O'Leary v Turner

JudgeMs. Justice Baker
Judgment Date18 January 2018
Neutral Citation[2018] IEHC 7
Docket Number[2010 No. 8090 P.]
CourtHigh Court
Date18 January 2018

[2018] IEHC 7

Baker J.

[2010 No. 8090 P.]


Practice & Procedure - Renewal of the summons - Professional negligence - Delay in service - Dismissal of the claim - Want of prosecution

Facts: The defendants brought two motions in the present proceedings, a motion to strike out or dismiss the plaintiff's claim for delay or want of prosecution, and a motion to set aside the renewal of the plenary summons. The defendants contended that there was a delay by the plaintiff in prosecuting the case. The defendants argued that the Court should have struck out the plaintiff's case for want of prosecution. The plaintiff contended that the delay was caused by the death of the plaintiff's husband as the plaintiff received a shock and took time to make a decision on the commencement of appropriate proceedings. The defendants also contended that the firm had suffered concrete and specific prejudice because of the delay.

Ms. Justice Baker allowed the defendants' motion and thus, dismissed the plaintiff's case. The Court noted that the plaintiff was not genuinely interested to proceed with the claim, having regard to the delay and lack of any communication with the firm/defendants. The Court held that there was culpable delay in the present case and the defendants would be adversely prejudiced by the continuation of the present action as the potential witness no longer worked in the defendants' firm.

JUDGMENT of Ms. Justice Baker delivered on the 18th day of January, 2018.

The defendants bring two motions in these proceedings: a motion to strike out or dismiss the plaintiff's claim for delay or want of prosecution, and a motion to set aside the renewal of the plenary summons.


I propose dealing with the delay motion first, as it may be dispositive of the application.

Material facts:

The plaintiff's claim is for damages for alleged professional negligence by the defendants, partners in a firm of solicitors retained by the plaintiff in or about the month of March, 2005 for the purpose of the purchase by her of commercial premises at 18 Selskar Street, Wexford. At the time of the purchase, the premises were held subject to and with the benefit of a commercial occupational lease made on the 5th March, 2002.


The claim of the plaintiff in essence is that the defendant firm failed to advise her regarding the statutory renewal rights of the tenant pursuant to the Landlord and Tenant (Amendment) Act 1980, as amended.


The claim is for €1.72 million, calculated as the purchase price of the premises, compensation paid to the tenant for vacant possession, legal and professional fees and banking charges. The plaintiff also claims damages for personal injuries in the form of stress and anxiety suffered by her as a result of the alleged negligence.


In March, 2005, the plaintiff retained the defendant firm to act for her in relation to the purchase. The contract for sale was signed by her on 2nd May, 2005, and the sale closed on 6th September, 2005. The plaintiff's husband died on 28th March, 2006.


By letter of 1st March, 2007, the plaintiff first complained to the defendant firm regarding the advice she had received at the time of the contract. The parties met on 2nd March, 2007, and the meeting was followed by a formal letter of that date from the firm to the plaintiff agreeing to act on her behalf in negotiations with the occupational tenant, Mr. Hamilton, or his legal representatives with a view to obtaining vacant possession.


On 21st June, 2007, Mr. Hamilton served a statutory notice of intention to claim relief under the 1980 Act. Following negotiations on 12th June, 2008, a settlement was reached with Mr. Hamilton for the payment to him of compensation in satisfaction of his claim to a new lease.


The plenary summons issued on the 26th August, 2010, and is not in the standard short general form but in a form akin to a statement of claim. The plaintiff had the benefit of legal representation at that time, but now instructs Messrs Holohan Solicitors, who formally came on record on 23rd November, 2011.


Thereafter correspondence was had between that firm of solicitors and the defendant firm regarding the sale and other matters related to the estate of the deceased husband of the plaintiff, not relevant to these proceedings.


The plenary summons was served on 23rd August, 2011, on the first, second and fourth defendants. It was renewed on 24th October, 2011, and served on the sixth defendant on 8th December, 2011, on the third defendant on 12th January 2012 and on the fifth defendant on 7th February, 2012.


Service therefore on the first, second and fourth defendants were made within the currency of the summons, and on the other three defendants within the currency of its renewal. But service was effected at or close to the latest possible dates, viz on the first, second and fourth defendants, 11 months and 28 days after the summons issued, i.e. just within the 12 month life of the summons. Service on the other three defendants of the renewed summons was not finally effected until February, 2012, some months after the order renewing the summons on the 24th October, 2011.


