Gannon & ors v Brown & ors [2019] IEHC 799 (21 November 2019)

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AIDAN BROWNE, LEO WILSON & LEO WILSON ASSOCIATES LIMITED (IN VOLUNTARY

JUDGMENT of Ms. Justice O’Regan delivered on the 21st day of November, 2019

1. This matter has come before the court on foot of a notice of motion of the first named

defendant dated the 14th of January, 2019, wherein the first named defendant is seeking

an order pursuant to O.122, r.11 of the Rules of the Superior Courts and/or the inherent

jurisdiction of the court to dismiss the plaintiffs’ claim as against the first named

defendant for want of prosecution, or in the alternative an order pursuant to the court’s

inherent jurisdiction dismissing the plaintiffs’ claim on the basis of an inordinate and

inexcusable delay on the part of the plaintiffs and in the interest of justice by reason of

the lapse of time and/or delay. In the further alternative directions of the court are

2. The first named defendant’s application is grounded upon his affidavit of the 14th of

February, 2019, and is resisted on the part of the plaintiffs by virtue of an affidavit of the

plaintiffs’ solicitor, Pat Moran, bearing date the 20th of March, 2019.

3. The first and second named Plaintiffs entered into a fee agreement with the first named

defendant on or about the 3rd of May, 2002, in connection with the refurbishment of an

existing premises at Main Street, Ballinrobe, Co. Mayo. The first named defendant is an

architect by profession. Ultimately a contractor was secured for the works and

construction commenced in January, 2004. A certificate of practical completion issued on

4. By plenary summons of the 18th of December, 2007, the first and second named plaintiff

sued the relevant contractor in respect of works carried out wherein injunctive relief

together with damages were sought. By the 22nd of July, 2008, the High Court had

placed a stay on the proceedings of the first and second named plaintiff against the

contractor, with the relevant matter being referred to arbitration. By that date also the

arbitrator had been appointed. There is no further update before the court in respect of

5. The within proceedings were issued by plenary summons on the 22nd of December, 2008,

against the first named defendant together with the engineer employed by the first and

second named plaintiffs and the allied engineering company of the engineer.

6. There is some dispute between the parties as to when the statement of claim of the 23rd

of September, 2011, was first served on the first named defendant. However, ultimately

it was served on or about the 15th of June, 2012, following the entry of an appearance

on behalf of the first named defendant on the 6th of February, 2009. The necessary

notice of intention to proceed by the plaintiffs is dated the 8th of November, 2012, and is

7. The first named defendant raised a notice of particulars bearing date the 22nd of

November, 2012. Following such service, a notice of intention to proceed as against the

first named defendant only, dated the 14th of February, 2019, was served. The within

notice of motion followed on the 14th of February, 2019, and since then replies to

particulars and updated particulars of loss both bearing dates the 7th of March, 2019,

8. The plaintiffs have had available to them two engineering reports respectively dated the

24th of January, 2007, and the 14th of September, 2012. In addition, and more recently,

the plaintiffs have secured a financial report of DHKN bearing date the 25th of January,

9. On the 18th of October, 2013, a liquidator was appointed to the third named plaintiff and

by subsequent order of the High Court (the application was brought by notice of motion of

the 31st of March, 2017), the liquidator was afforded liberty to proceed with the action on

10. On the 31st of August, 2010, the third named defendant was dissolved, and on the 13th

11. It is common case that the hearing of the within action is unlikely to take place prior to

12. In the affidavit of Mr. Moran two excuses are proffered in respect of the delay in

(a) at paragraphs 4 and 5 of his affidavit he states that the request for particulars of

the 22nd of November, 2012, necessitated involving professional financial

investigation and an engineering professional which information is now to hand;

(b) at paragraphs 17 and 18 it is asserted that a further issue was the appointment of

a liquidator to the third named plaintiff company which occurred on the 2nd of

December, 2013. It was not until the High Court granted the liquidator authority to

proceed on the 24th of April, 2017, that this difficulty was overcome.

(1) the proceedings involve allegations affecting his professional standing;

(2) by reason of the dissolution of the contracting party and the engineer’s limited

company, the first named defendant has been hampered in bringing a notice of

indemnity and/or contribution or joining the contractor as a third party; and

(3) part of the claim levied as against the first named defendant is that he failed to

adequately supervise the relevant building contractor and oral evidence would be

14. The 1st named defendant argues that in the event of the court being satisfied that there

is inordinate and inexcusable delay, the balance of justice favours the striking out of the

(1) the first named defendant was not responsible for any delay and did not acquiesce

nor engage in conduct to indicate that no difficulty arose with respect of the delay

(the first named defendant does acknowledge that the raising of particulars might

possibly be considered some form of acquiescence and accordingly the main focus

of the first named defendant’s argument is from the raising of particulars to the

notice of intention to proceed in January, 2019), nor did the first named defendant

