Louis J. O'Regan Ltd v Jeremiah O'Regan and Others

JurisdictionIreland
JudgeMr. Justice Bernard J. Barton
Judgment Date21 May 2015
Neutral Citation[2015] IEHC 344
CourtHigh Court
Date21 May 2015

[2015] IEHC 344

THE HIGH COURT

[No. 3506 P/2007]
Louis J. O'Regan Ltd v Jeremiah O'Regan & Ors.

BETWEEN

LOUIS J. O'REGAN LIMITED

AND

JEREMIAH O'REGAN
PLAINTIFFS

AND

CLARE COUNTY COUNCIL

AND

BOXINYE LIMITED TRADING AS AND FORMERLY KNOWN AS BABTIE PETTIT
DEFENDANTS

Tort – Damages & Restitution – Practice & Procedures – O. 122 r. 11 of the Rules of the Superior Courts 1986 – O. 36 r. 12 (b) of the Rules of the Superior Courts 1986 – Dismissal of action – Inordinate delay

Facts: The defendants had applied for an order for dismissal of the proceedings against them on account of delay and/or for want of prosecution. The plaintiffs though admitted delay contended that it could be excused not being pursued diligently by their solicitors.

Mr. Justice Bernard granted an order for dismissal of the proceedings against the defendants. The Court held there was an inexcusable delay of ten years on behalf of plaintiffs who could have remedied it earlier by taking appropriate actions. The action of plaintiffs for damages against the defendants who ceased trading would prejudice the interest of the defendants as there would be practical and insurmountable difficulties arranging witnesses and evidences and it would tilt the balance in favour of the defendants by not subjecting them to onerous litigation rather plaintiffs need to carry on the litigation.

1

JUDGMENT of Mr. Justice Bernard J. Barton delivered the 21st day of May 2015

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1. This matter comes before the court by way of motions on notice brought by the defendants for an order dismissing these proceedings. There are some differences apparent on the face of the two motions.

3

2. By its notice of motion dated the 4 th October 2013, the first named defendant invokes the inherent jurisdiction of the court to dismiss these proceedings in the interests of justice and on the grounds of delay and/or alternatively for want of prosecution pursuant to the provisions of O.122 r. 11 of the Rules of the Superior Courts 1986 as amended.

4

3. By its notice of motion dated the 10 th May 2013 the second named defendant seeks an order dismissing the proceedings for want of prosecution pursuant to the provisions of 0.36, r.l2(b) or, alternatively, pursuant to the provisions of 0.122, r.11 of the Rules of the Superior Courts.

5

4. Order 36 rule 12(b) of the rules provides:

"If the plaintiff in any action does not within six weeks after the close of the pleadings, or within such extended time as the Court may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial (which, in cases where the plaintiff is entitled as of right to a jury, shall be for trial with a jury), or may apply to the Court to dismiss the action for want of prosecution; and on the hearing of such application, the Court may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court may seem just."

6

6. Order 122 rule 11 provides:

"In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. 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. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule."

7

7. Whilst particular considerations may apply to the exercise of the court's jurisdiction in respect of an application for relief on foot of any given order of the rules where the wording of the order is directive in relation to the exercise of the court's jurisdiction, such as where an application is made to strike out proceedings pursuant to 0. 19 r. 28, where the wording of the rule in effect requires the court to determine the application by reference to the pleadings alone, when the court is considering an application to dismiss proceedings for want of prosecution in the interests of justice whether brought invoking the inherent jurisdiction of the court or upon the jurisdiction conferred under 0. 36 or 0.122, the underlying jurisdiction is the same. See Primor PLC v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and Comcast International Holdings Incorporated & Ors v. Minister for Public Enterprise & Ors [2012] 10 JIC 1701.

The pleadings motions and court orders.
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8. The pleadings in this case commence by way of plenary summons issued on the 3 rd of May 2007 and on which the plaintiff's claim is endorsed in the following terms:

"The plaintiffs and each of them claim for damages including exemplary damages together with punitive damages for the losses, expense and damage suffered and sustained by them as a result of the negligence, breach of duty, breach of statutory duty, breach of contract, misfeasance of public office, fraudulent preferment, or in the alternative negligent preferment, and the defamation of the plaintiffs and each of them on the part of the defendants and each of them, their respective servants or agents."

