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Cite as: [2013] IEHC 470
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Judgment Title: Campbell-Sharp Associates Limited & Ors -v- MVMBNI JV Limited & Ors Neutral Citation: [2013] IEHC 470 High Court Record Number: 2004 547 P & 2004 3591 P & 2004 18771 P Date of Delivery: 31/07/2013 Court: High Court Composition of Court: Judgment by: Hanna J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 470 THE HIGH COURT [2004 No. 547P] BETWEEN: CAMPBELL-SHARP ASSOCIATES LIMITED PLAINTIFFS AND
MVMBNI JV LIMITED AND RAILWAY PROCUREMENT AGENCY DEFENDANTS
[2004 No.3591P] BETWEEN: COMPREHEND LIMITED PLAINTIFFS AND
MVMBNI JV LIMITED AND RAILWAY PROCUREMENT AGENCY DEFENDANTS
[2004 No.18771P] BETWEEN: IDARLS LIMITED PLAINTIFFS AND
MVMBNI JV LIMITED AND RAILWAY PROCUREMENT AGENCY DEFENDANTS JUDGMENT of Hanna J. delivered on the 31st day of July, 2013 This is an application by the defendants to dismiss proceedings pursuant to the inherent jurisdiction of the Court on grounds of inordinate and inexcusable delay or pursuant to Order 122, Rule 11 for want of prosecution. The plaintiffs' claim for damages arises out of the construction of the Luas Green Line between 6th July, 2001 and 27th June, 2004 which the plaintiffs allege gave rise to a nuisance (persistently high levels of noise, vibrations, dirt, dust and grime and the obstruction of access to the plaintiffs' premises). It is also alleged that the dirt, dust and grime resulting from the works encroached upon the plaintiffs' premises constituting a trespass. It is claimed that the works were carried out in a negligent manner for an excessive and unreasonable period of time. By notice of motion dated 26th November, 2012 the defendants claim the following reliefs:
2. An order pursuant to Order 122, Rule 11 of the Rules of the Superior Courts 1986 dismissing the plaintiffs claim for want of prosecution; 3. In the alternative, an order directing the plaintiff to take such steps as may be prescribed within such period as may be limited by the Honourable Court, in default whereof the proceedings herein shall stand dismissed without further order; 4. Such further and other order as this Honourable Court shall deem necessary or appropriate; and 5. An order for costs The first named defendant, MVMBNI JV Limited, is the contractor appointed by the second named defendant, the Railway Procurement Agency (the "RPA"), to carry out the works in question. The RPA is a statutory body charged with the delivery of light rail infrastructure. The defendants have carried out works consisting of, inter alia, the laying of light railway tracks in the vicinity of, inter alia, Harcourt Street and Abbey Street. The plaintiffs' claim is that their businesses suffered considerable damage and financial loss due to the interruption, interference and obstruction of the premises and businesses by the contracted works. The plaintiffs' claim is for negligence, breach of duty, trespass, nuisance, and unlawful interference with Constitutional rights in relation to the use of certain premises. They allege that the deleterious effects of the works were exacerbated by delay in the defendants completing the work over a 26 month period- from February 2002 until April 2004. The alleged nuisance, trespass and damage occurred ten years ago and it is claimed by the defendants that there is an inordinate and inexcusable delay on the part of the plaintiffs in prosecuting the within proceeding. The defendants state that due to this delay they have suffered prejudice, and that in the circumstances it would not be fair for the case to proceed. The plaintiffs are occupiers of premises on Harcourt Street and Abbey Street. There are twelve cases before the Court in which motions have been brought by the defendants to dismiss the proceedings on the grounds of inordinate and inexcusable delay. Three of these have been disposed of as the plaintiff has been dissolved; in the matter of Insight Options Limited there is no opposition and it was dissolved in 2010, there is no presumed opposition in Village Quarter Limited which was dissolved in January 2008 and Kestrel Fashions Limited t/a Donnelly's Leather Goods Shop was dissolved on 9th December 2011. The matter of Idarls Limited t/a Wynn's Hotel and Comprehend Limited t/a CTI Partners are dealt with together as there are no significant differences between them. Essentially they are based on the same evidence and the only difference is in the chronology. The remaining seven cases of Campbell-Sharp Associates Limited t/a The Origin Gallery, Dieter Bergmann t/a Primo Restaurant, Betty Ann Norton Theatres School Limited, Kivaway Limited t/a The Odeon Bar and Restaurant, Triglen Holdings Limited t/a The Russell Court Hotel, Fontis Catering t/a Saagar Indian Restaurant, and Stanley's Newsagents Limited were dealt with as one motion and run before the Court under Campbell-Sharp as the facts are somewhat similar in that no statement of claim was delivered until June 2012 (bar in the Triglen Holdings and Fontis Catering matters where such statements were delivered). The Comprehend action essentially follows the same evidence as the Idarls action with some minor variations in the chronology. The Comprehend action was commenced by plenary summons on 24th March, 2004 and the statement of claim was delivered on 17th May, 2004. The Idarls action was commenced by plenary summons on 15th September, 2004 and the statement of claim was delivered on 14th October, 2004. The particulars were raised on 28th February, 2005 by the Railway Procurement Agency and a response to the particulars was given on 15th November, 2005. The defence of the first named plaintiff was delivered on 9th March, 2005 and the defence of the Railway Procurement Agency was delivered on 18th May, 