Mary Doherty v David Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 17 April 2015
• Neutral Citation: [2015] IEHC 242
• Court: High Court
• Date: 17 April 2015

[2015] IEHC 242

THE HIGH COURT

[No. 2924 P/2005]

Doherty v Ryan

BETWEEN:

MARY DOHERTY

PLAINTIFF

AND

DAVID RYAN

DEFENDANT

Defamation – Delay in prosecution of proceedings – O. 122, r. 11 of the Rules of the Superior Courts.

Facts: The plaintiff had sought damages for alleged act of defamation committed by the defendant for falsely and maliciously speaking and publishing words to the effect against the plaintiff. The plaintiff had been guilty of a significant delay in prosecution of the case following the commencement of the case with the issuance of the plenary summons in August 2005. The defendant sought an order dismissing the plaintiff's claim for want of prosecution pursuant to O. 122, r. 11 of the Rules of the Superior Courts.

Mrs. Justice Noonan held that the application seeking an order dismissing the plaintiff's claim for want of prosecution pursuant to O. 122, r. 11 of the Rules of the Superior Courts would be dismissed. The Court found that the defendant had not suffered any actual prejudice as a result of the delays. The Court found that the majority of the delays in the proceedings were occasioned by the defendant. The Court held that undoubted prejudice would accrue to the plaintiff if the claim was dismissed.

1 JUDGMENT of Mr. Justice Noonan delivered the 17th day of April, 2015

Background

2 1. The defendant brings the within motion seeking an order dismissing the plaintiff's claim for want of prosecution pursuant to Order 122, rule 11 of the Rules of the Superior Courts and the inherent jurisdiction of the court.

3 2. In her statement of claim, the plaintiff alleges that on the 15 ^th of May, 2004 at the Annual General Meeting of Ballinagare Community Centre, the defendant, who chaired the meeting which was attended by a large number of people, falsely and maliciously spoke of the plaintiff and published the words "she is nothing but a thief and a pilferer" or words to that effect. It is alleged that the words were published to those who attended the meeting and in particular, to two named individuals, Eamonn Ryan and Brian Morahan. Arising out of the foregoing alleged facts, the plaintiff instituted proceedings claiming damages for defamation.

Chronology

4 3. The following is the relevant sequence of events:

5 · 30 ^th August, 2005 the plenary summons was issued.

6 · 21 ^st September, 2005 the statement of claim was delivered.

7 · 7 ^th February, 2007 the defendant delivered his defence after a delay of over 16 months which I shall refer to as Delay 1. The defence included a claim of qualified privilege.

8 · 24 ^th April, 2007 the plaintiff's solicitors served a notice for particulars seeking particulars of the basis for the claim of qualified privilege. There was no response.

9 · 12 ^th January, 2009 the plaintiffs notice of motion seeking the particulars sought came before the court, the result being a consent order deleting the relevant paragraph of the defence which had claimed qualified privilege. There was thus a delay of 21 months in dealing with the notice for particulars (Delay 2).

10 · 22 ^nd September, 2011 the plaintiff served a notice of intention to proceed some 32 months after the last step in the action (Delay 3).

11 · 8 ^th December, 2011 the plaintiffs solicitors wrote to the defendant's solicitors seeking voluntary discovery. There was no response to this letter.

12 · 25 ^th May, 2012 the defendant issued the within motion to dismiss.

13 · 1 ^st November, 2012 the plaintiff issued a motion for discovery.

14 · 18 ^th March, 2015 the motion to dismiss came on for hearing some 34 months after its issue (Delay 4).

The Legal Principles

15 4. Although there have been a myriad of cases on the issue of delay in recent years, the guiding principles are still to be found in Rainsford v. Limerick Corporation [1995] 2 l.L.R.M. 561 and Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. While there has been some recent judicial comment that there may be a requirement for a degree of reappraisal of the principles laid down in these cases, there can be no doubt that they still represent the law. The Primor principles are so well established that it seems almost unnecessary to refer to them in detail but to the extent that they provide an extremely useful departure point in any case of this nature concerning delay, I think they bear repetition:

16 a "(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;

17 (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;

18 (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;

19 (d) in considering this latter obligation, the court is entitled to take into consideration and have regard to:

20 (i) the implied constitutional principles of basic fairness of procedures,

21 (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 plaintiffs action,

22 (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,

23 (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

24 (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,

25 (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,

26 (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." - per Hamilton C.J. at p. 475 - 476.

27 5. That this represents the current law was reiterated more recently by the Supreme Court in McBrearty v. North Western Health Board [2010] IESC 27 - see in particular the judgment of Geoghegan J. at p. 23 - 24. The issues were recently revisited by the High Court in Cassidy v. Butterly [2014] IEHC 203, in which Ryan J. (as he then was) characterised Primor in the following terms (at p. 10):

"The...