William Moffett and Another v O'Hare and Mcgovern Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barrett |
| Judgment Date | 25 July 2014 |
| Neutral Citation | [2014] IEHC 368 |
| Court | High Court |
| Date | 25 July 2014 |
[2014] IEHC 368
THE HIGH COURT
BETWEEN
AND
AND
PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287
O'DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593
MCH (J) v M (J) & ORS 2004 3 IR 385 2004/35/8084 2004 IEHC 112
GUERIN v GUERIN & MCGRATH 1992 2 IR 287 1993 ILRM 243 1992/11/3697
MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27
RSC O.122
O'CONNOR v JOHN PLAYER & SONS LTD & ORS 2004 2 ILRM 321 2004/37/8672 2004 IEHC 99
COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS UNREP SUPREME 17.10.2012 2012/7/1702 2012 IESC 50
TRUCK & MACHINERY SALES LTD v GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP PLC UNREP GEOGHEGAN 12.11.1999 1999/24/7888
SILVERDALE & HEWETTS TRAVEL AGENCIES LTD v ITALIATOUR LTD T/A OFFSHORE WORLD CUP 94 & ORS 2001 1 ILRM 464 2000/16/6277
O'CARROLL & HUNT v EBS BUILDING SOCIETY & HALL UNREP O'MALLEY 1.2.2013 2013/41/11893 2013 IEHC 30
DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56
MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876 2004 IEHC 316
ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510 2002/2/275
CELTIC CERAMICS LTD & ORS v INDUSTRIAL DEVELOPMENT AUTHORITY & HUNT 1993 ILRM 248 1992/10/3185
Construction – Arbitration – Dismissal for want of prosecution – Defendants seeking the dismissal of the plaintiff”s proceedings for want of prosecution – Whether the delay arising is inordinate and inexcusable
Facts: The plaintiffs, Messrs Moffett and Logue, are the remaining partners of Newbay Properties. Newbay were the developers of a shopping centre completed in 1996. The second defendant, WDR & RT Taggart, was engaged by Newbay in 1994 to supervise and procure the erection of the centre. The first defendant, O”Hare and McGovern Ltd, was engaged by Newbay to construct the centre under a 1996 written agreement. Severe settlement ensued at the site after construction. The anchor tenant Tesco Ireland Ltd alleged poor design and construction and commenced arbitration proceedings against Newbay in 2001. The plaintiffs initiated court proceedings against the defendants in 2002. Tesco and Newbay entered into protracted arbitration of the dispute between them and a final award was issued in 2013. The defendants applied to the High Court for a dismissal of the plaintiffs” proceedings for want of prosecution pursuant to the Court”s inherent jurisdiction.
Held by Barrett J that, regarding O”Hare and McGovern Ltd, having considered the correspondence between the parties: (1) from the time it received the letter of 7th December, 2001, it knew of the arbitration and that Newbay was alleging liability on the part of O'Hare and McGovern; (2) from at least the time of the receipt of the letter of 27th August, 2002, it knew that Newbay's litigation was pending against them; (3) initially it looked as though this litigation would be contemporaneous with the arbitration but from at least the time of the letter of 20th December, 2004, it was apparent that the intent was that matters would be sequenced so that litigation would follow the arbitration; (4) thereafter, in 2007, 2011 and 2012, O'Hare and McGovern was kept apprised of the progress of the arbitration which finally concluded in early-2013; (5) it appears from the correspondence put before this Court that at no point prior to the instant application did O'Hare and McGovern apply to have the court proceedings that had been commenced against it dismissed on grounds of delay in prosecution of the claim. Regarding WDR & RT Taggart, Barrett J concluded that: (1) for some time previous to the issuance of the letter of 22nd May, 2002, they knew of the arbitration between Tesco and Newbay; (2) from at least the time of receipt of the letter of 30th August, 2002, they knew that related litigation against them was being commenced by Newbay; (3) as a result of the letter of 18th September, 2002, they had every reason to believe that the litigation would run contemporaneous with the arbitration; (4) from at least the time of the letter of 4th July, 2007, it was apparent that the intent was that matters would be sequenced so that litigation would likely follow the arbitration; (5) thereafter, in 2007, 2011 and 2012, Taggart were kept apprised of the progress of the arbitration and inputted into same, with the arbitration finally concluding, of course, in early-2013. Applying the Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 three-limb test and O'Domhnaill v Merrick [1984] IR 151 as governing an application for dismissal for want of prosecution, Barrett J held that the elapse of over nine years between the delivery of the defence and counterclaim in 2003, and the issuance in 2013, of the plaintiffs' notice of demand, constitutes inordinate delay. Barrett J considered, consistent with the general trend of the applicable authorities, including Desmond v. MGN Limited [2009] 1 IR 737, that the plaintiff”s delay in these proceedings was excusable. Barrett J held that regardless of whether the Court is correct as to the issues of inordinate delay and whether that delay is inexcusable, those factors have the effect that the balance of justice requires in any event that the instant proceedings be allowed to proceed.
