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Cite as: [1999] IEHC 201

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Truck & Machinery Sales Ltd. v. General Accident Fire and Life Assurance [1999] IEHC 201 (12th November, 1999)

THE HIGH COURT

1987 No. 2827P

BETWEEN

TRUCK & MACHINERY SALES LIMITED

PLAINTIFF

AND

GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION PLC

DEFENDANT

Judgment of Mr. Justice Geoghegan delivered the 12th day of November, 1999

1. The Defendant by motion on notice dated the 19th February, 1999 has applied to this Court for an order dismissing the Plaintiff's claim for want of prosecution or alternatively for an order requiring the Plaintiff to furnish security for costs pursuant to Section 390 of the Companies Act, 1963.

2. The action is an action for damages against an insurance company on foot of a contract of insurance made in the month of May 1982 for failure to indemnify the Plaintiff on foot of a policy in respect of damage by fire to the Plaintiff's business premises and the contents thereof arising out of a fire which occurred on 29th December, 1982. The defence to the action is that there was alleged material non disclosure rendering the policy voidable and that the Defendant has avoided it.

3. The chronology of the steps taken in the action is as follows:-

26th March, 1987 - issue of plenary summons;

3rd December, 1987 - delivery of Statement of Claim;

15th March, 1988 - delivery of Defendant's Notice for Particulars;

22nd June, 1988 - delivery of Replies to the Particulars sought;

15th July, 1988 - motion for judgment (time being extended for the Defence);

19th January, 1989 - Order and cross order for discovery;

27th February, 1989 - delivery of defence;

9th July, 1990 - delivery of Plaintiff's Affidavit of Discovery;

17th May, 1991 - Plaintiff's motion to strike out proceedings for failure on the part of Defendant to make discovery;

19th June, 1991 - delivery of Defendant's Affidavit of discovery;

25th September, 1991 - service of Plaintiff's Notice of Inspection;

16th September, 1993 - notice of trial served by Plaintiff;

2nd July, 1998 - Plaintiff's notice of trial struck out for non appearance at list to explain non certification;

4th December, 1998 - Plaintiff struck off Register of Companies; and

15th December, 1998 - Plaintiff restored to Register of Companies.

4. It would appear that the early history of this case involved delays on both sides. I think that the Defendant can only legitimately complain of delay from say 1st December, 1993 by which time the action ought to have been certified as ready for hearing and ought to have been included in a list to fix dates for the Hilary term.

5. The question which I have to now consider is whether the delay which has ensued since that date is of a kind that would entitle the Defendant to dismiss for want of prosecution or under the inherent jurisdiction. There is a substantial body of case law on the legal principles to be applied but for the purposes of this case I do not think that I need go beyond the important Supreme Court decision in Primor Plc -v- Stokes, Kennedy, Crowley, [1996] 2 IR 459. The principles of law to be applied are set out in the judgment of Hamilton C.J. at p. 475 of the report and they read as follows:-

1 "(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interest of justice require them to do so;

(b) it must, in the first instance, be established by the parties seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case; and

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:-

(i) the implied constitutional principles of basic fairness of procedures;

(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 opera

tion, the conduct of both parties should be looked at;

whether any delay or conduct of the defendant amounts to acquiescence on the

part of the defendant in the plaintiff's delay;

the fact that conduct by the defendant which induces the plaintiff to incur fur

ther 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 con

duct depending upon all the circumstances of the particular case;

whether the delay gives rise to 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;

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 dam

age to a defendant's reputation and business."

6. I have no doubt that the delay in this case was inordinate. As to whether it was inexcusable is more difficult. Mr. Mansfield, Director of the Plaintiff company, has explained in two separate affidavits that the company was involved in other forms of litigation which threatened the continuing viable existence of the company. He alleges that that took up all the time and energy of the company's management and that that is why full attention could not be given to this action. I am doubtful that those are the kind of excuses (however genuine) which the Supreme Court had in mind when using the expression "inexcusable". Strictly speaking it would seem to me that the excuses relied on should relate in some way to the actual proceedings in hand because an opposing party can hardly be expected to stand aside and wait while the other party resolves its problems which have nothing to do with the litigation. Nevertheless I am satisfied that all the surrounding circumstances including so called excuses based on extraneous activities must to some extent be taken into account and weighed in the balance in finally considering whether justice requires that the action be struck out or allowed to proceed. The Chief Justice has pointed out that even if the delay is inordinate and inexcusable the court must consider 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. I am satisfied that in this case even if the delay is to be regarded as inexcusable a point which I do not find it necessary finally to decide, it would not be just to strike out the action. The just course is to refuse the application upon exacting certain undertakings from the Plaintiff. Provided those undertakings are complied with I am satisfied that the Defendant would not be seriously prejudiced in the conduct of the defence. The issue will largely be determined on documentary evidence and there is no real suggestion and still less has it been established as a matter of probability that the Defendant could not properly defend the case. What really concerns the Defendant and quiet rightly concerns the Defendant is that there is now a serious danger that the Plaintiff is not a good "mark" for costs in the event of the Defendant being successful which would not have been the case had the action been heard at the proper time. It has also been submitted by the Defendant that a liability for Courts Act interest would in all the circumstances be unjust.

7. The Plaintiff is prepared to submit to an Order for security for costs but of course there is apprehension on the part of the Defendant that the security fixed by the Master of the High Court will not be adequate as frequently the security fixed is well below the real amount of the costs.

8. As far as Courts Act interest is concerned I will require the Plaintiff to undertake not to claim Courts Act interest for the period 1st January, 1994 to 1st January, 1999. I will also require an undertaking relating to security for costs but I will not fix the terms of that undertaking immediately in the hope that agreement might be reached between the parties as to an appropriate security. I will therefore adjourn that matter for mention on a suitable date. Subject to these undertakings I will refuse to strike out the action and I will if necessary make an appropriate order for security for costs.