Patrick Bergin v Shane McGuinness

• Jurisdiction: Ireland
• Judge: Mr. Justice Dignam
• Judgment Date: 15 March 2022
• Neutral Citation: [2022] IEHC 151
• Court: High Court
• Docket Number: [RECORD NO. 2014 2666 P]

In the Matter of the Estate of Frank Haughey, Late of Clermont Park, Blackrock, Dundalk, Co. Louth and Monascreebe, Faughart, Dundalk, Co. Louth (Formerly of 11 Carewamean Road, Dromintee, Newry, Co. Down) Widower, Deaceased

Between

Patrick Bergin

Plaintiff

and

Shane McGuinness

Defendants

[2022] IEHC 151

[RECORD NO. 2014 2666 P]

THE HIGH COURT

Wills and probate – Testamentary capacity – Want of prosecution – Defendant seeking to dismiss the plaintiff’s claim for want of prosecution – Whether there was inordinate and inexcusable delay

Facts: The substantive proceedings involved a challenge to a will of a Mr Haughey who died on the 13th May 2013. The will under challenge was executed on the 16th January 2012 and it was alleged that the deceased did not have testamentary capacity and was acting under duress or undue influence of the defendant, Mr McGuinness, at the time he made that will. The defendant was the executor and a beneficiary under the will. The plaintiff, Mr Bergin, was the executor and a beneficiary under an earlier will dated the 29th April 2004. The defendant applied to the High Court to dismiss the plaintiff’s claim for want of prosecution pursuant to: (a) Order 122 rule 11 of the Rules of the Superior Courts, there having been no proceedings for over seven years from the last proceeding; (b) Order 27 rule 1 of the Rules of the Superior Courts, the plaintiff having failed to deliver his statement of claim within the time allowed for same; and (c) the inherent jurisdiction of the Court on the grounds of inordinate and inexcusable delay. The defendant also sought consequential relief to vacate a lis pendens that was registered by the plaintiff. The last formal action by the plaintiff in the proceedings prior to the issuance of the motion to dismiss the proceedings for want of prosecution was the registration of the lis pendens on the 4th April 2014.

Held by Dignam J that where some responsibility for parts of the delay must be shared by the defendant and where there was little or no risk to a fair trial – no general or specific risk to same was even claimed by the defendant – the balance of justice favoured permitting the proceedings to continue notwithstanding the plaintiff’s inordinate and inexcusable delay. It seemed to Dignam J that this should be subject to strict conditions and directions as to the future prosecution of the case. However, in circumstances where the plaintiff had already issued a motion to have the matter remitted to the Circuit Court and therefore the matter might become subject to the jurisdiction of that court it seemed inappropriate that Dignam J should make such directions. However, in the event that the matter was not remitted to the Circuit Court, Dignam J held that the matter should be brought back before the Court for directions as to its future prosecution. Notwithstanding the delay in the proceedings and the plaintiff’s failure to deliver a statement of claim in accordance with Order 27 and to take a step in the proceedings in accordance with Order 122, Dignam J held that the balance of justice favoured allowing the proceedings to continue. Dignam J held that the purpose of Order 27 rule 1, and Order 122 rule 11 to a certain extent, was to compel the taking of the relevant procedural step and that purpose had been achieved by the delivery of the statement of claim by the plaintiff.

Dignam J held that a standalone application for the vacation of a lis pendens may be brought. However, in the circumstances of this case, Dignam J was satisfied that this relief was sought as an ancillary relief to the primary reliefs at paragraphs (a)–(c). There was no separate argument as to whether Dignam J should exercise the jurisdiction to vacate the lis pendens separately from and independent of those primary reliefs. Having declined relief under those paragraphs, Dignam J also refused relief under paragraph (d) of the notice of motion.

Relief refused.

Judgment of Mr. Justice Dignam delivered on the 15th day of March, 2022.

Introduction

1 This is the Defendant's application to dismiss the Plaintiff's claim for want of prosecution pursuant to:

• (a) Order 122 rule 11 of the Rules of the Superior Courts, there having been no proceedings for over seven years from the last proceeding;

• (b) Order 27 rule 1 of the Rules of the Superior Courts, the plaintiff having failed to deliver his statement of claim within the time allowed for same

• (c) the inherent jurisdiction of the Court on the grounds of inordinate and inexcusable delay.

2 The Defendant also seeks consequential relief to vacate a lis pendens that was registered by the Plaintiff.

3 I propose to address the application brought pursuant to the inherent jurisdiction of the court on the grounds of inordinate and inexcusable delay first and then to consider the relief sought at paragraphs (a) and (b). It seems to me that if I hold in favour of the application on any of the grounds (a) – (c) then the relief at (d), i.e. vacating the lis pendens, must follow.

Legal Principles – Dismissal for Inordinate and Inexcusable Delay Under the Inherent Jurisdiction

4 I was referred to a number of cases and texts during the course of submissions: Diamrem Limited v Clare County Council [2021] IEHC 408, Comcast International Holdings Inc & Ors v Minister for Public Enterprise and Others [2012] IESC 50, McNamee v Boyce [2017] IESC 24, O'Riordan v Maher and Others [2012] IEHC 274 and Section A and D of Chapter 15 of Delaney and McGrath 4th Edition, 2018.

5 The law in this area is well settled. The classic statements of the approach to be taken are still to be found in the cases of Rainsford v Limerick Corporation [1995] 2 ILRM 561 and Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. In Primor Hamilton CJ stated:

• “(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.”

6 That Primor remains the test was confirmed by the Supreme Court in Comcast. However, Clarke J also made clear that there should be a ‘ recalibration’ or ‘ tightening up’ in the application of that test.

7 Clarke J said:

“3.1 In one sense it can be said that the overall approach is well settled. In Desmond v MGN Ltd [2009] 1 IR 737, at p.749, Macken J (who was part of the majority of this court in that case) adopted the tests which I had mentioned in Stephens v Flynn Limited [2005] IEHC 148 being:-

• ‘1. ascertain whether the delay in question is inordinate and inexcusable; and

• 2. if it is so established the court must decide where the balance of justice lies.’

3.2 In formulating the test in that way I had followed a long line of authority stretching back to the decisions of this Court in Rainsford v Limerick Corporation [1995] 2 ILRM 561 and Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. I did not understand Counsel on either side of these appeals to suggest that those tests were not the applicable tests. In addition I do not understand any of the recent jurisprudence in this area to question that those tests represent the appropriate questions to be considered by the court.

…

3.3 However, it does have to be accepted that there has been what might, at a minimum, be considered to have been a difference of emphasis apparent from certain recent judgments in both this court and in the High Court, as to the manner in which those tests should be applied and in particular whether there was to be, as I put it in Stephens v Flynn Limited, a recalibration or as others have described it, a tightening up, in the application of those tests.

3.4 That recent jurisprudence goes back to the judgment of Hardiman J in this court in Gilroy v Flynn [2005] 1 ILRM 290. That judgment suggested that the courts had become ever more conscious of the unfairness of, and increased possibility of injustice which attached to, allowing an action...