Lane v Enterprise Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 25 September 2023 |
| Neutral Citation | [2023] IEHC 527 |
| Court | High Court |
| Docket Number | Record No. [2014/5328P] |
[2023] IEHC 527
Record No. [2014/5328P]
THE HIGH COURT
Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendant seeking an order dismissing the plaintiff’s claim for want of prosecution – Whether there was inordinate and inexcusable delay
Facts: The plaintiff, Ms Lane, claimed that she was harassed and bullied by servants or agents of the defendant, Enterprise Ireland, “on divers dates from 2008 until December 2012”. On 9 February 2022, the solicitors for the defendant issued a motion seeking an order dismissing the plaintiff’s claim for want of prosecution on the basis of inordinate and inexcusable delay. That motion was grounded on an affidavit sworn, on 16 December 2021, by Mr Dunne who averred that he was the in-house solicitor of the defendant. A replying affidavit was sworn by the plaintiff, on 24 October 2022. An affidavit was sworn, on 27 October 2022, by Ms McShane solicitor, who averred that she was the solicitor acting for the plaintiff, from December 2013 until in or about November 2021, when she closed her legal practice.
Held by the High Court (Heslin J) that the defendant had discharged the burden of proof in respect of each of the three limbs of the Primor test: Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459. Heslin J took the view that the plaintiff’s delay was (i) inordinate; (ii) inexcusable; and (iii) the balance of justice favoured dismissal. Even if there was no culpability on the part of the plaintiff with respect to any delay, Heslin J considered this to be a case where the O’Domhnaill principles, alone, required the proceedings to be dismissed: O’Domhnaill v Merrick [1984] IR 151. In Heslin J’s view, the evidence established that there was a real and serious risk of an unfair trial or an unjust result and, in all the circumstances, it would constitute a clear injustice to require the defendant to defend the plaintiff’s claim at this remove. Heslin J held that this risk arose from the degrading of memories in relation to what was said, by whom, and in what context, sixteen years before any trial could take place. Heslin J held that, as the judge made clear in Comcast International Holdings Inc v Minister for Public Enterprise [2012] IESC 50, the Primor test remains the “touchstone” and the primary approach. That was the manner in which Heslin J had approached matters. However, in light of the nature of the case, the significance of oral testimony given with reliance on memory and the length of time which had passed since the events at the heart of the case, Heslin J was also of the view that the O’Domhnaill principles required the proceedings to be dismissed, due to ‘fair trial’ prejudice.
Heslin J’s preliminary view on the question of costs was that there were no factors which would merit a departure from the ‘normal’ rule that ‘costs’ should ‘follow the event’, which rule had statutory expression in s. 169 of the Legal Services Regulation Act 2015.
Proceedings dismissed.
Judgment of Mr. Justice Heslin delivered on the 25th day of September 2023
. On 9 February 2022, the solicitors for the Defendant, issued a motion seeking an order dismissing the Plaintiff's claim for want of prosecution on the basis of inordinate and inexcusable delay. That motion was grounded on an affidavit sworn, on 16 December 2021, by Mr Geoffrey Dunne who avers that he is the in-house solicitor of the Defendant.
. A replying affidavit was sworn by the Plaintiff, on 24 October 2022. An affidavit was sworn, on 27 October 2022, by Ms Ann McShane solicitor, who avers that she was the solicitor acting for the Plaintiff, from December 2013 until in or about November 2021, when she closed her legal practice.
. There is no dispute between the parties as to the proper approach to an application of this type. The leading judgments remain those of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (“ Primor”), as well as a somewhat earlier decision by the Supreme Court in O'Domhnaill v. Merrick [1984] IR 151 (“ O'Domhnaill”).
. Primor remains the primary approach. In Primor, Chief Justice Hamilton stated (at pp. 475/76 of the reported judgment):-
“The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows: –
(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 case are such as to make it unfair to the Defendant to allow the action to proceed and to make it just to strike out the Plaintiff's action,
(iii) any delay on the part of the Defendant — because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the Defendant amounts to acquiescence on the part of the Defendant in the Plaintiff's delay,
(v) the fact that conduct by the Defendant which induces the Plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the Defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendant,
(vii) the fact that the prejudice to the Defendant referred to in
(vi) may arise in many ways and be other than that merely caused by the delay, including damage to a Defendant's reputation and business.”
. The Primor approach, or test, requires this Court to ask three questions:-
(1) is the delay inordinate?
(2) if so, is it inexcusable?
(3) if the delay is both, is the balance of justice in favour of, or against, allowing the case to proceed?
. Whilst Primor remains the ‘touchstone’, it is clear from O'Domhnaill that the court enjoys a separate, if overlapping, jurisdiction to dismiss proceedings where there is a real and serious risk of an unfair trial and/or an unjust result.
. There are distinctions between these two jurisdictions, as made clear in Cassidy v. The Provincialate [2015] IECA 74 (see paragraphs 33 to 38), the two principal differences being the following. Whilst inordinate and inexcusable delay are essential elements in the Primor test, there does not have to be delay in a culpable sense on the Plaintiff's part, under the O'Domhnaill approach. Furthermore, under the Primor test, a case may, depending on the particular circumstances, be dismissed where the prejudice to the Defendant falls short of so called “fair trial” prejudice. However, under the O'Domhnaill principles, nothing less than prejudice likely to lead to a real risk of an unfair trial or unjust result will justify dismissal.
. In essence, the focus in O'Domhnaill is squarely on whether a fair trial is possible, regardless of how blameworthy, or not, a Plaintiff may be. By contrast, under Primor, the Court looks at the Plaintiff's actions and, depending on the answer to the first 2 questions (i.e. whether the Plaintiff's delay is inordinate and inexcusable) moves to a consideration of the balance of justice.
. In Cave Projects Limited v. Gilhooley & Ors. [2022] IECA, Mr. Justice Collins set out a comprehensive analysis of the jurisprudence (in particular, at para. 36, between pages 27 and 37, inclusive). These are the principles which this Court is applying in the present application.
. From a consideration of the pleadings and evidence before the court today, the following ‘timeline’ of relevant matters emerges. For the sake of clarity, I have attempted to address matters in chronological order, employ certain headings, and underline certain dates.
. In the manner presently examined in more detail, the Plaintiff's case is that she was harassed and bullied by servants or agents of the Defendant “ on divers dates from 2008 until December 2012”.
. The Plaintiff retained solicitors in late 2013. The Plaintiff was initially represented by Messrs. M.J. O'Connor Solicitors, in particular, Ms. McShane, solicitor (described as a “consultant solicitor” in that firm). This remained the position until Ms McShane served a Notice of Change of Solicitors, (dated 7 May 2019) by which her firm came on record for the Plaintiff.
. An application was lodged with the Personal Injuries Assessment Board (“PIAB”) in December 2013 after a letter from the Plaintiff's GP had been obtained. By letter dated 20 December 2013, PIAB wrote to the secretary of the Defendant confirming inter alia that the Plaintiff's claim was received by PIAB on 13 December 2013 and that the Statute of Limitations was put “on hold” from that date and would remain on hold for a further six months from the date of the authorisation issued by PIAB (which was dated 20 December, 2013).
. On 20 December 2013, the Plaintiff's solicitor...
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