In a recent High Court decision Mr Justice Meenan found that a plaintiff's failure to prosecute proceedings provides grounds to dismiss the claim for want of prosecution.
The plaintiff brought proceedings for damages for personal injuries suffered as a result of alleged bullying and harassment between April and July 2009 while she was an employee on a premises owned by the first named defendant, Fitzwilliam Hotel Group Limited (the Hotel).
The plaintiff had received authorisation from the Personal Injuries Assessment Board (PIAB) to bring the proceedings on 7 April 2011 following an application in March that year. The proceedings were issued on 16 November 2011 with a defence delivered on 22 March 2012. There was some activity between 2012 and July 2017 when the plaintiff sought discovery. However, there was specific lengthy periods when no steps were taken to prosecute her claim. There was a period of nearly 2 years between the delivery of the defence and notice for particulars and replies to same. There was almost 3 years between receipt of the replies and the notice of intention to proceed.
The Hotel brought an application to have the proceedings dismissed for want of prosecution and alleged it would be prejudiced in its defence as the lapse of time would impact on the witnesses' ability to give meaningful assistance or act as a witness.
Previous Case Law
Mr Justice Meenan made specific reference to well established case law on the subject. These include the often cited Primor Plc. v Stokes Kennedy Crowley and the more recent cases of Flynn v The Minister for Justice, Equity & Law Reform and Anglo Irish Beef Processors v Montgomery. Key factors which are considered by the court in these applications include:
- whether the delay in prosecution was inordinate and inexcusable
- delays prior to issuing proceedings
- whether the balance of justice is in favour of the case proceeding or not
- whether the defendant was guilty of delay and acquiesced in the delay
- even if there is not culpable delay whether due to the passage of time a fair trial is no longer possible
A full list of these key factors is contained in the judgment.
While the plaintiff's response to the application included reference to parallel proceedings before the Employment Appeal Tribunal, her ill health, and economic circumstances, the Court did not believe these reasons to be satisfactory or reasonable. In reaching his decision, Mr Justice Meenan considered the balance of justice and how the lapse of time would impinge upon the accuracy of those who may give evidence concerning the alleged events and that there was delays before the plaintiff issued the proceedings. Taking all of the foregoing into consideration, he granted an order dismissing the claim for want of prosecution.
Lessons for Plaintiffs
This case serves as a reminder that a failure to bring and prosecute the proceedings in a timely manner may result in an application to have proceedings dismissed for want of prosecution.
Lessons for Defendants
For defendants on the other hand, the decision highlights the potential to have proceedings struck out where the plaintiff has failed to prosecute the proceedings in a timely manner and / or due to the passage of time when it may lead to an unfair trial or unjust result.