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Cite as: [2019] IEHC 874

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THE HIGH COURT

[2019] IEHC 874

[2014/2369 P]

BETWEEN

ULSTER BANK IRELAND LIMITED

PLAINTIFF

AND

SEÁN COYNE & COMPANY LIMITED TRADING AS COYNE & CULLOTY & TADGH

GALAVAN INSURANCES LIMITED TRADING AS

PROPERTY PARTNERS GALAVAN

DEFENDANTS

JUDGMENT of Mr. Justice Meenan delivered on the 8th day of November, 2019

Background

1. These proceedings concern a professional negligence claim against the second named

defendant, a notice of discontinuance having been served on the first named defendant.

The plaintiff alleges that the second named defendant’s servants or agents were guilty of

negligence, negligent misstatement, misrepresentation, breach of duty and/or breach of

contract arising out of the provision of a valuation report in respect of a commercial unit:

Unit 7, The Reeks, Tralee Road, Killarney, Co. Kerry. This valuation report was provided

to the plaintiff on 20 February 2008.

2. The following are the various steps that were taken in the proceedings: -

(a) Plenary summons issued – 10 February 2014;

(b) Plenary summons served – 9 February 2015;

(d) Motion to compel delivery of Statement of Claim – 26 June 2015;

(e) Statement of Claim delivered – 31 July 2015;

(f) Notice of discontinuance filed against first defendant – 31 July 2015;

(g) Notice for particulars raised – 1 October 2015;

(h) Replies to particulars – 25 November 2015;

(i) Joinders raised in respect of replies to particulars – 12 January 2016;

(j) Defence delivered – 10 February 2016.

3. On 11 June 2018, the second named defendant issued a notice of motion seeking an

Order that the plaintiff’s claim be dismissed for want of prosecution and/or in the interests

of justice on the grounds that the plaintiff has been guilty of inordinate and inexcusable

delay.

Principles to be applied

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4. The issues that arise in this application have been considered by the Superior Courts on

numerous occasions over the past 25 years or so. As ever, the starting point is the

following passage from the judgment of Hamilton C.J. in Primor Plc. v. Stokes Kennedy

Crowley [1996] 2 I.R. 459: -

“(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;

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.”

5. In the past number of years a number of factors have influenced how courts apply these

principles. Firstly, the courts have been less tolerant of a culture of delay in the taking

and prosecution of proceedings, particularly in cases of professional negligence. Secondly,

litigants have rights under Article 6(1) of the European Convention on Human Rights. I

refer to a more recent statement of the principles that are applicable by Irvine J. in the

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decision of the Court of Appeal in Flynn v. The Minister for Justice, Commissioner of An

Garda Síochána Ireland and the Attorney General [2017] IECA 178: -

“Legal Principles

19. In the course of his judgment the trial judge set out a summary of the key

principles to be considered by a court when asked to exercise its inherent

jurisdiction to dismiss proceedings on the grounds of inordinate and inexcusable

delay. He did so by reference to a number of relatively recent decisions on the

issue. Given that, subject to one important exception, these are not controversial I

gratefully adopt and below set forth the summary of the relevant principles

identified by Barrett J. at para. 5 of his judgment. I have also taken the liberty of

including one additional factor emanating from the judgment of Fennelly J. in Anglo

Irish Beef Processors v. Montgomery [2002] 3. I.R. 510.

‘(1) The court has an inherent jurisdiction to dismiss a claim on grounds of

culpable delay when the interests of justice require it to do so.

(2) The rationale behind the jurisdiction to dismiss a claim on grounds of

inordinate and inexcusable delay is that the ability of the court to find out

what really happened is progressively reduced as time goes on, putting

justice to hazard.

(3) It must in the first instance be established by the party seeking dismissal of

proceedings for want of prosecution on the ground of delay in the prosecution

thereof, that the delay was inordinate and inexcusable.

(4) In considering whether or not the delay has been inordinate or inexcusable

the court may have regard to any significant delay prior to the issue of the

proceedings. Lateness in issuance creates an obligation to proceed with

expedition thereafter.

