It is not uncommon in professional negligence claims for there to be long periods of inactivity where the claimant does not prosecute the claim. However, the question arises as to how long a delay must be tolerated before the defendant is justified in seeking to have the claim dismissed for want of prosecution.
The case of McGann & Anor v Connellan & Ors involved a claim for professional negligence against a firm of architects. The proceedings were commenced by way of Plenary Summons on 3 December 2004 and the pleadings closed on 6 December 2005. The defendants issued a request for voluntary discovery on 21 December 2005 and later issued a further request for discovery on 26 July 2010. The only step taken by the plaintiff in between the requests was to serve a notice of intention to proceed (which is required if more than a year has passed since the delivery of the last pleading prior to continuing an action) on 5 December 2008 after which nothing was done by the plaintiffs until July 2010.
The defendants sought to strike out the claim on the basis of the plaintiff’s inordinate and inexcusable delay, highlighting the four year and seven month gap between the two requests for discovery.
The law in relation to the court’s inherent jurisdiction to dismiss a case for delay is see to be quite settled in Ireland. In order to convince a court that a case should be dismissed, a defendant needs to establish that:
- There was inordinate and inexcusable delay in the prosecution of the case, and;
- The balance of justice lies in favour of dismissing the case.
The court had no hesitation in holding that the delay of four years and seven months was indeed inordinate. A number of excuses were proffered by the plaintiffs for the delay and were rejected by the Court, including:
- The claim could not be fully quantified or finalised until the dwelling house was ultimately constructed.
- The delay was caused by the plaintiff’s attempts to mitigate his loss by constructing the house on a cheaper basis.
- The delay was caused by the need to obtain and receive a proper quantity surveyor’s report.
- The delay was caused or contributed by the defendant’s actions or inactions.
The final excuse proffered was that the defendants acquiesced in the delay. The plaintiff’s solicitor stated on affidavit that during a conversation with the defendant’s solicitor, the plaintiff’ solicitor advised that the plaintiffs were proceeding with the construction of the house and would assess their losses on completion.
The defendant’s solicitor did not formally acquiesce in the deferral of quantification but it was taken from the content and tenor of the conversation that the defendant’s solicitor understood the position that quantification would be deferred.
There was no note of this conversation but the plaintiff’s solicitor’s understanding that the position was clear and understood by both sides was reinforced by the lack of any open correspondence raising an issue as to alleged delay. The defendant’s solicitor did not remember such a conversation taking place, and had no attendance note of the conversation on file, or indeed any notes in any contemporaneous notebooks in which telephone conversations were recorded.
On the basis of the positive statement of an understanding from the plaintiff’s solicitor, the silence from the defendant’s solicitor and the passing of time, the Court found that the defendants acquiesced in the Plaintiff’s inaction and dismissed the application.
The case demonstrates the importance of defendants being pro-active regarding plaintiff delay. A defendant in proceedings subject to delay, through no fault of their own, finds themselves in a difficult position.
If an application is brought too early, it is difficult to prove that the delay was inordinate or inexcusable, however if an application is brought much later, the defendant faces the wrath of the court, which could suggest that he let sleeping dogs lie. As such, the difference between what is inordinate, appropriate or inexcusable remains extremely subjective.
This decision demonstrates that a defendant, who is not content for a case to be delayed, should correspond with the plaintiff outlining the unsatisfactory nature of the delay, and should emphasise that the defendant is not in any way acquiescing to the plaintiff’s delay. The defendant should also consider any other options available, such as setting the matter down for trial and bringing an application to dismiss the proceedings at the first available opportunity.