(2) the statement of claim is pleaded generally and fails to distinguish between the

liability of each of the three parties involved. In addition, similar proceedings were

(3) the issues of prejudice against the first named defendant cited above;

(4) the fire to the hotel in 2010 and the failure to carry out any repairs since that time

(as per reply to particulars of the 7th of March, 2019), together with the potential

unavailability of any documents because of the dissolution of a number of parties

(5) the courts have indicated that a delay culture must be ended and Article 6.1 of the

European Convention on Human Rights requires proceedings to be concluded within

a reasonable timeframe. In addition, Article 34.1 of the Constitution requires the

courts to administer justice, and delay is an adverse consequence on the proper

(1) the plaintiffs have a constitutional right of access to the courts and this would be

(3) there is no affidavit evidence saying the first named defendant has a good defence;

16. In addition to the foregoing the plaintiffs have argued, although no evidence is

(b) the defendants, other than the first named defendant, do not have resources for

17. Both parties acknowledge that the starting point of any jurisprudence is the Supreme

Court decision in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459, where it was

held that it is necessary to establish inordinate and inexcusable delay on the part of the

respondent party and thereafter an assessment has to be made as to where the balance

of justice lies in regard to the seven headings identified in that matter.

18. The first named defendant also refers to Gilroy v. Flynn [2004] IESC 98 Supreme Court,

where Mr. Justice Hardiman stated that the courts have become even more conscious of

the unfairness and increased possibility of injustice which attaches to allowing an action

which depends on witness testimony to proceed a considerable time after the cause of

19. In McMullen v. Ireland no.42297/98 [2004] ECHR, it was indicated that Article 6.1 of the

European Convention on Human Rights required the resolution of proceedings within a

reasonable time and as to what was reasonable would involve, depends on the

circumstances of the case, the conduct of the plaintiffs and what was at stake.

20. Mr. Justice Kearns indicated in Stephens v. Paul Flynn Limited [2005] IEHC 148, that

even partial prejudice may justify a dismissal in respect of the third leg of the Primor test.

21. In Quinn v. Faulkner t/a Faulkner’s Garage & anor [2011] IEHC 103, Mr. Justice Hogan

indicated that there was a public interest in the timely administration of justice having

regard to Article 34.1 of the Constitution and there should be no endless indulgence in

22. In Gorman v. Minister for Justice, Equality and Law Reform & ors [2015] IECA 41, Ms.

Justice Irvine held that a twelve-year delay between the relevant events and the trial of

the action could amount to a dismissal even with an absence of specific prejudice. The

ability to test the veracity of evidence would be hampered and justice would be put to the

hazard, in particular in a case which did not involve reliable documents. In that case at

para. 72 Ms. Justice Irvine found that, the fact that the defendant was reacting to a step

taken by the plaintiffs, as opposed to being proactive in seeking a dismissal was not a

23. In Cassidy v. The Provincialate [2015] IECA 74, Ms. Justice Irvine referred to O’Domhnaill

v. Merrick [1984] I.R. 151 Supreme Court, where it was held a case might be dismissed

in circumstances where asking a defendant to defend the case would place that defendant

under an inexcusable and unfair burden. The test would be, if there was a real or

24. In Millerick v. Minister for Finance [2016] IECA 206, Ms. Justice Irvine was satisfied that

where the delay was inordinate and inexcusable marginal prejudice may justify a

dismissal although she also stressed that the absence of proof of prejudice does not mean

there would not be a dismissal. Rather the plaintiffs must point to countervailing

circumstances to cancel the effect of the delay. The court distinguished between culpable

delay and mere inaction by the defendant which is not considered to be culpable given

that the plaintiff has a primary responsibility to advance the proceedings. Reference was

also made to Article 34.1 of the Constitution where the courts are mandated to administer

justice and delay has adverse consequences on the proper and efficient administration of

25. In Farrell v. Arborlane Limited & ors [2016] IECA 224, Mr. Justice Sheehan was satisfied

that where there was culpable delay on the part of the plaintiffs, the defendant did not

have to establish prejudice to be able to identify a significant risk of an unfair trial.

Modest prejudice would be sufficient where the delay is inordinate and inexcusable. The

court was satisfied that a defendant should not have to wait twelve to thirteen years with

allegations affecting his professional standing. Article 6.1 of the European Convention on

Human Rights requires that there not be excessive indulgence. The court noted that

memories fade with time resulting in a difficulty with a fair trial. The court is not only

concerned with the position of the parties but with the administration of justice generally.

