Noel Kennedy v Wexford County Council and Priority Construction Company Ltd

JurisdictionIreland
JudgeMr. Justice Alexander Owens
Judgment Date12 March 2021
Neutral Citation[2021] IEHC 187
Date12 March 2021
Docket Number[2007 No. 7687P]
CourtHigh Court
Between
Noel Kennedy
Plaintiff
and
Wexford County Council and Priority Construction Company Limited
Defendants

[2021] IEHC 187

[2007 No. 7687P]

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendant seeking an order dismissing the plaintiffs’ claim for want of prosecution – Whether there was inordinate and/or inexcusable delay

Facts: The second defendant, Priority Construction Company Ltd (Priority Construction), applied to the High Court to dismiss the action against it on grounds of inordinate and inexcusable delay in prosecuting it. The attitude of the first defendant, Wexford County Council, to the application was neutral. The action commenced in October 2007. It related to events which took place in late 2001 and early 2002. The plenary summons claimed damages for trespass and nuisance. The core allegation in the statement of claim delivered in January 2008 was of trespass to the land of the plaintiff, Mr Kennedy, and that the defendants had been requested to remove material and reinstate the land but had failed to do so.

Held by Owens J that the long periods of time when little or nothing was happening to actively pursue the claim involved inordinate and inexcusable delay on the part of the plaintiff. Owens J held that the only identifiable periods of culpable delay on the part of Priority Construction related to failure to deliver a defence in the period between the end of June 2009 when the particulars became available and the end of May 2011, and the period of delay in responding to the request for discovery. Owens J found that part of the latter delay was attributable to seeing if Wexford County Council had anything relevant and this was excusable to some extent. Owens J found that the elements of delay by Priority Construction added up to about two and a half years. Owens J held that Priority Construction should have delivered a defence one and half years earlier than the date when that defence was delivered and should have completed discovery one year earlier than it did. In the light of delay on the other side of the litigation up to the end of February 2019, Owens J held that Priority Construction had no duty to engage with the process of exchanging expert reports prior to June 2019. Owens J’s overall assessment was that the balance of justice did not lie in permitting the action to go to a hearing on the merits. Owens J noted that key elements of the defence could not be proved because Priority Construction were deprived of two witnesses who were on site and involved in the matters in dispute through contact with the plaintiff and in managing the project. Delay by Priority Construction in complying with litigation obligations and other matters relied on by the plaintiff were not sufficient to persuade Owens J that the balance of justice lay with allowing the action to proceed.

Owens J held that there had been inordinate and inexcusable delay in the prosecution of the action and the balance of justice lay with dismissing it. Owens J held that the application to compel Priority Construction to comply with requirements of the Practice Direction relating to expert reports would also be dismissed.

Action dismissed.

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 12th day of March, 2021.

1

This is an application to dismiss the action against the second defendant on grounds of inordinate and inexcusable delay in prosecuting it. Up to the date on which this application was heard by me no notice seeking contribution or indemnity had been served by the first defendant on the second defendant. The attitude of the first defendant to this application is neutral.

2

The rules which are applicable are clear. The second defendant must establish that delay of the plaintiff in prosecution of his claim is both inordinate and inexcusable. Where these matters are established, the court must exercise a judgment on whether the balance of justice is in favour of, or against, the proceeding of the case. A plaintiff who is established to be guilty of inordinate and inexcusable delay in the prosecution of an action has an obligation to show that, notwithstanding this delay, the balance of justice is in favour of permitting the action to proceed to trial.

3

In considering where the balance of justice lies, I can consider any relevant matter. I am not confined to matters listed by Hamilton C.J. at para. (d) (i)-(vii) in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at pp. 475–476. Other matters may be relevant. I am not restricted to looking at “prejudice in the special facts of the case” in considering whether it is, on balance, “unjust” not to allow the action to proceed further. The balance of justice test does not require that I come to the view that because of delay it would not be possible to get a fair trial. This is one consideration within an overall assessment of where the “balance of justice” lies.

4

At the hearing of the application much argument focused on a complaint that the second defendant had delayed. It was also submitted that the second defendant participated in steps in the action on the basis that it was moving towards a hearing and that as a result it would be unfair on the plaintiff to order that the action be dismissed without a hearing.

5

All plaintiffs are taken to know that where an action is commenced long after the events giving rise to the cause of action, they have a positive obligation to advance proceedings to trial with expedition. Lack of attention and unjustifiable delay which might be overlooked or treated as not being inordinate, or which might be excused in other circumstances will not be tolerated. A defendant owes no positive duty to advance the proceedings to a hearing. Failure to proceed with diligence carries with it a risk that the claim will be dismissed. This obligation to proceed with expedition includes a duty to properly particularise the claim and take all steps to have the necessary evidence for trial.

6

I have concluded that there has been inordinate and inexcusable delay in the prosecution of this action and that the balance of justice lies with dismissing it. It follows that the application to compel Priority Construction to comply with requirements of the Practice Direction relating to expert reports will also be dismissed.

7

This action commenced in October 2007. It relates to events which took place in late 2001 and early 2002 and the cause of action would probably have become statute barred in May 2008. This claim is not comparable to an action based on trespass by occupation or a continuing nuisance. Any damage to the land occurred in 2001 and 2002. For the purposes of considering whether there was an obligation on the plaintiff to proceed with expedition the important point is that the action was started nearly six years after the events which gave rise to it. Had this action been started in the Circuit Court in Wexford in 2003 it is likely that it would have concluded in 2006. If it had begun in the High Court, it should have concluded in 2007.

8

The pleadings indicate that Noel Kennedy is owner of two fields beside the N25 near Oylegate, County Wexford. Priority Construction was engaged by Wexford County Council to carry out road works on the N25 beside these fields. Noel Kennedy was occupying one of the fields and Bridget Nolan was occupying the other field at the time. A Circuit Court order dated 11 April 2002 indicates that Bridget Nolan was also registered owner of the land until that date.

9

Noel Kennedy claims that he gave Peter Kane of Priority Construction permission to put material on the field which he occupied on terms which obliged Priority Construction to make good and finish the land with topsoil.

10

His solicitor's initial letter of complaint dated 4 April 2003, addressed to Wexford County Council only, describes this field as “marshy land.” The letter states that he gave “your Clients authority to dump the spoil from the road into the land” and complains that other waste was also dumped on this land.

11

The letter also alleges that people on site working with Wexford County Council and Priority Construction went onto his lands, which presumably refers to the field then occupied by Bridget Nolan, and deposited material on that field. The letter complains that this field was damaged and made unusable and requests that it be re-top soiled and reseeded. It concludes with a threat of litigation against Wexford County Council. No mention was made of the involvement of Bridget Nolan.

12

At around the same time Wexford County Council responded to a complaint made by a local public representative on Noel Kennedy's behalf by indicating that the damaged field was outside the area acquired under a compulsory purchase order and that Wexford County Council had not entered into “any arrangement with Mr. Kennedy or any other party in relation to the field.”

13

A copy of a map produced to me which appears to relate to an equity civil bill issued by Noel Kennedy against Bridget Nolan shows that some of what is described as “Field No. 2” is marshy land and that much of “Field No. 1” was acquired from Bridget Nolan as part of the road widening.

14

The dispute between Noel Kennedy and Priority Construction and Wexford County Council involved no complicated issues of fact or law. The issues were easy to identify. Did Priority Construction dump waste other...

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