Manhattan Design Furniture Ltd v Bijou Beauty Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] IEHC 468 |
| Docket Number | [2011 NO. 11457P] |
| Court | High Court |
| Date | 18 September 2020 |
AND
[2020] IEHC 468
Barr J.
[2011 NO. 11457P]
THE HIGH COURT
Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Plaintiff seeking an order discharging the order of the High Court dismissing the plaintiff’s proceedings for want of prosecution against the second and third defendants – Whether the balance of justice was against permitting the plaintiff’s action to continue against the second and third defendants
Facts: The plaintiff, Manhattan Design Furniture Ltd, applied to the High Court for an order pursuant to O. 63, r.9 (1) of the Rules of the Superior Courts, discharging the order of the Master of the High Court made on 15th October, 2019, dismissing the plaintiff’s proceedings for want of prosecution against the second and third defendants, Ms Egleston and Ms Kenny. The plaintiff’s claim against the second and third defendants arose due to the fact that they were the guarantors of the obligations of the first defendant, Bijou Beauty Ltd, under a lease, whereby the first defendant held the premises at 48 Roches Street, Limerick, as tenant to the plaintiff for a period of fifteen years from 8th November, 1999. The plaintiff claimed that the amount owed to it by the second and third defendants as guarantors of the obligations of the first defendant, stood at €132,567, plus interest. The second and third defendants maintained that the plaintiff had been guilty of inordinate and excusable delay in the prosecution of its claim against them, by virtue of the fact that the plenary summons was issued on 13th December, 2011 and nothing was done after that until service of a notice of intention to proceed on 1st November, 2018 and service of a notice of motion by the plaintiff seeking judgment in default of appearance against the second and third defendants on 15th April, 2019. In response to that motion, the second and third defendants entered appearances to the action and then issued motions on 6th June, 2019 and 30th July, 2019 seeking to have the plaintiff’s action against them struck out on the grounds of want of prosecution, as the plaintiff had done nothing in the action for over seven years since the commencement thereof. The defendants maintained that they had been prejudiced in their defence of the action due to this delay.
Held by Barr J that the delay on the part of the plaintiff was both inordinate and inexcusable. Barr J was satisfied that the defendants had established that they had suffered prejudice which met the threshold of constituting “moderate prejudice” as required by the case law. Barr J was satisfied on the evidence before the court that the defendants did not cause any of the delay in this case, nor did they acquiesce in it. Accordingly, Barr J found that the balance of justice was against permitting the plaintiff’s action to continue against the second and third defendants.
Barr J held that the court would make an order striking out the plaintiff’s action against the second and third defendants for want of prosecution.
Action struck out.
This is an application by the plaintiff for an order pursuant to O. 63, r.9 (1) of the Rules of the Superior Courts, discharging the order of the Master of the High Court made on 15th October, 2019, dismissing the plaintiff's proceedings for want of prosecution against the second and third named defendants.
The plaintiff's claim against the second and third named defendants arises due to the fact that they were the guarantors of the obligations of the first named defendant under a lease, whereby the first defendant held the premises at 48 Roches Street, Limerick, as tenant to the plaintiff for a period of fifteen years from 8th November, 1999. The plaintiff claims that the amount owed to it by the second and third defendants as guarantors of the obligations of the first defendant, currently stands at €132,567, plus interest.
In summary, the second and third defendants maintain that the plaintiff has been guilty of inordinate and excusable delay in the prosecution of its claim against them, by virtue of the fact that the plenary summons was issued on 13th December, 2011 and nothing was done after that until service of a notice of intention to proceed on 1st November, 2018 and service of a notice of motion by the plaintiff seeking judgment in default of appearance against the second and third defendants on 15th April, 2019. In response to that motion, the second and third defendants entered appearances to the action and then issued motions on 6th June, 2019 and 30th July, 2019 seeking to have the plaintiff's action against them struck out on the grounds of want of prosecution, as the plaintiff had done nothing in the action for over seven years since the commencement thereof. The defendants maintain that they have been prejudiced in their defence of the action due to this delay.
By a lease dated 6th December, 1999, the first defendant held the premises at 48 Roches Street, Limerick, as tenant to the plaintiff for a period of fifteen years commencing on 8th November, 1999. The second, third and fourth defendants were directors of the first defendant and executed the lease as guarantors of the obligations of the first defendant under the lease.
According to the second and third defendants, the business of the first defendant traded successfully as a beautician's salon for approximately nine years. However, they allege that due to defects in the premises in the form of damp, foul smells and rat infestation, the first defendant was unable to use portions of the premises and in addition due to the unpleasant state of the premises, business declined. The first defendant stopped paying rent to the plaintiff on 11th November, 2008. By letter dated 11th February, 2009, the first defendant wrote to the plaintiff informing it that it would cease doing business from 14th February, 2009. According to the plaintiff, the first defendant abandoned the premises in March, 2009.
By letter dated 31st July, 2010, the second, third and fourth defendants wrote to Mr. Tony O'Carroll of the plaintiff company in relation to a third party who was interested in taking over the lease of the premises. They requested that he would consider a rent reduction of 30%. It appears that such consent was not forthcoming from the plaintiff.
On 25th February, 2011, the first named defendant was dissolved.
On 13th December, 2011, the plaintiff issued the plenary summons herein, which was served on the third defendant on 9th January, 2012 and was served on the second defendant on 10th January, 2012.
The plaintiff rented the premises to a third party from March 2012 until February 2013. The plaintiff then rented the premises to another third party from 15th September, 2014, presumably until the expiry of the lease held by the first defendant from the plaintiff, which would have expired in November 2014.
It appears that some steps were taken by the plaintiff's former solicitors to progress the matter by submitting an application to have judgment in default of appearance entered against the defendants in the central office of the Four Courts. However, two letters have been exhibited dated 14th June, 2013 and 13th January, 2015, wherein the judgments section of the central office wrote to the plaintiff's former solicitor indicating that they could not mark judgment against the defendants as the proofs were not in order.
The plaintiff's present solicitors were instructed in October 2018. They served a notice of change of solicitor and a notice of intention to proceed on 1st November, 2018. On 20th March, 2019, they issued a warning letter to the second, third and fourth defendants indicating that they would proceed to issue a motion seeking judgment in default of appearance unless appearances were entered within a period of 21 days. A notice of motion duly issued on 15th April, 2019 seeking judgment in default of appearance against the second, third and fourth defendants. That motion came on for hearing on 24th June, 2019, by which time the second and third defendants had entered appearances and the fourth defendant was given an extension of time within which to enter her appearance.
On 6th June, 2019 the second defendant issued a notice of motion seeking to have the plaintiff's action against her struck out for want of prosecution. The third defendant issued a similar motion on 30th July, 2019.
On 10th October, 2019, the plaintiff delivered its statement of claim.
The motions which had been issued by the second and third defendants came on for hearing before the Master of the High Court on 15th October, 2019, at which time an order was made striking out the plaintiff's action against the second and third defendants for want of prosecution.
While the second and third defendants were separately represented, their arguments can be taken together. They submitted that in this case there was an inordinate delay on the part of the plaintiff in bringing its proceedings. In this regard, they stated that there was both pre-commencement delay, due to the fact that the first defendant had ceased paying rent from November 2008, yet the plenary summons did not issue until December 2011. It was submitted that the court was entitled to have regard to this period of delay when considering the more significant delay which occurred post commencement of the proceedings. In that regard, it was submitted that a delay of over seven years between the date of issuance of the summons on 13th December, 2011 and the issuance of the warning letter on 20th March, 2019 in advance of the notice of motion dated 15th April, 2019 in...
To continue reading
Request your trial