Rodenhuis & Verloop BV v HDS Energy Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 10 December 2010
• Neutral Citation: [2010] IEHC 465
• Court: High Court
• Docket Number: [2000 No. 713 S]
• Date: 10 December 2010

Rodenhuis & Verloop BV v HDS Energy Ltd

BETWEEN

RODENHUIS AND VERLOOP B.V.

PLAINTIFF

AND

HDS ENERGY LIMITED

DEFENDANT

[2010] IEHC 465

[No. 713 S/2000]

THE HIGH COURT

PRACTICE AND PROCEDURE

Dismissal of action

Want of prosecution - Inordinate and inexcusable delay - Whether obligations under European Convention of Human Rights require recalibration of emphasis in test to be applied. - Whether unilateral decision not to progress proceedings pending outcome of parallel proceedings provides excuse for delay - Balance of justice - Whether defendant partly responsible for delay - Availability of witnesses - Whether prejudice to defence - Re Ó Laighléis [1960] IR 93 and Byrne v An Taoiseach [2010] IEHC 3, (Unrep, Laffoy J, 9/9/2010) followed, Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 3, Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290, Price and Lowe v United Kingdom [2003] ECHR 409 and Moorview Developments Ltd. v First Active plc. [2008] IEHC 274, [2009] 2 IR 788 considered; Stephens v. Paul Flynn Ltd [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005) followed - European Convention on Human Rights Act 2003 (No 20) - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6 - Claim dismissed (2000/713S - Clarke J - 10/12/2010) [2010] IEHC 465

Rodenhuis and Verloop BV v HDS Energy Ltd

Facts: The proceedings were commenced by summary summons to recover sums due and owing and were remitted to plenary hearing. The defendant sought to have the proceedings dismissed for inordinate and inexcusable delay and in the second motion security for costs was sought. The issue arose as to the application of the caselaw of the European Court of Human Rights.

Held by Clarke J. that there had been some prejudice to the defendants because of delay. There was every risk that the case would turn on precisely what was said. There was material prejudice but it was not so high having regard to the partial documentary nature of the proceedings. However, the balance of justice favoured the dismissal of the proceedings. it was appropriate to dismiss the proceedings on the basis of inordinate and inexcusable delay. There was no factual basis for making an order for security of costs.

Reporter: E.F.

DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31 2008/59/12277 2008 IESC 4

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

BYRNE & ORS v TAOISEACH & ORS UNREP LAFFOY 9.9.2010 2010 IEHC 353

O LAIGHLEIS, IN RE 1960 IR 93

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

PRICE & LOWE v UNITED KINGDOM UNREP ECHR 29.7.2003 (APPLICATION NOS 43185/98 & 43186/98)

MOORVIEW DEVELOPMENTS LTD v FIRST ACTIVE PLC & JACKSON UNREP CLARKE 31.7.2008 2008 IEHC 274

1. Introduction

2 2 1.1 As the record number of these proceedings indicates, this case has a lengthy history having been commenced ten years ago. It will be necessary to refer in some more detail to the progress of the proceedings in due course. The plaintiffs ("Rodenhuis") sue for money said to be due and owing by the defendant ("HDS"). The proceedings commenced by summary summons but, HDS having filed an affidavit setting out a prima facie defence, the case was remitted to plenary hearing.

3 3 1.2 HDS now brings two motions before the court. In the first it is sought to have the proceedings dismissed for inordinate and inexcusable delay. In the second motion security for costs is sought. Logically the application to dismiss needs to be considered first, for the event that the proceedings are dismissed no question of security for costs could arise.

4 4 1.3 I, therefore turn to the dismissal motion.

