Ireland: Don’t Delay In Bringing An Application To Strike Out Proceedings

Last Updated: 19 February 2015
Article by Joanelle O’Cleirigh and Philippa Walsh
Most Read Contributor in Ireland, October 2018

A recent decision of the High Court offers some useful guidance on the appropriate time for a defendant to bring an application to strike out proceedings for delay or want of prosecution and also considers the merits of serving a "holding" Statement of Claim pleaded in general terms.

In Boliden Tara Mines Ltd v Irish Pensions Trust Ltd the High Court agreed to extend time for the delivery of a Statement of Claim, notwithstanding the passing of seven years since the proceedings were served on the defendant. In the ordinary course, a plaintiff will deliver a Statement of Claim with the plenary summons or within 21 days of a request by the defendant. The judge accepted that the plaintiff's delay was inordinate and inexcusable. However, she refused to strike out the proceedings on the basis that the defendant did not bring a motion to strike out the proceedings at the appropriate time and had, in a sense, acquiesced in the delay.

In the substantive proceedings, Boliden Tara Mines (BTM) is seeking damages from Irish Pension Trust Ltd (IPT) for negligence, breach of contract and breach of duty for allegedly failing to draft a deed of amendment to a pension trust deed in accordance with BTM's instructions.

In considering whether to allow an extension of time for delivery of the Statement of Claim, the Court had regard to the following timeline:

  • 30 January 2006 – BTM commenced the proceedings.
  • 24 January 2007 – BTM served the proceedings on IPT.
  • 21 December 2010 – Related proceedings involving BTM and IPT were determined by the Supreme Court.
  • 6 November 2012 – BTM served a Notice of Intention to Proceed on IPT.
  • 21 November 2012 – IPT queried why BTM was seeking to restart the proceedings after a five year lull and advised BTM that it was considering its options, including bringing an application to strike out the proceedings for want of prosecution.
  • 17 December 2012 – IPT indicated that it would consent to late delivery up to 4 January 2013, but that in the event that the Statement of Claim was not received by that date, BTM would be required to seek a court order extending time for delivery.
  • April 2013 – BTM purported to deliver its Statement of Claim, but IPT refused to consent to its late delivery

Baker J noted that delay between January 2007 and December 2010 was partly due to the fact that BTM regarded the proceedings as having been "parked" pending the determination of related Supreme Court proceedings involving it and IPT. The judge accepted that it was not unreasonable for BTM to await the conclusion of these proceedings before preparing its Statement of Claim, noting that BTM was not in a position to quantify its losses while the proceedings were ongoing or to formulate its Statement of Claim in any meaningful way. She rejected IPT's submission that BTM could simply have filed a "holding" Statement of Claim in general terms, with a view to applying to the Court at a later stage to amend and refine it. The judge noted that such a course of action would have necessitated a further application to court and the service of further amended pleadings and would have been "unnecessarily wasteful" and an ineffective use of court time.

However, the judge noted that although the related proceedings were determined by the Supreme Court on 21 December 2010, BTM waited almost two years before taking any step in the proceedings. She regarded this period of delay as both inordinate and inexcusable. She stated that as and from 21 December 2010, or at least following the determination of the costs application in the related proceedings, it was incumbent on BTM to progress the case.

Notwithstanding this finding, the judge decided to exercise her discretion to allow an extension of time. The key determining factor in the judge's decision was IPT's letter of 17 December 2012. The judge noted that this letter conveyed the impression that (i) IPT had not suffered any prejudice as a result of the delay; (ii) IPT was not, at that time, seeking to have the proceedings dismissed for delay and was more concerned with getting the proceedings progressed to trial; and (iii) IPT broadly accepted BTM's inaction.

The judge stated that while IPT had behaved appropriately in initially agreeing to an extension of time, it should have issued a motion to strike out the proceedings either (i) when BTM failed to deliver its Statement of Claim following service of a Notice of Intention to Proceed; or (ii) when BTM failed to meet the deadline of 4 January 2013. Accordingly, Baker J held that BTM should be given a further short period of time to serve the Statement of Claim.

COMMENTARY

The courts are generally slow to strike out proceedings and careful consideration is required before embarking on an application to strike out. While each case will depend on its own facts, it seems clear from this decision that if a plaintiff serves a Notice of Intention to proceed after a prolonged period of inactivity and then fails to progress the proceedings, the defendant should review the history of the proceedings to determine whether there are any grounds to dismiss the claim. If there are any such grounds, the defendant and his legal team should act without delay.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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