Letting Sleeping Dogs Lie – How Much Delay Is Too Much?

Author:Ms Lisa Mansfield
Profession:Ronan Daly Jermyn

As Mr Justice Keane recently stated in the High Court case of Brian Maxwell v Irish Life Assurance and others 1 , there is no strict chronological or arithmetical answer to the question: what constitutes an inordinate delay in the prosecution of proceedings? Instead, the question of whether inordinate delay arises is a mixed question of fact and law, dependent on the circumstances of each case.

We look at this recent case and consider the court's views on the level of delay necessary to ground a successful application for want of prosecution.

The Facts

The plaintiff suffered a heart attack in June 2006 and made a claim against his policy. The insurance company rejected the claim based on the plaintiff's non-disclosure of his smoking history. Following a letter before action in 2007, the plaintiff finally issued proceedings in 2010, seeking an order directing specific performance from the defendant insurance company under a serious illness policy or an award of damages for breach of the insurance contract.

After an exchange of pleadings that stretched over almost four years, the plaintiff wrote seeking voluntary discovery in December 2014. The defendants responded with an application to dismiss for want of prosecution in July 2015.

In their application the defendants argued that there were three key periods of unexplained delay:

The three year delay between the declinature of the claim and proceedings issuing. The 22 month delay between the delivery of the notice for particulars and the provision of the replies to particulars. The two year delay between the delivery of the replies to particulars and the request for voluntary discovery. The Law

The fundamental test under which the court exercises its inherent jurisdiction to dismiss a claim for delay was approved in Primor plc v Stokes Kennedy Crowley  2  In the first instance, the court must establish that the delay was inordinate and inexcusable and secondly, even where the delay has been both inordinate and inexcusable, the court must exercise a judgment on whether, in its discretion based on the facts, the balance of justice is in favour of or against the proceeding of the case.

Despite the primacy of the Primor test, recent judicial decisions have also pointed out that even where there has been no fault on behalf of the plaintiff, circumstances may arise in which it is in the interests of justice to strike out proceedings in order to put an end to stale claims and ensure basic...

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