A notice of intention to proceed was served on 16th February, 2015. The only other formal step taken between the date of service on the fifth defendant (the last defendant to be served) and the notice of intention to proceed was a letter of 6th March, 2012, from Holohan Solicitors to the fifth defendant consenting to the late filing of an appearance by that defendant.


An appearance was entered by Messrs. Cantillons on behalf of the first, second and fourth defendants on 30th May, 2016. Up to that time, the defendants were not separately legally represented and, insofar as any engagement was had, it was had through the members of the firm personally. Appearances have now been entered on behalf of all defendants.


The two present motions issued on 28th September, 2016.


The statement of claim was served on the 6th December, 2016, after the present motions had issued.

The principles

There is no real argument in this case that the delay on the part of the plaintiff been anything other than inordinate. The proceedings were commenced five years after the cause of action accrued. There were significant periods of delay in the intervening years and, twelve years after the cause of action accrued, the case is not yet ready for trial, the pleadings have not closed and, even on an optimistic estimate, it will take at least a year before the matter comes on for trial. In Stephens v. Paul Flynn Ltd. [2008] 4 I.R. 31, the Supreme Court approved the approach of Clarke J. that a period of 20 months for delivering a statement of claim was 'totally outside any period of time that might be considered appropriate or reasonable' and was 'inordinate' (para. 28). The delay in the present case is far in excess of that time and must be considered to be inordinate.


Correspondence from Messrs. Cantillons commenced on the 16th February, 2016, and, on the 23rd February, 2016, in reply to a threat of a motion for judgment in default, that firm said that 'we cannot see why there is any urgency in issuing a motion for judgment in default of appearance at this stage'. Messrs. Cantillons said they were investigating the matter, that they would conclude their investigations in 'the very near future' and asked that the plaintiff would 'hold off issuing a motion in the circumstances'. I consider that it is at least arguable that time ceased to run against the plaintiff for the assessment of the delay in the prosecution of the case at that stage and that the absence of any procedural step could then be explained as a response to this request. It is the delay therefore between February, 2012 and February, 2015, when the notice of intention to proceed was served, and the delay thereafter until 5th February, 2016, when Holohan Solicitors confirmed they had identified the defendants' insurers that is my focus in this judgment.

Is the delay to be excused? The principles

The plaintiff argues that the delay was excusable. A plaintiff facing an application to dismiss for delay must offer an explanation for the delay which offers a real and justifying excuse.


The jurisprudence regarding the correct approach to delay is well established and recent. The applicable legal principles were set out in the judgment of Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561 and have been approved and followed in numerous cases thereafter, including Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290. I do not propose repeating the principles set out by Finlay P. in his judgment, save and insofar as specific aspects of the principles form part of the argument of either side or of my conclusions.


The Court of Appeal has considered the correct approach to an application to dismiss in a number of judgments, and, whilst it did not depart from the approach already identified by the Supreme Court in Primor plc v. Stokes Kennedy Crowley and in Rainsford v. Limerick Corporation, the principles have been refined and elaborated.


The present case must be seen as a 'late start', having regard to the fact that the proceedings issued more than five years after the contract for sale.


In Tanner v. O'Donovan & Ors [2015] IECA 24, Hogan J., giving the judgment of the Court, considered that it was relevant to take into account the period from the date of the accrual of the cause of action to the issue of proceedings and quoted with approval the dicta...

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    ...an exculpatory factor in the context of delay, the judge referred to the decision of Baker J, then in the High Court, in O’Leary v Turner [2018] IEHC 7 where such personal factors were found not to be capable of excusing otherwise unexplained delay. Noonan J noted that many of the events re......
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    ...his claim, the plaintiff was guilty of inordinate delay in the prosecution of the proceedings. Applying the decision of O’Leary v Turner [2018] IEHC 7 to the proceedings, it was Stack J’s view that the plaintiff’s difficult personal and financial circumstances could not be relied upon to ex......
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    ...the dismissal of a claim for want of prosecution. Farrell was cited with approval by Baker J. in her decision in O'Leary v. Turner & Ors. [2018] IEHC 7, in which she stated: “… the present proceedings are inter partes professional negligence proceedings of a type that ought, in a general wa......
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