The decision in Honahan & anor v McInerney Construction Limited & ors  IEHC 311 concerned the engagement by the plaintiffs of a number of parties for the purchase of a site and construction of a dwelling in February 1996. It is the latest in a string of recent applications to strike-out High Court actions where the plaintiffs have been less than assiduous in progressing their litigation.
The Court also made some useful comments on the pursuit by plaintiffs of insurance policies, which entailed naming as defendants parties against whom they had no cause of action.
The plaintiffs alleged that due to the negligence of the defendants, they did not receive the full extent of the property they contracted to buy, as a result of a discrepancy between the original site layout map attached to the contract for sale and the Land Registry Approved Scheme Map.
- the events which gave rise to the proceedings occurred in 1996
- the Plenary Summons issued in November 2007
- the applications to dismiss issued in the course of 2016
Three applications were before the Court seeking to dismiss the plaintiffs’ claim on grounds of delay.
Murphy J. usefully restated the test set out in Primor plc v Stokes Kennedy Crowley as to, “whether there has been inordinate and inexcusable delay and if so, whether the balance of justice requires that the proceedings be dismissed” . In addition the learned trial judge stated that if necessary the court should apply the test in O’Domhnaill v Merrick , “…that even where a delay is found to be excusable a case can still be dismissed if the prejudice suffered by a defendant by reason of delay is such that a fair trial has become impossible”.
The defendants / applicants submitted inter alia that it would be unjust to permit the plaintiffs’ claim to proceed against them given the inordinate delay and that the balance of justice required the proceedings to be struck out. It was also submitted by a number of Applicants that they were wrongly named and the plaintiffs had no cause of action against them.
The Court observed that prior to issuing proceedings, the plaintiffs had correctly identified the parties against whom they believed they had a cause of action. Notwithstanding this, when proceedings issued, they issued against entirely different entities. The Court cited as “a serious error” the apparent belief on the part of the plaintiffs’ solicitor that any liability attaching to a defendant would be covered by the insurance policy applicable to their current firm.
The court allowed the defendants’ applications and dismissed the proceedings for delay, which it deemed to be inexcusable. Murphy J. made a number of noteworthy findings, which will be of benefit to insurers and their insureds in other similar applications. The key points to be inferred from the judgment may be summarised as follows:
- Inordinate delay resulting from the plaintiffs’ own making and their strategy of pursuing the deep pockets of the insurer is inexcusable
- It would be unfair and unjust to allow delayed proceedings to continue where the delay resulted from a failure to name the proper defendants on foot of strategic decision making
- The misnaming of defendants is a weighty factor to be placed on the defendants’ side of the scales in balancing the justice of allowing the claim to proceed
- Deliberately launching claims against entities which in fact are not liable will be seen as a fundamental flaw.
- A delay of ten years in prosecuting a professional negligence suit is simply unacceptable
This decision follows a number of other recent judgments striking out proceedings for delay, particularly in professional negligence actions. In O'Dowd -v- Gavin & anor in 2018, Barrett J. struck out a claim against an engineer and building contractor because of the risk of an unfair trial, due to passage of time since the Plenary Summons issued in 2008. An interesting element of that judgment was the citing of the decision of Sheehan J. in Farrell v. Arborlane Ltd and ors, which held that prejudice had been suffered by having an allegation of professional negligence hanging over the appellant for an unnecessarily protracted length of time .
In O’Leary v. Turner & ors, another 2018 decision, Baker J. struck out the case against the defendants, partners in a firm of solicitors, who were engaged in 2005 by the plaintiffs in relation to the purchase of a commercial premises. One of the reasons given by the plaintiffs for the delay was that the defendants did not identify their insurers, to which the court stated, “…The question of who insured the defendant firm, and whether they had insurance, is one that, in my view, ought not to have prevented the proper and expeditious prosecution of the claim.” The learned trial judge concluded that the delay had been inordinate and was not excused by the facts relied on.
The Honohan judgment is particularly critical of the tactic of targeting insurance companies, which in this case lead to the wrong defendants being pursued and delay occasioned by an application to amend the Plenary Summons, which resulted in additional incorrect defendants being pursued. This case should serve as a salutary reminder to plaintiffs and their solicitors that a decision to “follow the insurance”, or an inadequate knowledge of how professional indemnity policies respond, will not constitute adequate reasons for significant delay in prosecuting an action. It is hoped that this line of jurisprudence will be built upon by the courts with a view to ensuring that litigation is disposed of before the balance of justice is disturbed.