(5) Even when delay has been 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 case proceeding.

(6) Relevant to the last issue is the conduct of the defendant and the extent to

which it might be considered to have been guilty of delay, to have acquiesced

in the plaintiff's delay or implicitly encouraged the plaintiff to incur further

expense in pursuing the claim. Delay in this context must be culpable delay.

(7) The jurisdiction to dismiss proceedings on grounds that, due to the passage

of time but without culpable delay on the part of the plaintiff, a fair trial is no

longer possible, is a distinct jurisdiction in which there is a more onerous

requirement to show prejudice on the part of the defendant, amounting to a

real risk of an unfair trial or an unjust result.

(8) In culpable delay cases the defendant does not have to establish prejudice to

the point that it faces a significant risk of an unfair trial. Once a defendant

establishes inordinate and inexcusable delay, it can urge the court to dismiss

the proceedings having regard to a whole range of factors, including

relatively modest prejudice arising from that delay.

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(9) Prejudice to the defendant may arise in many ways and be other than that

merely caused by the delay, including damage to the defendant's reputation

and business.

(10) All else being equal, persons against whom serious allegations are made that

affect their professional standing should not have to wait over a decade

before being afforded opportunity to clear their name.

(11) The courts are obliged under Article 6(1) of the European Convention on

Human Rights to ensure that all proceedings, including civil proceedings are

concluded within a reasonable time. Any court dealing with an application to

dismiss a claim on the grounds of delay must be vigilant and factor into its

considerations, not only its own constitutional obligations but the State's

Convention obligations.

(12) The courts must make it clear that there will not be an excessive indulgence

of delay, because, if they do not, they encourage delay, leading to breach by

the State of its Convention obligations.

(13) There is a constitutional imperative to bring to an end a culture of delay in

litigation so as to ensure the effective administration of justice and basic

fairness of procedures. There should be no culture of endless indulgence.

(The court notes this is not the same as saying that there can be no

indulgence).

(14) The courts can bring to their assessment of any (if any) culpability in delay

the fact that the cost of litigation may act as a disincentive to prompt action.

(15) As in every case, the courts must bring to their considerations a necessary

sensitivity to the personal and social background of persons who present

before them.

(16) Where a plaintiff is found guilty of inordinate and inexcusable delay there is a

weighty obligation on the plaintiff to establish countervailing circumstances

sufficient to demonstrate that the balance of justice would favour allowing

the claim proceed.’

20. Having regard to the precise wording used by the trial judge which is replicated at

para. 19 (11) above, I think it is necessary to state that I doubt whether it is

correct to say that the courts are themselves under an obligation by virtue of Article

6(1) ECHR to see to it that all litigation is heard within a reasonable time, at least

so far as Irish domestic law is concerned…”

Application of principles

6. It is readily apparent from the chronology, set out at para. 2 above, that the plenary

summons was issued within days of the possible date for the expiry of the time limited by

the Statute of Limitations Acts 1957 – 1991. Thus, approximately six years elapsed

between the date on which the valuation report was provided, 20 February 2008, and the

date on which the summons was issued, 10 February 2014. The summons was not served

until one day before its expiry. There is no suggestion that there was any difficulty in

serving the summons within the twelve months from its date of issue.

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7. However, this was not the end of the delay. The Statement of Claim was delivered on 31

July 2015, following a motion to compel its delivery. This was followed by a notice for

particulars and replies. The Defence was delivered on 10 February 2016. The plaintiff took

no steps to prosecute the proceedings thereafter. On 10 July 2018, the second named

defendant’s motion herein was issued.

8. Some ten years elapsed between the date on which the valuation report, the subject

matter of the proceedings, was delivered and the issue of the motion to dismiss for want

of prosecution. This is not a particularly complex claim and, given the time lines already

referred to, I am satisfied that the delay involved is inordinate. However, is it excusable?