2006. On 13th July, 2006 the defendants made a request for voluntary discovery. The plaintiffs agreed to make voluntary discovery on 15th February, 2007 but did not do so. As a result an application was made to compel them to do so in June 2008. In July 2008 Charleton J. made an order that unless discovery was made by 5th August, 2008 the application would stand dismissed for want of prosecution. An affidavit of discovery was produced on 30th July, 2008 but did not comply with the requirements of the rules so two further supplemental affidavits of discovery were made to correct the deficiencies- the first in June 2009 and the second in November 2011. A request for discovery was made by the plaintiffs on 5th May, 2011 and on 11th August they issued a 21 day warning letter in relation to the defendants' failure to make voluntary discovery. On 6th September 2011 the defendants indicated that they were taking instructions and requested the plaintiff not to issue a motion. On 16th December, 2011, after consultation with an engineer and counsel, the plaintiffs requested the defendants to defer their affidavit of discovery as the request for discovery needed to be redrafted. It was not until 6th June, 2012 that the operative part of the discovery request was served. On 15th August, 2012 the notice of motion seeking dismissal of the proceedings was served and in October 2012 the plaintiff’s notice of motion for discovery was served. The Campbell-Sharp action was commenced by plenary summons on 16th January, 2004 and an appearance was entered by the defendants in February 2004 which was followed by proposals for the settlement of the proceedings by the Railway Procurement Agency in February 2007. On 10th September, 2010 there was notice of intention to proceed and on 12th October that year the defendants' solicitor threatened a motion to dismiss if further steps were not taken in the proceedings. The plaintiff’s solicitor wrote to the defendant's solicitor on 2nd November, 2010 referring to the ten other sets of proceedings indicating that the Comprehend and Idarls cases would be prosecuted on the understanding that the remaining cases would be prosecuted thereafter. There is a dispute between the parties as to the existence of such an understanding. The statement of claim was delivered on 8th June, 2012 and on 15th August, 2012 the notice of motion seeking dismissal of the proceedings was served. Decision
(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so; (b) it must, in the first instance, be established by the party 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; (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 plaintiffs 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 plaintiffs 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. If so is it excusable or inexcusable? 3. If it is inexcusable where does the balance of justice lie? It has been conceded that there has been delay on the part of the plaintiff in processing the proceedings but it is denied that it was inordinate and inexcusable. It is clear from the background facts that there has been significant delay on the part of the plaintiffs in the Comprehend and Idarls cases in both providing and seeking discovery but are these periods inordinate and inexcusable? The first period of delay is that of making discovery which runs from 2006 until 2008 and there is the second even longer period of delay on the part of the plaintiffs in failing to make a request for discovery and that runs from 2006 to 2011/12. The proceedings in Comprehend and Idarls commenced on 24th March, 2004 and 15th September, 2004 respectively. On 13th July, 2006 there was a request for discovery by the defendants and the plaintiff agreed to make voluntary discovery in October of that year. As stated previously, following a motion compelling discovery, an order was made by Charleton J. directing the plaintiff to provide discovery. An affidavit of discovery was furnished on 31st July, 2008 by Neill Loftus in Idarls and by Thomas McCormack in Comprehend. This discovery was inadequate as regards the Comprehend matter and supplemental affidavits of discovery were being delivered up until November 2011. It was over two years before the plaintiff provided discovery in the Idarls case and over five years in the Comprehend case. The second period of delay relates to the plaintiffs' request for discovery. When the defence was delivered in May 2006 the issues became clear and the clock began to run against the plaintiffs to make this request. The first request for discovery was made on 5th May, 2011 in Idarls and on 28th June, 2011 in Comprehend. The redrafted request for discovery was made on 6th June, 2012 in Idarls and 20th June, 2012 in Comprehend. The request for discovery came five years after the defence was delivered, seven years after the proceedings commenced, and nine years after the alleged nuisance commenced. The operative part of discovery was served six years after the defence has been delivered, eight years after the proceedings were commenced, and ten years after the alleged nuisance commenced. From these dates it is clear that there was inordinate delay and so the first limb of the test is satisfied. Two years to comply with a discovery request and five/six years to raise a request for discovery is manifestly inordinate. In the Campbell-Sharp matter no statement of claim was delivered until 8th June, 2012 which is over eight years after the commencement of proceedings (however, statements were delivered in both the Fontis Catering and Triglen Holdings Limited matters in October 2004). The plenary summons issued on 16th January, 2004 and the plaintiff responded on 18th February stating that they would be in a position to deliver a statement of claim within a month. No further steps were