Nahj Company for Services v Royal College of Surgeons in Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] IEHC 453 |
| Court | High Court |
| Docket Number | 2012 No. 2298 S |
[2023] IEHC 453
2012 No. 2298 S
THE HIGH COURT
Eliza Kelleher for the plaintiff instructed by Brosnan & Co. Solicitors (Killarney)
David Conlan Smyth SC and Kevin Callan for the defendant instructed by William Fry LLP
JUDGMENT of Mr. Justice Garrett Simons delivered on 31 July 2023
This judgment is delivered in respect of an application to dismiss the within proceedings on the grounds of inordinate and inexcusable delay. The proceedings arise out of an “ arrangement” entered into between the plaintiff and the defendant in respect of the recruitment of students from Saudi Arabia to the defendant's medical commencement programme. The neutral term “ arrangement” is used deliberately in this judgment in circumstances where the precise nature of the relationship between the parties is very much in dispute, with the plaintiff contending that the arrangement was in the form of a partnership, and the defendant contending that the arrangement was, in essence, an exclusive agency agreement.
It appears from the pleadings that the “ arrangement” between the parties had arisen against a factual background whereby the Ministry of Higher Education in Saudi Arabia provided state-funded scholarships to students to participate in medical courses. The plaintiff's case is that it is entitled to a payment of €5,000 commission in respect of each Saudi Arabian student registered on the defendant's medical commencement programme. This commission is said to have been payable for all students registered during the period between January/February 2010 and November 2014. It is pleaded that the commission was included as part of the overall fee fixed for the programme by the defendant.
The defendant pleads that the arrangement between the parties has been brought to an end by the doctrine of frustration. More specifically, it is pleaded that the Ministry of Higher Education had issued a directive in June 2010 to the effect that all students were now to be recruited through the cultural section of the Saudi Arabian Embassy in London. The defendant, and its agent, the plaintiff, were to cease recruiting students in Saudi Arabia, and the fees to be charged to the Ministry of Higher Education by the defendant were to be reduced by an amount equal to the commission which had until that date been paid to the plaintiff by the defendant. It is further pleaded that the implementation of this directive rendered the previous arrangement between the plaintiff and defendant impossible to perform, i.e. the agreement has been frustrated.
One of the issues in dispute between the parties concerns the level of fees which were to be charged in respect of each student. Specifically, there is a dispute as to whether the fee of €16,000 fixed in or about September 2008 was inclusive or exclusive of the commission in the sum of €5,000. It is pleaded in the statement of claim that the Saudi Arabian officials were advised in error that the fee for each participating student was €21,000 instead of €16,000. This alleged mistake then gives rise to a series of allegations of wrongdoing against the defendant. It is pleaded, in effect, that the defendant instructed the plaintiff not to inform the Ministry of Higher Education of an earlier error in the figure advised for fees, which had resulted in the commission being added twice to the fees charged in respect of each participating student. More specifically, it is pleaded that the Saudi officials were erroneously advised that the fee was €21,000 instead of €16,000 and that when the plaintiff sought to correct this error, it was told not to do so by officials of the defendant. It is further pleaded that the defendant subsequently sought to “ disguise” this error. The gravamen of the allegation appears to be that the defendant continued to include a figure for commission in the fees charged, notwithstanding the directive issued by the Ministry of Higher Education in June 2010, and wrongfully retained same for its own benefit.
It should be emphasised that these allegations are merely that, allegations, and that same are strenuously denied by the defendant. However, the very fact of the allegations having been made and maintained for a period of some eleven years is relevant to the balance of justice. As discussed at paragraphs 40 to 46 below, the plaintiff had hoped to use the threat of these unproven allegations being publicised as “ leverage” in mediating a settlement of the proceedings.
The final introductory matter to note is that the plaintiff had been put on express notice in November 2020 that the delay to date in the prosecution of these proceedings was a cause of concern to this court. Notwithstanding this, the plaintiff failed to progress the proceedings. No positive procedural step has been taken by the plaintiff since April 2021. I will return to this point at paragraph 50 below.
19 June 2012 Summary summons
24 June 2013 High Court orders security for costs
31 July 2014 Master fixes amount of security for costs (30 days) (Order made on consent)
17 October 2014 Motion filed to dismiss for failure to provide security
9 March 2015 Security for costs lodged
19 October 2015 Motion to enter summary judgment filed
10 November 2015 Proceedings remitted to plenary hearing
29 January 2016 Statement of claim
24 February 2016 Notice for particulars raised by defendant
16 March 2016 Replies to notice for particulars
3 June 2016 Defence
21 November 2016 Discovery order against plaintiff
22 September 2017 Notice of change of solicitor (defendant)
5 February 2018 Court of Appeal varies discovery on consent
6 April 2018 Reply to defence
12 October 2018 Notice for particulars raised by defendant
10 January 2019 Replies to particulars by plaintiff
8 February 2019 Notice to admit facts served by defendant
8 October 2019 Interrogatories delivered by defendant
31 July 2019 Discovery order against defendant
12 November 2020 Judgment re: interrogatories
21 December 2020 Order directing answers to interrogatories
20 April 2021 Answers to interrogatories delivered
31 March 2023 Motion to dismiss for delay filed
4 May 2023 Motion to come off record filed (plaintiff)
22 May 2023 Plaintiff's solicitor permitted to come off record
17 July 2023 Hearing of motion to dismiss for delay
The principles governing an application to dismiss proceedings on the basis of inordinate and inexcusable delay are well established. The leading judgment remains that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (“ Primor”). The Supreme Court summarised the position thus (at pages 475/76 of the reported judgment):
“The principles of law relevant to the consideration of the issues raised in 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 a 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 judgment 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 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.”
As appears, a court must consider three issues in sequence: (1) has there been inordinate delay; (2) has the delay been inexcusable; and (3) if the answer to the first two questions is in the affirmative, it then becomes necessary to consider whether the balance of justice is in favour of or against allowing the case to proceed.
As emphasised by the Court of Appeal in Sweeney v. Keating [2019] IECA 43 ( per Baker J., at paragraph 26), a laissez faire attitude to the progress of litigation cannot be tolerated:
“Material also to an application to dismiss proceedings for inordinate and inexcusable delay is the fact that the court itself is obliged, in furtherance of its constitutional obligations to administer justice and its obligation to have regard to the European Convention on Human Rights (‘ECHR’), to ensure that litigation...
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