Truck & MacHinery Sales Ltd v General Accident Fire & Life Assurance Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 12 November 1999
• Neutral Citation: [1999] IEHC 201
• Docket Number: No. 2827P 1987
• Court: High Court
• Date: 12 November 1999

TRUCK & MACHINERY SALES LTD v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION

BETWEEN

TRUCK & MACHINERY SALES LIMITED

PLAINTIFF

AND

GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATIONPLC

DEFENDANT

[1999] IEHC 201

No. 2827P 1987

THE HIGH COURT

Synopsis

Practice and Procedure

Practice and procedure; delay; plaintiff had brought an action for failure to indemnify the plaintiff on foot of a policy in respect of damage by fire to plaintiff's business premises; defendant seeking order dismissing claim for want of prosecution or order requiring the plaintiff to furnish security for costs; whether delay is of a kind that would entitle the defendant to dismiss for want of prosecution; whether delay was inordinate; whether delay was inexcusable; whether all the surrounding circumstances including excuses based on extraneous activities must be taken into account and weighed in the balance in finally considering whether justice requires that the action be struck out; whether it would be just to strike out the action; s.390 Companies Act, 1963.

Held: It would not be just to strike out the action, order refused; order for security for costs to be made if necessary.

Truck & Machinery Sales Limited v. General Accident Fire and Life Assurance Corporation Plc. - High Court:Geoghegan J. - 12/11/1999

Since the case would be based largely on documentary evidence, the defendant was not prejudiced by the plaintiff's delay and would be in a position to the defend the claim. However, in light of the delay it would be unjust of the plaintiff, if it succeeded, to claim Courts Act interest. If the plaintiff were unsuccessful, the defendant might not be able to recover costs. The High Court so held in refusing to dismiss the plaintiff's claim but in requiring it to undertake not to claim Courts Act interest and in making an order for security of costs.

Citations:

COMPANIES ACT 1963 S390

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

1 Mr. Justice Geoghegandelivered the 12th day of November, 1999

2 The Defendant by motion on notice dated the 19th February, 1999 has applied to this Court for an order dismissing the Plaintiff's claim for want of prosecution or alternatively for an order requiring the Plaintiff to furnish security for costs pursuant to Section 390 of the Companies Act, 1963.

3 The action is an action for damages against an insurance company on foot of a contract of insurance made in the month of May 1982 for failure to indemnify the Plaintiff on foot of a policy in respect of damage by fire to the Plaintiff's business premises and the contents thereof arising out of a fire which occurred on 29th December, 1982. The defence to the action is that there was alleged material non disclosure rendering the policy voidable and that the Defendant has avoided it.

4 The chronology of the steps taken in the action is as follows:-

5 26th March, 1987 - issue of plenary summons;

6 3rd December, 1987 - delivery of Statement of Claim;

7 15th March, 1988 - delivery of Defendant's Notice for Particulars;

8 22nd June, 1988 - delivery of Replies to the Particulars sought;

9 15th July, 1988 - motion for judgment (time being extended for theDefence);

10 19th January, 1989 - Order and cross order for discovery;

11 27th February, 1989 - delivery of defence;

12 9th July, 1990 - delivery of Plaintiff's Affidavit of Discovery;

13 17th May, 1991 - Plaintiff's motion to strike out proceedings for failure on the part of Defendant to make discovery;

14 19th June, 1991 - delivery of Defendant's Affidavit of discovery;

15 25th September, 1991 - service of Plaintiff's Notice of Inspection;

16 16th September, 1993 - notice of trial served by Plaintiff;

17 2nd July, 1998 - Plaintiff's notice of trial struck out for non appearance at list to explain non certification;

18 4th December, 1998 - Plaintiff struck off Register of Companies; and

19 15th December, 1998 - Plaintiff restored to Register of Companies.

20 It would appear that the early history of this case involved delays on both sides. I think that the Defendant can only legitimately complain of delay from say 1st December, 1993 by which time the action ought to have been certified as ready for hearing and ought to have been included in a list to fix dates for the Hilary term.

21 The question which I have to now consider is whether the delay which has ensued since that date is of a kind that would entitle the Defendant to dismiss for want of prosecutionor under the inherent jurisdiction. There is a substantial body of case law on the legal principles to be applied but for the purposes of this case I do not think that I need go beyond the important Supreme Court decision in Primor Plc -v- Stokes, Kennedy, Crowley, [1996] 2IR 459. The principles of law to be applied are set...