Muchwood Management Ltd (plaintiffs) v McGuinness and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 19 May 2010
• Neutral Citation: [2010] IEHC 185
• Court: High Court
• Date: 19 May 2010

[2010] IEHC 185

THE HIGH COURT

[No. 2244 P/1997]

Muchwood Management Ltd & Reilly v McGuinness & Ors

BETWEEN

MUCHWOOD MANAGEMENT LTD AND DAVID REILLY

PLAINTIFFS

AND

DAVID McGUINNESS, ROBERT MALONE, CRAIG HUTCHINSON, COLM QUEARNEY, RONAN BYRNE, SAMANTHA B. COKER, MICHAEL SPAIN

DEFENDANTS

ALLERGAN PHARMACEUTICALS (IRL) LTD v NOEL DUNNE ROOFING & CLADDING LTD & ORS UNREP O'SULLIVAN 6.7.2006 2006/2/371 2006 IEHC 215

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510 2002/2/275

O'CONNOR v JOHN PLAYER & SONS LTD & ORS 2004 2 ILRM 321 2004/37/8672 2004 IEHC 99

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

DESMOND v TIMES NEWSPAPERS LTD UNREP DUNNE 12.6.2009 2009 IEHC 271

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

ROONEY v RYAN UNREP DUNNE 31.3.2009 2009 IEHC 154

PRACTICE AND PROCEDURE

Dismissal of proceedings

Want of prosecution - Delay - Inordinate and inexcusable delay - Balance of justice - Prejudice to defendants - Acquiescence - Conduct on part of defendants -Delay by defendants - Whether delay inordinate and inexcusable - Whether balance of justice lay in dismissing proceedings - Whether prejudice to defendants - Whether defendants acquiesced in delay - Whether conduct of defendants contributed to delay - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and Rooney v Ryan [2009] IEHC 154 (Unrep, Dunne J, 31/3/2009) applied - Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd [2006] IEHC 215 (Unrep, O'Sullivan J, 6/7/2006), Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510, O'Connor v John Player and Sons Ltd [2004] IEHC 99 (Unrep, Quirke J, 12/3/2004), Desmond v Times Newspapers Ltd [2009] IEHC 271 (Unrep, Dunne J, 12/6/2009) , Gilroy v Flynn [2004] IESC 98 [2005] 1 ILRM 290 and Stephens v Paul Flynn Limited [2005] IEHC 148 (Unrep, Clarke J, 28/4/2005) considered - Relief refused (1997/2244P - Dunne J - 19/5/2010) [2010] IEHC 185

Muchwood Management Ltd v McGuinness

Facts The defendants applied to have the proceedings struck out for want of prosecution some 13 years after they had been initiated. The plaintiffs argued that the defendants' failure to engage with the pre-trial process of discovery in a punctual fashion was a major cause of or contributor to the delay in question and that they had, essentially, acquiesced in the delay.

Held by Ms. Justice Dunne in refusing the relief sought that the manner in which discovery had been dealt with had not provided an excuse for the delay in dealing with the prosecution of the proceedings. That in considering where the balance of justice lay the court should 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 were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the plaintiffs action,

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

(iv) whether any delay or conduct of the defendant amounted 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 did 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 on all the circumstances of the particular case,

(vi) whether the delay had gives rise to a 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 a defendant's reputation and business.

Having regard to the manner in which the process of discovery was dealt with, the defendants had acquiesced in the delay in issue.

Reporter: P.C.

1 JUDGMENT of Ms. Justice Dunne delivered on the 19 day of May 2010.

2 The plaintiffs herein issued proceedings for damages for breach of contract, misrepresentation and breach of warranty, breach of fiduciary duty and other reliefs by way of a plenary summons issued on the 26 ^th February, 1997. All of the defendants (save for the sixth named defendant Samantha B. Coker) have brought a motion seeking to have the plaintiffs proceedings dismissed for want of prosecution. For ease of reference, a reference to "the defendants" should be understood as a reference to all the defendants save the 6 ^th defendant unless it is otherwise clear from the context.

