Power v Creed p/a John Creed and Associates

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 06 December 2018
• Neutral Citation: [2018] IEHC 688
• Docket Number: [2010 No. 1770 P]
• Court: High Court
• Date: 06 December 2018

BETWEEN

PATRICK POWER

AND

JACQUELINE POWER

PLAINTIFFS

AND

JOHN CREED PRACTISING AS JOHN CREED AND ASSOCIATES

DEFENDANT

[2018] IEHC 688

[2010 No. 1770 P]

THE HIGH COURT

Practice & procedure – Proceedings – Want of prosecution – Application to strike out negligence claim on basis of delay

Facts: The defendant had been engaged by the plaintiffs in respect of the constriction of their dwelling house. The plaintiffs suggested that the defendant had been negligent in several ways. The case was set down for trial in 2012 but no further steps had been taken. The defendant now applied to strike out the claim on the basis of inordinate delay.

Held by Baker J, that the application would be granted in part. Whilst there would be prejudice to the plaintiff in allowing certain parts of the claim to proceed, the Court was satisfied it would be unfair to dismiss the claim entirely. McDonagh v O’Shea [2018] IECA 298, Burke v. Beatty [2016] IEHC 353, and McGrath v. Reddy Charlton McKnight [2017] IEHC 210, considered.

JUDGMENT of Ms. Justice Baker delivered on the 6th day of December 2018

1 This judgment deals with the motion brought on 27 September 2017 for an order that the claim of the plaintiffs be struck out pursuant to the inherent jurisdiction of the court on the grounds of inordinate and inexcusable delay, or, in the alternative, for an order pursuant to O. 36 r. 12(b) of the Rules of the Superior Courts (‘RSC’) dismissing the proceedings for want of prosecution.

2 The claim is a professional negligence action arising from the retainer by the plaintiffs of the defendant, a chartered engineer, in connection with the construction of their dwelling house in June 2005. The dwelling was practically complete by August 2007 and the plaintiffs moved into their new home in March 2008.

3 The proceedings were commenced by plenary summons on 23 February 2010, and a statement of claim delivered only days later. After replies to a notice for particulars, a defence was delivered on 7 April 2011. The pleadings have, at least for present purposes, closed, and no complaint can be made regarding the efficiency with which both sides dealt with their pleading obligations.

4 The claim alleges negligence against the defendant in regard to a number of separate aspects of the retainer which may be summarised as follows:

(a) Negligence in recommending a builder who did not have adequate insurance;

(b) Failure to advise the plaintiffs of alleged defects in structural support, damp proofing, and inadequate insulation;

(c) Failure to return to site to address defects after these were notified;

(d) Failure to provide a snag list to the builder and/or to advise the plaintiffs that a snag list should be prepared; and

(e) Certifying stages of completion without advising the plaintiffs of problems at those stages.

5 Following the closing of the pleadings, the plaintiffs set the case down for trial in February 2012, but, at that stage, the defendant's solicitors indicated in correspondence that, because discovery was not complete, they did not consider the matter to be ready for trial. In that context further particulars of special damages and remedial works were raised, and these were furnished in March 2013. Because the defendant was not satisfied with the form in which the breakdown of costs was furnished, the plaintiffs” solicitor suggested that a formal notice for particulars of those costs and remedial works be served. This did not happen.

6 The last open letter sent from the plaintiffs” solicitor to the defendant's solicitor was on 1 May 2013. The last “without prejudice” letter was sent on 28 June 2013.

7 The other intervening event of relevance is that an application granting leave to serve a late tender offer was made on 3 September 2013 and the tender was served on 20 September 2013. The defendant complains that the plaintiffs did not reply to the tender within the time specified in the order, or at any time thereafter.

8 The notice of trial was struck out when the case was listed in an uncertified call over in October 2013.

9 The defendant's main factual argument is that no formal steps have been taken since the case was set down for trial in February 2012, five and a half years before the motion to dismiss issued. The plaintiffs did serve a notice of intention to proceed on 20 September 2017 and the focus of the defendant was on the period of delay between mid-2013 and September 2017, and the fact that the construction work and matters in respect of which the defendant was engaged happened more than ten years ago.

