Strike-Out For Delay Due To Plaintiffs' Strategic Targeting Of Insurance Policies

Author:Ms Cathie Shannon and Cian O'Gorman
Profession:Beale & Company
 
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The decision in Honahan & anor v McInerney Construction Limited & ors [2018] IEHC 311 concerned the engagement by the plaintiffs of a number of parties for the purchase of a site and construction of a dwelling in February 1996. It is the latest in a string of recent applications to strike-out High Court actions where the plaintiffs have been less than assiduous in progressing their litigation.

The Court also made some useful comments on the pursuit by plaintiffs of insurance policies, which entailed naming as defendants parties against whom they had no cause of action1.

The plaintiffs alleged that due to the negligence of the defendants, they did not receive the full extent of the property they contracted to buy, as a result of a discrepancy between the original site layout map attached to the contract for sale and the Land Registry Approved Scheme Map.

the events which gave rise to the proceedings occurred in 1996 the Plenary Summons issued in November 2007 the applications to dismiss issued in the course of 2016 Three applications were before the Court seeking to dismiss the plaintiffs' claim on grounds of delay.

Murphy J. usefully restated the test set out in Primor plc v Stokes Kennedy Crowley2 as to, "whether there has been inordinate and inexcusable delay and if so, whether the balance of justice requires that the proceedings be dismissed"3. In addition the learned trial judge stated that if necessary the court should apply the test in O'Domhnaill v Merrick4, "...that even where a delay is found to be excusable a case can still be dismissed if the prejudice suffered by a defendant by reason of delay is such that a fair trial has become impossible".

The defendants / applicants submitted inter alia that it would be unjust to permit the plaintiffs' claim to proceed against them given the inordinate delay and that the balance of justice required the proceedings to be struck out. It was also submitted by a number of Applicants that they were wrongly named and the plaintiffs had no cause of action against them.

The Court observed that prior to issuing proceedings, the plaintiffs had correctly identified the parties against whom they believed they had a cause of action. Notwithstanding this, when proceedings issued, they issued against entirely different entities. The Court cited as "a serious error"5 the apparent belief on the part of the plaintiffs' solicitor that any liability attaching to a defendant would be covered by the insurance...

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