McMullen v Caren Farrell and Others
| Jurisdiction | Ireland |
| Judgment Date | 29 January 2004 |
| Date | 29 January 2004 |
| Docket Number | 261 & 338/02 |
| Court | Supreme Court |
THE SUPREME COURT
Keane C.J.
Hardiman J.
Fennelly J.
261 & 338/02
Practice and procedure - Taxation of costs - Review of taxation - Dismissal for want of prosecution - Whether the respondent was entitled to have the plaintiff’s application dismissed for want of prosecution given the delay in prosecuting matters.
Facts: The plaintiff instituted proceedings on 19 March, 1986 against the defendants and that claim was dismissed and it was ordered that the defendants should recover from the plaintiff the costs of the proceedings when taxed and ascertained. Taxation of the defendants’s costs took place before the late Taxing Master O’Connor on 8 July and 13 November, 1992. Subsequently, on 22 December, 1992 the plaintiff issued a notice of motion seeking a review of the taxation. The final report of the Taxing Master was not obtained until 21 February, 1997 and in June, 1997 the plaintiff’s solicitors came off record and the proceedings were adjourned generally with liberty to re-enter. The plaintiff did not take any steps to re-enter the proceedings and consequently, on 18 March, 2002, the defendants issued a notice of motion in which they sought an order dismissing the plaintiff’s application for a review of taxation for want of prosecution. In the High Court, O’Caoimh J. rejected the plaintiff’s submissions but refused to dismiss his application at that stage. Accordingly, the learned High Court judge made an order on 1 July, 2002 adjourning the motion for a period of three months. The adjourned hearing came on before him on 9 October, 2002 and the proceedings not having been re-entered in the interval, he made an order dismissing the plaintiff’s application for review of the taxation for want of prosecution. The plaintiff appealed from both the orders of 1 July and 9 October, 2002.
The plaintiff submitted that counsel for the defendant failed to furnish the High Court at the hearing on 1 July, 2002 with a copy of the order of the High Court of 9 June, 1997 adjourning the proceedings generally and accordingly the order made by O’Caoimh on 1 July, 2002 should have been set aside. The plaintiff further submitted that by virtue of that order, which stated “AND IT IS ORDERED that these proceedings be adjourned generally with liberty to re-enter by letter” the defendant should have written a letter before issuing the notice of motion. The plaintiff also complained that the signature of the Commissioner for Oaths on the grounding affidavit was indecipherable and no independent address was provided. He also alleged that notice of intention to proceed should have been served on behalf of the defendant before the present motion was issued.
Held by the Supreme Court (Keane C.J., Hardiman, Fennelly JJ) in dismissing the appeal:
1. That the defendant was not obliged to furnish the court with the previous order of the High Court because the proceedings had been adjourned generally with liberty to re-enter.
2. That the provision for re-entry of the proceedings by letter was for the benefit of the plaintiff and did not impose any obligation on the defendant as a preliminary to issuing a motion.
3. That although the signature of the Commissioner for Oaths was difficult to decipher, the court had been informed and had accepted that it was that of a Solicitor who was not a partner in the firm of Solicitors acting for the defendant and accordingly the provisions of Order 40, rules 17 and 18 of Rules of Superior Courts had been complied with.
4. That there was no obligation on the defendant, who was seeking to have the action dismissed for want of prosecution to serve any notice of intention to proceed.
That the learned High Court judge clearly had jurisdiction to make an order dismissing the application for review of taxation for want of prosecution. It would have been remarkably unjust if the plaintiff, by the simple expedient of declining to re-enter the review of hearing, could have deprived the defendants indefinitely of costs which were unarguably owing to them.
Reporter: L.O’S.
JUDGMENT delivered the 29th day of January 2004, by Keane C.J.
These proceedings have a long history. They arise out of an action instituted as far back as the 19th March, 1986. The claim made therein against the first, second, third and fourth named defendants, a firm of solicitors (hereafter “the respondents”) was dismissed and it was ordered that the respondents should recover from the plaintiff the costs of the proceedings when taxed and ascertained.
The taxation of the respondents’ costs took place before the late Taxing Master O’Connor on the 8th July and the 13th November, 1992. On the 22nd December, 1992 a notice of motion seeking a review of the
taxation was issued on behalf of the plaintiff. There were substantial delays in the obtaining of a final report of the Taxing Master and it did not become available until the 2lst February 1997.
The plaintiff’s then solicitors applied by notice of motion to the High Court to come off record in the proceedings and on the 9th June, 1997, that order was made and the proceedings were adjourned generally with liberty to re-enter. The court was also informed on that occasion that the plaintiff was making an application against Ireland to the European Commission of Human Rights arising out of the manner in which the proceedings instituted by him in this...
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