10 The plaintiffs separately pursued a claim against the building contractor and a compromise between them was reached on 7 October 2009, in the context of an arbitration. The contractor has been in liquidation since April 2013, although the compromise figure was paid to the plaintiffs some years before the liquidation. The defendants say, however, that the liquidation will cause problems with the defence of the claim and is likely to have an effect on matters such as discovery and the availability of witnesses.

11 The defendant points to the fact that ten years have elapsed since the completion of the construction of the dwelling and that the last engineering inspection pursuant to his retainer was carried out in 2007.

The legal principles

12 Before dealing with the arguments of the parties, it is useful to set out the principles upon which the present application is to be determined and I propose to do so in summary form only, as the principles are well established.

13 The defendant relies on post-commencement delay and while counsel does point to the fact that the proceedings were commenced some five years after the retainer, and three years after the last formal certification by the defendant of the works at a date in August 2007, the principles are relied upon are those from the judgment of Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561, as later approved and elaborated by Hamilton C.J. giving his judgment for the Supreme Court in Primor Plc. (Under Administration) v. Stokes Kennedy Crowley [1996] 2 IR 459.

14 The first test, whether the delay was inordinate, is relatively easily satisfied in the present case having regard to the simple fact that the notice of trial was struck out some five years before the motion was brought, and no engagement or meaningful engagement with formal court processes has occurred since that time.

15 This leads to a consideration of the second question expressed in Rainsford v. Limerick Corporation, namely whether the plaintiffs provide a satisfactory excuse for the delay.

16 The plaintiffs argue that, although the defendant complained after the case was set down for trail that the plaintiffs had not provided discovery or sufficient particulars, the defendant did not thereafter avail of any of the established remedies for obtaining these. The case law would suggest that the conduct of a defendant for the purposes of a motion to strike out proceedings for want of prosecution is to be considered in the context of the balance of justice, and that whether the delay of a plaintiff is or is not excusable is a matter concerned solely with the plaintiff's conduct: See, for example, the judgment of Fennelly J. in Anglo Irish Beef Processors Ltd. v. Montgomery [2002] IESC 60. For these reasons, a defendant's failure to engage with available remedies is not a factor that would generally excuse the delay of a plaintiff.

17 The excuse offered for the delay between the setting down of the case in early 2012 and the service of a notice of intention to proceed in September 2017 concerns difficulties in the office of the plaintiffs” solicitors, Messrs. O'Doherty Warren. Between April 2014 and October 2015, as a result of a change in personnel in the office, no solicitor had taken charge of the plaintiffs” file. It is also admitted that there was in general a lack of proper ‘oversight’ of the file on the part of the firm. Brendan Curran started working in the firm in October 2015 and took over the file at that time and he accepts, in his replying affidavit, that he did not pursue the claim with ‘sufficient diligence’. An advice on proofs had already been requested of counsel as early as March 2014, and a reminder sent to counsel in December 2014 and again almost a year later in October 2015 which resulted in the furnishing of an advice on proofs in December 2015.

18 Delay on the part of the solicitors firm dealing with the prosecution of proceedings, or, indeed, a delay of counsel in providing advice on proofs, could not offer an excusing reason for the delay, although it does explain the delay to an extent. I adopt in that regard the statement of MacMenamin J. in McBrearty v. North Western Health Board [2007] IEHC 431, at para. 33, where he said:

‘I consider that even (as here) in the circumstances of an absence of culpability on the part of the plaintiff, culpability may nonetheless be imputed to the plaintiff by virtue of delay on the part of his solicitors in the determination as to whether or not the delay was inexcusable. Different considerations apply, however, in the third aspect of the test, that of “balance of justice”.’

19 That observation was quoted with approval by Ní Raifeartaigh J. in McAndrew v. Egan [2017] IEHC 345, at para. 27.

20 The plaintiffs cannot excuse the delay by the apparent difficulties in the office of their solicitors.

21 After an advice on proofs was received from senior counsel in December 2015, it became apparent that further expert reports were required and the delay in obtaining these arose from the fact that Mr. and Mrs. Power were required to contribute to the fees for the preparation of the relevant reports, and while no affidavit evidence is available from them, I accept in general that those costs might have taken them some time to put together as the...