The Court of Appeal (COA) has upheld an Order of the High Court striking out the plaintiff’s claim for inordinate and inexcusable delay: Doyle v Foley IECA 193. 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 stud 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 (Proceedings). Thereafter the relevant chronology is as follows: 

• January 2014 Statement of Claim delivered
• February 2014 defendant raised Notice for Particulars
• June 2014 plaintiff secured an interim injunction preventing the defendant from selling the stallion prior to the conclusion of the Proceedings
• July 2014 injunction vacated
• August 2014 plaintiff replied to Rejoinders
• April 2018 plaintiff filed Notice of Intention to Proceed
• 5 March 2020 plaintiff issued motion to remit the Proceedings to the Circuit Court
• 20 March 2020 plaintiff issued fresh Notice of Intention to Proceed
• February 2021 plaintiff issued second motion to remit the Proceedings
• May 2021 defendant issued motion to strike out the Proceedings (Application).

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 ten months (Second Period). 

Applicable Legal Principles 

The High Court (Court) and the COA determined the Application by reference to the principles set out by Hamilton CJ in Primor Plc v Stokes Kennedy Crowley 2 IR 459 (Primor):

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?

(Access a detailed review of these principles in our briefing Putting Justice to Hazard: When does delay justify the dismissal of proceedings).

The Court concluded that the First and Second Periods amounted to inordinate and inexcusable delay on the part of the plaintiff. The Court concluded that there was no active delay on the defendant’s part and that any inactive delay should not be “counted against the defendant”.

On the balance of justice, the Court noted that the case was not a pure documents case, it would require oral testimony and held that a fair trial was not possible. The Court struck out the Proceedings.   

COA – Inordinate and Inexcusable Delay

On appeal to the CoA, the plaintiff conceded that the delay was inordinate but argued that it was excusable upon four grounds (Explanations), namely the:

1. time taken up with the taxation of costs from the interim injunction application;
2. plaintiff’s ill health;
3. plaintiff’s solicitor’s ill health; and
4. 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 COA rejected that these explanations justified or excused the delay. The issue of recovering the costs of an interim injunction was not relevant to the progress of the proceedings. The evidence of the ill health of the plaintiff and his solicitor was insufficient to explain why the case could not proceed during the First Period, especially when the plaintiff and his solicitor were able to progress the proceedings both before and after that period.  

The COA was critical of the failure by the plaintiff to advance any evidence in support of his argument that individually the Explanations may not excuse the delay, but when taken together, they do.  In rejecting this argument, the COA reiterated the earlier words of Denham CJ that “seven times zero is still zero”. 

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.  

COA – Balance of Justice

Having established that the total delay of five years and nine months on the part of the plaintiff 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.  

In terms of the degree of prejudice which must be established by a defendant seeking to have proceedings struck out for inordinate and inexcusable delay, the COA, adopted the findings of Barniville J and Irvine J in recent jurisprudence, and held that 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 COA 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 which 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 COA refused the appeal. 

Conclusion 

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 COA 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 that they would suffer moderate prejudice if the case proceeded to trial. 

To discuss any aspect of this article in more detail please contact Lisa Carty, Hilary Rogers, or your usual William Fry contact.  

Contributed by Joanne Ryan & Lulu Trainor