taken by the plaintiffs for quite some period in these matters since 11th February 2004 when an appearance was entered by the Railway Procurement Agency. It is plain that the delay in this matter was inordinate with a statement of claim being delivered eight years after proceedings were commenced. Issue 2: Was the delay inexcusable? As regards the second period of delay, that of seeking discovery, it has been submitted by the plaintiffs that particular difficulties arose in obtaining appropriate experts to investigate the claim and assist in the formulation of the request. The first firm of engineers engaged was David L. Semple & Associates in 2004 which stated that it would not be able to continue in the case and withdrew from it as it was unable to furnish the plaintiffs with an expert report. The second firm of engineers, Watson and Associates Consulting Engineers, was contacted in 2008 and carried out preliminary investigations and site inspections. It advised that its engineers did not have the requisite knowledge or expertise for it to act as an expert or prepare a report in this particular case. A third firm of engineers, Beazley Sharp (Railwise) Limited was retained in July 2010 and carried out a site inspection in December 2011 and the firm is now fully committed to the case. Its engineers have carried out site inspections and it will be able to finalise its expert report when discovery is settled with the defendants. It is submitted by the plaintiffs that they had considerable difficulty over a number of years in engaging and retaining firms of civil engineers with the requisite experience involving the construction and development of a light rail system both inside and outside the jurisdiction. In response the defendants contend that it was the lawyers who would have the requisite knowledge to direct an application for discovery not the experts as put forward by the plaintiffs. According to the defendants it was the lawyers who should have been able to formulate a request for discovery in terms of a negligence and trespass action and submit that it is not apparent that expert evidence was required to formulate a request for discovery. The defendants state that no effort has been made to explain the difficulties in relation to obtaining an engineer with the relevant expertise or the efforts made to overcome this problem. From the evidence Mr. Fox wrote to Mr. Semple, of the first engineering firm, on 27th November, 2007 complaining about the delay (as he had been involved since 2004), however, there is nothing in the letter to suggest that Mr. Semple was engaged regarding discovery or was assisting in the preparation of discovery. The letter also shows that there was no activity on the part of Mr. Semple over a number of years. In a second letter to Mr. Semple, dated 6th February, 2008, Mr Fox again enquires about the delay which was now at three years. Another similar letter was sent on 8th May, 2008 and again there is nothing to suggest that they were looking for input regarding discovery. As regards the second firm of engineers, Watson Associates, wrote to Mr. Fox on 13th January, 2009 saying that it does not possess the specific requirements to produce a report. This shows that a period of three years was allowed to elapse with Mr. Semple and the third firm did not get on board until a year and a half after Watson Associates informed Mr. Fox that it would not be able to assist. These correspondences highlight that engineers were engaged with at a very leisurely pace. Furthermore, Mr. Ring of Beazley Sharp was engaged in July 2010, but the first request for discovery is not made until June 2011.The defendants submit that when one looks at that request for discovery (letter dated 20th June, 2012) the documents that are sought are documents which a lawyer could identify without any input from an engineer. However, I am not satisfied that this would be so upon looking at the request itself which is comprehensive and extremely detailed. The request involved documentation relating to the tender and specification for the light railway works which involved, inter alia, a "Copy of all contracts and works schedules, directions, orders and notices issued in respect of enabling, ancillary and utility works carried out in support of the main contract works." At section B a request was made for "Copies of reports, designs, specifications and any undertakings and assurances provided in respect of mitigations for noise, vibration and other nuisance during construction of the contracted works". Further documentation concerning the erection, maintenance and dismantling of barriers which included "Copies of maps, plans, schedules to include pre-contract through to completion and operational stage updates, particularly with respect to ancillary and enabling works, utilities close to the premises" were requested. These examples highlight the level of specialised knowledge and expertise that was used in the request for discovery. From the evidence before the Court consultation took place with Mr. Ring in December 2011, and following that Mr. Ring played a necessary role in the request for discovery. However, despite being satisfied that the engineer was necessary to formulating the request for discovery one cannot excuse a delay of this magnitude by merely stating that difficulties were encountered in engaging the requisite experts. Therefore the delay was inexcusable. Mutual Understanding/Implied Agreement In analysing this claim by the plaintiff’s one must bear in mind the notice to proceed and the correspondence from Mr Walsh (of McCann Fitzgerald) to Mr Fox on 12th October, 2010 complaining about the delay of over six and a half years. Both of these appear to be inconsistent with an alleged understanding or agreement. Clare Carroll of McCann Fitzgerald, in her affidavit sworn 20th December, 2012, avers that it was never agreed that these would be test cases and Grahame Walsh, in his affidavit filed 3rd April, 2013, avers that no such agreement to park the proceedings existed and there was no consent on his part. The defendants assert that there would have been no need to serve a notice to proceed (10th September, 2010) if there was an agreement in place. The law in relation to this issue is clearly stated in Rodenhuis and Verloop B.V v HDS Energy Ltd. [2010] IEHC 465, [2011] 1 IR 611 at p. 619 where Clarke J states at para. 17 that:
