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Legal Focus: Irish court strikes out claim for delay

Irish Court of Appeal upholds order of the High Court striking out the plaintiff’s claim for inordinate and inexcusable delay

Court of Appeal's decision illustrates courts' intolerance for inordinate and inexcusable delay in the prosecution of proceedings and affirms the courts' approach to dismissal 

The Irish Court of Appeal (COA) has upheld an order of the High Court striking out the plaintiff’s claim for inordinate and inexcusable delay.

In Doyle v Foley [2022], the plaintiff’s claim arose out of a 2008 syndicate agreement for a share purchase in a stallion standing at the defendant’s stud farm. The stallion was leased to a stud in France in 2011 and was ultimately purchased by the French in 2014.

The plaintiff issued proceedings in January 2013 claiming damages for breach of contract, negligence, breach of duty and specific performance in respect of the syndicate agreement.

Two periods of delay formed the basis of the application: from August 2014 to April 2018, a period of three years and eight months (first period), and from April 2018 to February 2021, a period of two years and 10 months (second period).

The High Court and the Court of Appeal determined the application by reference to the principles set out by Hamilton CJ in Primor Plc v Stokes Kennedy Crowley [1996], asking: was there inordinate delay; was the delay inexcusable and, if the answer to both questions is yes, where does the balance of justice lie?

The court concluded that the first and second periods amounted to inordinate and inexcusable delay on the part of the plaintiff, and that there was no active delay on the defendant’s part and that should not be “counted against the defendant”.

On the balance of justice, the court said the case was not a pure documents case and would require oral testimony, and held that a fair trial was not possible. The court struck out the proceedings.


Inordinate delay

On appeal, the plaintiff conceded the delay was inordinate but argued it was excusable because of the time taken up with: the taxation of costs from the interim injunction application; the plaintiff’s ill health; the plaintiff’s solicitor’s ill health; and a lack of clarity in the defendant’s response to the application to remit the proceedings to the Circuit Court.

The plaintiff also argued that the defendant had acquiesced in the delay by not issuing a motion to dismiss and that he would suffer no prejudice as this was a “documents case”.

The Court of Appeal rejected that these explanations justified or excused the delay. The court was critical of the failure by the plaintiff to advance any evidence in support of his argument.

In terms of the second period, save for seven months when the plaintiff sought the defendant’s consent regarding the application to remit and the separate one-month periods under the notices of intention to proceed, a delay of two years and one month was not excusable.

Having established that the total delay was inordinate and inexcusable, the court went on to consider whether the balance of justice lay in favour of striking out the proceedings. Part of the balancing exercise involves weighing a plaintiff’s constitutional right of access to the court, against the defendant’s constitutional rights to fair procedures and the timely resolution of litigation. It also involves consideration of the greater public interest in ensuring the timely and effective administration of justice. Inherent in the assessment of the balance of justice is the asserted prejudice to either party.

The Court of Appeal adopted the findings of Justice Barniville and Justice Irvine in recent jurisprudence and held where the defendant proves culpable delay on part of the plaintiff, the defendant need only prove moderate prejudice arising from that delay. 

Once inordinate and inexcusable delay has been established, the defendant does not have to prove prejudice to the point that it faces a significant risk of an unfair trial: modest prejudice suffices.

The Court of Appeal held that the defendant established moderate prejudice should the case proceed to trial. This was a general prejudice inherent in a trial regarding matters that occurred between 2008 and 2011 and would require critical issues to be resolved by oral testimony. In the court’s view, this sufficed to establish that the balance of justice lay in favour of dismissing the proceedings. The appeal was refused.

The decision illustrates the courts’ intolerance for inordinate and inexcusable delay in the prosecution of proceedings. The decision also affirms the courts’ approach to dismissal applications, namely that each case depends on its own facts.

Litigants should be mindful of the confirmation from the Court of Appeal on the degree of prejudice a defendant must show to succeed in an application to strike out proceedings. Where a defendant establishes inordinate and inexcusable delay on the part of a plaintiff, they need only demonstrate they would suffer moderate prejudice if the case proceeded to trial.


Lisa Carty is a partner and Hilary Rogers is a consultant at William Fry





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