“In light of the submissions made by Mr. McGovern concerning the defendant's failure to identify any specific prejudice arising from the delay, a further point needs to be made concerning the approach of the Court to the third leg of the Primor test. It is clear from the relevant authorities that in the presence of inordinate and inexcusable delay even marginal prejudice may justify the dismissal of the proceedings. (See Cassidy v. The Provincialate [2015] IECA 74 ). That is not to say, however, that in the absence of proof of prejudice the proceedings will not be dismissed. The Court is entitled to take into account all of the circumstances of the case including the list of factors outlined by Hamilton C.J. which are conveniently summarised in the head note of the Primor decision.”
Irvine J. also considered the nature or behaviour on the part of the defendant that could constitute acquiescence in any delay:
“39. For these reasons I am satisfied that in order for a defendant's conduct to be weighed against it when the court comes to consider where the balance of justice lies, a plaintiff must be in a position to demonstrate that the defendant's conduct was culpable in causing part or all of the delay. In other words, a simple failure on the part of the defendant to bring an application to strike out the proceedings will not suffice. Such inactivity must be accompanied by some conduct that might be considered to amount to positive acquiescence in the delay or be such as would give some reassurance to a plaintiff that they intend defending the claim, as might arise if, for example, they were to raise a notice for particulars or seek discovery during a lengthy period of delay.”
On the constitutional aspect applications such as this Irvine J. stated:
“40. Finally, recent decisions of the Superior Courts emphasise the constitutional imperative to bring to an end the all too long standing culture of delays in litigation so as to ensure the effective administration of justice and basic fairness of procedures. These decisions have emphasised the constitutional provisions contained in Article 34.1 which requires the courts to administer justice. This constitutional obligation presupposes that the court itself will strive to ensure that litigation is conducted in a timely fashion. In particular, in Quinn v. Faulkner t/a Faulkner's Garage and Another [ 2011] IEHC 103 Hogan J., at para. 29, criticised the court's prior tolerance to inactivity on the part of litigants when he stated:-
‘While as Charlton J. pointed out in Kelly v. Doyle [2010] IEHC 396 it would be wrong for the Court to strike out proceedings because of judicial disapproval, it must also be acknowledged that experience has also shown that the courts must also become more pro-active in terms of undue delay, since past judicial practices which had tolerated such inactivity on the part of litigants and which led to a culture of almost ‘endless indulgence’ towards such delays led in turn to a situation where inordinate delay was all too common: see, e.g., the comments of Hardiman J. in Gilroy v. Flynn [2004] IESC 98 , [2005] 1 IIRM 290 and those of Clarke J. in Rodenhuis and Verloop BV v. HDS Energy Ltd [2010] IEHC 465 .’”
In dealing with this application I will consider the following matters:
(I) Was there inordinate delay on the part of the plaintiff in prosecuting these proceedings?
(II) If such delay was inordinate, was it excusable?
(III) If the delay was both inordinate and inexcusable, does the balance of justice lie in favour of granting the relief sought?
Inordinate delay
I have set out above the chronology of the steps taken in the proceedings to date. I have referred to the fact that the proceedings were issued close to the expiry of the time allowed by the Statute of Limitations Act 1957 (as amended). This fact imposes on the plaintiff an onus to progress the proceedings without delay given the lapse of time that has already occurred between the events complained of and the issue of the proceedings. In the instant case, a further period of time just short of twelve months was allowed to elapse before the plenary summons was served. Even at this stage the proceedings were not prosecuted with any great vigour and the statement of claim was served on the second named defendant on 31 January 2017, close to two and a half years after service of the summons. There then followed service by the plaintiff of a notice of intention to proceed, though the second named defendant denies this.
Following a motion for judgment in default of defence the second named defendant delivered its defence on 13 August 2018. The plaintiff does not appear to have taken any steps between that date and the service of a further notice of intention to proceed on 22 November 2021.
In light of the foregoing, the lengthy delays between taking the most basic steps in the proceedings cannot be considered as being anything other than inordinate.
Is the inordinate delay excusable?
These are commercial type proceedings and, at all stages, the plaintiff had available to him legal advice. In the course of an affidavit sworn by the plaintiff in respect of an application by the first named defendant to dismiss the proceedings for want of prosecution, the plaintiff seeks to explain the delay on the basis that there was contact/negotiations between the parties to resolve the dispute without the necessity for a trial. There was also an attempt to arrange a mediation. Whereas it is entirely reasonable that parties should seek to resolve differences without recourse to legal proceedings, it remains the case that when legal proceedings are initiated, particularly where there has been significant lapse of time between the events complained of and the issue of the proceedings, there is an onus on the plaintiff to proceed without undue delay. In this case there is no suggestion that the plaintiff refrained from taking certain steps in the proceedings on the basis of any representation, express or implied, not to do so because of ongoing negotiations.
It is the case that there was a delay in the second named defendant delivering its defence, but that delay pales in comparison to the delay on the part of the plaintiff both in initiating and prosecuting his proceedings.
By reason of the foregoing, I am satisfied that the delay is both inordinate and inexcusable.
Balance of justice
Referring to the authorities cited above, I would accept that even marginal prejudice might justify striking out these proceedings. The height of the second named defendant’s case on prejudice is set out in the affidavit of Mr. Lavelle as follows:
“7. I say and believe that this defendant has a full defence to this claim. In addition, I say and believe that due to the efflux of time and turnover of staff this defendant is now in a position where it may be difficult to find witnesses to give oral evidence at trial, if necessary.”
The above statement has to be seen in the context that both in the statement of claim and replying affidavit the plaintiff makes specific reference to a named individual as holding “himself out as offering financial advice on behalf of the second named defendant and at all material times in relation to this investment and the other investments set out in this statement of claim, the plaintiff relied on the said financial advice.”
There is no information from the second named defendant to the effect that there is no availability or any impediment on the part of the named individual to be in a position to give evidence at trial, notwithstanding the lapse of time. In my view, where a named individual has been identified by the plaintiff, a general assertion that a lapse of time may make the giving of evidence difficult is not sufficient to establish even a low level of prejudice as would warrant striking out these proceedings.
Conclusion
By reason of the foregoing, I dismiss the application by the second named defendant to strike out these proceedings. As for the costs of this application, my provisional view is that though the plaintiff has been successful in defeating this application, I have found him to be guilty of inordinate and inexcusable delay in prosecuting his action and thus I propose to reserve the costs of this application to the trial of the action. If either party wishes to take issue with this, they may do so by furnishing written submissions (not more than 1500 words) on the issue of costs. Such submissions are to be filed on or before Friday 14 July 2023. I will list this matter for final orders on Friday 21 July 2023.