Primor Plc v Stokes Kennedy Crowley

JurisdictionIreland
CourtSupreme Court
Judgment Date01 Jan 1996
Docket Number[Nos. 83 and 91 of 1994]

Supreme Court

[Nos. 83 and 91 of 1994]
[S.C. No. 110 of 1995]
Primor plc v. Stokes Kennedy Crowley
Primor plc (formerly P.M.P.A. Insurance plc) (under administration)
Plaintiff
and
Stokes Kennedy Crowley, Defendants
Primor plc v. Stokes Kennedy Crowley
Primor plc (formerly P.M.P.A. Insurance plc) (under administration)
Plaintiff
and
Oliver Freaney and Company, Defendants

Cases mentioned in this report:—

Allen v. Sir Alfred McAlpine & Sons Ltd.ELRWLRUNK [1968] 2 Q.B. 229; [1968] 2 W.L.R. 366; [1968] 1 All E.R. 543.

Birkett v. JamesELRWLRUNK [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801.

Biss v. Lambeth Health AuthorityWLRUNK [1978] 1 W.L.R. 382; [1978] 2 All E.R. 125.

Blyth v. Birmingham Water Works CompanyENRUNKUNKENR (1856) 11 Ex. 781; [1843-60] All E.R. Rep. 478; 25 L.J. Ex. 212; 26 L.T.O.S. 261; 20 J.P. 247; 2 Jur. N.S. 333; 4 W.R. 294; 156 E.R. 1047.

Bridgnorth D.C. v. Henry Willcock & Co. Ltd (Unreported, Court of Appeal, Civil Division, 19th December, 1983).

Caparo Industries plc v. DickmanELRUNK [1990] 2 A.C. 605; 2 W.L.R. 358; [1990] 1 All E.R. 568.

Celtic Ceramics Ltd. v. Industrial Development AuthorityDLRM [1993] I.L.R.M. 248.

County & District Properties Ltd. v. LyellWLR [1991] 1 W.L.R. 683.

Culbert v. Westwell & Co. Ltd.UNK [1993] P.I.Q.R. 54.

Department of Transport v. Chris Smaller (Transport) Ltd.ELRWLRUNK [1989] A.C. 1197; [1989] 2 W.L.R. 578; [1989] 1 All E.R. 897.

Dowd v. Kerry County CouncilIR [1970] I.R. 27.

Eagil Trust Co. Ltd. v. Pigott-BrownUNK [1985] 3 All E.R. 119.

Finlay v. MurtaghIR [1979] I.R. 249.

Hadley v. BaxendaleENRUNKUNKUNKENR (1854) 9 Exch. 341; [1843-60] All E.R. Rep. 461; 23 L.J. Ex. 179; 23 L.T.O.S. 69; 18 Jur. 358; 2 W.R. 302; 2 C.L.R. 517; 156 E.R. 145.

Haynes v. Atkins (Unreported, Court of Appeal, Civil Division, 11th October, 1983).

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.ELRWLRUNKUNKUNK [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575; 107 Sol.J. 454; [1963] 1 Lloyds Rep. 485.

Hogan v. JonesDLRM [1994] 1 I.L.R.M. 512.

H. Parsons (Livestock) Ltd. v. Uttley Ingham & Co. Ltd.ELRWLRUNKUNK [1978] Q.B. 791; [1977] 3 W.L.R. 990; [1978] 1 All E.R. 525; [1977] 2 Lloyds Rep. 522.

John Pfeiffer Pty. Ltd. v. CannyUNK (1981) 148 C.L.R. 218

Moore v. Jack Brabham HoldingsUNK (1987) 7 N.S.W.L.R. 470.

Murphy v. Minister for DefenceIR [1991] 2 I.R. 161.

National Insurance & Guarantee Corp. Ltd. v. Robert Bradford & Co. Ltd.UNKUNK [1970] Lloyds Rep. 520; (1970) 114 S.J. 436.

Ó Dómhnaill ó dómhnaill v. MerrickIRDLRM [1984] I.R. 151; [1985] I.L.R.M. 40.

O'Reilly v. C.I.E.IR [1973] I.R. 278.

President of India v. John Shaw & Sons (Salford) Ltd. (Unreported, Court of Appeal, Civil Division, 25th October, 1977).

Rainsford v. Limerick CorporationDLRM [1995] 2 I.L.R.M. 561.

Reynolds v. British Leyland Ltd.WLRUNK [1991] 1 W.L.R. 675; [1991] 2 All E.R. 243.

Roche v. Church (Unreported, Court of Appeal, Civil Division, 4th December, 1992).

Roebuck v. MungovinELRWLRUNK [1994] 2 A.C. 224; [1994] 2 W.L.R. 290; [1994] 1 All E.R. 568.

Sheehan v. AlmondIR [1982] I.R. 235.

Sweeney v. Sir Robert McAlpine & Sons Ltd.WLRUNK [1974] 1 W.L.R. 200; [1974] 1 All E.R. 474.

Thorpe v. Alexander Fork Lift Trucks Ltd.WLRUNK [1975] 1 W.L.R. 1459; [1975] 3 All E.R. 579.