Barrett J held that the Court declined to order that the plaintiffs' claim in these proceedings be struck out pursuant to the inherent jurisdiction of the court.
Application refused.
JUDGMENT of Mr. Justice Barrett delivered on the 25th day of July, 2014
1. These proceedings comprise an application by respectively the first defendant and the second to eleventh defendants to dismiss the plaintiffs' proceedings for want of prosecution pursuant to the inherent jurisdiction of the court. There is some discrepancy in the documentation before the court as to whether the surname of the first-named plaintiff is 'Moffett' or 'Moffat'; the court has proceeded on the basis that it is 'Moffett'.
2. Newbay Properties, of whom the plaintiffs are the remaining partners, were the developers of a shopping centre in Monaghan Town. The centre was substantially completed in or about November 1996. Taggart were engaged by Newbay in June 1994, to supervise and procure the erection of the shopping centre (the works). It was agreed that Power Supermarkets Limited would be the anchor tenant of the shopping centre pursuant to a lease dated 2 nd December, 1994. O' Hare and McGovern Limited was engaged to construct the shopping centre by Newbay under a written agreement of 20 th February, 1996. The works were carried out between April and November 1996, by which later time they were substantially completed. Subsequent to construction, severe settlement ensued at the site. Tesco Ireland Limited, the successor in title to Power, alleges that this is due to poor design and construction. Tesco commenced arbitration proceedings against Newbay in 2001 and Messrs. Moffett and Logue, who had bought out the interest of the other partners of Newbay, initiated court proceedings against the defendants in these proceedings in 2002. After some initial delay, the pace of those proceedings was relatively quick. Thus the plenary summons issued on 8 th February, 2002. The Statement of Claim was delivered on 13 th March, 2003. O' Hare and McGovern's notice for particulars issued on 3 rd June, 2003. Replies to same issued on 14 th July, 2003. A defence for Taggart issued on 30 th April, 2003. Taggart also issued a notice for particulars on the same date and a reply to same issued on 4 th June, 2003. A defence and counterclaim for O' Hare and McGovern was delivered on 8 th December, 2003. The plaintiffs issued a notice for particulars to O' Hare and McGovern on or about 8 th December, 2003. Then nothing of substance happened for a time. A notice of change of solicitor for the first-named defendant issued on 21 st January, 2005. After that, just over eight years passed until the issuance, on 22 nd February, 2013, of a notice of change of solicitor for Messrs Moffett and Logue, along with a notice of the plaintiffs' intention to proceed with their litigation. Why did the litigation effectively go into abeyance for the better part of a decade? In a nutshell, because Tesco and Newbay had entered into protracted arbitration of the dispute between them and this took centre-stage in the years that followed: thus they appointed an arbitrator effective 10 th January 2001; he issued two interim awards, one on 14 th January, 2004 and another on 2 nd February, 2007; following his death, a second arbitrator was appointed and issued a final award on 6 th March, 2013. The sequence of correspondence that flowed over the years between the plaintiffs and the defendants concerning the arbitration and the litigation is worth reciting in some detail:-
· - on 7 th December, 2001, a letter issued from the solicitors for Newbay to O' Hare and McGovern indicating that a dispute had arisen with Tesco and furnishing the points of claim served in the course of arbitration. This letter indicates that in the event of Tesco succeeding against Newbay in the arbitration, Newbay will hold O' Hare and McGovern responsible.
· - on 22 nd May, 2002, a letter issued from Taggart to Newbay indicating that the terms of their appointment to give technical advice in the arbitration proceedings had been accepted by Newbay.
· - on 27 th August,...
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