Primor Plc (Pmpa) v Freaney
| Jurisdiction | Ireland |
| Judge | Hamilton C.J,O'Flaherty J. |
| Judgment Date | 19 December 1995 |
| Neutral Citation | 1995 WJSC-SC 5287 |
| Court | Supreme Court |
| Date | 19 December 1995 |
1995 WJSC-SC 5287
THE SUPREME COURT
HAMILTON C.J.
O'FLAHERTY J.
DENHAM J.
BETWEEN:
and
and
and
Citations:
RSC O.63 r1(8)
RSC O.122 r11
DOWD V KERRY CO COUNCIL 1970 IR 27
RAINSFORD V CORPORATION OF LIMERICK 1995 2 ILRM 561 1981/7/1121
O DOMHNAILL V MERRICK 1984 IR 151
ALLEN V MCALPINE 1968 2 QB 299
REILLY V CIE 1973 IR 278
SHEEHAN V ALMOND 1982 IR 235
BIRKETT V JAMES 1977 2 AER 801, 1977 3 WLR 38
DEPT OF TRANSPORT V CHRIS SMALLER LTD 1989 1 AER 897
BISS V LAMBETH HEALTH AUTHORITY 1978 2 AER 125
THORPE V ALEXANDER FORK LIFT TRUCKS LTD 1975 3 AER 579
CELTIC CERAMICS LTD V IDA 1993 ILRM 248
PRESIDENT OF INDIA & UNION OF INDIA V JOHN SHAW & SONS (SALFORD) LTD THE TIMES 27.10.77
BRIDGNORTH DC V HENRY WILLCOCK & CO LTD 1983 CA TRANSCRIPT 958
HAYNES V ATKINS THE TIMES 12.10.83
EAGIL TRUST CO LTD V PIGOTT-BROWN 1985 3 AER 119
COUNTY & DISTRICT PROPERTIES V LLYELL 1991 1 WLR 683
ROEBUCK V MUNGOVIN 1994 2 AC 224
ROCHE V CHURCH THE TIMES 23.12.92
PRIMOR PLC (PMPA) V SKC O'HANLON UNREP 11.2.94 1994/6/1721
COMPANIES ACT 1963
REYNOLDS V BRITISH LEYLAND 1991 2 AER 801
TRILL V SACHER 1993 3 AER 961
CULBERT V WESTWELL & CO LTD 1993 PIQR 54
TOAL V DUIGNAN 1991 ILRM 143
INSURANCE (NO 2) ACT 1983 S2
FINLAY V MURTAGH 1979 IR 249
EUROPEAN COMMUNITIES (NON LIFE INSURANCE ACCOUNTS) REGS 1977
HEDLEY BYRNE & CO LTD V HELLER & PARTNERS LTD 1964 AC 465
BLYTHE V BIRMINGHAM WATER WORKS CO 1856 11 EX 784, 25 LJ EX 213
POLLOCK LAW OF TORTS 13ED 462
CIVIL LIABILITY ACT 1961
ULTRAMARES CORPORATION V TOUCHE 1931 255 NY 170
CAPARO PLC V DICKMAN 1990 2 WLR 358
HADLEY V BAXENDALE 1845 9 EX 341
JOHN PFEIFFER PTY LTD V CANNY 1981 148 CLR 218
NATIONAL INSURANCE GUARANTEE CORPORATION V BRADFORD 1970 SJ 436
MURPHY V MIN FOR DEFENCE 1991 2 IR 161
Synopsis:
ACTION
Dismissal
Grounds - Plaintiff - Claim - Prosecution - Diligence - Absence - Delay after issue of summons - Prejudicial effect on business and professional interests of defendant - Defendant's acquiescence - (110/95 - Supreme Court 19/12/95)
|Primor Plc. v. Freaney & Co.|
ACTION
Dismissal
Grounds - Plaintiff - Claim - Prosecution - Diligence - Absence - Delay before and after issue of summons - Prejudicial effect on business and professional interests of defendant - Defendant's misleading conduct - Defendant not estopped from seeking dismissal of action - Action dismissed - (83,91/94 - Supreme Court - 19/12/95)
|Primor Plc. v. Stokes Kennedy Crowley|
DELAY
Claim
Prosecution - Diligence - Absence - Defendant - Prejudice - Delay after issue of summons - Prejudicial effect on business and professional interests of defendant - Defendant's misleading conduct - Defendant not estopped from seeking dismissal of action - Action dismissed - (110/95 - Supreme Court - 19/12/95)
|Primor Plc. v. Oliver Freaney & Co.|
DELAY
Claim
Prosecution - Diligence - Absence - Defendant - Prejudice - Delay before and after issue of summons - Prejudicial effect on business and professional interests of defendant - Defendant's misleading conduct - Defendant not estopped from seeking dismissal of action - Action dismissed - (83,91/94 - Supreme Court - 19/12/95)
|Primor Plc. v. Stokes Kennedy Crowley|
PRACTICE
Action
Dismissal - Claim - Prosecution - Diligence - Absence - Delay after issue of summons - Prejudicial effect on business and professional interests of defendants - Insurance company's claim against defendant accountants - Alleged breaches of duty by defendants from 1975 to 1983 - Plaintiff's action instituted in 1984 - Motion to dismiss action brought by defendants in 1993 - Defendants" acquiescence in 1990 in discovery of documents - Contemporary documentation preserved - Relevance of defendants" conduct since summons issued - Action dismissed - Plaintiff's motion in 1994 to strike out defence - Rules of the Superior Courts, 1986, order 122, r. 11 - (110/95 - Supreme Court - 19/12/95)
|Primor Plc. v. Oliver Freaney & Co.|
PRACTICE
Action
