Analysis: Strike out for want of prosecution and the balance of justice
Philip Lee partner Clare Cashin and senior associate Michael Cahill discuss a High Court case which highlights the high threshold to be met in order for a defendant party to succeed in an application to strike out proceedings for want of prosecution.
In the case of Barrett v Traymount Construction Ltd & Others  IEHC 502, the High Court had to consider an application by the first defendant (Traymount Construction Limited) to strike out the plaintiff’s (Wayne Barrett) action for want of prosecution based on inordinate and inexcusable delay.
This case concerned the construction of the plaintiff’s house in Finglas by the defendant in 2003/2004. In 2008, the plaintiff noticed cracks in the walls of the house and engaged a surveyor to carry out investigations which identified severe (and worsening) structural cracking that would require remedial works to safeguard the structural integrity of the property. Proceedings were ultimately issued in 2012 against the defendant and several other parties involved in the supply of infill which contained pyrite.
However, on receipt of expert advice, the focus of the plaintiff’s claim changed to alleging that the defective condition of the house was caused primarily by the negligence and breach of duty of the defendant (the builder) in laying the foundations of the property. In this regard, in early June 2014 the plaintiff served a notice of discontinuance on the other defendants as they were no longer being pursued in respect of the presence of pyrite in the foundations. The plaintiff proceeded to deliver his statement of claim in late June 2014 and thereafter the defendant filed a full defence in March 2016.
Between 2016 and late 2018 there were interactions between the parties in relation to discovery and also the restoration of the defendant company to the Register of Companies (the court noting that the defendant “acted outrageously in voluntarily having the company dissolved” when proceedings were ongoing against it).
In and around July / August 2020, the plaintiff issued a notice of intention to proceed and his solicitors indicated in correspondence of May 2021 that a reply to the defendant’s defence would be delivered shortly. In June 2021, the defendant issued a motion seeking an order, pursuant to Order 122, rule 11 of the Rules of the Superior Courts, striking out the plaintiff’s action for want of prosecution on the basis of the inordinate and inexcusable delay caused by the plaintiff. The hearing of the defendant’s motion came before the High Court in July 2022.
As an aside, notwithstanding a brief reference to the Statute of Limitations in its submissions, it does not seem that the defendant sought to dispose of the proceedings on the basis that the plaintiff’s claim was statute-barred (presumably upon an assessment of the law following the Supreme Court’s judgment in Brandley and WJB Developments Limited v Deane and Lohan  IESC 83 around the date of manifestation of the damage) and so this hearing proceeded on the basis of delay alone.
Arguments in respect of the strike out motion
The defendant argued that as the action would not be heard until at least 2023 or 2024, it would not receive a fair trial. The defendant maintained that:
- its principal was an elderly man of 76 years of age who would be unable to recall events from 2003/2004;
- it did not have the documents relating to the works carried out on the house in question;
- it did not have an engineering report regarding the original foundations laid at the property;
- several crucial witnesses would be unable to attend the hearing;
- pursuant to the provisions of the Constitution and European Convention on Human Rights there was an obligation on the court to ensure that litigation was processed in a timely manner; and
- the case being pursued by the plaintiff was “almost unstateable”.
The defendant also argued that the court must examine the strengths and weaknesses of the plaintiff’s case when determining whether it was just and fair to allow proceedings to continue; however this argument was rejected by the court who noted that to do so would essentially require a mini trial.
The plaintiff accepted that the court was likely to find there had been inordinate delay however it was argued that as this matter related to latent defects caused by defective workmanship, time can only begin to run from when the defects became apparent, not when the works were complete. The plaintiff asserted that he issued proceedings in a timely manner once the defects were discovered in 2008 and further submitted that the defendant had, by its conduct, caused significant delay to the progression of the proceedings.
The decision – no strike out
Having cited the relevant case law, the court held that the burden of proof to establish that the balance of justice lies in favour of striking out the proceedings rested with the defendant moving party.
In considering the balance of justice, Barr J noted that the defendant had, by its actions (and inaction) contributed to the delay, to include:
- entering its appearance late;
- ignoring the plaintiff’s discovery request initially and then responding with a simple holding letter, and thereafter providing an affidavit of discovery which was grossly ineffective; and
- voluntarily dissolving the defendant company whilst proceedings were pending against it.
However, the court also found that, having considered the circumstances known to the plaintiff in the period 2012-2014, it was not satisfied that there was any excuse for the delay by the plaintiff in progressing the proceedings to hearing – the court found the delay by the plaintiff to be “both inordinate and inexcusable”.
Having considered the conduct of both parties, the court held that there had been “active delay” on the part of both. The court was not persuaded to order the strike of the proceedings on the basis that the central issue in the proceedings was the adequacy of the foundations originally laid in the house, and that the burden of proof in proving that the foundations were defective lay with the plaintiff.
The court noted the plaintiff’s position that this case would almost entirely turn on the basis of expert evidence and furthermore that the plaintiff had offered to make all of his independent experts’ reports and records available to the defendant. The court held that the defendant’s arguments regarding the lack of materials/experts available to it was defunct with Barr J satisfied that the plaintiff’s offer to provide the defendant with his own reports and records “goes a long way to remedying any evidential deficit that the defendant may have at this remove in relation to expert evidence; which deficit was entirely the fault of the defendant”.
Barr J commented that the delay on the part of the plaintiff had no effect on the availability of documents or records to the defendant given that it appeared that no such records were retained by the defendant. The court also noted that third party discovery was open to the defendant as a means of procuring any relevant documents but that it had not done so.
In conclusion, the court refused the application to strike out as it was satisfied that the defendant would “be in a position to adequately defend itself at the trial of the action” even if heard in 2023.
This case is a reminder of the difficulties faced by a defendant party in successfully seeking to have a matter struck out for want of prosecution. Despite the court finding that the plaintiff here was guilty of “inordinate and inexcusable” delay, the delay resulting from the defendant’s own conduct together with its ability to defend itself at trial were significant factors which allowed the court to hold that the balance of justice favoured the matter proceeding “without any further delay” to hearing.
The case is a useful reminder that the courts are meticulous in considering the acts of all parties, with a defendant’s own actions capable of proving fatal even where there is extraordinary delay on the part of a plaintiff.