Quinn v Faulkner Trading as Faulkners Garage and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 14 March 2011
• Neutral Citation: [2011] IEHC 103
• Court: High Court
• Date: 14 March 2011

Quinn v Faulkner t/a Faulkners Garage & MMC Commercials Ltd

BETWEEN

JOHN QUINN

PLAINTIFF

AND

FRANCIS FAULKNER TRADING AS FAULKNER'S GARAGE AND MMC COMMERCIALS LTD.

DEFENDANTS

[2011] IEHC 103

[No. 78 CA/2010]

THE HIGH COURT

PRACTICE AND PROCEDURE

Delay

Inordinate and inexcusable delay - Undue delay - Balance of justice - Public interest - Duty to administer justice - Duty to ensure proceedings concluded within reasonable time - Efficiency and effectiveness of legal system - Prejudice - Default of pleading - Delay in filing defence - Failure to prosecute proceedings - Limitation period - Straightforward case - Whether inordinate and inexcusable delay - Whether prejudice suffered - Whether proceedings should be struck out - Whether reasonable steps taken to prosecute case - Sheehan v Amond [1982] IR 235; McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010); Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Byrne v Minister for Defence [2005] IEHC 147, [2005] 1 IR 577; Donnellan v Westport Textiles Ltd [2011] IEHC 11, (Unrep, HC, Hogan J, 18/1/2011); O'Domhnaill v Merrick [1984] IR 151; Rogers v Michelin Tyre plc [2005] IEHC 294, (Unrep, HC, Clarke J, 28/6/2005); O'Connor v Neurendale Ltd [2010] IEHC 387, (Unrep, HC, Hogan J, 22/10/2010); McFarlane v Ireland [2010] ECHR 1272; McD v L [2009] IESC 81, (Unrep, SC, 10/12/2009); Kelly v Doyle [2010] IEHC 396, (Unrep, HC, Charleton J, 23/11/2010); Gilroy v Flynn [2004] IESC 98, [2005] ILRM 290; Rodenhuis v Verloop BV v HDS Energy Ltd [2010] IEHC 465, (Unrep, HC, Clarke J, 10/12/2010) and Guerin v Guerin [1992] 2 IR 287 considered - Consumer Credit Act 1995 (No 24), s 82 - Sale of Goods and Supply of Services Act 1980 (No 16), s 13 - European Convention of Human Rights Act 2003 (No 20), s 1(1) - Constitution of Ireland 1937, art 34.1 - European Convention on Human Rights, arts 6 and 13 - Proceedings struck out (2010/78CA - Hogan J - 14/3/2011) [2011] IEHC 103

Quinn v Faulkner

Facts The plaintiff had purchased a motor vehicle in 1995 from Faulkner's Garage with the second defendant (MMC) providing the leasing finance. The plaintiff contended that the vehicle contained so many defects that it was not of merchantable quality. A comprehensive letter setting out the alleged defects was sent by the plaintiff's solicitors to Faulkner's Garage in 1996. Circuit Court proceedings commenced six years from the date the vehicle was purchased. It was contended that MMC was also liable for the alleged defects by virtue of s.82 of the Consumer Credit Act, 1995. Faulkner's Garage filed its defence in 2001, and also issued a notice of indemnity and contribution against MMC. MMC filed their defence in 2007. When a notice of trial was served, Faulkner's Garage were successful in the Circuit Court in having the proceedings struck out as against them on the grounds of delay. Thereafter MMC brought a similar motion which was refused and took the present appeal against this decision. On behalf of MCC it was contended that as Faulkner's Garage were dismissed from the proceedings it would then be unfair to allow the burden of defending the entirety of the proceedings to fall entirely on them.

Held by Hogan J in granting the appeal and dismissing the plaintiff's proceedings. The circumstances of the two defendants were different, largely because MMC were in default of pleading for a period of four years. No explanation had been offered by the plaintiff for the delay in instituting or progressing the proceedings. The plaintiff's case was fully and thoroughly set out in a detailed solicitor's letter in 1996 but allowed another five years to elapse before commencing proceedings. The courts could strike out proceedings by reason on undue delay, even though no specific prejudice to the defendant had been shown. Nor had the plaintiff explained his failure to take steps to compel MCC to file a defence. MMC were themselves guilty of gross delay in filing that defence and the court was not persuaded that MMC had suffered any particular prejudice. MMC was in no position to complain that it has been left alone as a defendant when Faulkner's Garage succeeded in its strike out motion, given that the latter filed a defence in a timely fashion whereas the former did not. In the public interest the courts had a role to ensure the timely administration of justice. The courts must also become more pro-active in terms of undue delay. Past judicial practices had tolerated such inactivity on the part of litigants and which had led to a culture of almost "endless indulgence" towards such delays. The court would allow the appeal and strike out the plaintiff's proceedings.