Dismissal - Claim - Prosecution - Diligence - Absence - Delay before and after issue of summons - Prejudicial effect on business and professional interests of defendants - Insurance company's claim against defendant accountants - Alleged breaches of duty by defendants in 1978 - Plaintiff's action instituted in 1984 - Motion to dismiss action brought by defendants in 1993 - G7* Defendants" acquiescence in 1991 in discovery of documents - Acquiescence a relevant but not decisive factor - Relevance of defendants" conduct since summons issued - Review of authorities which relied on defendant's conduct - Action dismissed - Issue to be decided at hearing of defendant's motion where inordinate and inexcusable delay by plaintiff established - Rules of the Superior Courts, 1986, order 122, r. 11 - (83,91/94 - Supreme Court - 19/12/95)
|Primor Plc. v. Stokes Kennedy Crowley|
Judgment delivered on the 19th day of December 1995 by Hamilton C.J . [DENHAM CONC]
Both the Appellants/Defendants in the above entitled proceedings have appealed against orders made in the High Court refusing to dismiss the Plaintiffs proceedings against each of them for want of prosecution pursuant to Order 63 Rule 1 (8) of the Rules of theSuperior Courts.
The Plaintiff/Respondent had issued separate proceedings against each of the Defendant/Respondents.
The proceedings against both Defendant/Respondents were instituted by Plenary Summons issued on the 21st day of December 1984 and the Statements of Claim delivered on the 8th day of January 1986.
On the 30th day of March 1993 Solicitors on behalf of Stokes Kennedy Crowley, the Defendant in the first case in the title hereof, (and hereinafter referred to as SKC) caused to be issued a notice of motion seeking an order from the Master of the High Court dismissing the Plaintiff's claim against them for want of prosecution.
By Order dated the 18th day of May, 1993 the Master of the High Court dismissed the Plaintiffs claim for want of prosecution pursuant to Order 63 Rule 1(8) of the Rules of the Superior Courts.
The Plaintiff/Respondent by notice dated the 19th day of May, 1993, brought an application to the HighCourt by way of appeal to the High Court from the said order of the Master of the High Court and sought an order dismissing the said Defendants (SKC) application and permitting the Plaintiff to proceed with the Action.
This application was heard by Mr. Justice O'Hanlon and he delivered judgment thereon on the 11th day of February 1994 and by Order dated the same date, it was ordered that the Plaintiffs appeal be allowed and the order made by the Master be set aside.
From this judgment and order, SKC have appealed to this Court.
On the 16th day of June 1993, subsequent to the making of the Order by the Master of the High Court on the application of SKC, the Defendant/Appellant in the second set of proceedings set forth in the title hereof, (and hereinafter referred to as Oliver Freaney), issued a notice of motion claiming similar relief, viz. dismissal for want ofprosecution.
The motion was dealt with by Mr. Justice Johnson and he delivered his judgment therein on the 9th day ofFebruary, 1995 and by order of that date directed the application (viz. the application to dismiss for want of prosecution) be refused.
Oliver Freaney has appealed to this Court against the said judgment and order of the High Court.
Though the proceedings herein are separate and though the applications brought by the Defendants/Appellants were heard by two different judges of the High Court, the Appeals were heard together and this judgment will cover both appeals.
Before dealing with the relevant facts in respect of each Appellant/Defendant, SKC and Oliver Freaney, upon which their applications were based and the judgments of Mr. Justice O'Hanlon and Mr. Justice Johnson thereon and the appeals in respect thereof, it is, in my opinion, desirable to set forth the legal principles applicable to the consideration of an application to dismiss an action or proceedings for want of prosecution and the exercise by the Court of its inherent discretion in regard thereto.
Order 122 Rule 11 of the Rules of the Superior Courts providesthat:-
"In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule."
In the course of his judgment in Dowd .v. Kerry CountyCouncil ( 1970 I.R. p. 27) O'Dalaigh C.J. stated at page 42 of the Report that:-
"It is, of course, desirable that the timetable as laid down in the Rules should be adhered to, but the question remains 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 tomake it just to strike out the Plaintiffs action."
From this short passage it is clear that the matters which are fundamental to the consideration of the issue are the concepts of fairness and justice, whether it is fair to the Defendant to allow...
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