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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doherty -v- Ryan [2015] IEHC 242 (17 April 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H242.html
Cite as: [2015] IEHC 242
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Judgment
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Neutral Citation: [2015] IEHC 242 THE HIGH COURT [2005 No. 2924 P] BETWEEN: MARY DOHERTY PLAINTIFF AND
DAVID RYAN DEFENDANT JUDGMENT of Mr. Justice Noonan delivered the 17th day of April, 2015 Background 2. In her statement of claim, the plaintiff alleges that on the 15th of May, 2004 at the Annual General Meeting of Ballinagare Community Centre, the defendant, who chaired the meeting which was attended by a large number of people, falsely and maliciously spoke of the plaintiff and published the words “she is nothing but a thief and a pilferer” or words to that effect. It is alleged that the words were published to those who attended the meeting and in particular, to two named individuals, Eamonn Ryan and Brian Morahan. Arising out of the foregoing alleged facts, the plaintiff instituted proceedings claiming damages for defamation. Chronology
• 21st September, 2005 the statement of claim was delivered. • 7th February, 2007 the defendant delivered his defence after a delay of over 16 months which I shall refer to as Delay 1. The defence included a claim of qualified privilege. • 24th April, 2007 the plaintiff’s solicitors served a notice for particulars seeking particulars of the basis for the claim of qualified privilege. There was no response. • 12th January, 2009 the plaintiff’s notice of motion seeking the particulars sought came before the court, the result being a consent order deleting the relevant paragraph of the defence which had claimed qualified privilege. There was thus a delay of 21 months in dealing with the notice for particulars (Delay 2). • 22nd September, 2011 the plaintiff served a notice of intention to proceed some 32 months after the last step in the action (Delay 3). • 8th December, 2011 the plaintiff’s solicitors wrote to the defendant’s solicitors seeking voluntary discovery. There was no response to this letter. • 25th May, 2012 the defendant issued the within motion to dismiss. • 1st November, 2012 the plaintiff issued a motion for discovery. • 18th March, 2015 the motion to dismiss came on for hearing some 34 months after its issue (Delay 4). 4. Although there have been a myriad of cases on the issue of delay in recent years, the guiding principles are still to be found in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. While there has been some recent judicial comment that there may be a requirement for a degree of reappraisal of the principles laid down in these cases, there can be no doubt that they still represent the law. The Primor principles are so well established that it seems almost unnecessary to refer to them in detail but to the extent that they provide an extremely useful departure point in any case of this nature concerning delay, I think they bear repetition:
(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 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.” - per Hamilton C.J. at p. 475 - 476.
8. I think it is also clear on the authorities that a distinction is to be drawn between what Clarke J. describes in Rogers v. Michelin Tyre [2005] IEHC 294 as “active delay” as against “inactive delay”. He considered that active delay could arise on the part of the party charged with taking the next step in the proceedings with inactive delay being the converse. Thus, a party may be guilty of active delay when the ball is in that party’s court, so to speak. The relevance of the distinction was felt by Clarke J. to be that where delay on the part of the defendant was active, that was a weighty factor to be taken into account in the assessment of justice. The Affidavit Evidence 10. For his part, the defendant complained of general delay-based prejudice in his affidavits. He referred to the fact, by way of example only, that a member of Ballinagare Community Centre who was in attendance at the meeting on the 15th of May, 2004, Mr. Peter Finnerty, had died recently. However, counsel for the defendant properly conceded that it was not being suggested that Mr. Finnerty’s death had led to any specific prejudice. Indeed, there was no evidence that the matter had ever been discussed with Mr. Finnerty, that he had any recollection of events or what he might say in evidence. Analysis 12. By any standards, these proceedings have pursued a very leisurely course, particularly in the context of the subject matter. It is difficult to see how the delays that have occurred could be viewed as other than inordinate. However, both sides have been guilty of such delay. Delay 1 and Delay 2, cumulatively amounting to in excess of three years, are instances of active delay on the part of the defendant. No effort has been made by the defendant to explain these delays, less still excuse them. 13. Delay 3 must however be laid at the door of the plaintiff. A period of 32 months was allowed to pass when nothing at all was done to advance the case. In my view, Delay 3 was undoubtedly inordinate. The plaintiff has sought to excuse her delay on two grounds, the first relating to the period up to the death of her mother in 2008. It will immediately be seen that this predated Delay 3 and therefore can have no relevance to it. 14. The second ground advanced relates to her junior counsel taking silk in 2011. The first point to note in that regard is that this was already two years after the last step in the action being the motion heard on the 12th of January, 2009. Secondly, I cannot accept the proposition that the delay involved in briefing another junior counsel in this matter could ever be more than minimal. The facts and issues in this case are relatively simple, the papers are not voluminous and it is difficult to see how any competent junior counsel would not come to grips with it in very short order. 15. It seems to me therefore that the plaintiff has offered no credible excuse for Delay 3 which must be regarded as both inordinate and inexcusable. 16. With regard to Delay 4, no explanation for this delay has been put before the court on affidavit. Prima facie, it must be assumed that since the defendant had carriage of the motion, any culpable delay that arose ought not to be laid at the door of the plaintiff. I was informed during the course of the hearing that the matter had been adjourned on a number of occasions by mutual consent to facilitate the convenience of the parties and further that it had not been reached in the list on one or more previous occasions. In those circumstances, I propose to disregard this delay for the purposes of the within application. Conclusion 18. In those circumstances, and with, it has to be said, a degree of reluctance, I am driven to the conclusion that the interests of justice require that the plaintiff be permitted to proceed with her claim. Having said that, I am quite satisfied that the court has a duty to ensure in the interests of the public and those who seek to exercise their right of access to the courts that litigation proceeds expeditiously and the lackadaisical attitude shown by both sides in this case should not as a general rule be tolerated. 19. Whilst I will therefore dismiss this application, I will discuss with counsel a time scale for ensuring that this matter comes to trial without further delay and I will undertake such case management measures as are necessary to ensure that outcome. I should also add that in the event of the defendant suffering any actual prejudice as a result of the delay in the matter ultimately coming to trial, nothing in this judgment should be taken as precluding reliance by the defendant on such a prejudice in defending the action. |