High Court: Plaintiff’s action struck out for ‘wholesale failure’ to comply with court order

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 33
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

Applying the test set out in the Supreme Court in Tracey v. McDowell [2016] IESC 44, the court determined that there was “wholesale failure” to comply with the order and that this failure was sufficiently serious to warrant striking out the proceedings.

Background

The plaintiff, Greenwich Project Holdings Limited, claimed to have entered a contract to purchase a Rathmines property from the defendant, Mr Con Cronin. It was pleaded that a gable wall opening would be closed up by the defendant prior to completion and that there were various obligations on the defendant in respect of planning permission arising from these works. The contract was rescinded by the defendant in July 2014. A plenary summons issued in September 2014 seeking damages for breach of contract.

In May 2015, the statement of claim was delivered by the plaintiff and the defence was delivered in October 2015. The defence included pleas that the contract had been rescinded pursuant to the General and Special Conditions of the agreement.

Although the defendant successfully removed a lis pendens in the proceedings, no further steps were taken by the plaintiff in the litigation. As such, the defendant duly issued a motion to dismiss the plaintiff’s claim for want of prosecution and/or inordinate and inexcusable delay in February 2019.

The motion was heard by Mr Justice John Jordan in July 2019, where he declined to dismiss the plaintiff’s case but took the view that there had been significant delay in the matter. He duly made an order that the matter would be set down by the plaintiff within four months. However, following the order, no steps whatsoever were taken by the plaintiff’s solicitor to set the case down for trial. As such, the defendant brought a motion in February 2020 to strike out the plaintiff’s proceedings for failing to comply with the order of Mr Justice Jordan.

High Court

In a written judgment, Ms Justice Niamh Hyland first considered the test to strike out proceedings for want of compliance with a court order. Under the authority in Tracey, she held that a court was required to determine whether the procedural failure was sufficiently serious and/or persistent and, if so, whether it would be proportionate to dismiss the proceedings, having regard to a party’s explanations for the delay.

In determining whether the breach of court order was serious and/or persistent, the court had regard to certain facts including, inter alia, that the plaintiff was aware that Mr Justice Jordan was concerned about the delay, that the plaintiff never indicated that it was not in a position to set down the matter for trial and that the plainitff simply ignored the court order and was “entirely non-compliant.” Further, the court noted that a three-year delay was a significant period of delay, having regard to the Review of the Administration of Civil Justice from October 2020 which recommended that a case be automatically discontinued after 30 months of inactivity.

The court rejected submissions that the delay could be explained due to various legal issues that had arisen after issuance which the plaintiff had not considered at the time. The court said that these legal concerns were not relevant to the case as pleaded and there was no explanation why these concerns had not been raised prior to 2020, six years after the proceedings issued.

Ms Justice Hyland described the explanations as having an “air of complete unreality” to them considering that the plaintiff had all necessary information to plead these issues in 2014. Moreover, a court was not entitled to consider issues which were not in the pleadings, the judge said. The court was also struck by the lack of any exhibits by the plaintiff’s solicitor to confirm any of the matters to which he averred.

The court also rejected submissions that the plaintiff’s solicitor had difficulties setting down the matter because much of the four-month period fell in the long vacation. The court noted that the Central Office was always open during this period and “the day is long gone when August and September were treated as periods of total inactivity for litigation lawyers,” the court said.

The court was satisfied that the plaintiff was in serious and persistent breach of a court order and considered whether it was proportionate to dismiss the proceedings. The court was told that the plaintiff intended to reformulate the proceedings to account for the new legal concerns and the judge held that this would lead to a further significant delay in the case. Similarly, there was no reason given why the approach was not adopted in 2014 and the issue of reformulation was not raised before Mr Justice Jordan at the first hearing.

Equally, there was moderate prejudice to the defendant who was faced with a significant recasting of the case seven years later. Although prejudice to witness recollection was not a deciding factor due to the nature of the case, the court held that the defendant was prejudiced insofar as the sale of the property was inhibited by the proceedings.

Conclusion

The balance of justice clearly favoured striking out the plaintiff’s proceedings, the court said. To allow the plaintiff to maintain the proceedings would “fundamentally undermine the aim of ensuring that the legal system appropriately sanctions a significant, material or persistent procedural failure to comply with orders imposed to address delay.” The application to dismiss the proceedings for want of compliance with the court order was granted.