High Court of Ireland Decisions

1. These are two separate Motions brought by the second and third Defendants to dismiss the Plaintiffs claim against them for want of prosecution by reason of inordinate and inexcusable delay on the part of the Plaintiff in commencing and prosecuting these proceedings to trial. Both Motions were heard together.

The Plenary Summons claims against all Defendants damages for breach of contract, damages for work done and services rendered, damages on foot of an account stated and settled, quantum meruit and damages for conversion.

The Plenary Summons was issued on 6 July 1992. It was served on the second Defendant in April 1993 and on the third Defendant on 16 March 1993.

A notice of intention to proceed dated 6 March 1995 was served, and a second notice of intention to proceed dated 15 September 1997 was served. The Statement of Claim was delivered on 9 February 1998.

A notice for particulars dated 1 July 1998 was served by the second Defendant and the replies were dated 17 August 1998. A notice for particulars dated 9 October 1998 was served by the third Defendant and the replies were dated 9 November 1998.

The Notice of Motion filed on behalf of the second Defendant is dated 23 April 1999 and was returnable for the 14 June 1999.

The Notice of Motion filed on behalf of the third Defendant is dated 1 March 1999 and was returnable for the 15 March 1999. A Motion for judgment in default of defence dated 11 January 1999 against the second Defendant was re-entered on the 5 July 1999.

The Plaintiff is a demolition contractor. The first Defendant was the main contractor for works carried out for the second Defendant. The second Defendant is a manufacturing company in the industrial estate at Shannon Airport. The third Defendants were consulting engineers for the works carried out.

The Plaintiff claims there was an oral contract made on 6 July 1988, partly evidenced in writing, to demolish three concrete pits at Shannon. He ran into difficulties because the concrete was thicker than he believed it to be. He incurred additional costs amounting to £77,576.13p, and he blames the Defendants.

The notice for particulars of the second Defendant sought the following information:

(1) With whom was the alleged contract made on 6 July 1988? The reply was: Michael Ledwidge, chief engineer of the third Defendant.

(2) With whom of the second Defendant is it alleged that an agreement was made on 6 July 1988? The reply was: Mr Michael Ledwidge, authorised to enter into contractual arrangements on behalf of the second Defendant.

(3) With whom was it agreed that demolition work was to take place over four weeks from 18 July 1988 to 15 August 1988 based on a five-day week working eight hours a day?

The reply was: Mr M Ledwidge and Mr P Quilligan of the third Defendant and Mr M Barrett and Mr G Treacy of the first Defendant and Mr P Cantillon, Quantity Surveyor.

(5) Who agreed the ten particular items in paragraph 7 of the Statement of Claim? The reply was: Mr Michael Ledwidge of the third Defendant and Mr Andrew Tarbot of the first Defendant.

(6) Who agreed item L in paragraph 7?

The reply was: Mr M Ledwidge and Mr P Quilligan of the third Defendant and Mr Andrew Tarbot of the first Defendant.

(7) Who made the alleged representations in paragraph 8, in particular the alleged representations on behalf of the second Defendant?

The reply was: Mr M Ledwidge and Mr P Quilligan of the third Defendant and Mr M Barrett and Mr G Treacy of the first Defendant and Mr P Cantillon, Quantity Surveyor.

(8) Who represented that the concrete was 24 inches thick? The reply was: Mr Michael Ledwidge of the third Defendant.

(10) With reference to the meeting of 4 August 1988 give details of the parties present with whom the alleged agreement was made regarding a continuation of work and an extension of six days?

The reply was: Mr Frank Hughes for the Plaintiff, Mr G Treacy for the first Defendant, Mr J Borge and Mr W Roche for the second Defendant, Mr M Ledwidge for the third Defendant and Mr Cantillon, Quantity Surveyor.

(13) With whom was agreement reached in relation to the agreed price in Irish pounds plus builders discount?

The reply was: Mr Michael Ledwidge of the third Defendant.

In the notice for particulars from the third Defendant the following questions are asked in relation to paragraph 8 of the Statement of Claim:

(1) Who made the alleged representation that the concrete was described as set out in drawing No S 168/22 of 19 June 1969?

The reply is: Mr Michael Ledwidge and Mr Sean Quigley.

