Wolfe v Wolfe

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 15 March 2006
• Neutral Citation: [2006] IEHC 106
• Court: High Court
• Date: 15 March 2006

[2006] IEHC 106

THE HIGH COURT

[No. 292 COS/1996]

[No. 8656P/1996]

WOLFE v WOLFE & ORS

BETWEEN

MARTIN WOLFE AND RUTH WOLFE

PETITIONERS

AND

PETER WOLFE, ANGELA WOLFE, RANGER HOLDINGS LIMITED AND JOHN ATKINS & COMPANY LIMITED

RESPONDENTS

AND

BETWEEN

MARTIN WOLFE AND RUTH WOLFE

PLAINTIFFS

AND

PETER WOLFE, ANGELA WOLFE, RANGER HOLDINGS LIMITED AND JOHN ATKINS & COMPANY LIMITED

DEFENDANTS

COMPANIES ACT 1963 S205

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD MONTGOMERY & ORS 2002 3 IR 510

GILROY v FLYNN 2005 1 ILRM 290

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.06.2005 2005 IEHC 294 2005/53/11045

COMPANIES ACT 1963 S60

COMPANIES ACT 1990 S31

PRACTICE AND PROCEDURE

Dismissal of proceedings

Delay - Application to dismiss proceedings -Whether delay in prosecution of proceedings inordinate and inexcusable - Whether balance of justice in favour of allowing claim to proceed - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 applied - Rogers v Michelin Tyres plc [2005] IEHC 294 approved - Application dismissed (1996/292COS & 1996/8656P - FinlayGeoghegan J - 15/3/2006) [2006] IEHC 106 Wolfe v Wolfe

Facts: The first, second and third named defendants sought an order pursuant to the inherent jurisdiction of the court dismissing the plaintiffs’ claims against them by reason of inordinate and inexcusable delay in prosecuting the proceedings.

Held by Finlay Geoghegan J. in dismissing the application: That notwithstanding the fact that the delay in prosecuting this case was inordinate and inexcusable the balance of justice favoured permitting the plaintiffs to proceed with their claims on a conditional and limited basis.

Reporter: L.O’S.

1 Judgment of Ms. Justice Finlay Geoghegan delivered the 15th day of March, 2006.

Preliminary

2 This judgment is given in two similar applications one brought in each of the above entitled proceedings by the first, second and third named respondents/defendants seeking an order pursuant to the inherent jurisdiction of the court dismissing the petitioners/plaintiffs” claims against such defendants by reason of the inordinate and inexcusable delay in the prosecution of the proceedings.

3 The petitioners/plaintiffs are husband and wife. I will refer to them hereafter as the plaintiffs. The first and second named defendants/respondents are husband and wife and shareholders in the third named respondent/defendant. I will refer to these parties as defendants. The first named plaintiff is the younger brother of the first named defendant. The plaintiffs and the first and second named defendants and other family members of both the Wolfe and Atkins families were shareholders in the fourth named defendant/respondent. It is taking no part in the proceedings and some time ago has indicated that it will abide by whatever order is made by the court.

4 The plenary proceedings were commenced by a summons issued on 5th October, 1996. The petition was issued claiming relief under s. 205 of the Companies Act 1963 on 3rd December, 1996. Both sets of proceedings relate to the affairs of the fourth named defendant ("the Company"). It is Cork based trading inter alia in the sale of farm and horticultural machinery, fertiliser seed, timber and fuel. The primary transactions complained of in the proceedings took place in June, 1996 in connection with the purchase by the third named defendant of shares of other members of the Wolfe and Atkins families in the Company. There are other complaints including one in relation to the dividend policy and an alleged "campaign of oppression" against the plaintiffs. All claims are denied in the defence.

Procedural History

5 As already appears the proceedings commenced in 1996. Notice of trial in the s. 205 proceedings was served in August, 1997. In February, 1999 amendment to the plenary proceedings was permitted by order of the High Court. On 30th November, 1999, the proceedings were listed for hearing but there was no judge available.

6 Both sets of proceedings came on for hearing before the High Court (Herbert J.) on 21st June, 2000. It was at hearing on 21st, 22nd, 23rd and 27th when an application was made to dismiss both sets of proceedings. It was contended that the case sought to be made on behalf of the plaintiffs went outside the pleadings. On 29th June, 2000, the application to dismiss the proceedings was refused and the petitioners were given liberty to issue a notice of motion seeking liberty to re-amend (there had been an earlier amendment) the s. 205 petition. Following a hearing of that matter Herbert J. delivered a reserved judgment on 28th July, 2000, and by order of that date permitted amendment of the petition as set out in the orders. The amendment was permitted on conditions including orders for costs against the plaintiffs in favour of the defendants.

7 The amended petition was delivered on 2nd October, 2000. A notice for particulars was raised on 8th November, 2000. Replies to those particulars were furnished on 3rd October, 2001. Further particulars were raised on 6th December, 2001, and they were replied to on 29th January, 2002.

8 Amended points of defence were delivered on 17th April, 2002. The primary complaint of delay now made is that since the 17th April, 2002. The only subsequent step taken by or on behalf of the plaintiffs in the proceedings relates to the obtaining of the transcripts of the hearings before Herbert J. A motion was issued seeking same on 3rd July, 2003. The transcripts appear to have been released in March, 2004 on agreed terms including payment by the plaintiffs of a proportion of the cost of same.

9 On 7th June, 2005, a motion was issued in the plenary proceedings seeking the orders dismissing the claims pursuant to the inherent jurisdiction of the court. It was returnable for the 4th July, 2005. On 27th June, 2005, a similar motion was issued in the petition proceedings returnable for the 11th July, 2005. It is these motions which were heard before me in February, 2006.

10 On 7th July, 2005, notice of change of solicitor for the plaintiffs from George F. Daly and Co. to M.J. O'Connor and Co. was served and filed. This was the second notice of change of solicitor for the plaintiffs since the hearing before Herbert J. In 2001 there had been a change from the original solicitors to George F. Daly and Co.

Applicable Law

11 Counsel for both parties were in substantial agreement that the principles to be applied by this court in determining the present applications or those set out by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and summarised by Hamilton C.J. at pp. 475 – 476 as follows:-

12 (a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

13 (b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

14 (c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

15 (d) in considering this latter obligation the court is entitled to take into consideration and have regard to

16 (i) the implied constitutional principles of basic fairness of procedures,

17 (ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

18 (iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,

19 (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

20 (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

21 (vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

22 (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.

23 It was submitted, correctly on behalf of the defendants that whilst these principles continue to be applicable they must be applied in accordance with the approach of the Supreme Court in certain later decisions including Anglo Irish Beef Processors v. Montgomery [2002] 3 I.R. 510 and Gilroy v. Flynn [2005] 1 ILRM 290. The Court's attention was drawn in particular to what were termed "significant developments" since the decision in Primor v. Stokes Kennedy Crowley by Hardiman J. in Gilroy v. Flynn. Only the second and third developments are of relevance to the facts herein as stated by Hardiman J at pp. 293 – 294.:

"Secondly, the courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to...