O'Brien v Brooks P/A Collins Brooks & Associates Solicitors & Ors (Approved)

In all of the circumstances I do not accept that the plaintiff has excused the inordinate period of delay that has occurred.

Having found that delays occurred which are both inordinate and inexcusable, the court must consider where the balance of justice lies. A significant factor in this exercise is identifying any prejudice that the defendants will suffer if the proceedings are to continue and the extent to which the defendants have established that they are at real risk of an unfair trial due to the delay.

Irvine J. (as she then was) in her decision in Millerick confirmed that “modest prejudice” is sufficient. The plaintiff challenges whether this analysis is consistent with the principles set out by the Supreme Court in Primor. Whether modest prejudice is sufficient or not, it is necessary to examine the precise prejudice the defendants claim they will suffer, in circumstances whether the burden of proof rests on the defendants to establish that prejudice.

The defendants state on affidavit that the evidence of any witnesses available to give evidence on their behalf will be significantly undermined by the inordinate passage of time, and will affect the accuracy of the recollection. They also say that the solicitor who dealt with the plaintiff’s files, Ms. O’Donovan, has long since retired from the defendants’ legal practice (although it is not suggested that she is not available to them). The defendants state that it is likely the significant bank documentation and possibly bank officials relevant to the proceedings will be unavailable for the hearing. Finally, the defendants state that their professional reputation has been damaged by having a claim for professional negligence hanging over them over a considerable period of time.

Issues arose in the course of the hearing as to whether this is a purely documents case or not. The plaintiff said on affidavit that the court should note the importance that the correspondence, records, and similar such documents would play in the case that he has advanced. He describes the case as one which will undoubtedly be dominated by contemporaneous documents and records kept or sent by his former solicitors, and he asks the court to consider the importance of documentary evidence in this case when weighing or assessing any allegation in generalised prejudice. In contrast the defendants say that there will be testamentary evidence required including that of the solicitors who advised the plaintiff and bank witnesses. The defendants state on affidavit that it is “possible” that bank officials relevant to the proceedings will be unavailable for the hearing. However, nothing has been put on affidavit of any attempt made by or on behalf of the defendants to secure the availability or establish the non-availability of those witnesses, or to have secured a record of their evidence when the proceedings issued and when recollections may have been clearer.

This is not a case where any potential witness has been identified as having died, as being unavailable, or whose recollection has been adversely affected by medical difficulties, as occurred in decisions such as Mulligan v. Wilkie and Flanagan Solicitors [2019] IEHC 289 .

The defendants did not query the identity of the bank personnel, referred to by the plaintiff in general terms, when they raised a notice for particulars, but rather only sought copies of correspondence, notes, memoranda, or telephone conversations, or notes of same made between the plaintiff and the bank or its representatives.

The plaintiff relies on the Court of Appeal decision in Sullivan v. HSE [2021] IECA 287 in which, despite the death of a witness and the unavailability of certain records, the court allowed proceedings to continue after delays of between three and a half and four and a half years, which the court accepted was inordinate.

The court has also had regard to the decision of the Supreme Court in Mangan v. Dockery [2020] IESC 67 , where proceedings were allowed to continue in spite of very lengthy delays.

The delays in this case are both inordinate and inexcusable. However, I do not consider that the balance of justice lies in favour of dismissing the proceedings, as I do not consider the defendants have identified any sufficient prejudice arising from that delay such as may give rise to an unfair trial. Even though I accept that modest prejudice would be sufficient, I do not consider the defendants have identified even modest prejudice. The fact of a delay must, in any event, be balanced against the prejudice that the plaintiff will suffer if he is to be denied the opportunity to make his case.

This is a case in which the documentary evidence will be significant albeit it will not be the only source of evidence.

There is no evidence presented by the defendants as to why any of their witnesses may be unavailable, or of any attempts to address any such difficulties from when they were first made aware of these proceedings. I am not satisfied that the defendants have established sufficient evidence of a risk they will suffer an unfair trial that could outweigh the prejudice to the plaintiff of striking out these proceedings.

I find support for this approach in the decisions of the Court of Appeal in Sullivan and of the Supreme Court in Mangan, where proceedings were permitted to continue in spite of very lengthy periods of delay.

I refuse the defendant’s application to dismiss.

My indicative view on costs is that the plaintiff, having succeeded in defending the application to dismiss, is entitled to his costs. I will fix the matter for hearing at 10 am on 17 June to enable the parties to make such further submissions as they wish to make in relation to costs and/or whatever final orders require to be made. I do not require written submissions.