High Court: Employment dispute dismissed for want of prosecution after 18 years



Killian Flood BL
Killian Flood BL

The High Court has dismissed a plaintiff’s claim against his former employer due to want of prosecution.

The proceedings were 18 years old, having been initiated in 2003. The court held that the delay by the plaintiff was inordinate and inexcusable, with a serious risk that a trial would be unfair.

The court applied the well-known test of Primor Plc v. Stokes Kennedy Crowley [1996] IR 459 and held that the balance of justice favoured striking out the proceedings.

Background

The plaintiff, Mr Ciaran Carroll, was dismissed from the defendant company, New Ireland Assurance Company plc trading as Bank of Ireland Life in 2002. In 2003, he issued plenary proceedings challenging the validity of his dismissal.

The dismissal arose in circumstances where the defendant gave a €70,000 loan to the plaintiff and his then-wife by way of equity release. The plaintiff separated from his wife in acrimonious judicial separation proceedings, which caused financial strain for the plaintiff. It transpired that his ex-wife had not consented to the equity release and that her signature was forged.

It appeared that the plaintiff forged the signature and he was dismissed following several meetings in 2002. The plaintiff failed to overturn the dismissal following internal and external reviews and issued the proceedings.

Although he got a new job after the dismissal, it paid less than his previous position. The plaintiff ended up becoming a self-employed insurance broker. The plaintiff claimed that he was suffering ongoing loss because he was required to disclose the reasons for his dismissal in 2002 to potential employers under the Central Bank Reform Act 2010. As such, he claimed that this was preventing him from obtaining equivalent employment.

The proceedings had been punctuated by long periods of delay. The defendants broke the periods into three categories. First, there was a two-year period of delay in the service of the statement of claim. Second, there were 6 years between 2006 and 2012 resulting from the linking of the proceedings with debt proceedings taken by Bank of Ireland. Finally, there was a seven-year period between 2012 and 2019, when a new solicitor ultimately came on record.

While accepting that the periods of delay were inordinate, the plaintiff made a number of submissions to say that the delay was excusable. In particular, he relied on the difficulties in simultaneously defending debt proceedings and family proceedings during the second period. The bank successfully obtained summary judgment against the plaintiff for €160,000 in 2012. He claimed that he had extreme anxiety arising from the various proceedings and said that his precarious financial position prevented him from pursuing the case. For the third period, the plaintiff claimed that he was without legal representation because his previous solicitor came off record and he could not get legal aid.

High Court

The court determined that the delay in the case was inordinate and inexcusable, and that the balance of justice favoured striking out the proceedings for want of prosecution. The judge, Ms Justice Nuala Butler, outlined the well-established case law under the decisions in Primor and O Domhnaill v. Merrick [1984] IR 151.

The court held that the defendant had responded promptly at all times when the plaintiff had taken steps to advance the proceedings and therefore rejected a suggestion that the defendant had failed to take procedural steps to compel the progression of the proceedings. The court also rejected a submission that the defendant acquiesced in the second period of delay when the employment proceedings and debt proceedings were linked and adjourned a number of times.

The court accepted that the first period of delay did not constitute inordinate delay, given that it was a period of two years. For the second period, the court held that the linking of proceedings in 2006 was supposed to bring the proceedings to a quicker conclusion and therefore rejected a submission that the linking order caused some delay in the proceedings. However, the court accepted that the defendant was under severe financial and mental stress for at least part of the second period.

The court noted that there was a lack of evidence of the plaintiff’s mental condition after 2006 or that he continued to experience problems. Further, it was held that the plaintiff’s financial issues could not justify the failure to properly progress the proceedings.

The court stated that: “Were this application to have been made to the court during the second period of delay, no doubt some leeway would have been allowed to the plaintiff because of the multitude of problems he had faced in the preceding years.” However, any allowance for the plaintiff’s issues during the second period of delay was removed by the third period of delay.

The court held that “absolutely no step was taken by the plaintiff” during the third period to progress the proceedings. The only excuse proffered was that the plaintiff did not have legal representation during this time, due to his previous solicitor coming off record. The court said that litigation could not be placed into “semi-permanent abeyance” due to a lack legal representation which, at most, only justified a temporary stalling of a case.

The court was therefore satisfied that the plaintiff had not provided a reasonable excuse for the periods of inordinate delay and then turned to assess whether the balance of justice favoured dismissing the proceedings. The court accepted the defendant’s evidence that its witnesses were not confident in their ability to remember events from more than 20 years ago. It would be a significant injustice to require the defence of the proceedings in those circumstances.

The court also held that the plaintiff’s claim of ongoing damage to his reputation was not satisfactory because he failed to properly move on the proceedings for 20 years, about half of his working life.

Conclusion

The court was satisfied that the balance of justice required the proceedings to be dismissed. The court held that there was a real and serious risk that the trial would be unfair and that the defendant would be placed at a significant disadvantage if it had to defend the proceedings due to the passage of time.

© Irish Legal News Ltd 2021



Other judgments by Ms Justice Nuala Butler

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