McAndrew v Egan

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] IEHC 345
• Court: High Court
• Docket Number: RECORD NO: 2011/9050 P
• Date: 13 February 2017

SEAN MCANDREW

PLAINTIFF

AND

ENYA EGAN PRACTICING UNDER THE STYLE

AND

TITLE OF EGAN DAUGHTER AND CO. SOLICITORS

DEFENDANT

[2017] IEHC 345

Ní Raifeartaigh J.

RECORD NO: 2011/9050 P

THE HIGH COURT

Practice and Procedures – Striking out proceedings – Inordinate and inexcusable delay – Balance of justice – Dismissal for want of prosecution – O. 122, r. 11 of the Rules of the Superior Courts

Facts: The defendant had filed the present application to have the plaintiff's proceedings dismissed on ground of inordinate and inexcusable delay. The plaintiff cited that it needed time to find a solicitor and counsel and thus, the delay could be excused.

Ms Justice Ni Raifeartaigh granted an order that the plaintiff's proceedings should be struck out for inordinate and inexcusable delay. The Court held that the defendant was also entitled to an order for the dismissal of proceedings under o. 122, r. 11 of the Rules of the Superior Courts on the ground of want of prosecution. The Court found that in an application for dismissal, the Court must determine whether the delay was inordinate, and if the answer was in the affirmative, then the Court must determine whether it could be excused. The Court held that it should then proceed to see where the balance of justice lay. The Court held that there had been a delay of about three years and the plaintiff failed to give adequate explanation for the delay. The Court held that the primary onus for litigating the case diligently had rested upon the plaintiff.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 13th February, 2017

1 The issue before the Court in the present case is whether the plaintiff's claim should be struck out for want of prosecution and on grounds of inordinate and inexcusable delay. The substantive proceedings brought by the plaintiff involve claims relating to matters said to have occurred in the course of the defendant's acting in her capacity as a solicitor with regard to the conveyance of a dwelling house. The present issue arose by way of motion brought by the defendant, and while the plaintiff was respondent to the motion and the defendant was the applicant on the motion, I think it will be clearer if I refer to the parties by their positions in the substantive proceedings i.e. Mr. McAndrew as the plaintiff and Ms. Egan as the defendant throughout this judgment.

The history of the proceedings

2 The plenary summons was issued on the 10th October, 2011. An appearance was entered by the defendant on the 21st November, 2011. The defendant raised a notice for particulars on the 30th July, 2012, and a defence was delivered on the same date. The plaintiff replied to the notice for particulars on the 10th August, 2012. A request for particulars was subsequently raised by solicitors for the plaintiff on the 14th August, 2012. This was responded to by solicitors for the defendant by replies dated the 7th January, 2013, a delay of almost five months. In the interim period, counsel for the plaintiff issued a motion to direct the defendant to reply to the plaintiff's notice for particulars, pursuant to a notice dated the 22nd November, 2012, which motion was struck out on consent by Moriarty J. in the High Court on the 4th February, 2013, replies having been furnished by that time.

3 Two requests for voluntary discovery were made by the defendant; the first, on the 11th March, 2013, and a second, the date of which is not known to the Court. These were followed by a request for voluntary discovery from the plaintiff, dated the 22nd May, 2013, which was complied with by an affidavit of discovery sworn by the defendant on the 4th July, 2013. An affidavit of discovery of the plaintiff was sworn on the 7th October, 2013.

4 The period of delay of which the defendant complains in the present motion is the period of time which has elapsed since the final affidavit of discovery sworn by the plaintiff on the 7th October, 2013. The present motion issued in November, 2015, and was not heard until the 13th February, 2017.

5 The plaintiff filed three affidavits by way of response to the motion. In the first he averred to the difficulties he faced obtaining new solicitors. The second contained much material that was irrelevant to the issue the subject of the motion, and instead related to issues he wishes to ventilate in relation to the substantive proceedings. In the third, he raised objections to the motion based on alleged attempts by the defendant to intimidate him by sending him Notices of Trial and, he alleges, by attempting to force him to withdraw his cases. The plaintiff in oral submission also sought to assert certain facts and raise matters which were not contained in the affidavits. This is not uncommon in the case of a litigant in person. However, in accordance with the normal procedure, the Court, in considering this motion, has regard only to (a) facts sworn to on affidavit, and (b) facts and issues which were relevant to the issues raised by the motion, namely whether there was a want of prosecution in breach of the Rules of the Superior Courts, and whether there had been inordinate and inexcusable delay in advancing the plaintiff's proceedings.

