Murphy v Magnet Networks Ltd

JurisdictionIreland
JudgeMr. Justice MacGrath
Judgment Date12 April 2019
Neutral Citation[2019] IEHC 461
CourtHigh Court
Docket Number[2009 No. 5942 P]
Date12 April 2019

[2019] IEHC 461

THE HIGH COURT

MacGrath J.

[2009 No. 5942 P]

BETWEEN
DECLAN MURPHY

AND

DARREN O'DONOHOE
PLAINTIFFS
AND
MAGNET NETWORKS LIMITED
DEFENDANT

Balance of justice – Want of prosecution – Inordinate and inexcusable delay – Defendant seeking an order dismissing the claim of the plaintiffs – Whether the balance of justice was or had been shown to be such as to justify the court in exercising its jurisdiction to dismiss the claim for want of prosecution

Facts: The defendant, Magnet Networks Ltd, applied to the High Court for an order pursuant to the inherent jurisdiction of the court to dismiss the claim of the plaintiffs, Mr Murphy and Mr O’Donohoe, for want of prosecution on the grounds of inordinate, inexcusable and/or unreasonable delay in the prosecution of the proceedings. The notice of motion issued on the 23rd April, 2018. This was the second such application brought by the defendant. The first proceeded before Hedigan J on the 9th February, 2015 and he made an order dismissing the claim for want of prosecution. The plaintiffs appealed the order. The Court of Appeal allowed the appeal and the plaintiffs were directed to pay costs and a certain sum of money towards the expense of retention of a potential witness for the defence. This application was grounded on the affidavit of Ms Molloy, solicitor, on behalf of the defendant, sworn on the 19th April, 2018. She averred that since the order of the Court of Appeal the plaintiffs had failed to take steps to comply with the conditions imposed by that order, and by which the claim was permitted to proceed.

Held by MacGrath J that the defendant had discharged the onus of establishing that the delay in this case was inordinate and inexcusable. MacGrath J was not satisfied that the balance of justice was, or had been shown to be such as to justify the court in exercising its jurisdiction to dismiss the claim for want of prosecution.

MacGrath J held that he would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 12th day of April, 2019.
1

This is the defendant's application for an order pursuant to the inherent jurisdiction of this Court to dismiss the plaintiffs' claim for want of prosecution on the grounds of inordinate, inexcusable and/or unreasonable delay in the prosecution of the proceedings. The notice of motion issued on the 23rd April, 2018. This is the second such application brought by the defendant. The first proceeded before Hedigan J. on the 9th February, 2015 and he made an order dismissing the claim for want of prosecution. The plaintiffs appealed the order. The Court of Appeal allowed the appeal and the plaintiffs were directed to pay costs and a certain sum of money towards the expense of retention of a potential witness for the defence.

2

Immediately after the decision of the Court of Appeal, the plaintiff sought discovery of documents. The terms of discovery were agreed on the 13th November, 2015. On the 29th January, 2016, the plaintiffs' solicitor sought from the solicitor for the defendant, details of the appropriate bank account for the transfer of the sums due on foot of the order of the Court of Appeal. While the order was clear on its face, an element of confusion concerning the circumstances in which this money was to be paid arose as a result of subsequent correspondence, which confusion may be said to have persisted up to October, 2016. During part of this period, the process of discovery was ongoing and on the 25th May, 2016 a hard copy of discovered documentation was provided to the solicitor for the plaintiff. Thereafter communications between the parties primarily related to the payment of the sum of money and also in relation to payment of costs of the previous application until this motion issued.

3

This application is grounded on the affidavit of Ms. Corinne Molloy, solicitor, on behalf of the defendant, sworn on the 19th April, 2018. She avers that since the order of the Court of Appeal the plaintiffs have failed to take steps to comply with the conditions imposed by that order, and by which the claim was permitted to proceed. Ms. Molloy states that an unexplained period of three and a half years was considered on the previous application. She avers that the Court of Appeal in an ex tempore judgment, stated that the plaintiffs' conduct was such as to be on the verge of warranting a dismissal of the case at that time. As part of the terms of allowing the appeal, the plaintiffs were required within six months of that date to pay to the defendants' solicitors the sum of €15,000 on account, towards the cost that would be incurred in hiring a former employee to assist in the preparation of the case for trial. In this regard, a previous employee of the defendant, Mr. Hanrahan, had left employment in July, 2013 and it was submitted to the Court of Appeal on that occasion that there would be a cost involved in Mr. Hanrahan's assistance in the preparation of the defence.

