High Court: Negligence proceedings against solicitor struck out due to inordinate and inexcusable delay
The High Court has ruled that negligence proceedings against a firm of solicitors should be struck out due to inordinate and inexcusable delay in prosecuting the proceedings. The plaintiff had initiated proceedings in 2013 and had passed away in 2020. The proceedings were maintained by his son.
About this case:
- Citation: IEHC 281
- Court:High Court
- Judge:Mr Justice Cian Ferriter
Delivering judgment in the case, Mr Justice Cian Ferriter held that there was a five-year delay in issuing the proceedings, which related to legal services from 2007. Further, there was an unexplained four-year delay from 2016 to the plaintiff’s death in 2020. The court held that the balance of justice favoured striking out the proceedings, having regard to the prejudice caused to the defendant arising from the plaintiff’s death.
The plaintiff had previously been employed by the Dublin Airport Authority. He went on sick leave in December 2004 for mental health reasons, including depression and anxiety. He also received treatment for alcohol abuse.
In November 2006, he entered into negotiation with the DAA to terminate his employment. He sent a “request for voluntary severance” and was given proposed terms by the DAA for his departure. He engaged the defendant’s firm to provide legal advice on the severance package.
Ultimately, in October 2007, the plaintiff agreed to a one-off severance payment of €55,000 together with a loan repayment waiver of €13,941 and legal fees of €1,500. The agreement recorded that the repayments were “paid by way of severance on the grounds of ill health”.
In 2012, the plaintiff obtained documents from the DAA based on a data access request. Subsequently, in 2013 the plaintiff issued proceedings against his solicitor alleging negligence. He alleged that he had been required to leave his employment with the DAA due to illness. As such, he relied on Clause 12 of his contract of employment, which provided that he was entitled to a lump sum of three times his annual salary if he was required to retire prematurely due to ill health.
It was alleged that the defendant’s firm failed to properly call on the DAA to provide the entitlements to the plaintiff. As such, the plaintiff sought €323,000 in damages.
In their defence, the defendants claimed that the plaintiff was a recovering alcohol who had been medically advised to return to employment after being six months alcohol-free. As such, it was denied that the plaintiff qualified for compensation under Clause 12 since he was not permanently incapacitated. Further, it was pleaded that he had been advised of this.
Pleadings were closed by May 2014 and discovery had been finalised by October 2016. A certificate of readiness was prepared by senior counsel in October 2017. However, the plaintiff died on July 2020. As such, an application was brought by his son (the executor) to be substituted as plaintiff in the proceedings in October 2021.
A notice of intention to proceeding was served and, on foot of this, the defendants issued a notice of motion to strike out the proceedings for want of prosecution.
The defendants submitted that there had been inordinate and inexcusable delay in the prosecution of the proceedings. Further, it was argued that, since the original plaintiff had died, they were prejudiced in their defence of the action. In particular, they would not be in a position to cross-examine the plaintiff on events which occurred in 2007.
In response, the plaintiff submitted that the matter could proceed as a “documents-only” case. It was said that the plaintiff’s expert had provided an opinion supportive of the case which was based on a consideration of documents uncovered by discovery on those on the defendant’s file.
Mr Justice Ferriter began by outlining the well-established legal principles relating to striking out proceedings for want of prosecution (see Primor v. Stokes Kennedy Crowley  2 IR 459). This required establishing inordinate and inexcusable delay, followed by an examination of whether the balance of justice favoured a strike out.
The court was satisfied that the four-year period between a first notice of intention to proceed (November 2017) and a second notice of intention to proceed (October 2021) was inordinate.
Further, the plaintiff had not properly explain the delay of over five years in initiating proceedings. This was “considerable pre-commencement delay” which required a plaintiff to prosecute their proceedings with expedition (see Millerick v. Minister for Finance  IECA 206).
While the court accepted that time was productively spent up until October 2017, the court held that there was inexcusable delay between October 2017 and October 2021. The proceedings were certified as ready for hearing but the plaintiff did not attend certain medical expert appointments.
Further, while a certain allowance would be made for bringing the motion to reconstitute the proceedings, it took 15 months for this to occur. Importantly, at no point in the four-year period did the plaintiff outline to the defendant the reasons for why the case was not set down for hearing.
As such, the court held that most of the four-year delay was inexcusable. The court then turned to the balance of justice and noted that the defendant had to demonstrate some moderate prejudice to be successful in the application (see Cave Projects v. Gilhooly  IECA 245).
The court held that this was not a “documents-only” case. While the plaintiff could present the case based on documents, this ignored the issues raised by the defendants in the defence and their entitlement to challenge key factual aspects of the plaintiff’s account.
The defendants were at a “real disadvantage” in fairly meeting the claims against them, particularly due to the absence of cross-examination of the original plaintiff. This caused “significant prejudice” to the defendants in the case, the court held.
The court was also satisfied that there was a causal connection between the inexcusable delay and the prejudice caused to the defendants. In particular, it was held that the matter could have been set down for trial at an earlier date and concluded prior to the plaintiff’s death (see Cave Projects).
The court accepted that the proceedings were ready for hearing now and that this may ordinarily make it more difficult to dismiss proceedings (see Grant v. Minister for Communications  IEHC 468). However, this did not alter the countervailing prejudice occasioned by the original plaintiff’s death.
Finally, the court rejected a submission that the issues relating to evidence could be left to the trial judge. It was said that justice should not be “put to the hazard” in this way and that it would subvert the entire Primor jurisdiction if the court were to allow this case to proceed to trial where moderate prejudice had been established.
The court struck out the proceedings for inordinate and inexcusable delay.
Vaughan v. English and Anor.  IEHC 281