Michael Treanor and Margaret Treanor v Nutech Renewables Ltd and, by Order of the Court of 14 November, 2016, Mark Forkin and William Quigley

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 26 January 2022
• Neutral Citation: [2022] IEHC 36
• Court: High Court
• Docket Number: Record No. 2012/4571P

Between:

Michael Treanor and Margaret Treanor

Plaintiffs

and

Nutech Renewables Limited and, by Order of the Court of 14 November, 2016, Mark Forkin and William Quigley

Defendants

and

And, by Order of the Court of 3 April, 2017, Cooney Architects Limited and Brian Rafferty Construction Limited

Third Parties

[2022] IEHC 36

Record No. 2012/4571P

THE HIGH COURT

Prosecution – Inordinate and inexcusable delay – Balance of justice – Defendants seeking to have the plaintiffs’ proceedings dismissed pursuant to the inherent jurisdiction of the court – Whether there was inordinate and inexcusable delay in the prosecution of the proceedings

Facts: The plaintiffs, Mr and Ms Treanor, were the developers for a development of 12 houses in Mullan Village, County Monaghan. The development commenced in 2006. The plaintiffs’ claims in the proceedings (which included claims for damages for breach of contract, breach of duty, breach of statutory duty, negligent mis-statement and negligent misrepresentation) arose out of an agreement said to have been entered between the plaintiffs and the first defendant, Nutech Renewables Ltd, in May/June 2006 for the design, commission, supply and installation of a specialist “eco” heating, ventilation and hot water system in the houses in the development. At the time, the second and third defendants, Mr Forkin and Mr Quigley, were carrying on business as “Nutech Consultants” and were sued by the plaintiffs on the basis of alleged representations made by them at the time of the agreement with the first defendant and on the basis that there was a collateral agreement between them and the plaintiffs. The plaintiffs said that the system installed by the defendants failed entirely and had to be replaced with conventional systems causing the plaintiffs loss and damage which they had laterally quantified as being just under €650,000. The defendants applied to the High Court to have the plaintiffs’ proceedings dismissed either pursuant to Order 122, Rule 11 for failing to progress the proceedings for a period in excess of two years or, in the alternative, pursuant to the inherent jurisdiction of the court on the grounds of inordinate and inexcusable delay in the prosecution of the proceedings. As there was a step taken by the plaintiffs within two years prior to the issue of the dismissal motion (the motion was issued on 26 June 2019 and the plaintiffs delivered Replies to Particulars on 22 January 2018), the parties focused their submissions on the application to dismiss the proceedings pursuant to the court’s inherent jurisdiction.

Held by Ferriter J that there were accumulated periods of inexcusable delay of a total of some 30 months in the relevant periods of time. In his view, this period was also to be regarded as inordinate. He held that the balance of justice favoured not dismissing the proceedings in circumstances where they appeared virtually ready for trial and where he was not satisfied that the prejudice to the defendants flowing from any periods of inexcusable delay on the part of the plaintiffs was of a degree as to likely imperil a fair trial of the issues or to outweigh the plaintiff’s right to pursue to trial their claims for compensation for significant loss said to have been occasioned to them by the defendants’ wrongdoing.

Ferriter J refused the relief sought.

Relief refused.

Judgment of Mr. Justice Cian Ferriter delivered this 26th day of January 2022

Introduction

1 This is the Defendants' application to have the Plaintiffs' proceedings dismissed either pursuant to Order 122, Rule 11 for failing to progress the proceedings for a period in excess of two years or, in the alternative, pursuant to the inherent jurisdiction of the court on the grounds of inordinate and inexcusable delay in the prosecution of the proceedings. As there was a step taken by the Plaintiffs within 2 years prior to the issue of the dismissal motion (the motion was issued on 26 June 2019 and Plaintiffs delivered Replies to Particulars on 22 January 2018), the parties focused their submissions on the application to dismiss the proceedings pursuant to the court's inherent jurisdiction and this judgment accordingly deals with the application on that basis.

2 The first named Third Party, Cooney Architects Limited, has separately brought its own motion (issued on 11 August 2020) to have the Defendants' third party claims against it dismissed for want of prosecution. I directed at the outset of the hearing of the Defendants' application to dismiss against the Plaintiffs that I would hold over hearing the first named Third Party's application to dismiss against the Defendants until I had ruled on the Defendants' application to dismiss against the Plaintiffs.

Applicable Legal Principles

3 The test applicable on this application is that enunciated in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, as subsequently developed. Hamilton C.J. in Primor v. Stokes Kennedy Crowley stated as follows (at 475) in relation to the relevant principles:-

‘The principles of law relevant to the consideration of the issues raised on this appeal may be summarised as follows: —

• (a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

• (b) it must, in the first instance, be established by the party seeking dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

• (c) even where the delay has been both inordinate and inexcusable the court must exercise a judgement on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

• (d) in considering this latter obligation the court is entitled to take into consideration and have regard to:

  • (i) the implied constitutional principles of basic fairness of procedures,

  • (ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

  • (iii) any delay on the part of the defendant — because litigation is a two-party operation, the conduct of both parties should be looked at,

  • (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

  • (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

  • (vi) whether the delay gives rise to substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

  • (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to the defendant's reputation and business.’

4 In the decision of the Court of Appeal in Millerick v. Minister for Finance [2016] IECA 206, Irvine J. (as she then was) summarised the position as follows:-

“17. The principles which apply on an application brought to dismiss proceedings for inordinate and inexcusable delay are fully explored in the written submissions that have been delivered by the parties. The most oft cited decision is that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where guidance is given concerning the proper approach to be adopted by the Court when met with such an application.

18. The Court is obliged to address its mind to three issues. The first is to decide whether, having regard to the nature of the proceedings and all of the relevant circumstances, the plaintiff's delay is to be considered inordinate. If it is not so satisfied the application must fail. If, on the other hand the Court considers the delay inordinate it must then decide whether that delay can be excused. If the delay can be excused, once again the application must fail. Should the Court conclude that the delay is both inordinate and inexcusable it must not dismiss the proceedings, unless it is also satisfied that the balance of justice would favour such an approach.

19. In considering where the balance of justice lies the Court is entitled to have regard to all of the relevant circumstances pertaining to the proceedings including matters such as delay or acquiescence on part of the defendant and the potential prejudice resulting from the delay.”

5 Accordingly, if the court concludes that the delay is both inordinate and inexcusable, it must proceed to consider where the balance of justice lies and in so doing, may take into account a range of factors including the conduct of the parties to the proceedings, the number and complexity of the events and transactions required to be recalled, and any prejudice which the Defendants may suffer arising from the Plaintiff's culpable delay.

6 I will refer to other relevant authorities in their appropriate place in this judgment.

Background

7 The background to the matter is as follows. The Plaintiffs were the developers for a development of 12 houses in Mullan Village, County Monaghan. This development commenced in 2006. The Plaintiffs' claims in these proceedings (which include claims for damages for breach of contract, breach of duty, breach of statutory duty, negligent mis-statement and negligent misrepresentation) arise out of an agreement said to have been entered between the Plaintiffs and the first named Defendant in May/June 2006 for the...