Niall Dempsey v Brendan Foran, Des Rushe and Nevan O'Shaughnessy Practising under the Style and Title of O'Shaughnessy & Company Solicitors
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 22 January 2021 |
| Neutral Citation | [2021] IEHC 39 |
| Docket Number | [2010 No. 10712 P] |
| Court | High Court |
| Date | 22 January 2021 |
[2021] IEHC 39
[2010 No. 10712 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Twomey delivered on the 22nd day of January, 2021
This case considers what the Supreme Court has described as the ‘inevitable injustice’ which occurs when a person is sued by an impecunious plaintiff (including that court's observation that such impecuniosity could be used to ‘ blackmail’ a defendant to ‘buy off the case’). As well as being ‘ inevitable’, this injustice can be financially significant. This is because if an individual, on the average income in the State, is unfortunate enough to be sued by an impecunious plaintiff, he could end up having to work for several years just to pay the legal fees of the case he has ‘won’, because the ‘losing’ plaintiff does not have the money to meet any award of costs made against him.
Since the function of a court is to achieve justice between the parties to litigation, this case considers the relevance, of this inbuilt and inevitable injustice which can apply to just one of the parties to the litigation, when a court is deciding issues between litigants at any stage of the litigation process. The present case concerns an application by two defendants to have proceedings against them struck out because the plaintiff has allegedly been guilty of inordinate and inexcusable delay in progressing his proceedings. It considers the extent to which the ‘ inevitable injustice’ of being sued by an impecunious plaintiff is a factor in this Court's consideration of whether to allow the proceedings continue.
This case also concerns a claim that this Court should take into account, when deciding whether to permit delayed proceedings continue, that the proceedings are against a lawyer in relation to his professional practice. The plaintiff claims that, because one of the defendants is a lawyer who is subject to the continuous supervisory jurisdiction of the High Court, this is a ‘countervailing circumstance’ which justifies the continuation of delayed litigation, which might otherwise not be permitted.
Having considered these and other issues, this Court concludes, for the reasons set out below, that the plaintiff's proceedings have been inordinately and inexcusably delayed and should be struck out as there are no countervailing circumstances which would permit their continuation and accordingly that the balance of justice favours their dismissal.
The first defendant (“Mr. Foran”) seeks to dismiss the proceedings, issued by the plaintiff (“Mr. Dempsey”) seeking the repayment of a loan allegedly paid to Mr. Foran. The third defendant (“Mr. O'Shaughnessy”) is a solicitor and he seeks to dismiss the proceedings in which he is being sued by the plaintiff for the alleged breach of an undertaking related to that loan. Both defendants seek the dismissal of the proceedings because of the alleged inordinate and inexcusable delay by Mr. Dempsey in prosecuting his claim.
The substantive proceedings issued by Mr. Dempsey involve a claim that in September 2006 he lent for one month the sum of €125,000 to Mr. Foran and the second named defendant (“Mr. Rushe”) of which €115,000 is unpaid.
Although the cause of action arose in 2006, these proceedings were not issued until 2010. Mr. O'Shaughnessy and Mr. Foran issued motions in 2020 for the dismissal of the proceedings on the grounds of want of prosecution and inordinate delay.
Mr. Rushe has not entered a defence and is no longer represented in these proceedings. He appears to be no longer contactable and the Court has been advised that he is not interested in participating in the proceedings and that he has no assets.
In his proceedings, Mr. Dempsey also seeks reliefs as against Mr. O'Shaughnessy based on his claim that Mr. O'Shaughnessy gave an undertaking that he would hold the title documents to the property to be purchased on trust for Mr. Dempsey until such time as the full loan amount plus interest was discharged by Mr. Foran and Mr. Rushe. Mr. O'Shaughnessy's defence to the claim that he is in breach of his undertaking is that it was a condition of that undertaking that he would receive the title deeds from Mr. Foran and Mr. Rushe, which he says never occurred. In defending this application to dismiss, Mr. Dempsey claims that Mr. O'Shaughnessy is in continuous breach of this solicitor's undertaking.
The following timeline is relevant to the applications to dismiss.
On 26th September, 2006, Mr. Dempsey claims that he advanced to Mr. Foran and Mr. Rushe a loan in the sum of €125,000 for the purpose of funding the purchase of a property in Edenderry, Co. Offaly. It is alleged that this amount, together with compound interest at 10%, was to be repaid to Mr. Dempsey within one calendar month. It is Mr. Dempsey's case that only €10,000 was actually repaid by Mr. Foran and Mr. Rushe. The undertaking which was given by Mr. O'Shaughnessy is also dated 26th September, 2006.
