By Lisa Broderick & Rowena McCormack
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Published 29 July 2021
A recent decision of the High Court could be a sign of a move by the courts towards clamping down on the issue of delay. The decision in Diarem Limited v Clare County Council (“Diarem”) is a glimmer of hope for Defendants to litigation in which the Plaintiff has delayed in progressing proceedings and in relation to the likelihood of success of achieving a strike out of proceedings in those circumstances.
In this decision the Court acknowledged the well-established principles that ground an application for strike out for delay, as set out in Primor plc v. Stokes Kennedy Crowley1 (“Primor”). However and more notably, the decision also highlights the obligation that rests with the High Court to be guided by the Supreme Court, in particular the comments made by the Supreme Court in the decision in Comcast International Holdings Incorporated & Ors. v Minister for Public Enterprise & Ors2 (“Comcast”). In Comcast, the Supreme Court remarked on the need to “make clear that there will not be an excessive indulgence of delay, because if the courts do not make that clear, it follows that the courts’ actions will encourage delay”.
Background facts
In this case, a Plenary Summons issued on 20 June 2017 and an Appearance was entered on 17 July 2017. By 25 August 2017 no Statement of Claim had been delivered, despite having been called for and the Defendant issued a warning letter in relation to a potential strike out application.
No Statement of Claim was delivered between then and 15 May 2019 when the Defendant issued a motion seeking to have proceedings dismissed on the grounds of delay.
Primor test
The judgement in Diarem acknowledges the applicable 3 step test as stated in Primor;
- Is the Plaintiff’s delay inordinate?;
- If so, whether that delay is excusable?;
- If not, whether the balance of justice favours dismissal of the action in all the circumstances.
The High Court considered each element of the test and expressly noted that the delay under consideration, is calculated from the date of the entry of Appearance, to the date on which the Defendant issued a motion to dismiss the proceedings. In this case, one year, 9 months and 28 days.
Helpfully, the Court also considered the time period during which a Plaintiff is expected under the Rules, to deliver its Statement of Claim (which practitioners will appreciate is a timeline rarely honoured in practice).The Court commented that it was difficult to see how this delay could not be considered inordinate.
Comments of the High Court
The Court observed the “indulgence which heretofore was granted to litigants in relation to their compliance with time limits (which indulgence, the Supreme Court has indicated in Comcast at para 3.3 et seq., needs to stop).”
A particularly welcome comment made by the Court in this decision is the observation that “it seems to this court that there is little point in having time limits in court rules unless those limits are going to be complied with (since otherwise the law falls into disrepute).”
In Diarem, the High Court appears to have interpreted the Supreme Court’s comments as a need for “not just a tightening up of the indulgence granted to litigants who delay their litigation but that there needed to be a sea-change in attitude by the courts, inc the HC to delay."
Ultimately, the High Court held that it had “little hesitation in concluding that the delay of 22 months was inordinate, that it was inexcusable and that the balance of justice favours the dismissal of the plaintiff’s proceedings”.
It is hoped that this decision marks the early steps towards a change in approach to the costly issue of delay in Irish litigation. This issue would of course be substantially addressed, should the recommendations of the Review of the Administration of Civil Justice3 in relation to automatic discontinuance after 30 months, be adopted.
1[1996] 2 I.R. 459
2[2021] IESC 50
3Review of the Administration of Civil Justice Report October 2020
