McMullen v Farrell (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 01 July 2002
• Neutral Citation: [2002] IEHC 73
• Court: High Court
• Docket Number: No. 2747P 1986
• Date: 01 July 2002

McMULLEN v. FARRELL & ORS

Between:

MICHAEL COLLIN GEOFFREY McMULLEN

Plaintiff

-and-

CAREN FARRELL, JOHN FARRELL, THOMAS FARRELL and MARCUS J. FARRELL (practicing under the style of FARRELL & PARTNERS (formerly ADAMS FARRELL & COMPANY)

and

ENDA GEARTY, FRANCIS GEARTY and PÁDRAIG GEARTY practicing under the sytle of F.J. GEARTY & COMPANY

and

VINCENT BEIRNE, EOIN J. BINCHY, JOHN CALDWELL, BRIAN GARTLAND, FRANCES MULVEY, MICHAEL O'HALLORAN and HUGH FRANCIS O'NEILL practicing under the style of BINCHY & PARTNERS (formerly FITZPATRICKS)

Defendants.

[2002] IEHC 73

No. 2747P 1986

THE HIGH COURT

Abstract:

Practice and procedure - Costs - Taxation - Application to dismiss for want of prosecution - Jurisdiction- Whether defendants acquiesced in delay - Whether defendants estopped from application

Facts: In a long running case the defendants had received an order of the High Court in 1992 for costs when taxed and ascertained against the plaintiff. The plaintiff objected to the taxation claiming there were errors and had applied to the High Court for a review. Delays caused this not to occur until 1997. The applicant solicitor applied in June 1997 to come off the record and the proceedings were adjourned generally with liberty to re-enter. As the case was not re-entered the application before the court was to strike out for want of prosecution the plaintiff’s case for contesting the taxation of costs.

Held The balance of justice did not favour the defendants in granting the relief they sought and the plaintiff was given three months to re-enter his review of the taxation of costs. The court held it had jurisdiction to hear the matter by virtue of Primar plc v Kennedy Crowley [1996Stokes] 2 IR 459. There was delay by the plaintiff in pursuing his case but this was acquiesced by the defendants in that they did not pursue any action when knowing the plaintiff was pursuing an application to the European Court on Human Rights.

Citations:

EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

RSC O.122 r11

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

1 Mr. Justice Aindrias Ó Caoimh delivered the 1st day of July 2002.

2 The first to fourth named defendant seek an order from this court dismissing the plaintiff's application for a review of taxation in the within proceedings for want of prosecution.

3 The motion is moved on an affidavit of Donal Holohan, Solicitor of 81 Eccles Street, Dublin who is a solicitor in the firm of Giles J. Kennedy & Co., Solicitors.

4 Mr. Holohan deposes to the fact that on the 18th February 1992 the plaintiff's claim against these four defendants was dismissed by order of this court and it was further ordered that these defendants do recover against the plaintiff their costs when taxed and ascertained. It appears that the costs were taxed by Taxing Master O'Connor on 8 July 1992. Objections and cross objections were carried in against certain items in the taxation which said objections were heard on 13 November 1992. On the determination of the taxation the plaintiff applied to this court by notice of motion of 22 December 1992 for a review thereof. However, before the review could be heard and determined a report of the Taxing Master was required and this did not become available until 21 November 1994. It appears that when this was initially furnished there were manifest errors in same and by reason of the death of Taxing Master O'Connor there were further delays before a final amended report came to hand in or about the month of February 1997. Subsequently the plaintiff's then solicitors issued a motion dated 18 February 1997 to come off record and this motion was allowed on 9 June 1997 and the proceedings were then adjourned generally with liberty to re-enter. From that time onwards no further steps were taken in these proceedings but the plaintiff pursued an application to the European Court of Human Rights in which he sought declarations and relief against Ireland.

5 It appears that the plaintiff furnished the defendants' solicitors with a copy of a judgment of the European Court of Human Rights dated 9 June 1999 but he has taken no further action to prosecute his review of taxation since that time or at any time since the matter was adjourned generally with liberty to re-enter. It is in this light that the present motion is brought before this court. It appears that no letter was written to the...