It is clear therefore that the cause of action in these proceedings first arose in or around late October/early November 2006 (i.e. one calendar month from 26th September, 2006).
On 19th November, 2010, the plenary summons issued – some 4 years after the date on which the cause of action accrued.
On 31st January, 2011 an appearance was entered on behalf of Mr. O'Shaughnessy. On 1st March, 2011 an appearance was entered on behalf of Mr. Foran and Mr. Rushe.
Thereafter, the Statement of Claim was delivered on 23rd May, 2011.
On 11th July, 2011 the solicitor acting on behalf of Mr. O'Shaughnessy raised a notice for particulars. Replies to these particulars were delivered by Mr. Dempsey in November 2011. At the request of Mr. O'Shaughnessy's solicitor, further replies were delivered by Mr. Dempsey on 24th January, 2012.
On 11th July, 2011, a Notice of Indemnity and Contribution was served by Mr. O'Shaughnessy on Mr. Foran and Mr. Rushe.
By Notice of Motion dated 30th November, 2011, Mr. O'Shaughnessy sought a Mareva injunction against Mr. Foran. On 5th December, 2011, an order was made, by consent, whereby Mr. Foran gave an undertaking not to dissipate his assets below a certain sum.
On 30th April, 2012 Mr. Dempsey issued a motion for judgment in default of defence against Mr. O'Shaughnessy. Shortly thereafter, on 2nd July, 2012, Mr. O'Shaughnessy delivered a defence to the proceedings.
On 10th December, 2012, the High Court heard a motion issued by Mr. Dempsey for judgment in default of defence against Mr. Foran and Mr. Rushe. Those defendants were given 6 weeks to deliver a defence.
However, no defence was delivered by Mr. Foran and Mr. Rushe within this period. One year later therefore, on 9th December, 2013, the High Court heard the second motion issued by Mr. Dempsey for judgment in default of defence against Mr. Foran and Mr. Rushe. Those defendants were ordered to deliver a defence within 8 weeks. No defence was delivered within this period of time.
Nothing at all happened for some two and half years. Then on 20th July, 2016 the solicitor for Mr. Dempsey served a Notice of Intention to Proceed and stated that it was Mr. Dempsey's intention to serve a Notice of Trial within 14 days thereof. Following the service of this notice, correspondence (set out in detail later in this judgment) issued between the parties and it became clear that the defendants did not agree that the trial was ready to proceed as discovery needed to be completed.
On 16th September, 2016 a request for voluntary discovery was made by Mr. O'Shaughnessy from Mr. Dempsey and from Mr. Foran and Mr. Rushe.
On 21st October, 2016, some three months following service of the Notice of Intention to Proceed, Mr. Dempsey served a Notice of Trial.
On 23rd January, 2018 the solicitor for Mr. Foran and Mr. Rushe sought voluntary discovery from Mr. O'Shaughnessy.
Shortly thereafter, on 19th February, 2018, the solicitor who had up to that point been representing Mr. Rushe in the proceedings was granted an order allowing him to come off record in respect of Mr. Rushe. That solicitor continues to represent Mr. Foran in the proceedings.
On 18th March, 2018, the discovery, requested a year and a half earlier by Mr. O'Shaughnessy, was delivered by Mr. Dempsey.
On 6th June, 2018, a defence to the proceedings was delivered by Mr. Foran. At that stage, some seven years had passed since the Statement of Claim was delivered.
The first motion to dismiss was issued by Mr. Foran on 19th May, 2020. The second motion to dismiss was issued by Mr. O'Shaughnessy on 1st September, 2020. Both of these motions were heard by this Court on 11th December, 2020.
The law in relation to the dismissal of proceedings for want of prosecution/inordinate delay is well settled and was most recently considered by the Court of Appeal (Irvine, Baker and Kennedy JJ.) in Sweeney v. Keating [2019] IECA 43. In that case, Baker J. succinctly summarised the law as set down in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and as clarified by several cases since then. Those principles which she outlined, and which are most relevant to this case, can be summarised as follows:
First the delay must be inordinate and inexcusable
• The defendant must establish that the plaintiff's delay has been both inordinate and inexcusable – to be excusable the explanation for the delay must ‘legitimately excuse’ the delay (per Irvine J. (as she then was) in Millerick v. Minister for Finance [2016] IECA 206). In deciding whether the delay has been inordinate and inexcusable, the following is relevant:
— Where the proceedings were not themselves issued...
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