High Court of Ireland Decisions

1. This is an action which concerns an allegedly defective agricultural machine purchased by the Plaintiffs from the second Defendant and manufactured by the third Defendant, which purchase was financed by the first Defendant. The action was listed before the President of the High Court on the 24th June, 1994 in a list of cases to explain the delay in bringing the case to hearing, and as nobody attended on behalf of any of the parties, the action was struck out. This is a Motion to re-enter the proceedings in the non- Jury list.

2. The case has an appalling history of delay and inaction. It was commenced by way of Plenary Summons against the first and second Defendants on the 23rd August, 1980, and a Statement of Claim against those Defendants was delivered on the 15th January, 1981. The first Defendant filed a Defence relatively speedily on the 21st May, 1981 and a reply to that Defence was delivered on the 10th April, 1983. The second Defendant did not file a Defence at that stage, but served two notices for particulars, the second of which was replied to by the Plaintiff on the 30th, July 1982. On the 11th October, 1983 the second Defendant filed a Defence and shortly thereafter sought a Motion to join the third Defendant as a Third Party. The Plaintiff delivered a reply to the second Defendant's Defence on the 12th December, 1983 and very shortly afterwards served Notice of Trial. Thus by January 1984 Pleadings has been closed against both the first and second Defendants and Notice of Trial had been served, and the only matter which appeared to be outstanding was the third party proceedings by the second Defendant. By Order of 27th February, 1984 the second Defendant was given leave to issue and serve out of the jurisdiction on the third Defendant a Third Party Notice, which was duly done, and on the 3rd May, 1984 the Third Party entered an appearance. Subsequently, the Plaintiffs applied to have the then Third Party joined as a Defendant, and by Order dated the 3rd December, 1984 the present third Defendant was joined.

3. This necessitated an amended Statement of Claim which was delivered on the 14th March, 1985. Both the first and third Defendants then raised particulars, and on the 25th July, 1986 the third Defendant filed its Defence. The Statement of Claim was reamended on the 11th February, 1987 and further particulars were sought, primarily by the third Defendant, and in particular there was a notice dated the 24th August, 1987. It appears that some time in the mid 1980s, and I do not have the exact date, the second Defendant went into liquidation, and has taken no further part in these proceedings.

4. At this stage, over 10 years ago, while it could not be said that the case had proceeded with any great speed, at least there had been some kind of constant movement. However, matters then came to a complete halt. The notices for particulars were not replied to, nor did the Defendants take any steps to obtain an Order requiring the Plaintiffs to reply. Some four and a half years of total inaction passed, and on the 13th February, 1992 the Plaintiffs served a notice of intention to proceed. Even this did not generate any action on behalf of the Defendants, and on the 6th October, 1992 the Plaintiffs finally replied to the first Defendant's notice for particulars and on the 30th October, 1992 replied to the third Defendant's notice for particulars. This was shortly followed by a notice of trial on the 2nd November, 1992. This finally jolted the third Defendant into action and further particulars were sought by it in relation to damages. These were replied to, although not altogether to the Defendant's satisfaction, by the 21st January, 1993 and on the 1st April, 1993 the Plaintiff brought a Motion for discovery against the Defendants. The third Defendant sought a cross order and in due course discovery was ordered and Affidavits of discovery were sworn, the Plaintiffs' Affidavit being sworn on the 7th September, 1993. It should be said in fairness to the third Defendant that its correspondence in relation to particulars in 1992 and 1993 was expressly without prejudice to that Defendant's right to seek a remedy in relation to the delay. During 1994 there was contact between the Plaintiffs' Solicitors and the third Defendant's Solicitors in relation to inspection to the Plaintiffs' documents, which inspection finally took place in December 1994 by an agricultural consultant engaged on behalf of the third Defendant. At this stage all parties were unaware that the action had in fact been struck out in June 1994. In March 1995 the Plaintiffs' Solicitors wrote to the third Defendant's Solicitors giving certain further particulars, and nothing then happened until May 1996 when the Plaintiffs' Solicitors intimated to the third Defendant's Solicitors that a Certificate of Readiness was about to filed. At this stage the third Defendant's Solicitors informed the Plaintiffs' Solicitors that the matter had been struck out in June 1994. This Motion was brought to reinstate the proceedings in January 1997.

5. Both the first and third Defendants are objecting to the proceedings being re-entered on the grounds of the delay on the part of the Plaintiffs. They say that I should treat this case as if they had brought a Motion to strike out the proceedings, and say that the same principles apply to reinstating the case as would have applied had they brought such a Motion. I accept this as largely correct, except that the fact that neither of the Defendants sought to strike out the proceedings is a relevant matter in reaching my decision.

6. The principles to be applied by a Court in considering whether to strike out proceedings for delay are now well settled. They were first enumerated by Finlay P., as he then was, in Rainsford -v- Corporation of Limerick , which is unreported, but the relevant portion of which can be found as a note in (1984) I.R. 153. These principles have been approved of by the Supreme Court in O'Domhnaill -v- Merrick (1984) I.R. 151, and in two recent Supreme Court decisions, namely Primor Plc -v- Stokes Kennedy Crowley (1996) 2 I.R. 459 and the unreported decision In The Matter of Southern Mineral Oil Limited (In Liquidation) and In The Matter of Silk Oil (Ireland) Limited ( In Liquidation) in which judgments were delivered on the 22nd July, 1997. These principles are:-

7. The Plaintiffs' Solicitor, in his replying Affidavit in this application, has sought to excuse the delay between August 1987 and October 1992 by saying that he did not have the material available to him to reply to the notice for particulars, and that he returned all the documents to the Plaintiffs to enable them to do so, and advised them to consult their accountants and farm advisers. He says that he was informed by the first named Plaintiff that some of the documentation got mislaid in the accountants' office, and there was great difficulty in undertaking the necessary work to obtain the information. It is interesting to note that there is no Affidavit sworn by any of the Plaintiffs, or by their accountant.

