In light of the ongoing coronavirus pandemic, with many law firms working remotely and going “virtual”, as well as the Irish Court system being effectively closed, save for urgent matters, legal practitioners and their clients should be particularly mindful of the consequences of delay in relation to progressing legal proceedings.
In Brief: Professional negligence expert, Orla Begley, looks at a recent High Court decision, Start Mortgages DAC v Joseph McNamara and Joseph Harris, delivered on the 7th April 2020, where Judge Power found that a plaintiff’s failure to prosecute proceedings provided valid grounds for the claim to be dismissed for want of prosecution.
The proceedings began life with the plaintiff’s predecessor, Irish Life/Permanent TSB, bringing an unsuccessful claim for summary judgment against both defendants, Joseph McNamara and Joseph Harris, for a sum in excess of €300,000. During the procedural history Start Mortgages DAC was substituted as a plaintiff. The summary proceedings commenced on 13th July 2010 with return dates before the Master in June 2011, July 2011, October 2011, December 2011 and February 2012, when the matter was finally adjourned for plenary hearing in April 2012.
The defendants argued that no activity whatsoever had occurred in the matter after November 2013. However, the bank submitted that there was an order for discovery on 13th November 2013 which was not complied with by the defendant.
After several years of inactivity, the applicants wrote to the bank calling upon it to serve a notice of discontinuance. The defendants’ solicitors claimed that they had received no reply from the bank which prompted them to bring a motion to dismiss the plaintiff’s claim for want of prosecution on 14th February 2019 on the grounds of inordinate and inexcusable delay.
In considering this application, Judge Power considered a number of matters including the following:-
1. The legal principles as set out in the seminal 1996 case of Primor Plc v Stokes Kennedy Crowley, which is summarised in the 2016 case of Millerick v The Minister for Finance, where a three tiered test should be applied to the delay as follows: –
i) The delay must be inordinate;
ii) The delay must be inexcusable; and
iii) The delay must be considered in light of the balance of justice.
2. The court also referred to Article 6.1 of The European Convention of Human Rights which requires proceedings to be processed within a reasonable time.
3. The court considered the test set out in the 1984 Supreme Court case of O’ Domhnaill v Merrick which stated that a case might be dismissed if there was a real and substantial risk of an unfair trial or where defending the case would entail inexcusable and unfair burden on the defendant.
In delivering her judgment, Judge Power considered the delicate balancing act of ensuring the plaintiff’s constitutional right of access to the court versus the defendants’ rights to fairness and the prompt movement of litigation by the plaintiff.
The bank’s argument was that its’ claim should not be dismissed given that the claim itself was still not statute barred and the bank would be entitled to bring fresh proceedings even if the present case was dismissed. Notwithstanding the bank’s argument, Judge Power concluded that the function of the court is to administer justice and “permitting the Plaintiff who had instituted proceedings to stall them, without cause, for years on end, solely on the ground that the statute had not expired, does not have the appearance of justice”.
Given the bank’s inertia in prosecuting the claim and having regard to the constitution and the quoted case law, Judge Power concluded that the six year delay in question was serious and substantial and would cause a substantial risk of unfairness if the case went to trial and, on the balance of justice, dismissed the proceedings for want of prosecution.
Lessons for Plaintiffs and Plaintiff Solicitors
The case serves as yet another reminder that the failure to prosecute proceedings in a timely fashion may result in a claim being dismissed for want of prosecution.
For plaintiff solicitors this case once again highlights that inactivity by a plaintiff should be a matter of concern and that the plaintiff’s solicitor should at all times warn the client in the strongest and clearest possible terms of their duty to prosecute claims with all due haste and in accordance with good procedure. As was pointed out in the case of Emerald Isle Insurance and Investments Limited & Others v Patrick Dorgan and others practicing as Coakley Moloney Solicitors, it is extremely important for solicitors, especially in the current climate, to address the situation and to give clear advice to clients as to what their options are and the risks involved. A solicitor has a duty to provide an explicit warning to their client as to the consequences of delay.
Lessons for Defendants and Defence Solicitors
On the other hand, if you are the defendant, the decision re-enforces your right to a prompt and fair hearing and highlights that the defendant and the defendant’s solicitor should consider all their options where a plaintiff fails to progress the proceedings promptly.
Lessons for the Irish Legal System
Lesson too should be learned by the Irish legal system in relation to delay and it should be noted that even our courts should be conscious of not providing parties with “endless indulgence” which result in inordinate and unreasonable delays. This matter was recently highlighted by a judgment of the ECHR delivered on the 30th April 2020 in Keaney v Ireland, where it was held that the obligations which flowed from Article 6 of the Convention required that proceedings, both criminal and civil, must be concluded within a reasonable period of time. In this particular case, the six to seven year delay by the Irish Supreme Court to act on a motion to dismiss was held to be inordinate and unreasonable. Irish Judge, Siofra O’Leary, referred to “signs of a systemic problem” in the courts. Notwithstanding that the ECHR ultimately found in favour of Mr Vincent Keaney in relation to the delay, it also acknowledged that it was well aware of “realities” faced by the courts, especially in a jurisdiction where the ratio of judges to population is low and the volume of litigation is substantially greater that the number of judges available to deal with it.