case of Primor plc. v. Stokes Kennedy Crowley [1996] 2 IR 459 in which Hamilton C.J. provided a detailed exposition of the tests to be applied. He stated at p.475–476:-

• “(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

• (b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

• (c) even where the delay has been both inordinate and inexcusable the court must 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;

• (d) in considering this latter obligation the court is entitled to take into consideration and have regard to:

  • (i) the implied constitutional principles of basic fairness of procedures,

  • (ii) whether the delay and consequent prejudice in the special facts of the...