Silverdale & Hewetts Travel Agencies Ltd v Italiatour Ltd T/A Off Shore World Cup 94 and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Finnegan
• Judgment Date: 07 November 2000
• Neutral Citation: [2000] IEHC 80
• Docket Number: No. 4410P/1995
• Date: 07 November 2000

[2000] IEHC 80

THE HIGH COURT

No. 4410P/1995

SILVERDALE & HEWETTS TRAVEL AGENCIES LTD v. ITALIATOUR LTD T/A OFF SHORE WORLD CUP 94 & ORS

BETWEEN

SILVERDALE & HEWETT'S TRAVEL AGENCIES LTD

PLAINTIFF

AND

ITALIATOUR LIMITED TRADING AS OFF SHORE WORLD CUP ”94 AND DAVID DRYER AND DAVID DRYER SPORTS TOURS LTD

DEFENDANTS

Citations:

RSC O.122 r11

RSC O.36 r12(b)

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561

O DOMHNAILL V MERRICK 1984 IR 151

Synopsis:

Practice and Procedure

Delay; issue arises in the context of a claim for breach of contract; first named defendant seeks an order pursuant to inherent jurisdiction of the court dismissing the proceedings on ground of inordinate and inexcusable delay; whether plaintiff guilty of inordinate and inexcusable delay; whether circumstance that third named defendant has gone into liquidation is one which renders the delay prejudicial to first named defendant; whether non availability of second named defendant as a witness is as a matter of probability as a result of the plaintiff's delay; whether fact that first named defendant could have issued current Motion at much earlier stage, but chose to delay doing so until limitation period with regard to institution of substantive proceedings had expired, is a relevant consideration in determining balance of justice; whether balance of justice is in favour of or against the proceeding of the case.

Held: Relief refused; plaintiff guilty of inordinate and inexcusable delay; balance of justice favours allowing the case to proceed.

Silverdale & Hewett's Travel Agencies Ltd. v. Italiatour Ltd. - High Court: Finnegan J. - 07/11/2000 - [2001] 1 ILRM 464

The plaintiff’s claim was for breach of contract regarding an agreement with the defendants for the sale in Ireland of travel packages to the 1994 World Cup in the U.S.A. The central issue in the action concerned the authority of the second and third defendants to conclude the alleged agreement. In this application the first defendant sought an order pursuant to the inherent jurisdiction of the court dismissing the proceedings on grounds that the plaintiff had been guilty of inordinate and inexcusable delay in prosecuting the proceedings. Mr Justice Finnegan held that the plaintiff had a duty to ensure that its claim was prosecuted with reasonable expedition. In considering whether the balance of justice lay in favour of the plaintiff’s action proceeding, the defendant must show that prejudice arose out of the plaintiff’s delay. Mr Justice Finnegan said that he was satisfied that the balance of justice was in favour of allowing the action to proceed.

Mr Justice Finnegan

1 The Plaintiff's claim is for damages for breach of contract. It alleges that it entered into an agreement with the first named Defendant to act as agent for the first named Defendant in Ireland for the sale in Ireland of travel packages to the 1994 world cup in the USA. The agreement it is alleged was negotiated and concluded with the second and third named Defendants acting as agents for the first named Defendant. The central issue in the action is the authority of the second and third named Defendants to conclude the alleged agreement.

19th June 1995	Plenary Summons against the first named Defendant issued.
8th August 1995	Statement of Claim against the first named Defendant delivered.
17th August 1995	Notice for Particulars by first named Defendant delivered
8th February 1996	Plaintiff replied to first named Defendant's

	Notice for Particulars
13th February 1996	Notice for further and better Particulars by first named Defendant delivered.
21st February 1996	Plaintiff replied to first named Defendant's Notice for further and better Particulars
24th February 1996	Defence of first named Defendant delivered
1st May 1996	Amended Defence of first named Defendant delivered
13th May 1996	Order joining second named and third named Defendants as defendants. Plaintiff allowed 3 weeks to issue amended Plenary Summons and deliver Statement of Claim.
7th June 1996	Amended Statement of Claim delivered to the first named Defendant.
2nd July 1996	Plaintiff's Affidavit of Discovery sworn.
22nd October 1996	Amended Plenary Summons (not issued) and amended Statement of Claims delivered to the second named and third named Defendants.
30th October 1996	Plaintiff's Motion for further and better Discovery against first named Defendant issued.
10th December 1996	First named Defendant's Affidavit of further and better Discovery sworn.
16th January 1997	Plaintiff's Motion for Discovery against first named Defendant struck out on consent.
25th May 1999	Notice of Intention to Proceed served by Plaintiff.
26th July 1999	Order extending the time for issue of the amended Plenary Summons and delivery of the amended Statement of Claim.
3rd August 1999	Amended Plenary Summons and amended

	Statement of Claim served on and delivered to the second named and third named Defendants.
November 1999	Solicitors for the second named and third named Defendants come off record.
26th January 2000	Notice of Intention to Proceed served by Plaintiff.

The proceedings in the action were as follows:-

2 There was no correspondence between the Solicitors to the Plaintiff and the Solicitors to the first named Defendant in the period from June 1997 to the 25th May 1999.

3 It is clear from the foregoing that there has been delay on the part of the Plaintiff. Following the Order dated 13th May 1996 joining the second named and third named Defendants as defendants the amended Plenary Summons was not issued. However a form of amended Plenary Summons and Statement of Claim was served on the second named and third named Defendants on the 22nd October 1996. The failure to issue an amended Plenary Summons came to light when the Solicitors for the second named and third named Defendants attempted to enter an appearance on the 11th February 1997. While the necessary papers for an application for an extension to the time limited by the Order of 13th May 1996 were drafted the matter was thereafter overlooked and it was only on the 26th July 1999 that an Order was made extending the time for the issue of the amended Plenary Summons and the delivery of the amended Statement of Claim. The amended Plenary Summons was thereafter duly served on the second named and third named Defendants on the 3rd August 1999 and the amended Statement of Claim was delivered on the same date. There was accordingly a period of delay extending form early June 1996 to late July 1999 a period of more than 3 years. However during that period matters progressed between the Plaintiff and the first named Defendant to the point where the motion for further and better discovery against the first named Defendant was struck out on consent on the 16th January 1997. Correspondence ensued in relation to discovery but this ceased in June 1997. Accordingly a period of complete inactivity ran from June 1997 to July 1999 a period of two years.

4 On the 20th March 2000 the first named Defendant issued a motion seeking the following reliefs:-

5 1. An Order pursuant to the inherent jurisdiction of the Court dismissing the proceedings as against the first named Defendant on grounds that the Plaintiff has been guilty of inordinate and inexcusable delay in prosecuting the proceedings.

6 2. In the alternative an Order under Order 122 Rule 11 of the Rules of the Superior Courts there having been no proceeding for 1 year from the last proceeding had in the action.

7 3. In the alternative an Order pursuant to Order 36 Rule 12 (b) of the Rules of the Superior Courts dismissing the Plaintiff's...