Striking Out Proceedings For Inordinate And Inexcusable Delay

Author:Mr Dudley Solan, Peter Lennon, Daniel Scanlon, Graham O'Doherty, Nicholas Cole and Enda O'Keeffe
Profession:Maples and Calder
 
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In Yvonne Casserly v Mary O'Connell, Practising as O'Connell & Co Solicitors [2013] IEHC 391, the High Court, in the context of an application to strike out the plaintiff's proceedings on the grounds of undue delay, considered the difficult question as to the balance that must be struck between two constitutionally inspired interests; namely, the right of access to the courts as against the right to have proceedings determined within a reasonable time. Facts In mid-2000, the plaintiff was involved in a serious road traffic accident in Spain and, upon her return to Ireland, she instructed the defendant solicitor (the "defendant") to initiate a personal injury claim on her behalf. The action had to be pursued in the Spanish courts; however, the proceedings were not commenced within the Spanish period of limitation for such an action and the plaintiff took an action against the defendant for professional negligence. The defendant asserted that, as she had engaged Spanish lawyers to bring the original action, any claim should be brought against them. Delay The professional negligence proceedings were commenced on 19 September 2005 but were not served on the defendant until 3 August 2006. A Statement of Claim was served in December 2006. Thereafter, the defendant immediately served a Notice for Particulars. Replies to that Notice for Particulars were prepared in July 2009, but through an oversight, were not served on the defendant's solicitors. Thus, while the Defence was delivered in April 2008, a Reply was not furnished until November 2011. An Order for Discovery was made by the Master of the High Court on 30 June 2009 and eight letters were sent by the defendant's solicitors to the plaintiff's solicitors between March 2010 and February 2012 reminding the plaintiff of her obligation to make discovery. Despite repeated assurances, discovery was only made in February 2012. The failure to make discovery in a timely fashion, the court indicated, severely handicapped the defendant's endeavours to have the case set down for trial. The court also noted that a number of the delays arose from difficulties encountered in securing copies of the plaintiff's medical records. Relevant principles The legal principles governing undue delay were established in the Supreme Court decision in Primor plc v Stokes Kennedy Crowley ([1996] 2 IR 459). The Primor principles require the court to ask: (a) Was the delay inordinate? (b) If the delay was...

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