Issue 3 Where does the balance of justice lie?
Delay on the Part of the Defendants
Though considerable expense was undoubtedly incurred by the plaintiff in the preparation of the affidavit of discovery, I do not consider that, in the light of the particular circumstances of this case, S.K.C.'s action in seeking a cross-order for discovery can be criticised."
"I wish to add two further general observations. First, in weighing the extent of one party's delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution ... the adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances, it is acted upon by a defendant in the hope that he will 'get by' without having to face the peril of being decreed. Litigation is a two party operation and the conduct of both parties should be looked at."
1. Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings. 2. Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings. 3. Even where the delay has been both inordinate and inexcusable the court must further proceed to 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. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion. 4. Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the courts discretion." The plaintiffs also served a notice for particulars on the defendants on 13th November, 2007 and the defendants failed to respond which resulted in a 21 day warning letter being issued on 18th December, 2009. On 16th December, 2011 the plaintiffs issued a further notice for particulars which are still outstanding. The plaintiffs submit that these delays contributed to a considerable delay in the progression of the within proceedings. The defendant submits that in this instance they were asked questions of law and are therefore not required to respond as particulars should relate only to issues of fact. There was also delay on the part of the defendants in replying to the plaintiffs' request for voluntary discovery. The initial requests were made in May and June 2011. These letters were ignored and a 21 day warning letter was sent on 11th August, 2011. On 6th September, 2011 the solicitors for the defendants wrote to the plaintiffs to say that they were taking instructions in relation thereto and requested that the plaintiffs refrain from issuing a motion. In response the plaintiffs agreed not to issue a motion and granted an extension of time, however, no further response was received from the defendants in relation to this issue and the plaintiffs repeated there request for voluntary discovery in June 2012. Finally, there was a lack of engagement on the part of the defendants in replying to the plaintiffs correspondences regarding voluntary discovery sought by the defendants. Mr. Fox wrote to McCann Fitzgerald seeking confirmation that the defendants were satisfied with the matters to be discovered and which had been discovered on several occasions, beginning 19th December, 2008. On 18th December 2009 he also sought a response in relation to the discovery and on 17th June, 2009 a further letter was sent seeking confirmation in relation to the form of discovery the plaintiffs intended to make. This request was repeated on 16th February 2011. It was indicated that there was no response to these correspondences. The evidence shows that the plaintiffs were not solely responsible for the delay in prosecuting the within proceedings. As is clear from the authorities, delay on the part of the defendant is not a bar to a motion to dismiss, but it certainly is a very material factor that falls to be taken into consideration in the exercise of the Court's discretion as to whether to dismiss claims of this nature. It is an ingredient that the Court may take into consideration in deciding whether or not to dismiss an action where there has been inordinate and inexcusable delay. I am of the view that the defendants' engagement in these proceedings goes beyond more than simple inaction. There was a failure to respond to a notice for particulars and a substantial period of delay relating to the failure to reply to the letters seeking voluntary discovery and when the plaintiffs indicated that they were going to motion for failure to respond to the letter for voluntary discovery they were asked to hold the motion pending the taking of instructions by letter dated 6th September, 2011. Regardless of whether the notice for particulars warranted a reply, the letter should have been responded to and shows a lack of engagement in the process. Due to the stance taken by the defendants the proceedings seem to move into a rather laconic state and a situation emerged where nothing much was happening over a long period of time and letters were not being replied to. This situation may be allied with other periods of non-engagement such as the issue of test cases. It is the view of the Court that the delay on the part of the defendant was a significant ingredient in this case. Prejudice
But they are not the only such ingredients. The court is obliged to consider whether the total delay has been such that a fair trial between the parties cannot now be had and whether the defendants have been prejudiced by the continued delay. These matters must be considered separately in respect of each case."