8. I have no doubt that the delays which have taken place are inordinate. Furthermore, I do not consider that they are in any way excused by the matters set out in the Affidavits of the Plaintiffs' Solicitor. This is particularly so as the last notices for particulars do not even appear to have been acknowledged by the Plaintiffs' Solicitor, and no explanation of the alleged difficulties was given to the Defendants. The delay in this case was clearly both inordinate and inexcusable.

9. Before considering whether I should nevertheless exercise my discretion in favour of the Plaintiffs, I would also comment on the fourth principle set out in the Rainsford case. It is said, and I fully accept it, that the Plaintiffs, who are agricultural contractors, carried out their business in a very informal way, frequently working for friends and neighbours, and that they did not keep proper records of their financial affairs. They certainly ought to have done so, and to this extent it could be said that they are blameworthy. However, there is no suggestion that either their Solicitors, their accountants or their agricultural advisers in any way pressed them or imbued them with any sense of urgency.

10. Accountants frequently have to produce figures based on very scanty records and they usually manage to do so within a reasonable time, albeit that their figures are protected by caveats of various sorts. I also note that there is no correspondence exhibited by the Plaintiffs' Solicitor wherein he urges the Plaintiffs to act speedily, or indeed warns them of the dangers of delay. Accordingly, while some blame may be laid at the door of the Plaintiffs themselves, I think that by far the greatest blame for the delay in this case must rest with their advisers.

11. The third principle in the Rainsford case is expressed as being that a Court " must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour, or against, the proceeding of the case". In O'Domhnaill -v- Merrick Henchy J. put it slightly differently when he said at page 157 :-

12. Whichever way one looks at it, the Court undoubtedly has to carry out a balancing exercise. It has to balance the right of a litigant who has suffered loss to have access to the Courts, and to obtain the appropriate remedy, against the equally important right of a litigant who is being sued to present its defence fully and comprehensively. In the present case Mr. Hardiman BL on behalf of the first Defendant makes the case that his client has no means of defending the claim in relation to the quantum of damages, and said that if they had known that the Plaintiffs did not have any adequate records they could perhaps have instructed private investigators to try to find out locally the volume of business done by the Plaintiffs. He says that the first Defendants are now blindfold. While in some cases such an argument might well have a lot of merit, in my view it does not apply in the present case.

13. A Statement of Claim was served on the first Defendant on the 15th January, 1981, and it would appear that the first Defendant did not seek any particulars of the damages claimed until the 15th May, 1985, by which time the trail would have been long since cold.

14. With regard to the third Defendant, Mr. Gleeson BL argues that, after this length of time, witnesses' recollections may be very poor or non-existent, and they could not be expected to recollect a machine which they had not seen for some seventeen years.

15. As the machine was apparently repossessed by the first Defendant in 1981, the Plaintiffs may well suffer the same difficulties. However, it is a very real objection which I will consider further.

16. In addition to this, Mr. Gleeson points out that the sales representive on behalf of the second Defendant, namely Michael Sheridan, is now deceased, and the Plaintiffs' claim is in part based on express representations made by him. If the second Defendant was still a live party in this action, that would be a very real impediment to it. However, the ultimate Statement of Claim alleges that oral representations were made on behalf of the second Defendant, but in relation to the third Defendant, the representations alleged are those contained in its brochure, and not express verbal representations by any person on behalf of the third Defendant. The brochures are, of course, still available, and therefore there can be no dispute about the nature of any representations made by the third Defendant, and I do not think that the death of Mr. Sheridan will seriously prejudice them.

17. I now come to what I consider to be the countervailing circumstances in this case. This is not a case in which the Defendants or any of them initiated an application to the Court to strike out the proceedings. These proceedings were struck out because nobody, including the Defendants, appeared when the case was listed. Furthermore, while the delays are, in my view, inexcusable, particularly in relation to the period from 1987 to 1992, neither of the Defendants took any step to strike out the proceedings or indeed to obtain an Order compelling the Plaintiffs to reply to the notices for particulars. I think it is quiet clear that the Defendants hoped or assumed that the case had gone away, and felt they might be better served by doing nothing. While it is perfectly open to them to take this attitude, if the case does not go away then they must suffer the consequences. Procedures exist for a Defendant who feels he is prejudiced by delay to have the case struck out, and if such Defendant chooses not to use those procedures, this must very much weaken any case of prejudice due to delay being made on its behalf. Furthermore, while the third Defendant did sound warning notes that they were keeping their options open in relation to applying to the Court for relief due to delay, in April 1993 when the Plaintiffs sought discovery against it, instead of opposing that application or seeking to have the proceedings struck out at that stage, the third Defendant in fact brought a cross-motion for discovery. It was only at this stage that it discovered the true position with regard to the Plaintiffs' documentation. If it had sought discovery in 1986, when the pleadings against it were closed, the situation might have been very different.

18. Balancing the right of the Plaintiffs to have their case heard by the Court against any prejudice which may be caused to the Defendants, I am quiet satisfied that the balance is in favour of the Plaintiffs, particularly having regard to the inaction of the Defendants themselves, which is one of the matters expressed in the third principle set out in the Rainsford case as being an ingredient in the exercise by the Court of its discretion. Accordingly, I will order that the proceedings herein be re-entered and, in sofar as it is necessary, give liberty to the Plaintiffs to serve a Notice of Intention to proceed. As there are still some outstanding Pleadings, I will hear arguments from Counsel as to the exact form the Order should take.