(2b) Who on behalf of the third Defendant is alleged to have been informed of the discrepancies by the Plaintiff?

The reply is: Mr Michael Ledwidge and Mr Sean Quigley.

(2e) State whether it is alleged that any representative of the third Defendant attended the site on 4 August 1988?

The reply is: Mr Michael Ledwidge and Mr Sean Quigley.

(2f) State whether it is alleged that the third Defendant agreed on 4 August 1988 that the Plaintiff was to continue with the work and that an extension of six days to the original time period was to be allowed?

The reply is that it was agreed by Mr Michael Ledwidge and all members of the design team present at that meeting to an extension of six days.

In question 3(a) Mr Michael Ledwidge is also mentioned as attending the meeting on 11 August and as having made oral representations with Mr Sean Quigley concerning Drawing No S 168/22 of 19 June 1969.

What has happened is that Mr Michael Ledwidge died on 26 May 1997 before delivery of the Statement of Claim. The third Defendant also states that Mr Quilligan is no longer with the firm.

In the second Defendant's Motion the reason given by the Plaintiff for the delay in issuing and serving the Plenary Summons is that he was engaged in ongoing talks with the Defendants to try and reach a settlement. He himself offers no reason for the delay from the serving of the Plenary Summons to the delivery of the Statement of Claim. The reason offered by his solicitor is that a member of the office team was transferred to conveyancing and the file was misplaced. It says that the claim was technical and complicated and that the Plaintiff was abroad. There is no explanation of the delay between the two notices being received. He sets out the various steps taken subsequent to the delivery of the Statement of Claim on 9 February 1998.

The Plaintiff Mr Hughes swore an affidavit on 7 July 1999 in the second Defendant's Motion. He, too, mentions negotiations up to 1992. He disclaims personal responsibility for the delay between 1993 and 1998 and refers to his solicitor's affidavit

In the third Defendant's Motion the Plaintiff did not swear an affidavit, the replying affidavit being that of his solicitor who mentions the negotiations between 1989 and 1991 and that the Plenary Summons was issued reluctantly on 6 July 1992 and served on 15 March 1993. He also mentions the member of his firm transferring to conveyancing and the file being misplaced. When the file was located, the notice of intention to proceed was filed in March 1995. He concedes that there was some delay in compiling and serving the Statement of Claim but denies that it severely prejudiced the Defendant.

In accordance with the judgment of the Supreme Court in Primor PLC v Stokes Kennedy Crowley 2IR 459, I have no hesitation in saying that the delay from cause of action to delivery of the Statement of Claim was inordinate (from 1988 to 1997). While some explanations have been offered, in my opinion these do not excuse the Plaintiff. The Plaintiff does not give any details as to why he did not ensure that his solicitors were progressing the case between 1993 and 1998. In my opinion both Defendants have discharged the onus of establishing inordinate and inexcusable delay. I must now turn to the facts of the case to see whether the balance of justice is in favour of or against the case proceeding.

In his affidavit of 22 April 1999 Mr Jim Borge on behalf of the second Defendant claims that the second Defendant has been greatly prejudiced in defending the claim in view of the important and significant part attributed to Mr Ledwidge in the replies to particulars and the crucial nature of the evidence he could have given. He says that the second Defendant, as employer, was removed from the day-to-day happenings and would have difficulty in rebutting and dealing with many of the significant claims made by the Plaintiff. He mentions four directors of the second Defendant: Mr Don Murdoch, the drawing office manager, who retired on 24 September 1993; Mr Les Byrne, director of production, who retired on 31 December 1993; Mr Chris Taylor, a director, who retired on 31 March 1995; Mr Paddy Rodgers, a director, who retired on 31 October 1997. He claims there would be difficulty for such witnesses as are available to recollect matters going back eleven years. He also says that there is an insurmountable difficulty because of the Plaintiff's failure and neglect.

