Maxwell v Lysaght p/a Francis J. O'Mahony & Company

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 July 2019
• Neutral Citation: [2019] IEHC 551
• Docket Number: 2013 No. 10649 P
• Court: High Court
• Date: 17 July 2019

[2019] IEHC 551

THE HIGH COURT

Barrett J.

2013 No. 10649 P

Between:

CHRISTOPHER MAXWELL

PLAINTIFF

– AND –

LIAM LYSAGHT practising under the style of FRANCIS J. O'MAHONY & CO

AND

LIAM LYSAGHT & CO

– AND –

JOHN W CARROLL, FINBAR J CROWLEY, CATHERINE M KEANE

AND

HUGH J MILLAR practising under the style of CROWLEY MILLAR SOLICITORS

DEFENDANTS

Professional Negligence – Practice and Procedure – Inordinate and Inexcusable Delay – Defendants seeking to strike out plaintiff’s claim for inordinate and inexcusable delay – Whether the delay on the part of the plaintiff was inordinate and inexcusable and whether the balance of justice allowed for his claim to continue

Facts: The plaintiff brought a claim alleging professional negligence against the first named defendant in relation to his representation in an alleged trip and fall incident in 2001. The second to fifth named defendants were allegedly instructed to act for the plaintiff in a claim against the first named defendant although this was under dispute. The second to fifth named defendants entered their appearance in this case on 31.12.13. The last letter received from the plaintiff’s solicitor prior to the issuance of the strike out motion on 25.10.18 was on the 07.07.16. The defendants sought to strike out the plaintiff’s claim for inordinate and inexcusable delay.

Held by Barrett J that the delay was both inordinate and inexcusable. There was nothing to justify the delay on the part of the plaintiff from the last letter sent on 07.07.16 to the time of the issuance of the strike out motion. Given the impact of a pending professional negligence claim on the defendants, including increased insurance premiums, and the lack of any explanation on the part of the plaintiff to excuse the delay, the balance of justice lay with striking out the plaintiff’s claims.

Relief granted.

JUDGMENT of Mr Justice Max Barrett delivered on 17th July, 2019.

1 Mr Maxwell claims to have been badly served by Mr Lysaght in respect of a personal injuries claim that he commenced concerning an alleged “trip and fall” incident in 2001. He then approached the second to fifth-named defendants. A dispute has arisen as to whether, inter alia, the second to fifth-named defendants were instructed to act for Mr Maxwell in relation to a claim brought against the first defendant. On 03.10.2013, the within proceedings issued. Thereafter the key events presenting are:

30.12.2013 Appearance entered by second to fifth-named defendants.

07.03.2014 Motion filed to direct Mr Maxwell to deliver a statement of claim.

13.03.2014 Statement of Claim delivered.

2013-2015 Requests for Particulars and Motion and Order

10.12.2014 Defence of the second to fifth-named defendants. No reply to defence has ever been served.

15.05.2015 Defence of first defendant.

31.07.2015 Affidavit of discovery of fifth-named defendant. The fifth-named defendant avers in this regard:

‘[O] n the 31st July 2015 an Affidavit of Discovery was sworn in these proceedings by me discovering the entire file…’

The discovery of the entire (copy) file is an answer to the contention by Mr Maxwell that the lien being exercised at this time over the original file held by Crowley Millar has contributed to the delay presenting since 07.07.2016. More particularly, there was mention that the said delay has been caused by a refusal to allow inspection by Mr Maxwell's team of the retained original file. No good reason has been offered as to why such inspection is required or would advance matters in circumstances where a copy of the entire file has been discovered.

07.07.2016 Last letter received from Mr Maxwell's solicitor prior to issuance of strike-out motion.

** Significant Delay

25.10.2018 Strike-out motion issues.

17.12.2018 First Return Date for Motion to Dismiss.

2 The law as to strike-out for inordinate and inexcusable delay has been considered at length by the appellate courts in recent years. As good a summary as any of the applicable principles is to be found in the relatively recent judgment of the Court of Appeal in Farrell v. Arborlane...