2. The continued possibility of having to pay a sum in damages "said to make the claim one of the highest of its kind ever brought, not only in this country but anywhere in the world". 3. The lengthy and considerable delay, at that stage 15 years from the time of completion of the original audit, with the possibility, should the action be allowed to continue, of an appeal to the Supreme Court "which could protract the matter considerably". 4. Factors inhibiting S.K.C.'s ability to mount a successful defence, including: (i) most of the staff who worked on the audit have left the company, and a majority have left the jurisdiction also thus ensuring "an enormous expenditure of time and money would be involved in assembling witnesses from overseas"; (ii) such witnesses as have left the jurisdiction, if unwilling to attend hearings voluntarily, could not be compelled to travel; (iii) of the four partners involved in the work, one has since died, and the others have retired; (iv) two of the three partners of Oliver Freaney & Co., who were involved in the joint audit of 1978, have also died, as has the then managing director of the plaintiff company. 5. Auditing standards have undergone considerable change in the intervening years, particularly owing to the exponential leaps made in computer power and technology generally. It would thus be "very difficult" to assess the quality of S.K.C.'s work by reference to standards applicable at the time. 6 It would be "entirely unreasonable" to expect the defendants' witnesses to be able to answer in detail questions relating to their daily business activities some 16 years ago."
"Delays of four to five years as a matter of probability will reduce the potential of such persons to give meaningful assistance or act as a witness". Obviously the extent to which a comment such as the above may be true will depend on the nature of the evidence which is likely to be given and other relevant circumstances. In this case the plaintiff has criticised the defendants for failing to put before the court any evidence as to the specific manner in which the relevant witnesses might find themselves impaired in giving evidence. I do not find that the absence of such evidence is a matter for which the defendants can properly be criticised. A defendant, in bringing an application such as the one now before the court, will be faced with a dilemma. The defendant is entitled to rely on what might reasonably be called general prejudice, that is to say the prejudice which could reasonably be expected to occur in any case of the type concerned and having regard to the delay involved. A defendant will also be entitled, if it wishes, to put before the court any special or additional prejudice. If it does so, it will necessarily have to draw the court's attention by means of evidence to a specific or additional prejudice which has occurred by reason of the absence of a witness, the difficulty of a witness in being able to give full evidence, the absence of documents or any other material fact. Clearly if a defendant does bring to the court's attention any such special prejudice the court must take that fact into account. However it would also be naive to ignore the fact that by so doing the defendant will draw the plaintiff's attention to the difficulty which the defendant would incur in properly defending the proceedings in the event that their application for a dismiss is unsuccessful. In those circumstances it seems to me that it is perfectly appropriate for a defendant (if it wishes) to rely simply on general prejudice." The defendants also state the employees of the fourth named defendant have since ceased their employment and others now live abroad so they may prove difficult to trace. What general issues of evidence are these employees going to address, given that the works are essentially being carried out in the main by the first named defendant? The claim came at a time when memories were very fresh, when the Railway Procurement Agency would have all of its documentation intact and would have all of its witnesses still present. It should have had no difficulty in maintaining the documentation records and in taking witness statements pertinent to this claim. The plaintiffs took action very quickly (insofar as the plenary summonses were issued in 2004 in all twelve matters) which meant that the defendants were in a position to maintain all of their documentation and take witness statements. The defendants maintain that various personnel that were involved in this project have dispersed and to try to get people now at this remove to deal with the allegations that are going to be made at the trial is a huge and real difficulty, and it is compounded very significantly by the duration of the delay on the part of the plaintiffs in this case. However, those employees were located in offices supervising the overall contract in terms of the administration of it whereas it is the contractors who are carrying out the works on the ground. Furthermore, the moment a claim is made one would expect certain steps to be taken e.g engagement of a claims investigator, people are interviewed, statements are taken. This could and should have been done in the present case. The plaintiffs further submit that to the extent that memories have been dimmed, they would have been dimmed in any event by the passing of four years since the construction finished. Trill v Sacher [1993] 1 W.L.R. 1379, an English Court of Appeal