Kelleher and Another v Tallis & Company Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 26 April 2023 |
| Neutral Citation | [2023] IEHC 212 |
| Docket Number | Record No. 2000/3398P |
| Court | High Court |
[2023] IEHC 212
Record No. 2000/3398P
THE HIGH COURT
Judgment of Mr Justice Cian Ferriter delivered this 26 th of April 2023
This judgment addresses applications brought by the first defendant ( “the builder defendant”) and the second to fifth defendants ( “the engineering defendants”) to have the plaintiffs' proceedings against them struck out for want of prosecution. The plaintiffs had separately issued their own motion seeking directions for case management of these proceedings. For the reasons outlined in this judgment, I have concluded that the plaintiffs have been guilty of inordinate and inexcusable delay in the prosecution of these proceedings and that the balance of justice favours their dismissal. It follows that the plaintiffs' application for case management falls away.
These proceedings concern claims by the plaintiffs against the defendants for damages (including damages for personal injuries) for breach of contract and negligence arising out of the allegedly defective construction of a house in rural Kilkenny which was to be their family home. The plaintiffs entered a written agreement dated 29 April 1996 with the engineering defendants, pursuant to which those defendants were to prepare building drawings and plans with structural specifications and to supervise the construction of the house and related works to completion. By a separate agreement, dated 7 June 1966, the plaintiffs engaged the builder defendant to construct the house in accordance with the plans and specifications to be produced by the engineering defendants. The plaintiffs moved into the house in October 1997 but say that it quickly became clear that the building was fundamentally defective. They claim, in broad terms, that the building was inadequately designed and built in breach of the Building Regulations and that its construction was not properly supervised. They plead a myriad of defects, including to the foundations, the plasterwork and walls, the electrical installations, the insulation, the pipework, the roof and chimneys. As against the builder defendant, it is alleged that the construction work was defective and in substantial breach of the plans, the requirements of the Building Regulations and the principles of good practice in the industry. The plaintiffs plead that they had been advised that, given the level of defects, the only effective way to remedy the breaches is to demolish the building and reconstruct it in its entirety.
In addition to a claim for damages for the building defects, the plaintiffs also make a claim for damages for inconvenience and personal injury, particularly stemming from the fact that they were forced to live with their young family in the property for some three years with all its defects, including the absence of a functioning heating system. They say they have been living in rented accommodation since September 2000 when they were forced to move out of the building by reason of its many defects.
The defendants mount a full defence to the claims, as set out in defences delivered by them in January 2006. Each of the defences raised a plea in respect of the Statute of Limitations as regards the claim for damages for personal injuries. As we shall come to, this aspect of matters became a source of controversy between the plaintiffs and their lawyers at various points. The builder defendant, in addition to mounting a full defence, has maintained a counterclaim as against the plaintiffs for its unpaid fees.
The defendants invite the court to strike out the proceedings both pursuant to the provisions of o.122, r.11 Rules of the Superior Courts and, in the alternative, pursuant to the court's inherent jurisdiction.
Order 122, rule 11 provides, in material part, that:-
“In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just.”
On the face of it, the provisions of o. 122, r. 11 cannot be invoked by the defendants as their strike out motions were issued shortly after a “proceeding” in the action being the issue by the plaintiffs of their motion for case management. While there is some dispute as to when that motion was properly served, there is no doubt that the defendants were aware of the case management motion and appeared in court in answer to that motion in December 2019 before issuing their strike out motions in January 2020.
The defendants remained entitled to issue and pursue their motions to have the plaintiffs' proceedings struck out for want of prosecution pursuant to the court's inherent jurisdiction and I will proceed now to deal with those applications.
The principles governing the court's inherent jurisdiction to strike out proceedings for want of prosecution are well settled and have been the subject of extensive discussion in case law. Indeed, it is difficult to think of a procedural area that has received more judicial consideration in recent years.