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9. Thereafter the following notices and pleadings were served and orders made:

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(a) The first defendant's notice of intention to proceed dated the 19 th September 2008.

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(b) The first named defendants notice to proceed dated the 22 nd April 2009.

12

(c) The first named defendant's notice of motion dated the 25 th May 2009 seeking to have the plaintiffs claim dismissed for want of prosecution.

13

(d) Notice of change of solicitor on behalf of the plaintiff dated the 26 th June 2009.

14

(e) The order of Herbert J. dated the 13 th July 2009 extending the time for the delivery of a statement of claim on or before the 29 th July 2009 on terms that in default of so doing the plaintiff's claim should stand dismissed.

15

(f) The plaintiff's statement of claim dated the 29 th July 2009.

16

(g) The second named defendant's notice for particulars dated the 7 th August 2009.

17

(h) The second named defendant's motion dated the 18 th November 2009 to compel replies to the second named defendant notice for particulars.

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(i) The plaintiff's replies to particulars dated the 18 th December 2009.

19

(j) Order of De Valera J. dated the 21 st December 2009 striking out the second named defendant's motion for particulars.

20

(k) The second named defendant's notice for further and better particulars dated the 7 th January 2010.

21

(l) The plaintiff's replies to particulars dated the 18 th March 2010.

22

(m) The plaintiff's motion for judgment in default of defence against both defendants dated the 15 th April 2010.

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(n) The first named defendant's notice for particulars dated the 1 st July 2010.

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(o) The order of Lavan J. dated the 5 th July 2010 extending the time by four weeks from the date of the order for the delivery of defences by the defendants.

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(p) The defence of the second named defendant dated the 27 th April 2011.

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(q) The plaintiff's solicitor's motion to come off record dated the 18 th December 2012.

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(r) The order of Ryan J. made the 25 th February 2013 giving the plaintiff s solicitors liberty to come off record.

28

(s) The second named defendant's notice of intention to proceed dated the 20 th March 2013.

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(t) The plaintiff's solicitor's notice of change of solicitor dated the 19 th June 2013.

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(u) The second named defendant's notice of motion to dismiss these proceedings dated the 10 th May 2013.

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(v) The first named defendant's notice of motion dated the 24 th June 2013.

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(w) The plaintiff s replies to the first named defendant's notice for particulars dated the 16 th October 2013.

Background.
33

10. In late 2003 the National Roads Authority invited a number of companies to tender for a large construction project, namely the N18 Ennis Bypass Scheme which was due to commence in March 2004. It was anticipated that the project would last over a three year construction period commencing in 2004. Stabag Gama Joint Venture (Gama) submitted tenders to secure the contract for that project and in respect of which, following negotiations, the plaintiffs were invited by Gama to tender for a contract to supply that company with concrete aggregate and other stone material required by Gama for use in the construction project. The plaintiff submitted a quotation for that subcontract which was included in the tender submitted by Gama.

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11. On the 13 th January 2004, Gama's tender in the sum of €124,000,000 including VAT was accepted.

35

12. In July 2004 the plaintiffs commenced the supply of aggregate material to Gama from two quarries situate in County Clare and in respect of which the plaintiffs entered into two lease agreements. In addition the plaintiffs purchased a number of items of heavy machinery to facilitate completion of the contract.

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13. The plaintiffs contend that the quarries had been used as quarries since 1935 and that, accordingly, the quarries constituted exempt development within the meaning of the Planning and Development Act 2000 as amended (the Act). In this connection the plaintiffs contend that the definition of exempted development in the planning code includes development consisting of the carrying out of works required for the construction of a new road or the maintenance or improvement of a road. Accordingly, the plaintiffs proceeded on the basis that quarrying stone and crushing works carried out by them as part of the works associated with the Ennis bypass project constituted exempt development. The...

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