In that case there was no distinguishing liability identified in the statement of claim as

against the various defendants where the statement of claim ascribed equal level of

culpability to all defendants, and the court was satisfied that this was a factor that could

be taken into account in weighing the balance of justice. In that case the prejudice was

the defendant had a difficulty in securing insurance and the matter was hanging over him

for a considerable time (there was an eighteen-year gap between the occurrence of the

alleged negligence act and the prospective trial of the action) and this was sufficient to

26. In Comcast International Holdings Inc. & ors v. Minister for Public Enterprise & ors;

Persona Digital Telephone Ltd & anor v. Minister for Public Enterprise & ors [2012] IESC

50, McKechnie J. stressed a need for a subjective approach in looking at the period of

delay on the basis that the same years of delay in different cases may demand different

treatment and the court should therefore react to the facts of a particular case.

27. In Cavanagh & anor v. Spring Homes Developments Limited & anor [2019] IEHC 496, Mr.

Justice Noonan accepted a degree of prejudice suffered by the defendant by reason of the

passage of time, and that had to be balanced against the loss of the plaintiffs’

constitutional right of access to the court which would not be likely set aside. The

plaintiffs would then be left without a remedy. In the circumstances, Mr. Justice Noonan

concluded that the balance of justice just about favours the dismissal of the motion and

the matter was to be case managed. That case concerned a straight forward issue and

was largely record based together with expert report, and oral evidence was not pivotal.

The matter involved a four-year gap where the defendant had an influence on the delay.

28. Although the plaintiffs did refer to the case of Carroll Shipping Limited v. Mathews

Mulcahy & ors [1996] IEHC 46, the court was referring to the case of documentary

evidence only, finding that in the case of inordinate or inexcusable delay this would not

29. In the instant matter both parties acknowledge the necessity for oral evidence in the

matter, not least because of the allegations of a lack of supervision.

30. I am satisfied that there was no pre-action delay as between the certificate of practical

completion on the 30th of May, 2005, and the issue of the plenary summons on the 22nd

of December, 2008 - there was a gap of some three and a half years. However,

proceedings were instituted well within the six-year limitation period.

31. There was a delay between the 22nd of December, 2008, and potentially the 23rd of

September, 2011, when the plaintiffs assert that the statement of claim was first served.

The first named defendant subsequently raised particulars from the 22nd of November,

2012, in respect of the statement of claim without complaint as to the lateness of service

32. By the date of service of the notice for particulars the plaintiffs had available to them two

engineering reports, respectively dated the 24th of January, 2007, and the 14th of

September, 2012, the latter of which dealt with individual liability of each of the

defendants and the contractor. In those circumstances, I am satisfied that there was

information available to the plaintiffs to at least respond to the bulk of the particulars

raised even if some of same had to be left over until the securing of an updated financial

33. No evidence is before the court relative to why there was a delay of in excess of three

years and three months between the appointment of a liquidator to the 3rd named

plaintiff (on the 2nd of December, 2013) and the application to the court for authority for

the liquidator to proceed with the action (on the 31st of March, 2017). It is suggested on

behalf of the plaintiffs in submissions that the plaintiffs had no control over this delay.

However, there is no evidence before the court as to any steps taken by the plaintiffs to

expedite the application which was ultimately made by notice of motion of the 31st of

March, 2017, or to explain to the first named defendant the reason why there was a delay

34. The excuse of waiting for a financial report between the service of the notice for

particulars and the subsequent notice of intention to proceed is in my view wholly

inadequate. There was no real attempt in the affidavit of Mr. Mullen to justify this delay.

There was no evidence given by him as to when the financial report was sought and what

steps were taken to expedite the securing of such report during the intervening six-year

35. In all of the circumstances I am satisfied that the delay, limited to the period between the

notice requiring particulars and the notice of intention to proceed is inordinate and the

excuses proffered are inadequate. Accordingly, the delay is inordinate and inexcusable.

36. Insofar as the balance of justice is concerned on the one hand the plaintiffs have a right

of access to the courts under the Constitution and a dismissal of the proceeding at this

time would clearly have a devastating effect on their hope of recovering in respect of their

losses claimed. On the other hand, the case involves allegations affecting the first named

defendant’s professional standing. The contractor who appears from report held by the

plaintiffs on the 14th of September, 2012, to bear the brunt of the responsibility for the

matters complained of by the plaintiffs, dissolved on the 13th of July, 2016, which has

added to the prejudice suffered by the first named defendant in that he can no longer

serve a third party notice on such contractor. Furthermore, this is a case in which oral

evidence as to the adequacy of the first named defendant’s supervision of the building

contractor in or about 2005, being at least fifteen years prior to any prospective trial, will

37. I am satisfied in the circumstances that the balance of justice favours the dismissal of the

proceedings at this time. Accordingly, the first named defendant should succeed in his

application to the court.

Result: Application succeeded. Proceedings struck out for inordinate and inexcusable delay.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Gannon & ors v Brown & ors [2019] IEHC 799 (21 November 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_799.html Cite as: [2019] IEHC 799

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