Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 408
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael Twomey

In reaching this decision, the court applied Comcast International Holdings Incorporated & Ors. v. Minister for Public Enterprise & Ors. [2012] IESC 50 and stated that it was no longer acceptable to indulge litigants who were guilty of delay in proceedings.

The court rejected a number of arguments made by the plaintiff as to why the delay was justifiable, including waiting for parallel proceedings to conclude and the receipt of legal advice.

Background

The dispute centred on the operation of a car park by the County Council near the visitor centre at the Cliffs of Moher. The plaintiff, Diamrem Limited, claimed that the car park was only supposed to be temporary while the visitor centre was being built. Further, it was said that the car park was preventing Diamrem from implementing a park and ride facility for visitors at the Cliffs of Moher.

Essentially, Diamrem claimed that the planning permission for the visitor centre only allowed the County Council to use the car park during the period of construction for the visitor centre. The County Council said that, as a result of modifications to design proposals under Part 8 of the Planning and Development Regulations 2001, it was entitled to use the car park on a permanent basis.

In July 2016, the plaintiff took proceedings under section 160 of the Planning and Development Act 2000 (as amended), claiming that the car park was an unauthorised structure. The proceedings were listed but not reached in July 2017, and ultimately concluded in January 2018. Judgment was delivered in November 2018, in which Ms Justice Mary Faherty rejected the proceedings. An appeal was brought and heard in April 2021, but no judgment had been delivered.

The plaintiff also instituted proceedings in June 2017 against the County Council claiming, inter alia, damages for misfeasance of public office. Despite claiming that the statement of claim would be delivered “in the short term”, no such statement was delivered. Accordingly, the County Council issued a motion to dismiss the proceedings for inordinate and inexcusable delay.

Following the issuing of the motion, the plaintiff changed solicitor. The plaintiff then sought to deliver an amended plenary summons and statement of claim. This was rejected by the Council.

High Court

In the High Court, Mr Justice Twomey held that the proceedings would be dismissed based on the Comcast ruling and the Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 test.

The court held that the delay was inordinate. It was 22 months between the issuance of the plenary summons and the defendant’s motion to dismiss. The court held that the 22-month period was many multiples of the 21 days allowed for the delivery of the statement of claim under the Rules of Court. In fact, it amounted to more than 600 days. As such, the court held that this was clearly an excessive delay, noting that time limits would be pointless if not complied with by parties.

The court then considered whether the delay was inexcusable. The defendant’s main submissions were that it had to devote resources to the s.160 proceedings, that there was a change of solicitor and that they received legal advice to amend the summons following the judgment in the s.160 proceedings.

Dealing with the devotion of resources point, the court stated that the plaintiff freely chose to institute the proceedings shortly before the s.160 proceedings were due to be heard. There was no issue such as the impending expiry of the Statute of Limitations. The court held that there was ample opportunity for the plaintiff to deliver the statement of claim between July 2017 (when the matter was listed and not reached) and January 2018 (when the matter was heard).

Although there was an exchange of affidavits in this period, the legal arguments in the s.160 case were clear when the misfeasance proceedings issued. Further, no resources were devoted in the 10-month period when the plaintiff was awaiting judgment, so there was no excuse for this period. The plaintiff had all the necessary facts at the conclusion of the s.160 hearing to provide pleadings in the misfeasance proceedings.

Regarding the change of legal team, the court first noted that the plaintiff was represented by the same set of solicitors in the misfeasance proceedings for the entire 22-month period. The change of solicitor only came after the motion to dismiss issued. The court held that, in general, a change of legal team could not justify delay, as it would be too easy for litigants to avoid complying with time limits if this were so.

The court also rejected the argument that the plaintiff received legal advice that justified the delay. Again, the court held that it would be very easy for a party to claim that legal advice justified a delay. The court noted that legal advice can change over time, and that this in fact occurred in the present case. Previously, it was claimed that certain parties needed to be joined to the action, but this was subsequently dropped by the plaintiff.

Further, the court cited the Comcast case and held that a party who was adopting a “wait and see” approach to litigation (based on other events occurring) should at least make all parties aware that this was the case.

The court also held that there was significant prejudice to the defendant arising from the delay. The planning matters and allegations related to periods between 7 and 17 years ago. Key witnesses would have diminished memories and no longer worked for the defendant.

Mr Justice Twomey further held that there was not a sufficiently strong public interest element in the case which required the proceedings to be heard. The allegations of misfeasance were not on the most serious end of the spectrum and the plaintiff was primarily pursuing the relief of damages. Further, the High Court in the s.160 proceedings had already allowed the plaintiff to air some of its frustrations in the same factual matrix.

Conclusion

On the basis of the court’s findings, the 22-month delay was held to be inordinate and inexcusable under the Comcast jurisprudence. As such, the court struck out the proceedings. The Supreme Court had held that “there needed to a sea-change in attitude by the courts, including the High Court, to delay (i.e. for it to become ‘significantly less indulgent’)”, the court said.