Legal proceedings in the civil courts in Ireland have historically had a poor reputation for delay. The time limits provided by the Court rules, unlike in England and Wales, are regularly ignored without serious consequences. Applications to strike out proceedings because of delay are often brought by frustrated defendants. Where the decisions are appealed, these are now heard by the Court of Appeal. How has it addressed the issue of delay?
Prior to October 2014, parties often waited more than four years for an appeal to be heard by the Supreme Court. There was a certain irony where appeals were brought in cases alleging delay in the proceedings. However, the new Court of Appeal is now starting to deal with the backlog. The Judges are adopting an approach which has led to some viewing the Court as a “colder place” than the Supreme Court. However, this does not mean that all cases are automatically struck out where there was found to be “inordinate and inexcusable delay” – the starting point for any application.
Strike Out for Delay? No
In Colm Granahan t/a CG Roofing1 the appellant appealed a High Court order striking out his claim for delay. Amazingly, the judgment on an “expedited” appeal was handed down by Ms. Justice Mary Irvine on 12 March 2015, a mere four months after the High Court decision under appeal. Parties can no longer “kick it into touch” by issuing an appeal and hope that the other party will lose interest, or run out of funds, before the appeal ever comes on for hearing.
Ms. Justice Irvine agreed with the High Court Judge that there had been inordinate and inexcusable delay. The Court was quite clear that “the primary responsibility for moving a case forward rests with the plaintiff.” The Court of Appeal then considered the next step in the application – where the balance of justice lay. A party has a constitutional right of access to the court. This must be balanced against the prejudice suffered by the defendant arising from the delay. The prejudice claim related to the unavailability of witnesses. The Court did not accept that a witness who had left the party’s employment, or who had moved out of the jurisdiction, was automatically unavailable to give evidence. The Court of Appeal weighed in the balance the same evidence heard by the High Court Judge and found in favour of the appellant.
However, the Court warned the Plaintiff to move quickly to protect himself from another application to strike out.
Strike Out for Delay? Yes
In contrast, the Court of Appeal upheld the High Court decision to strike out for delay in Tom Tanner v Aidan O’Donovan & Ors2. The facts out of which the claim arose took place in 1998/99 but by 2009 the case had not been set down for trial and the Defendants applied to strike out. The High Court struck out the proceedings in October 2010 and the Plaintiff appealed. Since then, the case had been waiting for hearing in the Supreme Court. The case was transferred to the Court of Appeal in October 2014 and the Court of Appeal gave judgment in February 2015.
Once again, the Court of Appeal found that the delay had been inordinate and inexcusable – the essential starting point.
In the next step – a consideration of the balance of justice – the Court acknowledged that “the courts have traditionally been reluctant to strike out claims of this kind on the grounds of undue delay, since this necessarily impinges on the litigant’s right of access to the courts.”
The claim arose from an oral contract, the terms of which were in dispute. The court pointed out that in assessing the balance of justice, it must take into account the plaintiff’s obligation to proceed promptly if he is slow to start the proceedings. However, it must balance that with the “impact on the professional reputation and good name of the defendants”. The Court acknowledged that the “very existence of such proceedings could in itself potentially impact on those reputations”. The Court noted that the Constitution implies that claims of this kind should be heard and determined within a reasonable time.
On the facts of this case, the Court of Appeal found that the balance of justice weighed in favour of the Defendants so that the case should be struck out.
Since these appeals have different outcomes, what can we conclude about the Court of Appeal’s approach to delay? Most significantly, appeals are being heard within a reasonable time period. Also, the Court of Appeal is clearly very aware of its constitutional obligations “to bring to an end the culture of delays in litigation.” However, ultimately, it is for the judges to “judge” how the scales are going to tip in the fine balance of justice between the parties.
1. Colm Granahan t/a CG Roofing and General Builders v Mercury Engineering IECA 58
2. Tom Tanner v Aidan O’Donovan and Elaine O’Donovan and Timothy P Murphy IECA 24
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