Judgment Title: Tesco Ireland Ltd -v- McNeill & ors
Neutral Citation:  IEHC 367
High Court Record Number: 2002 13249 P
Date of Delivery: 25/07/2014
Court: High Court
Composition of Court:
Judgment by: Barrett J.
Status of Judgment: Approved
Neutral Citation:  IEHC 367
THE HIGH COURT
[2002 No.13249 P]
TESCO IRELAND LIMITED
THOMAS A. McNEILL, D.H. ADAMS, A.J.C. ALLEN, ALISTAIR J. GRIFFIN, ROY C. McNEILL, STEPHEN B McBRIAR, PHILIP J. McMAHON, COLIN W. REID, WESLEY McCAMLEY AND T. BROWN TRADING UNDER THE STYLE AND TITLE OF WDR AND RT TAGGART
JUDGMENT of Mr. Justice Barrett delivered on the 25th day of July, 2014.
1. This is an application by the defendants to strike out the plaintiff’s claim (1) for want of prosecution pursuant to Order 122 of the Rules of the Superior Courts, 1986; and/or (2) pursuant to the inherent jurisdiction of the court on grounds of inordinate delay and/or inordinate and inexcusable delay in the prosecution of these proceedings.
Some general principles applicable
4. Notwithstanding any finding that delay has been inordinate and inexcusable, the third limb of the Primor test may require that a case proceed where the balance of justice favours such a result. In all cases the court must also have regard to the second line of authorities referred to at the outset of this judgment, namely those arising from the decision of the Supreme Court in O'Domhnaill v. Merrick. In that case, Henchy J. referred, at p.157, to the need:-
5. The foregoing are the leading precedents and general principles currently applicable to any proceedings concerned with dismissal for want of prosecution. The same precedents and principles appear to apply regardless of whether the application to dismiss is grounded on o.122 of the Rules of the Superior Courts or the inherent jurisdiction of the court. The court turns now to apply the tests established in Primor and O'Domhnaill, as well as certain other authorities that are of particular relevance to the present proceedings.
Is the delay arising inordinate?
Is the delay arising inexcusable?
8. In Truck and Machinery Sales Ltd. v. General Accident Fire and Life Assurance Corporation plc  IEHC 201, the plaintiff sought to excuse delay by virtue of the fact that it had been distracted by its involvement in other litigation. Geoghegan J. doubted that such an excuse could render a delay excusable, stating, at p.4, that:
10. In Comcast, the Supreme Court decided that the delay in prosecuting the proceedings in issue in that case was excusable in circumstances where the plaintiffs said that they were waiting for the completion of the investigative stage of a tribunal of inquiry, the Moriarty Tribunal, into the granting of the State's second mobile phone licence. The plaintiffs' claim in that case involved very serious allegations of corruption and misfeasance of public office by a Government minister. The Supreme Court therefore considered that the case was exceptional and that in the unique circumstances of the case it was legitimate for the plaintiffs to wait until evidence had been heard at the tribunal which might assist it in framing its claim against the State.
In the course of her judgment, Denham C.J. noted, at para. 40, that:
13. The court does not consider that a decision to proceed with arbitration and then with related litigation can properly be described as 'unorthodox'. However, if, as is the case here, the rationale for that approach is not expressly advised to the affected party, i.e. Taggart, and if that party is not kept apprised of unanticipated delays arising, here in the arbitration, and also of the intended course of action given those delays, then it appears to the court that, consistent with the judgment of Clarke J. in Comcast, any delay arising by virtue of that initial decision cannot later be pleaded successfully to be excusable. The court is cognisant of the fact that Hardiman J., at para. 4 of his judgment in Comcast, suggested that case was likely sui generis. Even so, the court considers that the observations of Denham C.J. and Clarke J., to which reference has just been made, are apposite in the context of the instant proceedings.
14. In Silverdale and Hewetts Travel Agencies v. Italiatour  1 ILRM 464, Finnegan J. held in effect that substantial commercial enterprises are expected to pursue litigation with reasonable expedition and a failure to do so is culpable. Per Finnegan J., at p.469:
15. In the relatively recent case of O'Carroll and Another v. EBS Building Society & Another  IEHC 30, the plaintiff, as personal representative of a deceased investor, took proceedings arising out of the deposit of certain monies by the deceased with a Mr. Hall, the second-named defendant, who was licensed to accept deposits on behalf of EBS Building Society. Mr. Hall had taken the deposit but instead of placing it with EBS had invested or otherwise used it for his own benefit. The deceased investor died in 2000. Probate was granted in 2002. The plaintiff instituted proceedings in 2004. Mr. Hall consented to judgment in 2008 but died in 2012, by which time attempts to enforce the judgment against him had been unsuccessful. In 2013, EBS brought an application to dismiss the plaintiff’s claim. O'Malley J. held that the delay arising was inordinate but not inexcusable, stating inter alia, at para. 36ff, that:
17. In O'Carroll, O'Malley J. also refers to the fact that the delay arising was attributable to a course of action, viz. the pursuit of Mr. Hall, which would, if successful, have been to the benefit of EBS Building Society. In this case there was no such benefit to Taggart. Indeed the opposite applies as notwithstanding the delay and despite Tesco having been successful in the arbitration proceedings, Tesco has elected in any event to pursue with renewed vigour the instant proceedings against Taggart.
18. For the reasons stated above, the court considers, consistent with the general trend of the applicable authorities, that there is no basis on which Tesco's delay in these proceedings could be described as other than inexcusable.
Where does the balance of justice lie?
20. In Primor, Hamilton C.J., at p.475, indicated that the following criteria could be taken into account when determining where the balance of justice lies:
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,
(iii) any delay on the part of the defendant- because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business."
2. the nature of the claims;
3. the probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues;
4. the nature of the principal evidence; in particular whether there will be oral evidence;
5. the availability of relevant witnesses;
6. the length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and the probable trial date.
Further, on the second question it will be relevant to consider any actual prejudice to the defendant in attempting to defend the claim by reason of the lapse of time."