Background

3 The first named plaintiff is a company beneficially owned and controlled by the second named plaintiff and was a party to a written agreement dated the 30 ^th January, 1990, made with a number of the defendants herein. That agreement provided that the first named plaintiff would act as manager of a band called LIR. The agreement expired on the 1 ^st December, 1992 and was extended then for a further two years. A further agreement was entered into to take effect following the expiry of the second agreement and the third agreement made some modifications to the terms of the original agreement. In addition the fifth named defendant became a band member in substitution for one of the original members of the band. It appears from the pleadings herein that the variation of the terms of the original agreement made orally towards the end of 1994 will be a matter of considerable dispute by the parties to the agreement. This is a case in which oral evidence and the respective recollections of the various parties will be an important feature of the case.

4 The pleadings in this case were closed by the delivery of the plaintiffs reply and defence to counterclaim on the 18 ^th November, 2003. A notice of motion had been issued on the 21 ^st January, 2009, returnable for the 13 ^th February, 2009 and that motion ultimately came on for hearing before me on Monday the 1 ^st March, 2010. It would be of assistance at this point to set a chronology in relation to the conduct of these proceedings and I propose therefore to refer to a chronology prepared on behalf of the defendants herein.

26 th February 1997	Plenary summons issued
9 th May 1997	Appearance for all defendants
9 th March 1998	Plaintiffs first notice of intention to proceed
23 rd September 1998	Plaintiffs motion to join sixth and seventh defendants and for other relief
16 th February 1999	Statement of claim
14 th July 1999	Plaintiffs second notice of intention to proceed

27 th September 1999	Plaintiffs motion for judgment in default of defence against first to fifth and seventh defendants
10 th December 1999	Defence and counterclaim of first to fifth and seventh defendants
23 rd February 2001	Sixth defendant's notice of motion to dismiss the plaintiffs claim for want of prosecution
18 th November 2003	Plaintiffs reply and defence to counterclaim of first to fifth and seventh defendants
15 th December 2003	Plaintiffs third notice of intention to proceed
30 th September 2007	Plaintiffs fourth notice of intention to proceed
11 th May 2009	Order of the Master allowing the plaintiffs three weeks in which to serve a notice of trial

5 I should add that I was also furnished with a further chronology of the proceedings prepared on behalf of the plaintiffs herein. That chronology is to be found appended to this judgment.

Delay

6 It appears that although the Master of the High Court made an order permitting the plaintiffs to serve a notice of trial in May 2009, the Central Office would not accept the notice of trial because of the fact that the plaintiffs solicitors informed the Central Office that the defendants were in the process of furnishing a further affidavit of discovery and in those circumstances the central office regarded the matter as not having reached the stage where it would be possible to set the matter down for trial. These matters are dealt with in the affidavit of Kevin Brophy sworn herein on the 1 ^st March, 2010.

7 There is no doubt that there have been some extraordinary periods of delay over the course of years while these proceedings have been pending,. Following the delivery of the statement of claim in May 1999, the plaintiffs had to bring a motion for judgment in default of defence in October 1999, which led to the delivery of the defence and counterclaim in December 1999. The next event of significance was a notice of motion brought by the sixth named defendant to dismiss the plaintiffs claim for want of prosecution. Thereafter, there appears to have been no step in the proceedings until the plaintiffs delivered a reply and defence to the counterclaim of the defendants. Between December 2003 and October 2007, when the plaintiffs issued their third and fourth notice of intention to proceed respectively, no steps were taken in the proceedings. Having said that, I note from the chronology prepared on behalf of the plaintiffs that the process of discovery commenced on the 1 ^st December, 2004, when the defendants sought discovery from the plaintiffs. On the 2 ^nd June, 2005, there was an indication that counsel on both sides would liaise on the issue of discovery. By the 24 ^th October, 2005, there was an agreement on the question of discovery....