On behalf of the third Defendant Mr Quigley also claims inordinate and inexcusable delay and says that it greatly prejudices the third Defendant's ability to defend the proceedings. The replies to the notice for particulars identifies himself and Mr Michael Ledwidge as having made the representations in paragraph 8. He worked, he says, under the supervision of Mr Ledwidge who was a partner in the third Defendant. He also claims that he did not make representations and says that he was not present at any site meeting in relation to the contract on which the Plaintiff relies and that Mr Ledwidge represented the third Defendant. Mr Quigley denies making representations about the thickness of the concrete. In so far as it is alleged that Mr Ledwidge made representations, the third Defendant is prejudiced by reason of his death. He says that Mr Ledwidge was an essential witness for the third Defendant. He also says that the third Defendant has suffered prejudice and damage to its professional reputation as a result of having the claim hanging over it for more than ten years.

In the second Defendant's Motion the Plaintiffs solicitor says that there was no complaint from the second Defendant until April 1999. A notice for particulars was sent in July 1998 and was replied to in August 1998. He says that the Notice of Motion for judgment in default of defence was returnable on 8 February but was struck out by agreement with costs to the Plaintiff, the defence to be delivered in eight weeks. He got confirmation by fax that he would receive the defence by 23 April 1999. He says there was a delay of eight months since the replies to particulars so there is delay on all sides. He denies that the second Defendant is severely prejudiced in its ability to defend its claim and says that the Plaintiff's claim is documented by site minutes and correspondence. Mr Hughes of the Plaintiff has, he says, advised him that the relevant persons for the second Defendant are Mr Borge and Mr Roche. If the second Defendant was prejudiced, it would have raised the matter earlier or at least on receipt of the Statement of Claim.

On behalf of the Plaintiff Mr Hughes reiterates that the contract, the problems, the claim and the reasons have been fully documented and says that the principal representatives of the second Defendant were Mr Borge and Mr Roche. He says that the second Defendant was not justified in claiming severe prejudice. He says that Mr Borge does not say that the four directors mentioned by him are unwilling to give evidence. He, too, says that the delay has been contributed to by the second Defendant which has not delivered its defence.

In the third Defendant's Motion the Plaintiffs solicitor details the steps taken since delivery of the Statement of Claim and says that since delivery of the replies on 9 November 1998 the Plaintiff has waited for a defence. Therefore, the third Defendant cannot blame the Plaintiff for inordinate delay. He also says that the fact that Mr Ledwidge is not available can be taken into account by the trial judge when weighing and considering any conflicting evidence by or on behalf of the Plaintiff and the third Defendant. He says that numerous persons were involved in the alleged representations and that it is incorrect that the third Defendant is prejudiced in this regard.

With regard to the delay of the Defendants, which is a factor to be taken into account, I was referred to Hogan and Ors v Jones and Ors [1994] 1 ILRM 512. In that case Murphy J refused an application to dismiss the Plaintiffs' claim for want of prosecution and said:

"When defendants have asserted that their professional and financial reputation was damaged, it might have been inferred that they would have pressed the plaintiff to proceed with the action"

He pointed out that the rules of court are there to ensure that litigation is carried out in accordance with fair procedures. It should also be added that in that case the defendants contributed to four years of the delay.

However, in Celtic Ceramics v IDA the judgment of the Supreme Court (delivered on 4 February 1993) dealt with the argument that the defendants were in default by failing to apply to the court to direct delivery of particulars. At page 7 of the judgment Finlay CJ says:

"That seems to me to be a broad sweeping argument which is unsound in relation to the particular issues which we are concerned with here. It is the plaintiff who must bring forward his litigation and there are available to him a number of different alternative methods of so doing."

As to the delay of both Defendants in filing their defences, I consider that it is absolutely negligible in relation to the overall delay. In particular the Defendants were entitled to see what replies to particulars were given. In both cases they moved within a reasonable time when it was clear that Mr Ledwidge was of such importance.

While I take the point that other witnesses are available, it seems to me that Mr Ledwidge was absolutely essential to the case being made by the Plaintiff. In being deprived of Mr Ledwidge's evidence I am satisfied that both the second and third Defendants are gravely prejudiced and that there is a substantial risk that it would not be possible to have a fair trial in the absence of his evidence.

I will make the order sought and dismiss the claim against the second and third Defendants. The costs of the motion and the action to be paid by the Plaintiff and taxed in default of agreement. I will put a stay on the order for costs on the usual terms. Any costs incurred in relation to the re-entry against the second Defendant are given to the second Defendant.