McMullen v Farrell (No. 2)

• Jurisdiction: Ireland
• Judge: Keane C.J
• Judgment Date: 29 January 2004
• Neutral Citation: [2004] IESC 6
• Court: Supreme Court
• Docket Number: [S.C.
• Date: 29 January 2004

[2004] IESC 6

THE SUPREME COURT

Keane C.J.

Hardiman J.

Fennelly J.

261 & 338/02

McMULLEN v. FARRELL & ORS

BETWEEN

MICHAEL COLIN GEOFFREY M c MULLEN

PLAINTIFF

AND

CAREN FARRELL & ORS

DEFENDANTS

Citations:

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

RSC O.40 r17

RSC O.40 r18

RSC O.122 r11

RSC (IRL) 1905 O.64 r15

WYLIE JUDICATURE ACTS

RSC O.122 r11

BRADLEY V COMERFORD 29 ILT 55

MCCAUL V GUARDIANS OF CARRICKMACROSS UNION 29 ILT 96

Synopsis:

PRACTICE AND PROCEDURE

Taxation of costs

Dismissal of proceedings - Want of prosecution - Whether claim should be dismissed for want of prosecution - Rules of the Superior Courts, 1986 Order 122, rule 11 (261 & 338/2002 - Supreme Court - 29/1/2004)

McMullen v Farrell - [2004] 2 IR 328

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 (261 & 338/2002 - Supreme Court - 29/1/2004)

McMullen v Farrell - [2004] 2 IR 328

Facts: The plaintiff's original proceedings arose out of an action instituted against the defendants in 1986 which had been dismissed. A notice of motion seeking a review of the taxation of costs was issued by the plaintiff. Proceedings were adjourned generally after the plaintiff's solicitors came off record. After a lapse of time the defendants issued a motion seeking to have the plaintiff's application dismissed for want of prosecution. In the High Court Ó Caoimh J made an order allowing the plaintiff three months to re-enter the proceedings. Subsequently Ó Caoimh J dismissed the plaintiff's application for want of prosecution. The plaintiff appealed contending that there had been a failure to make a full and frank disclosure of all relevant documents. In addition complaints were made regarding the legibility of a signature on a grounding affidavit. Furthermore it was submitted that the defendants had failed to issue a preliminary letter prior to the issuing of their notice of motion and had also failed to issue a notice of intention to proceed.

Held by the Supreme Court (Keane CJ delivering judgment; Hardiman J and Fennelly J agreeing) in dismissing the appeal. The provision for the re-entry of proceedings by letter was in ease of the plaintiff and had dispensed him from the necessity of bringing a formal notice of motion in order to re-activate the review of the taxation. The allegations regarding the alleged concealment of documents were wholly baseless. There was no obligation on a defendant to issue a notice of intention to proceed in such circumstances as the defendant was in fact seeking a dismissal of the proceedings. The order of the High Court would be affirmed.

Reporter: R. F.

1 29th day of January 2004, by Keane C.J.

2 These proceedings have a long history. They arise out of an action instituted as far back as the 19 ^th March, 1986. The claim made therein against the first, second, third and fourth named defendants, a firm of solicitors (hereafter "the respondents") was dismissed andit was ordered that the respondents should recover from the plaintiff the costs of the proceedings when taxed and ascertained.

3 The taxation of the respondents" costs took place before the late Taxing Master O'Connor on the 8 ^th July and the 13 ^th November, 1992. On the 22 ^nd 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 21 ^st February 1997.

4 The plaintiff's then solicitors applied by notice of motion to the High Court to come off record in the proceedings and on the 9 ^thJune, 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 jurisdiction had been dealt with by the Irish courts. On the 21 ^st October, 1998 the Commission issued its report, finding that there had been a violation of Article 6.1 of the European Convention of Human Rights and Fundamental Freedoms on the ground that the plaintiffs case had not been heard within a reasonable time.

5 Thereafter no step was taken by the plaintiff to re-enter the proceedings. On the 18 ^th March, 2002, the respondents 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.

6 On the hearing of the motion, the plaintiff said that the signature of the Commissioner for Oaths on the grounding affidavit of Donal Houlihan, solicitor, was indecipherable and that there was no independent address given for the Commissioner. He further submitted that a notice of intention to proceed should have been served by the respondents. That submission was rejected by Ó Caoimh J. who, however, said that he was not satisfied that the justice of the case required at that stage that the respondents" application should be granted and that he considered the appropriate...