4

Ms. Molloy avers that when the solicitor for the plaintiffs wrote in January, 2016 in connection with the payment that unfortunately the legal advisor who was temporarily handling the file replied on the 11th February, 2016 stating that the funds were not yet required and requesting that they be held by the plaintiffs' solicitors until required. Ms. Molloy states that this was not what was envisaged by the order of the Court of Appeal. The plaintiffs' solicitor replied on the 16th February, 2016 confirming that she would hold the funds pending resolution of this matter, something which accorded with neither order of the the Court of Appeal nor the erroneous letter from the defendants' advisor.

5

On the 14th September, 2016 the defendants' solicitors wrote to the plaintiffs' solicitors demanding payment of its costs which had by then been taxed. On the 14th October, 2016 the plaintiffs' solicitors wrote to the defendants' solicitors requesting that they be furnished with account details for the transfer of the €15,000 and these details were provided by letter of the 27th October, 2016. However, by letter of the 21st December, 2016 the plaintiffs' solicitor claimed that the Court of Appeal had directed them to hold the €15,000 until such time as discovery was completed, which was inconsistent with the terms of the order. The plaintiffs' solicitor also requested that Mr. Hanrahans' invoices be furnished but again Ms. Molloy points out that this was not envisaged by the order of the Court of Appeal. The purpose of those funds was to facilitate payment of the expense associated with the retention of services of Mr. Hanrahan for trial preparation, and solely for the purposes of completion of discovery. This led to further correspondence in January, 2017 and a reminder on the 21st March, 2017, to which a reply was received on the 24th March, 2017. It was therein claimed that the order of the Court of Appeal was connected with the process of discovery. That letter continued:-

‘…the position was that the Court directed the Plaintiffs to provide a sum of €15,000 on account in respect of the involvement of Mr. Hanrahan regarding discovery. We have previously asked and it has not been made clear to us what involvement, if any, Mr. Hanrahan had and separately we have not been furnished a copy of his invoice to enable us to pay out on foot of same. You might please clarify this issue. Please note that we are holding the €15,000 at the request of your office.’

6

Ms. Molloy avers that it was difficult to understand how and why this change of attitude came about, particularly when the plaintiffs' solicitors had offered to transfer the money in January, 2016. By letter of the 12th April, 2017, Ms. Molloy threatened a motion in default. A reply was not received until the 28th February, 2018 when once again Ms. Martin suggested, incorrectly as it transpires and a mistake which she has since admitted, that the €15,000 was to some extent tied up with payment for Mr. Hanrahan's assistance in the preparation and compiling of discovery. This was not the case and the order of the Court of Appeal is quite clear in this regard. By letter of the 28th March, 2018, details of the bank account into which payment ought to be made were provided and Ms. Molloy cautioned:-

‘Failing receipt of the above funds in our account within 14 days, we will proceed to issue a motion without further notice to you. We are in fact taking instructions whether to issue this motion regardless of what you do, as it is almost three years since the order of the Court of Appeal and it has not yet been complied with.’

7

Thus, it is not unreasonable to conclude, on the basis of the correspondence, that the primary focus of the defence as of 28th March, 2018, was the plaintiff's failure to comply with the order of the Court of Appeal. On the following day, 29th March, 2018, funds were transferred into the defendant's account.

8

By the time the application came on for hearing, the costs of the application had been paid. Ms. Molloy avers to her belief that the payment of €15,000 within six months was a condition upon which the plaintiffs were permitted to proceed with their case. This was not satisfied and while there was some initial acquiescence in that delay, the funds had been repeatedly demanded since October, 2016 and were not provided. She also avers that pending receipt of those sums, Mr. Hanrahan had not been engaged save to deal with queries in respect of discovery and that in consequence two years and nine months of additional delay has occurred. She states that while the discharge of costs was not a condition on the continuation of the proceedings, non-payment of the costs had added to the prejudice suffered by the defendant. Ms. Molloy avers that the general prejudice that persuaded the High Court to dismiss the case in 2014 and the Court of Appeal to allow the appeal in 2015 on strict...

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2 cases
  • Gibbons v N6 (Construction) Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 16 May 2022
    ...recollection of witnesses. (para. 101). The plaintiff referred also to the judgment of MacGrath J. in Murphy v. Magnet Networks Limited [2019] IEHC 461 (“ Murphy”), where the court noted that there would be “considerable focus” placed at the trial on the context of contractual documents and......
  • Myrmidon CMBS (Propco) Ltd v Joy Clothing Ltd
    • Ireland
    • High Court
    • 23 January 2020
    ...to the plaintiffs’ early acceptance that the case be transferred to plenary hearing. Counsel also relies on Murphy v. Magnet Networks [2019] IEHC 461, and that the court is entitled as a matter of principle, to presume prejudice, particularly in relation to witness memories, where there is ......

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