Noel Mulligan v Wilkie & Flanagan Solicitors  IEHC 289 (3 May 2019)
The High Court (Barrett J.) dismissed the plaintiff's claim for professional negligence against the defendant solicitors in the interests of justice and on the grounds of inordinate and inexcusable delay and also for want of prosecution of the part of the plaintiff since the commencement of the proceedings.
The claim concerned advice provided by the defendants to the plaintiff over a period of time between 2005 and 2006, following which the plaintiff alleged he was contractually obliged to purchase property without planning permission leaving him exposed to significant financial loss. A plenary summons was issued in early 2011.
In considering the delay that had taken place, Mr. Justice Barrett adopted a table which had been used by the defendants to summarise the timeline of the proceedings. Mr. Justice Barrett identified a number of significant periods of delay, including precommencement delay of 5-6 years, and four periods of postcommencement delay.
It is well established that a party seeking dismissal for want of prosecution on the grounds of delay must establish that the delay was inordinate and inexcusable. Even where the delay has been both inordinate and inexcusable, the court must still exercise its judgment to decide whether or not the balance of justice lies in favour of proceeding with the case.
Factors considered in determining balance of justice
It was not disputed that there had been inordinate and inexcusable delay by the plaintiff. The sole issue for the court was where the balance of justice lay in terms of whether or not this case should be allowed to proceed. In considering this issue, Mr. Justice Barrett noted the following factors:
1. The pre-service of summons delay (which was six years), without any intimation by the plaintiff of a complaint against the defendants or any intention to sue, had prejudiced the defendants by preventing them from gathering evidence in relation to the claim;
2. the defendants had complained of delay from the outset of the proceedings;
3. all progress in the proceedings had been forced by court order or in the context of a motion
brought by the defendants, as opposed to the voluntary actions of the plaintiff;
4. the significant impact of the proceedings on the defendants' reputation and their professional indemnity insurance;
5. particular prejudice existed due to the fact that the evidence was almost exclusively oral;
6. the earliest the case would come on for hearing would be 14-15 years after the subject matter; and
7. actual prejudice existed due to the unavailability of witnesses whose evidence could have been heard had the proceedings been issued and progressed in a timely manner.
The court considered that the balance of justice lay in favour of granting an order pursuant to its inherent jurisdiction dismissing the proceedings in the interests of justice and on the grounds of inordinate and inexcusable delay and also for want of prosecution on the part of the plaintiff.
This decision is a clear statement from the court that actions of both parties and not just claimants will be considered in an application for dismissal for delay. The defendants highlighted the issue of delay from the outset and brought motions forcing the plaintiff to progress the matter. The court noted that the proceedings had a significant impact on the defendant's professional indemnity insurance and their reputation. This distinguished the matter from an earlier case of Power v Creed where, in spite of a similar claim of prejudice and delay, the court held that the defendant had not shown any difficulty in obtaining professional indemnity insurance to the extent that it was sufficient to strike out the case in its entirety.