The locus classicus in this area is Primor v Stokes Kennedy Crowley [1996] 2 IR 459 (“ Primor” or “ Primor v SKC”). As put by Costello J. in her recent judgment in Doyle v Foley [2022] IECA 193 (“ Doyle v Foley”) (at para. 53), there are three limbs to the Primor test:
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(1) The defendant must establish that the delay on the part of the plaintiff in prosecuting the claim has been inordinate.
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(2) If that is established, then he must establish that the delay has been inexcusable.
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(3) If it is established or agreed that 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 proceedings of the case”. (Primor p. 475, para. (c))
Again, as has been repeatedly emphasised in the authorities (see, for example, Doyle v. Foley, at para. 54) the matters listed by Hamilton C.J. in Primor as matters which the court is entitled to take into consideration when considering where the balance of justice lies (such as delay on the part of the defendant, any acquiescence in the plaintiff's delay and prejudice to the defendant) are not an exhaustive list or set of cumulative tests but, rather, operate as a guide to the court in determining where the balance of justice lies as between the parties in any given case. Each case will very much turn on its own facts.
As is clear from the jurisprudence subsequent to Primor v. SKC, and as I shall come to later, the constitutional and Convention requirements that litigation is determined within a reasonable time are also material factors when assessing the balance of justice. A factor which has loomed large in the jurisprudence is that of the question of any prejudice to the defendant stemming from periods of inexcusable delay, and I will discuss recent dicta on that issue later in this judgment when considering the balance of justice in this case. The question of any acquiescence on the part of the defendant in otherwise inexcusable periods of delay is also a potentially relevant factor on the facts of this case which I will look at more closely in the context of weighing the balance of justice.
In addition to the Primor v. SKC line of jurisprudence, the defendants also rely, in the alternative, on the O'Domhnaill v. Merrick [1984] IR 151 line of jurisprudence which addresses the court's inherent jurisdiction to strike out proceedings, even where there has not been inexcusable delay, where the lapse of time between the accrual of the cause of action and the trial of the proceedings would be such that there would be a real and serious risk of an unfair trial or, as it has sometimes been put, a clear and patent unfairness in asking the defendants to defend the action at such a remove in time. The defendants contend that the lapse of time here is such that they simply could not now get a fair trial in respect of the allegations against them.
In order to put the arguments on the strike out applications in their appropriate context, I set out below a chronology of the material steps and events in the proceedings. This chronology has been drawn from chronologies contained in the affidavits and submissions of the parties.
| Date | Event |
| 29 April 96 | Engagement of engineering defendants |
| 28 May 96 | Engagement of builder defendant |
| 7 June 96 | Standard Law Society / CIF Building Contract with builder defendant |
| 14 June 96 | Commencement of works |
| 19 Sept 96 | Final account |
| 14 Oct 97 | Plaintiffs took up residence |
| 18 Dec 98 | Second Named Defendant company dissolved |
| 16 Mar 00 | Plenary Summons issued |
| 2 May 00 | Appearance of builder defendant |
| 18 May 00 | Appearance of engineering defendants |
| 4 Aug 00 | Plaintiffs dispense with Hughes Murphy & Co solicitors and retain Malcomson Law solicitors |
| 31 Jan 02 | Termination of retainer of Malcomson Law |
| 31 Mar 03 | Notice of Change of Solicitor (Dillon Mullins) |
| 3 Oct 03 | Plaintiffs' Notice of Intention to Proceed |
| 11 Nov 03 | Notice of Motion by engineering defendants seeking an Order striking out plaintiffs' claim for failure to deliver statement of claim |
| 27 Feb 04 | Order of the Master of the High Court... |
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Diarmuid Vaughan (as administrator of the estate of donal Vaughan deceased) v Philip English and Bill Leahy Practising Under the Title and Style of English Leahy Solicitors
...to demonstrate that the balance of justice favours strike out of proceedings) in my recent judgment in Kelleher v. Tallis & Co. & ors [2023] IEHC 212 and concluded (at para. 85) that Collins J. held that applicant defendants have an onus of demonstrating to the court that there is some like......