Reporter: R.F.

CONSUMER CREDIT ACT 1995 S82

SUPPLY OF GOODS AND SALE OF SERVICES ACT 1980 S13

SHEEHAN v AMOND 1982 IR 235

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010 IESC 27

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

BYRNE v MIN FOR DEFENCE 2005 1 IR 577

DONNELLAN v WESTPORT TEXTILES LTD UNREP HOGAN 18.1.2011 2011 IEHC 11

O'DOMHNAILL v MERRICK 1984 IR 151

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST LTD (NO 2) UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

O'CONNOR v NEURENDALE LTD T/A PANDA WASTE SERVICES UNREP HOGAN 22.10.2010 2010 IEHC 387

MCFARLANE v IRELAND 2011 52 EHRR 20 2010 ECHR 1272

MCD (J) v L (P) & M (B) UNREP SUPREME 10.12.2009 2009/34/8411 2009 IESC 81

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003 S1(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

CONSTITUTION ART 34.1

KELLY v DOYLE UNREP CHARLETON 23.11.2010 2010 IEHC 396

GILROY v FLYNN 2005 1 ILRM 290

RODENHUIS & VERLOOP BV v HDS ENERGY LTD UNREP CLARKE 10.12.2010 2010 IEHC 465

GUERIN v GUERIN 1992 2 IR 287

1 1. This appeal raises once again the question of the court's duty to ensure that proceedings are concluded within a reasonable time. The issue arises in the following way. The plaintiff is a hackney driver who resides in Buncrana, Co. Donegal. In March 1995 he agreed to purchase a brand new Mitsubishi Lancer diesel motor vehicle for his professional purposes from the first defendant ("Faulkner's Garage"), a garage based in Moville. The second defendant ("MMC") is a leasing company who appear to have financed the vehicle through a form of hire purchase.

2 2. The plaintiff contends that the vehicle contained so many defects that it was not of merchantable quality. His pleadings set out detailed and lengthy particulars of these defects which are said to include loss of power, defective central locking, heavy oil leaks from the engine and much else besides. To add insult to injury - at least from his perspective - the ignition fuse later blew and the wiring in the front of the car went on fire in August 1996. Having recited this long litany of defects, the plaintiff's endorsement of claim added, with pithy understatement, that "the car is presently not functioning". So far as MMC is concerned, counsel for the plaintiff, Ms. O'Grady contended at the hearing before me that it was liable by virtue of the provisions of s. 82 of the Consumer Credit Act 1995 which extends to the letting of a motor vehicle by hire purchase the implied conditions contained in s. 13 of the Supply of Goods and Sale of Services Act 1980, so that the owner (i.e., the finance company) is liable to the hirer for any breach of any implied conditions.

3 3. Those Circuit Court proceedings commenced in February 2001, almost six years from the date of the vehicle was purchased and some five years from the date of a comprehensive letter before action which was sent in March 1996 by the plaintiff's solicitors to Faulkner's Garage. A further letter of this nature was sent to MMC on 2 ^nd September 1996. MMC filed a notice for particulars on 6 ^th June 2001 and on 15 ^th July 2002 the Circuit Court made an order allowing the plaintiff three weeks to reply to this request. MMC were given liberty to re-enter the motion on notice to the plaintiff's solicitors. The plaintiff's solicitors replied to the request for particulars on 23 ^rd January, 2003. It should be noted that Faulkner's Garage filed its defence on 19 ^th October 2001, and on the same day issue a notice of indemnity and contribution against MMC.

4 4. In contrast to the position adopted by Faulkner's Garage, it is striking that almost another four and one half years were to elapse before MMC filed a defence on 15 ^th May 2007. The filing of this defence appears to have been prompted by a reminder letter sent by the plaintiff's solicitors on 30 ^th April 2007. A notice for trial was issued on 22 ^nd September 2008. It would seem that at no stage was a notice of intention to proceed served in the manner required by the Circuit Court Rules.

5 5. Faulkner's Garage responded to this notice of trial by issuing a motion seeking to have the proceedings struck out on the grounds of undue delay. On 28 ^th April 2009 His Honour Judge O'Hagan struck out the proceedings as against this defendant on this ground. Having learned of the making of this order, MMC then sought to bring a similar motion before the Circuit Court. In her affidavit of 5 ^th November 2009, grounding that motion, Ms. Durkan, the solicitor for MMC, contended that "the considerations at issue in that application apply with equal force to this application." On this occasion, His Honour Judge O'Hagan took a different view of the matter so far as the case concerned MMC and by order dated 11 ^th February 2010 he refuse the second defendant's motion to strike out the proceedings on grounds of inordinate and excusable delay. It appears, however, that Judge O'Hagan did give MMC liberty to issue a third party notice seeking indemnity...