Toal v. Duignan (No.1)DLRM [1991] I.L.R.M. 135.

Toal v. Duignan (No.2)DLRM [1991] I.L.R.M. 140.

Trill v. SacherWLRUNK [1993] 1 W.L.R. 1379; [1993] 1 All E.R. 961.

Ultramares Corporation v. ToucheUNK (1931) 255 N.Y. 170.

Practice and procedure - Dismissal of action for want of prosecution - Principles to be applied - Inordinate and inexcusable delay by plaintiff - Defendants seeking cross-order for discovery after such delay - Plaintiff incurring considerable expense in complying with cross-order for discovery - Defendants seeking to dismiss for want of prosecution after plaintiff's compliance with cross-order for discovery - Whether defendants' application for cross-order constituting acquiescence in plaintiff's previous inordinate and inexcusable delay - Whether defendants barred from seeking dismissal of action after plaintiff had complied with cross-order - Whether defendants' conduct merely a factor to be taken into account in exercise of discretion - Whether trial judge erred in failing to consider prejudice to defendants.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgements, infra.

On the 18th May, 1993, upon application by S.K.C., the defendants in the first proceedings, pursuant notice of motion issued the 30th March, 1993, the Master of the High Court made an order dismissing the plaintiff's action for want of prosecution. By notice of appeal dated the 19th May, 1993, the plaintiff appealed the order to the High Court. The appeal was heard by the High Court (O'Hanlon J.) on the 29th October, 2nd and 4th November, 1993 and in a written judgment delivered on the 11th February, 1994, the High Court reversed the decision of the Master of the High Court and refused to dismiss the action.

By notice of motion issued the 16th June, 1993, Freaneys, the defendants in the second proceedings, sought an order dismissing the plaintiff's action against them for want of prosecution. The motion was heard by the High Court (Johnson J.) on the 6th and 7th October, 1994, and in a written judgment delivered on the 9th February, 1995, the High Court refused the application.

The defendants in both proceedings appealed to the Supreme Court by notices of appeal dated the 7th March, 1994, and the 29th March, 1995.

The appeals were heard together by the Supreme Court (Hamilton C.J., O'Flaherty and Denham JJ.) on the 17th and 18th October, 1995.

The defendants in the first proceedings, S.K.C., acted as auditors for the plaintiff for the financial year ending the 31st December, 1978. Freaneys, the defendants in the second proceedings, acted as auditors for the plaintiff for the financial years from the 31st December, 1967, to the 31st December, 1982, inclusive. The plaintiff issued separate proceedings against both sets of defendants on the 21st December, 1984, claiming, inter alia that they had failed to carry out their obligations as auditors in a careful and prudent manner. The summonses were not served for a year, and statements of claim were not delivered until the 8th January, 1986.

In the first proceedings, S.K.C. delivered their defence on the 8th January, 1991. The plaintiff sought an order for discovery and subsequently S.K.C. sought a cross-order. On the 25th January, 1991, the order and cross-order for discovery were made on consent. In February, 1994, the High Court (O'Hanlon J.) refused S.K.C.'s application to dismiss the claim for want of prosecution. The trial judge found that whilst the plaintiff had been guilty of inordinate and inexcusable delay, the fact that S.K.C. had sought a cross-order for discovery on the 25th January, 1991, and the fact that the plaintiff had incurred considerable expense in complying with the order constituted an estoppel and a bar to the application to dismiss the proceedings for want of prosecution. In so finding the trial judge had relied on County & District Properties Ltd. v. LyellWLR[1991] 1 W.L.R. 683 which subsequently had been overruled by Roebuck v. MungovinELR[1994] 2 A.C. 224.

In the second proceedings, Freaneys delivered a defence and a notice for particulars on the 28th February, 1990. The plaintiff sought an order for discovery and Freaneys sought a cross-order. On the 17th July, 1990, the order and cross-order were made on consent. In February, 1995, the High Court (Johnson J.) refused Freaneys application to dismiss the claim for want of prosecution. The trial judge found that whilst the plaintiff had been guilty of inordinate and inexcusable delay, by delivering the defence and notice for particulars on the 28th February, 1990, Freaneys had acquiesced in the delay that had taken place until that date and that the seeking of further particulars thereafter, particularly together with the acquiescence of Freaneys in the motion for discovery and cross-order copper-fastened the acquiescence. In so finding the trial judge relied on the decision of the High Court (O'Hanlon J.) in the first proceedings.

Both S.K.C. and Freaneys appealed to the Supreme Court and the appeals were heard together.

Held by the Supreme Court (Hamilton C.J., O'Flaherty and Denham JJ.), in allowing the appeals and dismissing the actions for want of prosecution, 1, that the principles of law relevant to an application to dismiss an action for want of prosecution were:—

  1. (1) that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;

  2. (2) that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable;

  3. (3) that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;

  4. (4) that when considering this obligation the court was entitled to take into consideration and have regard to —

    1. (a) the implied constitutional principles of basic fairness of procedures,

    2. (b) whether the delay and consequent prejudice in the special facts of the case were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,

    3. (c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,

    4. (d) whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in the plaintiff's delay,

    5. (e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action...

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