Alleged delay from the 7th October, 2013

6 As noted above, the defendant's last step in the proceedings was the swearing of an affidavit of discovery on the 7th October, 2013. The correspondence exhibited to the Court show that letters sent by the defendant's solicitors contained requests that the plaintiff furnish the documentation referred to in his affidavit of discovery and, subsequently, expressed an eagerness on their part to have the matter fixed for hearing with some expedition pursuant to instructions from their client. The plaintiff's responses referred to difficulties faced by him in obtaining legal assistance. As this issue is central to his explanation for the delay in the proceedings, it will be explored more fully below. While there was little in the way of continuous dialogue between the parties, the exhibited correspondence, set out below, gives some indication of the steps taken by the parties to advance proceedings throughout the period of claimed delay.

7 Solicitors for the defendant wrote to the plaintiff on the 22nd October, 2013, saying, inter alia,

‘We note that during the aforementioned telephone conversation with Ms. Beggs of our office, you indicated that you would furnish us with the documentation listed in your Affidavit of Discovery sworn on the 7th of October 2013 by the 18th of October 2013. We note that we have yet to receive the documentation referred to in your Affidavit of Discovery and we look forward to receiving same as soon as possible.’

8 The defendant's solicitors again wrote to the plaintiff on the 12th February, 2014, referring to the letter of the 22nd October and stating ‘We note that we have not received said documentation and accordingly we now enclose Notice to Produce by way of service on you.’ A notice to produce was duly enclosed with that letter.

9 The plaintiff responded by letter of the 27th February, 2014, stating that ‘I am endeavouring to obtain the services of a Solicitor. I hope to be in a position to respond to your letter within three weeks.’ No such response was received within this time frame. The defendant's solicitors wrote, again, to the plaintiff in March 2014 and stated, inter alia, the following:

‘whilst we appreciate the difficulty you are encountering in retaining new solicitors, these proceedings are now on-going since 2011 and have yet to be set down for Hearing. In those circumstances, our instructions are to proceed to press this matter on for hearing as soon as possible. Accordingly, we confirm that we will wait a further period of three weeks from the date hereof prior to issuing a Notice of Motion for inspection of the documents listed in out Notice to Produce.

We trust that you note the position and that no further correspondence will be issued to you following the expiry of the deadline set out in this letter and we will proceed to file our Motion once the timeline as set out in this letter has elapsed.’

10 A further letter was sent by the defendant's solicitors to the plaintiff on 8th July, 2014, which noted that the letter of 12th February, 2014, had never been substantively responded to, nor the notice to produce complied with, and requesting either a detailed identification of each document to be discovered by the plaintiff or a full copy of discovery documentation as listed in the affidavit of discovery. The letter further stated that in the event that same was not furnished within 7 days the defendant's solicitors would be seeking instructions to set the matter down for trial.

11 At issue in the correspondence which followed was having the proceedings, along with another set of proceedings involving the same parties, set down for trial. A letter of the 7th November, 2014, from the defendant's solicitors, noted that in the circumstances where the plaintiff had failed to serve notice of trial and have the matters set down for hearing, ‘we proceeded to serve Notice of Trial and set both of the above matters down for Hearing. We enclose copy Notice of Trial in both matters for your attention.’ It also noted that certificate of readiness had also been filed in both cases and a copy of same was enclosed. It concluded ‘We confirm that our instructions are to proceed to apply for a Hearing date in this matter at the earliest possible opportunity. In this respect, please confirm whether there are any dates between now and 30 July 2015 which are not convenient for you.’ Absent a response from the plaintiff, this request to confirm availability was reiterated in a letter from the defendant's solicitors in a letter dated the 23rd February, 2015.

12 The plaintiff responded to this letter by way of letter dated the 20th March,...