Ryans Bakery Wexford Ltd v Harmony Row Financial Services Ltd and Independent Trustee Company Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 27 April 2022
• Neutral Citation: [2022] IEHC 242
• Court: High Court
• Docket Number: [Record 2012/5992/P]

Between

Ryans Bakery Wexford Limited

Plaintiff

and

Harmony Row Financial Services Limited and Independent Trustee Company Limited

Defendants

[2022] IEHC 242

[Record 2012/5992/P]

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendants seeking to dismiss the plaintiff’s claim for want of prosecution – Whether there had been inordinate and inexcusable delay

Facts: The plaintiff, Ryans Bakery Wexford Ltd, in June 2006, purchased two geared tracker bonds from the defendants, Harmony Row Financial Services Ltd and Independent Trustee Company Ltd. Both performed badly and the plaintiff lost virtually all the money it had invested. In June 2012, very close to the applicable six-year limitation period, the plaintiff issued a plenary summons in which it claimed damages for negligence, misrepresentation, negligence, misstatement, breach of contract, breach of fiduciary duty and breach of duty. The plenary summons was not preceded by any initiating correspondence which meant that the defendants were given no information about the plaintiff’s claims or the facts giving rise to them. On 7 July 2020, the defendants issued a motion to dismiss the plaintiff’s claim pursuant to O. 27 r. 1 of the Rules of the Superior Courts for want of prosecution on the basis that the plaintiff had failed to deliver a statement of claim within the prescribed time. The defendants had previously threatened to bring that motion in correspondence dated 26 July 2019. By the time the motion issued, there had been a delay of over eight years in filing the statement of claim.

Held by the High Court (Bolger J) that the delay in the case from 2012, when proceedings were issued, to July 2020, when the motion was issued, had been inordinate. Bolger J found that some of that delay, in particular from November 2018, was caused by the plaintiff. Bolger J did not find the delay excusable either by the conduct of the plaintiff’s previous solicitors, the challenges they encountered in securing an expert witness report or their initial strategy of seeking to run a test case. In considering the balance of justice, Bolger J did not consider that the plaintiff had established countervailing circumstances to persuade her that those proceedings should not be dismissed albeit she accepted that the consequences of a dismissal would be to deny the plaintiff the opportunity to make their case against the defendants. Bolger J found that the defendants had established specific prejudice such as to outweigh the prejudice suffered by the plaintiff, in that the case was likely to require oral evidence and the proceedings were still well away from being ready to be set down for trial.

Bolger J allowed the defendants’ application to dismiss the proceedings on grounds of delay. Bolger J held that the defendants, having succeeded, were entitled to their costs both of the motion and the proceedings.

Application granted.

JUDGMENT of Ms. Justice Bolger delivered on the 27th day of April, 2022

1 This is the defendants' application to dismiss the proceedings for the delay that occurred from 2012 when the proceedings were issued to July 2020 when this motion was filed.

2 The court must establish:-

• (1) Has there been inordinate delay?

• (2) If so, is that delay excusable?

• (3) If the delay is both inordinate and excusable, does the balance of justice lie in favour of dismissing the proceedings?

Background

3 The plaintiff runs a bakery business in Wexford. The defendants sell financial investment products. In June 2006 the plaintiff purchased two geared tracker bonds from the defendants. Both performed badly and the plaintiff lost virtually all the money it had invested. In June 2012, very close to the applicable six-year limitation period, the plaintiff issued a plenary summons in which it claimed damages for negligence, misrepresentation, negligence, misstatement, breach of contract, breach of fiduciary duty and breach of duty. The plenary summons was not preceded by any initiating correspondence which meant that the defendants were given no information about the plaintiff's claims or the facts giving rise to them.

4 On 7 July 2020 the defendants issued a motion to dismiss the plaintiff's claim pursuant to O.27 r.1 of the Rules of the Superior Courts dismissing the plaintiff's claim for want of prosecution on the basis that the plaintiff had failed to deliver a statement of claim within the prescribed time. The defendants had previously threatened to bring that motion in correspondence dated 26 July 2019. By the time the motion issued, there had been a delay of over eight years in filing the statement of claim.