9. The plaintiffs filed an affidavit, sworn by Mr. Sean Cotter, bank official, which put forward

a number of reasons for the delay. Firstly, in the 2013 to 2015 period, the plaintiff

negotiated and completed a significant number of loan sale transactions with a view to

limiting the number of non-performing loans on its balance sheet. Mr. Cotter states that

the completion of these loan sales was an essential aspect of the recovery of the Irish

Banking Sector. This may well be correct but I do not accept this has anything to do with

the second named defendant. Though a loan was involved, the claim against the second

named defendant is not in respect of a loan, but rather the furnishing of a valuation

report.

10. Mr. Cotter correctly states that this is a claim which involves professional negligence

which required the plaintiff to consider carefully the details of the claim before issuing and

serving proceedings. However, as referred to above, proceedings were not issued until

nearly the expiry of the time allowed by the Statute of Limitations Acts, 1957 – 1991,

and a Statement of Claim was only delivered following the issue of a motion. It seems to

me that the plaintiff had plenty of time before issuing and serving the proceedings and

delivering a Statement of Claim to consider and take advise on the claim. Therefore, I do

not find this to be a credible excuse for delaying prosecution of the action.

11. A further reason for the delay, put forward by Mr. Cotter, is that the plaintiff considered it

to be appropriate that losses arising from the sale of the property would be crystallised

before the proceedings were progressed. The property in question was sold on or about

10 November 2014. If this be the case, I find it very hard to understand why there is no

reference to any such sale in the Statement of Claim which was delivered on 31 July

2015, some nine months after the sale. There is reference to the sale of November, 2014

in the replies of the second named defendant’s notice for particulars, dated 25 November

2015. This does not explain why, notwithstanding the delivery of the Defence in February,

2016, the plaintiff took no further steps to prosecute the action.

12. I am satisfied that the delay in this case has been both inordinate and inexcusable. The

next issue which I must consider is where the balance of justice lies.

13. In her affidavit on behalf of the second named defendant, Ms. Anna-Maria Galavan refers

to a fatal explosion that took place on 13 July 2013 in the second named defendant’s

office building. As a result, the only computer was destroyed and, as it was not backed

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up, records were destroyed. In addition to the office – files, notes and documentation

were also destroyed. The valuation report, the subject matter of the proceedings, was not

recovered as were the second named defendant’s notes in respect of the said report.

Though this may create some difficulties in defending the action, it seems to be the case

that Ms. Galavan was an author of the report and so should be in a position to give

evidence as to the basis upon which the report was compiled. In any event, the explosion

took place at a time before the proceedings had been issued, thus, any prejudice that

may have arisen cannot be attributed to the delay on the part of the plaintiff. However, it

is the case that were this action to proceed to a trial, witnesses on behalf of the second

named defendant would, to an extent, have to rely on what opinions they gave and the

reasons for them. It is now over ten years since the relevant report was furnished and

there must be a significant risk that in that time period, and whatever period may elapse

between now and the date of a trial, memories will have significantly dimmed.

14. I attach particular significance, as does Mr. Cotter in his affidavit on behalf of the plaintiff,

to the fact that these are proceedings involving allegations of professional negligence. I

refer, again, to the passage cited from Irvine J. in Flynn where she states: -

“(10) All else being equal, persons against whom serious allegations are made that affect

their professional standing should not have to wait over a decade before being

afforded opportunity to clear their name.”

15. A further matter that has to be considered is whether the second named defendant has

itself been guilty of delay or has acquiesced in the plaintiff’s delay. I am satisfied that

there has been no delay on the part of the second named defendant. Following the

delivery of the Statement of Claim, the second named defendant served a notice for

particulars which were replied to. Rejoinders were raised in respect of these replies on 12

January 2016 and the Defence was delivered on 10 February 2016. I cannot identify any

delay on the part of the second named defendant. Following the delivery of the Defence,

it was reasonable for the second named defendant to wait a period of time before issuing

the within motion.

Conclusion

16. By reason of the foregoing, I am satisfied that the delay on the part of the plaintiff in

prosecuting these proceedings was both inordinate and inexcusable. However, for the

reasons stated, I am satisfied that the balance of justice lies in favour of granting the

reliefs sought by the second named defendant and I therefore dismiss the proceedings.