About this case:

• Citation:
  [2024] IEHC 651
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger considered that the balance of justice tipped in favour of the defendant solicitor where inter alia the length of the proceedings had a negative impact on his health, where he experienced difficulties in obtaining professional indemnity insurance as a result thereof and where he would likely experience difficulty in finding witnesses with any memory of the matters complained of.

Background

In 2010, the plaintiff issued professional negligence proceedings against the defendant solicitor claiming that he failed to provide proper legal advice in relation to the conveyance of three properties.

The defendant claimed that the plaintiff took no steps to progress the proceedings since the delivery of his replies to particulars on 29 July 2014. 

On 27 October 2021, Ms Justice Niamh Hyland refused to dismiss the proceedings on the basis of delay despite having found the plaintiff’s delay to be inordinate and inexcusable. Ms Justice Hyland determined that the balance of justice lay against dismissing the proceedings as there was a lack of clarity around the plaintiff’s claims that the defendant had furnished certain undertakings to Anglo Irish Bank (Anglo) and held €41,000 on deposit, which issues the defendant had failed to adequately explain.

Despite a warning by the High Court on that occasion to the effect that the plaintiff needed to bring his case to hearing quickly, the plaintiff failed to serve a notice of trial until nearly two-and-a-half years following Ms Justice Hyland’s decision.

The defendant brought another application to dismiss the proceedings for delay which came on for hearing before Ms Justice Bolger.

The High Court

Ms Justice Bolger examined the period of delay between October 2021 and February 2024, when the plaintiff served his notice of trial. 

The plaintiff claimed that he wrote to the defendant’s solicitors in April 2022 stating that he needed to await the outcome of an appeal in ‘related’ proceedings against Launceston Property Finance DAC, being the fund that had acquired his debt with Anglo, on the basis that he hoped the proceedings would lead to Launceston clarifying the payments made to the defendant’s account and what undertakings were outstanding.

Finding that this was “not a realistic legal strategy”, Ms Justice Bolger did not find this issue relevant to the professional negligence proceedings before her and considered that the plaintiff had failed to mention the proceedings against Launceston to Ms Justice Hyland in 2021.

Concluding that the plaintiff “did not perceive those matters as an excuse for or relevant to his delay at that time”, the High Court also refused to accept that the defendant had unreasonably delayed in taking seven weeks to respond to the plaintiff’s letter asking for the defendant’s consent to the amendment of his pleadings.

The defendant having explained that he held monies on deposit as they formed part of a settlement reached by the plaintiff and that the references to undertakings in his correspondence with the bank were in error, Ms Justice Bolger determined that this was not an issue necessary for the court to resolve as it did not come within the case pleaded by the plaintiff, remarking: “The plaintiff is a lay litigant, but even so he is responsible for the parameters of the claim he chose to bring in 2010, in which he sought damages for negligence and breach of duty.” 

Deciding that the plaintiff’s delay in progressing the proceedings since 2021 was “clearly inordinate and entirely inexcusable, on top of a delay previously found to have been inordinate and inexcusable”, Ms Justice Bolger proceeded to consider where the balance of justice lay.

The High Court heard that the defendant would suffer prejudice if the proceedings were allowed to continue, citing inter alia a likely difficulty in finding relevant witnesses with any memory of the transactions on which the plaintiff was relying.

Noting that a “generalised assertion of difficulty locating unidentified witnesses might not normally suffice to establish evidence of prejudice”, Ms Justice Bolger considered that there was an “added complication arising from the fact that Anglo Irish Bank was wound up in 2013, having been nationalised in 2009”.

The court also considered difficulties on part of the defendant in obtaining professional indemnity insurance, considering this also to be a “somewhat generalised claim” but noting the plaintiff’s contacting the defendant’s insurers personally to be an additional factor.

The court also heard that the plaintiff had made a complaint to gardaí and to the Law Society in 2018 claiming that the defendant had perjured himself and considered a redacted medical report which confirmed that the proceedings and the length of time they had been outstanding had a negative impact on the defendant’s health.

Noting that this evidence of prejudice was “general rather than specific prejudice”, the High Court was nonetheless satisfied that the defendant had established the prejudice which the Court of Appeal had found to be sufficient under the Primor test in Cassidy v. the Provincialate [2015] IECA 74 and McNamee v. Boyce [2016] IECA 19, and came within the exceptional circumstances sufficient to dismiss a claim for delay in Cave Projects Ltd v. Kelly [2022] IECA 245.

Conclusion

Accordingly, the High Court dismissed the proceedings on grounds of inordinate and inexcusable delay.

In circumstances where the defendant had failed to clarify until a “very late stage in the proceedings” the confusion surrounding the purported undertakings to Anglo and in relation to the monies held in his client account, the High Court indicated that no order as to costs would be seem to be appropriate and put the matter back to allow the parties to make submissions in relation to final orders and costs. 

Sean McAndrew v. Adrian Bourke practising under the style and title of Adrian P. Burke & Co. Solicitors [2024] IEHC 651