Historically, the Courts were slow in acceding to applications from defendants seeking to strike out a plaintiff’s case for delay. However, the approach of the Courts has been changing in recent times, as illustrated in our previous article on delay (available here).  It appears that as we emerge from a post-pandemic world, this trend is continuing as it becomes continually more apparent that the Irish judiciary is losing its appetite to entertain prolonged litigation that is not being actively prosecuted by a plaintiff.

Recent case law suggests that in bringing such an application, the defendant only has to prove “moderate” or “relatively modest” prejudice airing from the delay to secure an application to dismiss under the established Primor principles[1], discussed below.

 The basis for the application

In considering an application for strike out for delay, the Court tends to follow the well-established three-step test set by Hamilton CJ of the Supreme Court in 1996 in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459:

1. Was there inordinate delay?

2. Was the delay inexcusable?

3. If the answer to both questions is yes, where does the balance of justice lie?

The burden is on the defendant to prove that the delay is both inordinate and inexcusable as well as proving that the balance of justice lies in favour of dismissal of the claim. 

Recent case law

The Court of Appeal (“COA”) in Gibbons v N6 (Construction) Ltd & Galway County Council [2022] IECA 112 upheld an order of the High Court to dismiss a claim by the plaintiff against the first named defendant, a construction company. The Court of Appeal endorsed the observation of the High Court that whereas the fundamental principles to be applied in determining if there has been delay have not changed since the three-step test established by Primor, “the weight to be attached to the various factors relevant to the balance of justice between the parties has been recalibrated to take account of the court’s obligation to ensure that litigation is progressed to a conclusion with reasonable expedition.”

 The claim was by a homeowner against the defendants for damage caused to his property due to flooding arising from the construction by the defendants of the M6 Ballinasloe to Galway motorway between 2006 and 2009.  The plaintiff issued proceedings in 2012 alleging that the manner in which the defendants had carried out the construction and associated works altered the existing groundwater and surface water regime in the plaintiff’s property.  This allowed an inappropriate amount of water to flow into the drains and led to flooding.  The first named defendant, N6, was a joint venture company (“JV company”) involving a Spanish registered multi-national infrastructure company and an Irish contractor, specifically incorporated for the purposes of constructing the motorway.  The JV company ceased to trade following completion of the motorway project in 2009 and pleaded that it was prejudiced in the continued defence of the claim, particularly due to the non-availability of employee witnesses, who are no longer employed by the company and many have since left the jurisdiction.  The company was also seeking to wind up and was unable to do so due to the outstanding litigation. 

The delay spanned over five and half years following issuing of proceedings in 2012 to delivery of a defence in 2017 and a further period of delay thereafter until the hearing of the application before the High Court in 2021.  The plaintiff accepted that it was responsible for part of this delay, but resisted the application on the grounds that it was not responsible for all of the delay which had arisen, some of which was due to JV company not delivering its defence promptly and also other delays owing to the second named defendant, the Council.  The JV company delivered a complete defence to the plaintiff’s claim however no defence was delivered at the time of the judgment by the Council.  In terms of the late delivery of the JV company’s defence and the argument made against the JV company in that regard, the High Court found that there was oversight on the part of the JV company’s solicitor in delivering the defence but it was not material to the facts of this case.  In any event, until the plaintiff was served with the motion to strike out, the plaintiff’s solicitor had been “singularly unresponsive to almost all correspondence” emanating from the JV company’s solicitors.  The Court concluded that there was no evidence to suggest the plaintiff would have progressed the litigation any faster if the defence had been filed earlier. 

The plaintiff also argued that the case was likely to be decided on the basis of expert and technical evidence rather than the evidence of lay witnesses and therefore the balance of justice favoured permitting the case to proceed as the memory of witnesses would not be determinative in the proceedings[2].  In that regard, the High Court stated that it would be difficult for a Court to reach any definitive conclusion as to what witnesses might be required by the parties since the case had not been progressed by the plaintiff.   It noted that while there could be issues relating to the design of the works and the ground conditions that an expert could opine on, the case could also depend on the recollection of witness and their understanding of the work which took place during the construction period some 15 years prior.  The Court referenced previous case law with similar facts where significant weight was attached to the evidence of eyewitnesses in terms of the nature and cause of the flooding[3]. 

The COA discussed in its judgment the principles in Primor and the factors set out by the Supreme Court that may affect where the balance of justice lies.  The COA noted that prejudice to a defendant can arise in many ways and is not confined to the risk that a fair trial might not be possible – it can also include damage to reputation and business, as well as the oppressive nature of being involved in protracted litigation. 

 In upholding the determination of the High Court, the COA found that the delay by the plaintiff in prosecuting the proceedings had been inordinate and inexcusable and therefore satisfied the first two limbs of the Primor test.  Interestingly, the COA judgment notes that the plaintiff continued in its tardiness in the prosecution of the appeal by failing to serve the notice of appeal within the required time and delivering written submissions some eight weeks after the deadline to do so. 

 In relation to the third limb of the test and the balance of justice,  the COA found that any delay on the part of the JV company did not amount to acquiescence of the plaintiff’s delay.  The COA found that while there were no evident prejudices that would necessarily lead to an unfair trial, there were “weighty concerns” to be considered by the Court in its assessment.  These concerns included :

Conclusion

While the decision rests on the facts of each individual case, it appears that there is a growing intolerance in the Courts towards inordinate and inexcusable delay in the prosecution of proceedings, which is welcome.  Continued determinations in this regard will ultimately mean a reduction in the presence of historic proceedings, leading to smaller and less congested court lists and therefore a reduction in litigation costs – which would be a positive development for litigators and Insurers alike. 

A careful balance must be struck in terms of when to issue an application to strike out for inordinate and inexcusable delay.  Such an application must be brought in a sufficiently timely manner so as to avoid any suggestion of acquiescence by a defendant in the plaintiff's delay, but also an adequate period of time needs to have elapsed in order for the delay to be deemed inordinate and inexcusable. 

[1] Irvine J in Cassidy v The Provincialate [2015] IECA 74 at para 37.  Also reference by Irvine J to this in McNamee v Boyce [2016] IECA 19.

[2] The Plaintiff relied on the judgments in Manning v National House Building Guarantee Co. Ltd. [2011] IEHC 98 and Nolan v Chadwicks Ltd. [2014] IEHC 542.

[3] Superquinn Limited v Bray Urban District Council [1998] 3 IR 542.