5 The court was furnished with a useful chronology of relevant events, summarised below.

Date	Step
June 2006	Defendants alleged to have been engaged by the Plaintiff
19 June	Plenary Summons issued 2012
2 September 2013	Defendants enter an Appearance
9 March 2016	Plaintiff's solicitors file a Notice of Change of Solicitors
9 March 2016	Plaintiff files a Notice of Intention to Proceed
11 September 2019	Defendants file a Notice of Intention to Proceed
11 October 2019	Defendants issuing a “Warning Letter” in respect of this Motion
28 December 2019	Plaintiff indicates correspondence should be sent to a “case coordinator”
27 Jan 2020	A Notice of Motion filed for the Plaintiff's solicitors to come off record
14 February 2020	Defendants issuing a further “Warning Letter” in respect of this Motion
10 March 2020	The Plaintiff's solicitors given liberty to come off record
13 July 2020	This Motion issued
14 December 2020	This Motion's return date
28 January 2021	The Plaintiff's current solicitors come on record
25 March	Replying Affidavit on behalf of the plaintiff 2021
7 April 2021	Delivery of Statement of Claim
12 May 2021	Replying Affidavit of the defendants

The defendants' submissions

6 The defendants contend that the delay is inordinate and that the excuses offered by the plaintiff are inadequate. They rely on decisions of this court which condemned similar or lesser periods of delay as inordinate; one year and three months ( Diamrem Ltd v. Clare County Council [2021] IEHC 408) three years and two months ( Bank of Ireland v. Wilson and Cahalane [2020] IEHC 646) four years and one month ( Millerick [2016] IECA 206) and two years and seven months ( Allied Irish Banks Public Ltd v. Boyle [2020] IEHC 377). The defendants submit that a plaintiff who issues their proceedings very close to the time when they would have been statute barred, is under a greater obligation to progress the proceedings without delay, as per Noonan J. in McGuinness v. Wilke and Flanagan Solicitors [2020] IECA 111. The defendants rely heavily on the Supreme Court's view set out in Comcast International Holdings v. Minister for Public Enterprise and Ors [2012] IESC 50 that the courts should no longer indulge litigants who delay in prosecuting their proceedings.

7 In assessing the balance of justice, the defendants submit that a heavy burden rests on the plaintiff to point to countervailing circumstances to cancel out delays that the court has found to be inordinate and inexcusable and rely in particular on the decision of Allen J. in South County Dublin Council v. CF Structures Ltd [2021] IEHC 5 which, the defendants submit, does not require them to establish special prejudice they have suffered special prejudice as a result of the delay. Nevertheless they identify the prejudice they would suffer if the proceedings were allowed to continue, in highlighting the plaintiff's failure to identify anyone who furnished the advice which the plaintiff now claims was negligent etc., or any documentation relevant to its claim. That means that oral testimony will be necessary but the defendants say they will be prejudiced in adducing evidence after the passage of so many years since they were engaged by the plaintiff. The defendants rely on the decision of Noonan J. in McGuinness v. Wilkie where the court found that witnesses could not have the benefit of written statements of their recollections made at an early juncture because the defendant had no idea what case was being made against it before it received the statement of claim some seven to eight years after the relevant event. The defendants also rely on the decision of Heslin J. in Boyle on the real risk that witness memories will be impaired or less reliable than would have been the case had the proceedings been properly progressed.

The plaintiff's submissions

8 The plaintiff disputes that the delay in delivering the statement of claim was inordinate, but if it was, the plaintiff seeks to excuse it by relying on the difficulties it claims it encountered firstly with its former solicitors and secondly in securing an expert witness. The plaintiff accepts that at least some oral evidence will be required to prove what it claims were oral representations made and advices given to it by the defendants, but seeks to rely on the fact that the defendants have not claimed that any of its potential witnesses have died, nor have they identified witnesses or documents that are not available to them. However, the plaintiff also fairly accepts that it has not identified any individuals or documents supporting its allegations in the statement of claim. It says this was because counsel had to draft the statement of claim with limited information as their solicitors' file is still being held by the plaintiff's second firm of solicitors.

9 The plaintiff relies on the decision of Ferriter J. in Traynor v. Netech Renewables Ltd [2022] IEHC 36 where there had been delay but as the court expected the trial would revolve around expert evidence, it held that the defendants were not any worse off than they would have been if the proceedings had been...