case, refers specifically to the fact that the prejudice that is claimed by the defendant has to be attributable to a particular period of delay. In the present case it seems to me that the memories would have dimmed by the time the matter came on for hearing and it would be unjust and inequitable to strike out the plaintiffs proceedings where the defendants have not shown or proven that they are in any way prejudiced by the delay. In any event statements are available to refresh flagging memories. One must consider the extent that the defendant is prejudiced in terms of a fair trial. I am of the opinion that the defendants have not suffered any prejudice as a consequence of the delay by the plaintiffs. The defendants have been in a position to ensure that all relevant documentation in relation to the construction of the light railway works have been maintained and witness statements obtained. The first defendant went into liquidation in 2008 and the defendants could not have been prejudiced by this fact because at that time they could have taken any appropriate measures to obtain evidence, conduct interviews, or take statements from witnesses, within that company,_ The proceedings were issued in 2004 and the defendants have had years to muster their forces. The defendant has failed to show that the delay attributable to the plaintiff in prosecuting these proceedings has resulted in the likelihood that the defendants will not obtain a fair trial and therefore the balance of justice favours the refusal of the relief sought. Documents case
"Nor can the court fail to take notice of the fact that, for their evidence of the treatment of their patients, surgeons and physicians do and must rely on their written records to refresh their memories; that is to say, medical evidence in modern conditions is largely a matter of written records. Here the records are available. It should also be said that in an action with regard to a surgical operation the patient rarely knows anything; what has happened is known only to the defendants." Every case is different. Factual resemblances are only of limited value. What is important in this case however and which was obviously held to be important in the Dowd case was that the written documentation was complete and available. It appears that that written documentation was sufficient for the plaintiff’s expert, Mr. Clements, and the health board's expert, Mr. Lenihan, to form a definitive view. It appears not to be a case therefore where oral evidence is all important. If there is lack of memory on the part of Dr. Singh and/Or. Galvin, it is a factor that has to be taken into account but a balance of justice had to be considered having regard (inter alia) to the degree of its importance." The defendants in the present case are in a position where they must defend actions which occurred 10 years ago and submit that much of the case will depend on what happened on particular days. They also state that there is a difference between a documents case and the present case, therefore the balance of justice favours dismissal of the case. They state that the claim will be heavily dependent on evidence comprising the recollection of witnesses with regard to the level of noise, vibrations, dust, etc. while the plaintiffs submit that the claim will primarily be established on documentary evidence such as the Environmental Impact Study (EIS), although oral evidence will assist the claim. The bulk of the evidence will come from contracts, schedules and minutes of site meetings. Such documents will establish the methodology deployed by the defendants, the time scales and the type of equipment and plant used including the drilling and excavation equipment, fencing and road closure barriers. Furthermore, the engineer will provide expert evidence regarding project management and be able to draw on comparative standards and best practices employed in other countries. I am satisfied that this is principally a documents case although, no doubt oral evidence oral evidence will feature significantly. A fair trial is possible and on the balance of justice it cannot be dismissed. The argument that witnesses will be required and memories will have faded along with the claim that it will be impossible to trace employees do not hold as the case is not dependent on oral evidence. I am not satisfied that the defendants would be significantly reliant upon the memory of witnesses in the present case in circumstances where the proceedings concerned a large scale public project undertaken by an experienced state authority which requires detailed documentation both in the context of the implementation of the construction project and of compliance with statutory requirements in relation to health and safety and other matters. In that regard, the project was the subject of a detailed Environmental Impact Statement incorporating, inter alia, mitigation measures in relation to environmental/nuisance impacts, in respect of which it is submitted that there would necessarily have to be a considerable amount of documentation retained by the defendants particularly since they knew that the proceedings in this matter were pending. In the circumstances I am satisfied that the balance of justice requires that these proceedings be permitted to continue and I dismiss the defendants' application. 1. [2008] IESC 56, [2009] 1 IR 737. 2. Per Clarke J. in Kategrove Ltd v Anglo Irish Bank Corporation plc [2006] IEHC 210 at 11. |