2. The Dismissal Motion

2 2 2.1 There was no major dispute between counsel for the parties as to the legal principles to be applied. In Desmond v. MGN [2009] 1 I.R. 737, the Supreme Court recently had again occasion to consider the principles applicable to the exercise of he court's undoubted jurisdiction to dismiss proceedings on the basis of delay. In the course of her judgment in Desmond, Macken J. indicated that she was satisfied that the test which I had set out in Stephens v. Paul Flynn Ltd [2005] IEHC 148, remained applicable being that the court should:-

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 3 2.2 There is only one question of emphasis that I need briefly to address. There have been a number of decisions of the Supreme Court in this area in recent years from which something of a difference of approach amongst the judges of that court can be identified. The judgment in Desmond was by a majority of two to one, with Geoghegan and Macken JJ. being the majority and Kearns J. dissenting. On the other hand the Supreme Court had, in Stephens v. Paul Flynn Ltd [2008] 4 I.R. 3 affirmed my decision in this Court in that case and had, it would appear, approved of the test applied by me. For the reasons set out by me in my judgment in Stephens, I had come to the view that, while the tests to be applied by the court remain the same as it set out in the long standing jurisprudence contained in cases such as Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the weight to be attached to factors properly taken into account in applying that test needed to be recalibrated in favour of a greater strictness of approach. In so doing I had regard, amongst other things, to the judgment of Hardiman J. in another Supreme Court case being Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290, and in particular, the references by Hardiman J. in that case to the effect of the jurisprudence of the European Court of Human Rights, ("ECtHR"). Hardiman J. was, of course, speaking for the court in Gilroy v. Flynn. Kearns J., who was, it will be recalled, in the minority in Desmond also gave the unanimous decision of the Supreme Court in Stephens v. Flynn.

4 4 2.3 To the extent, therefore, that there may be a question as to the relevance of the case law of the ECtHR in this area, there does appear to be differences between individual judges of the Supreme Court and differently constituted divisions of that court.

5 5 2.4 To that debate I would add just one comment. It is important to start by recalling the precise way in which the European Convention on Human Rights ("ECHR") comes to have effect in Irish law. This matter was most recently analysed by Laffoy J. in Byrne & Ors v. An Taoiseach & Ors [2010] IEHC 353. As reiterated by Laffoy J. in Byrne, the ECHR does not have direct effect in this jurisdiction. That principle has been clear since the decision of the Supreme Court in Re Ó Laighléis [1960] I.R. 93. While the issue with which Laffoy J. was concerned in Byrne is very different to the issue with which I am concerned, it is important to note that Laffoy J., at para. 8.4 of her judgment, made clear that the question with which she was faced fell "to be determined in accordance with Irish law interpreted and applied, insofar as applicable, in accordance with s. 2 of the Act of 2003 and having proper regard to s. 4 of the Act of 2003". The references to the Act of 2003 are, of course, references to the European Convention on Human Rights Act 2003 ("the 2003 Act").

6 6 2.5 Amongst other things, the 2003 Act requires that this Court should, insofar as it may be possible, when interpreting any legislative provision or rule of law, do so in a way which is compatible with Ireland's obligations under the ECHR. In addressing such compatibility Irish courts must have regard to judgments of the ECtHR. For those purposes I am satisfied that the exercise by the court of its inherent jurisdiction to dismiss proceedings for delay and the principles applicable to the exercise by the court of that jurisdiction is a "rule of law" in the sense in which that term is used in the 2003 Act. It follows that the law in this area should, where possible, be interpreted in a manner so as to bring it into conformity with the ECHR so that the interpretation is compatible with the State's obligations under that Convention. I do not understand any of the judgments of the Supreme Court to disagree with that proposition at the level of principle. However, it also needs to be acknowledged that, as Geoghegan J. pointed out in Desmond, there does not appear to be any relevant case of the ECtHR which deals with the circumstances in which an action should be struck out for delay. The obligation on a State which subscribes to the ECHR is to provide for a timely disposition of court proceedings. The ECHR does not, of itself, therefore, necessarily require that proceedings be struck out for delay as such.

7 7 2.6 However, it does seem to me that the ECHR is of some relevance in this area. The relevant obligation is one of the member state. It is clear from the jurisprudence of the ECtHR that the fact that, in some jurisdictions, the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings, does not dispense the relevant state from complying with the requirement to ensure that cases we dealt with in a reasonable time. See, for example, Price v. United Kingdom and Lowe v. United Kingdom (Case No. 43186/98, 29 ^th July, 2003). As pointed out by the ECtHR at para. 23 of the judgment in that case:-

"The manner in which a state provides for mechanisms to comply with this requirement - whether by way of increasing the number of judges, or by automatic time limits and directions, or by some other...