Mulligan v Wilkie & Flanagan Solicitors

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 03 May 2019
• Neutral Citation: [2019] IEHC 289
• Docket Number: 2011 No. 2315 P
• Court: High Court
• Date: 03 May 2019

[2019] IEHC 289

THE HIGH COURT

Barrett J.

2011 No. 2315 P

Between:

NOEL MULLIGAN

PLAINTIFF

– AND –

WILKIE & FLANAGAN, SOLICITORS

DEFENDANT

Strike out – Inordinate and inexcusable delay – Balance of justice – Defendant seeking a strike out of the proceedings – Whether there had been inordinate and inexcusable delay by the plaintiff

Facts: The defendant, Wilkie & Flanagan, Solicitors, applied to the High Court for a strike out of the proceedings pursuant to (i) O. 122, r. 11, RSC, (ii) the inherent jurisdiction of the court on the ground of inordinate and/or inexcusable delay and/or want of prosecution, and (iii) the principles of basic fairness of procedures, having regard to the overall delay between the events underpinning the proceedings and the anticipated trial date. The hearing focused in the main on item (ii) and the basis for granting the relief sought pursuant to item (ii) was so clear-cut and compelling that the court confined its attentions to item (ii). The central allegations were that Mr Wilkie transferred his interest in a contract for the sale of lands without informing his intended co-purchasers and mis-advised the co-purchasers in such a manner as to leave them with a contractual obligation to purchase costly property without planning permission in place, leaving them exposed to the financial ruin that followed.

Held by Barrett J that, having noted that it was not disputed that there had been inordinate and inexcusable delay by the plaintiff, the sole issue that remained for the court to decide was where the balance of justice lay in terms of whether or not the case should be allowed to proceed. In that regard the court noted that: (1) before attempted service of the summons in March 2012, the best part of six years elapsed without any intimation by the plaintiff of a complaint against the defendant or any intention to sue; (2) from the outset of the proceedings the defendant had been complaining about the issue of delay; (3) since service of the plenary summons, the plaintiff had taken no voluntary step to progress the proceedings; (4) this was a claim of professional negligence which had been hanging over the defendant for a considerable time, has had a significant impact in respect of the defendant’s professional indemnity insurance and in terms also of the defendant’s professional reputation; (5) the key agreements/advices relied upon by the plaintiff were entirely oral; (6) the earliest that the case would come on for hearing was 14-15 years after the events that were the subject of the proceedings; and (7) there was actual prejudice presenting.

Barrett J held that the balance of justice lay in favour of the court granting an order pursuant to its inherent jurisdiction dismissing the proceedings in the interests of justice, on the ground of inordinate and inexcusable delay and also for a want of prosecution on the part of the plaintiff since the commencement of the proceedings.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered on 3rd May, 2019.

1 This is an application for a strike out of the within proceedings pursuant to (i) O.122, r.11, RSC, (ii) the inherent jurisdiction of the court on the ground of inordinate and/or inexcusable delay and/or want of prosecution, and (iii) the principles of basic fairness of procedures, having regard to the overall delay between the events underpinning these proceedings and the anticipated trial date. The hearing focused in the main on item (ii) and the basis for granting the relief sought pursuant to item (ii) is so clear-cut and compelling that the court confines its attentions in this judgment to item (ii).

2 The detail of the proceedings need not be considered at length. The central allegations (and they are at this time but allegations) are that Mr Wilkie: transferred his interest in a contract for the sale of lands without informing his intended co-purchasers; and mis-advised the co-purchasers in such a manner as to leave them with a contractual obligation to purchase costly property without planning permission in place, leaving them exposed to the financial ruin that has unfortunately followed...