There has been an increase in applications to dismiss legal proceedings for want of prosecution on the grounds of delay before the Irish courts in recent months. In this Briefing we look at the principles a court will apply to such applications, and their likelihood of success, with reference to these recent cases.
INTRODUCTION
The procedure, including the time periods, for the prosecution of civil proceedings before the High Court (Court) is regulated under statutory court rules, the Rules of the Superior Courts (RSC). The RSC make specific provision for applications to dismiss civil proceedings for want of prosecution where there is a failure to comply with certain procedural rules. Separate to applications under the RSC, the Court has an inherent jurisdiction to dismiss proceedings for want of prosecution on the grounds of delay where so required by the interests of justice.
In recent months several applications to dismiss proceedings for want of prosecution on the grounds of delay came before the Court. These judgments continue to illustrate that the success of an application to dismiss proceedings will depend on the particular facts of each case. A period of delay found to be prejudicial in one case may not be determinative of the point in subsequent cases of similar delay.
THE GUIDING PRINCIPLES
1) Post Commencement Delay
The principles to be applied by the Court on an application to dismiss civil proceedings on the grounds of delay depends on the nature of the delay. In the case of delay after the institution of the proceedings (post-commencement delay), the Court will apply a three-stage test, which has its roots in the Supreme Court decision of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 (Primor). The Court must determine:
- whether the plaintiff's delay is inordinate,
- whether that inordinate delay is excusable and if not,
- whether the balance of justice favours the dismissal of the action in all the circumstances.
INORDINATE DELAY
Whether delay can be characterised as "inordinate" is not capable of precise definition. The Court has held that it is primarily a question of fact. What constitutes inordinate delay in one case, may not be found to be so in another case. To illustrate this point, it is notable that three individual periods of delay of 15 months, two years and eight months, and four years and four months were each found to be inordinate in O'Reilly v National Document Management Group Ltd and Anor [2022] IEHC 37 (O'Reilly). However, in Hennessy v Ladbrokes Payments (Ireland) Ltd [2022] IEHC 60, periods of delay of 12 months and 15 months were found not to be inordinate.
In most cases, it will be clear whether the delay is inordinate in the circumstances, the real question therefore is whether the delay is excusable.
INEXCUSABLE DELAY
Explanations offered to excuse any delay will be carefully scrutinised by the Court. To succeed, the explanation must be supported by evidence and must legitimately excuse the relevant delay.
For inordinate delay to be excusable, case law suggests that the explanation should relate to the actual proceedings rather than matters unrelated to them. In O'Reilly, the Court refused to accept the plaintiff's personal and financial difficulties as a good excuse for not progressing the proceedings.
Delay on the part of the plaintiff's legal advisers will not necessarily excuse a period of delay. Responsibility for prosecuting a case rests with the plaintiff. In Walsh v Mater Misericordiae University Hospital and Poynton [2022] IEHC 126 (Walsh), the plaintiff made a complaint to the Law Society in relation to the delay on the part of her solicitor in prosecuting her case. After the Law Society concluded its review of the complaint, the plaintiff continued to instruct the same solicitor. The substantive proceedings were issued in 2013 and related to events in 2011. The second defendant brought an application to dismiss the plaintiff's case against him on grounds of inordinate and inexcusable delay. In defence of the application to dismiss the proceedings, the plaintiff's solicitor put forward various excuses on her part for the delay, including staffing difficulties, over-work, health difficulties, and the Law Society complaint. None of these were accepted as convincing excuses for the delays in the case.
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