High Court: Proceedings claiming €50m damages against Chartered Accountants Ireland struck out for want of prosecution

Delivering an judgment for the High Court, Mr Justice Barry O’Donnell explained: “Absent agreement or a court order, it is not open to the plaintiff to force a defendant to wait until the plaintiff is ready to pursue a particular case. This is all the more so where the litigation in this case involved allegations of forgery and what, in effect, is alleged to be serious misfeasance.”

Background

In 2006, the plaintiff signed a training contract with PwC and progressed through his professional accountancy exams, which were administered by the defendant. Having failed a particular exam on three occasions, PwC terminated his training contract in August 2009.

The plaintiff failed that exam for a fourth time in October 2009, and thereafter, issued various sets of proceedings as against the defendant and various other parties.

In the proceedings before Mr Justice O’Donnell which were commenced on 11 February 2015, the plaintiff complained inter alia about the marks awarded to him, that data access requests made by him were not complied with, and that his marks had been fraudulently altered, seeking damages in the sum of €50 million.

The defendant filed a full defence alleging that the plaintiff’s claim was frivolous, vexatious and bound to fail, and that his claims in relation to the alleged breaches of the Data Protection Acts 1988 and 2003 had already been addressed by the Data Protection Commissioners in his other proceedings.

The defendant issued a motion pursuant to Order 122, rule 11 of the Rules of the Superior Courts (RSC) and/or the inherent jurisdiction of the court seeking to have the action struck out for want of prosecution.

The High Court

Mr Justice O’Donnell considered that the proper approach to such an application had been recently clarified by the Supreme Court in Kirwan v. Connors & Ors. [2025] IESC 21, noting that the starting point to the analysis is Order 122, rule 11 and that while the inherent jurisdiction of the court had been retained, “that jurisdiction interacted with and was informed by the RSC and the baseline of 2 years of inactivity as triggering an application to strike out”.

The court observed that if one were to treat the service by the plaintiff of his request for voluntary discovery on 15 December 2015 as a step for the purposes of Order 122, which permits the bringing of an strike out application where no step in the proceedings has been taken for two years since the last step, then it was “clear” that no further step had been taken until he issued a motion in May 2024 seeking a trial of preliminary issues of law.

Finding that this delay of approximately eight-and-a-half years brought the application “squarely” within the category identified by Chief Justice Donal O’Donnell at para. 26(iv) of Kirwan, Mr Justice O’Donnell considered that the proceedings should be dismissed unless the plaintiff could satisfy him that there was a “pressing exigency of justice” requiring the case to go to trial.

In this regard, the plaintiff alleged that the defendant was fully aware that he intended to progress his proceedings and impliedly agreed to put the proceedings on hold pending the determination of his other proceedings against PwC and the Data Protection Commissioner.

The defendant tendered affidavit evidence demonstrating that the plaintiff had disagreed with the defendant’s suggestion in June 2015 that the proceedings should not be advanced, and had instead pressed for the delivery of the defence.

The plaintiff also asserted that the defendant had acquiesced in the postponement of the proceedings, as it did not reply to his letter dated 23 December 2016 stating that the proceedings were delayed pending the outcome of his other legal proceedings against PWC. In that regard, the court observed that those proceedings had concluded by February 2017.

Referring back to Kirwan, Mr Justice O’Donnell explained that while it would have been preferable for the defendant to respond to the plaintiff’s letter of December 2016, the fact that the action against PwC had been struck out by February 2017 and that this information would have been publicly available on the courts’ website, meant that there was no obligation on the defendant to enquire of the plaintiff whether he intended to progress the case.

Mr Justice O’Donnell opined that “it cannot be said that the defendant acquiesced in the plaintiff’s failure to progress the case in the sense that this precluded an application to strike out for want of prosecution, and its behaviour is better characterised as simple inactivity. Certainly, there is nothing in the evidence to suggest that the defendants could be accused of taking any step to encourage the plaintiff to refrain from prosecuting his case against them.”

As to whether the issuing of the plaintiff’s motion seeking the trial of preliminary points of law had the effect of meaning that the plaintiff had taken a step prior to the defendant’s strike out application, the court could not overlook the plaintiff’s failure to serve a notice of intention to proceed prior to issuing that motion, finding that the plaintiff had deprived the defendant of that “procedural protective measure” set out in Order 122.

Mr Justice O’Donnell also addressed the plaintiff’s contention that the defendant’s application was unfair where he was engaged in substantial litigation against other parties arising from the same issues and was entitled to pause the proceedings against the defendant.

Emphasising that this argument “manifestly is unfounded”, the judge considered that the plaintiff had chosen to pursue various sets of proceedings and the obligation to litigate in accordance with the RSC rested upon him.

Finally, the court highlighted that under the terms of Order 122, rule 11, a motion upon which no order was made was not a step for the purposes of the rule, and so the plaintiff’s motion was not a step of a type that would prevent the two-year period from continuing to run for the purposes of that rule.

Conclusion

Accordingly, the High Court struck out the plaintiff’s proceedings and his motion seeking a preliminary trial.

Nowak v The Institute of Chartered Accountants in Ireland [2025] IEHC 408