Supreme Court of Ireland Decisions

 
THE SUPREME COURT

101/01

Murphy J

Murra y J

Fennelly J

Between: Timothy O'Connor AND Andrew Stephen Beasley

Ex tempore Judgment of Mr Justice Francis D Murphy delivered the 20th day oi-July, 2001

By an order made on the 3rd day of March, 2001, Mr Justice Kearns struck-out the Plaintiffs claim herein for want of prosecution. The circumstances in which that order was made were as follows. The plenary summons on this matter was issued on the 3rd November, 1998. That summons disclosed a claim for breach of a contract which had been made in March 1995. The statement of claim was delivered on the 4th November, 1998, with commendable speed. The defence was served on the 22nd January, 1999 in response it may be said to a motion for judgment in default of the defence which was dated the 7th January, 1999. To that extent the matter proceeded with reasonable dispatch.

On the same date as the defence the solicitors on behalf of the Defendant, Mr Beasley, issued a letter seeking particulars. No reply was made by the then solicitor on behalf of the Plaintiff to that letter. A reminder was sent on the 22nd February, 1999, and a further reminder on the 27th April, 1999, and no reply was received to those reminders either. It was proper to note that on the 31st October, 2000, a notice of intention to proceed was served and on the 9th February, 2001, a notice of change of solicitors on behalf of the Defendant was likewise served. The facts of the matter therefore is that there has been a delay of nearly eighteen months in replying to a letter for particulars and that was the substance of the application which came before Mr Justice Kearns. Mr Justice Kearns acceded the application and exercising the inherent jurisdiction of the Court having regard to the delay which had occurred struck out the Plaintiffs action. It is from that order the Plaintiff appeals to this Court. The fact there has been a significant and serious delay is obvious and must be conceded by the Appellant. On the other hand it has to be recognised unhappily that the delay although serious and lengthy is very much less than that which has occurred in many of the reported cases dealing with inordinate and inexcusable delay where the time which elapsed was periods of years rather than months. What is also of concern is that the efforts to excuse that delay have been unconvincing. Effectively what the Plaintiff has done is to explain, if that is what the appropriate interpretation is, that the delay was due to the inefficiency or incompetence of his then solicitors. This explanation would not exculpate the Plaintiff and if he was dissatisfied with his solicitors he should have dismissed them and engaged others as he ultimately did. Indeed there was evidence from him that he had considered other advice in relation to his then solicitors but it is not clear when he sought to act on it. What we do know is that rather than focusing on these proceedings he engaged the services of what was described as "a debt collecting agency" to collect what he considered to be the debt the subject matter of these proceedings notwithstanding there were proceedings in existence in which his claim was hotly disputed. That is an action which in itself is extraordinary and questionable and maybe a subject matter of comment at a later stage. For the purposes of this application the real mischief of what he did instead of replying to the letter for particulars he seemed to be abandoning, at least temporarily, these proceedings and taking up some alternative remedy. That seems to be perhaps one reason why the matter did not proceed with the expedition which the Defendant was entitled to expect.

On the other hand it must be pointed out and it is accepted by the Defendant that he could have brought a motion before the Court for a notice to compel the Plaintiff to reply to the letter of particular. Indeed he could have written further reminders instead of letting the matter apparently fall into abeyance himself. No action appears to have been taken of any significance subsequent to April, 1999, and the bringing of the motion before Mr Justice Kearns.

In the circumstances the delay which did occur whilst serious was not, as I would see it, inordinate in the sense in which that term is used in the decided cases. However a plaintiff should not be shut out from bringing his proceedings before the Court unless that is it established that there has been inordinate and inexcusable delay and, furthermore, that on the balance justice requires that the proceedings should be struck out. It seems to me that in the circumstances of this case that justice would not be served by depriving the Plaintiff of his opportunity to have his case heard before these Courts. On the other hand it does seem to me that the right of the Plaintiff to pursue the litigation further must be on terms which will be reflected in the order of this Court as to costs and furthennore the Plaintiff will be required to furnish an appropriate undertaking to expedite the outstanding steps and to bring the matter on for trial without any further delay. In the circumstances I would allow the appeal but I would allow it on the terms as to costs and the undertaking aforesaid.