Irish Court of Appeal reaffirms guiding principles for strike out as a consequence of delay
24 August 2020
In the case of Paul Kenny v. Motor Network Limited (t/a Jennings Truck Centre) and J. Harris Assemblers (Record Number: 2017/553, Neutral Citation Number  IECA 114, High Court Record Number 2009/8787P) Mr Justice Noonan, in his Judgment delivered on 25th February 2020, dismissed the Plaintiff’s claim against a haulage distributor on the grounds of delay.
The Plaintiff, a haulage contractor from Navan, County Meath, purchased a new Hino 700 Series 8x4 cement mixer for €145,770 on the 22nd September 2005, from the first named defendant, a distributor of Hino vehicles in Ireland. The second named defendant is the importer, assembler and distributor of Hino vehicles in Ireland.
The Plaintiff alleged problems with the vehicle from the outset, commencing on 27th September 2005. Problems continued throughout 2006, 2007 and 2008. In August 2008 the Plaintiff claimed the gearbox failed for a second time and resulted in the vehicle being out of commission for 7 days.
High Court proceedings
In March 2009, the Plaintiff engaged Mr Frank Maguire to examine the vehicle. The Plaintiff issued a Plenary Summons on 30th September 2009, followed by a Statement of Claim on 9th November 2009. The second named defendant (Respondent) entered an Appearance, the first named defendant did not, having been placed in liquidation on 4th November 2009 (and was dissolved on 5th June 2012).
Notice for Particulars were served and the first named defendant entered a Defence on 3rd February 2010. Replies to Particulars were delivered on 9th February 2012 (approximately 26 months after they had been requested) and set out the dates the vehicle was out of commission as well as the nature of the repairs carried out. Special damages of €12,500 (for loss of earnings) were claimed calculated on average earnings of €625 per day multiplied by the number of days the vehicle was out of commission (20). In addition, the sum of €420,000 was claimed arising from loss of contract work, that figure having been arrived at by quantifying net earnings of €60,000 multiplied by 7 years. It was noted that these figures would have been available to the Plaintiff at the time they served the Statement of Claim.
On 30th November 2016 the second named defendant (Respondent) issued a Motion seeking to have proceedings struck out for want of prosecution (returnable for 19th December 2016). On 6th November 2017 the High Court Judge, Twomey J., dismissed the Plaintiff’s claim.
In the Affidavit of Mr John Burns (the financial controller of the second named defendant) it was claimed that they faced significant prejudice in their attempts to defend the proceedings by virtue of the delay, and the number of key personnel who had left the business since September 2005. In addition, they argued that their ability to seek indemnity from the first named defendant had been compromised due to that company being liquidated / dissolved in 2012.
In the High Court, Mr Justice Twomey concluded that a period of 26 months to deliver Replies was both inordinate and inexcusable, and did not accept the reasons proffered by the Plaintiff’s solicitor. He described the claim as ‘straightforward’ in respect of a defective product and relied on the decision of Millerick v. Minister for Finance  IECA 206, after which he dismissed the claim.
Court of Appeal decision
Mr Justice Noonan noted that the Primor principles continued to be the guiding principles on ‘delay’ in Irish law. He noted that, even though the vehicle had been giving the Plaintiff trouble from the outset, proceedings were not issued for some 4 years. He also noted that it took one year to issue proceedings following vehicle inspection and that the vehicle had been repossessed in the interim, with little realistic prospect of the respondent being in a position to have the vehicle examined in those circumstances.
Mr Justice Noonan did note that only 4 months had passed between the issuing of the Summons to the delivery of the Defence. He further noted that “it was at all times open to the appellant thereafter to serve notice of trial and bring the case on for hearing”. The Judge also took no issue with the High Court’s finding of ‘inordinate and inexcusable’ delay in relation to the delivering of Replies. However, in his view the ‘balance of justice’ remained to be determined. He continued (at para. 17) of his judgment;
“As pointed out by Irvine J. in Millerick, the onus is on a plaintiff in general to progress his or her case. Mere inaction, without more, on the part of a defendant does not amount to acquiescence in the delay. In particular, the fact that the defendant could have served notice of trial is neither here nor there. A defendant is, as Millerick points out, perfectly entitled to let sleeping dogs lie and await developments on the basis that they might never occur.”
He again referenced Irvine J. in Millerick (at para. 36) when he stated:
“A defendant does not have an obligation to bring the proceedings to hearing. Litigation involves one party bringing a claim against another and unless there is some behaviour on the part of the defendant that constitutes acquiescence in the delay his silence or inactivity is not material.”
It is self-evident that “delay is prejudicial in litigation of any kind that is heard on oral evidence”, he explained and concluded that “the determination of liability and quantum issues in this case will in large measure be dependant on the oral evidence of the parties’ witnesses as to events now some 15 years in the distant past. I cannot see how that can be anything other than prejudicial to the respondent.”Accordingly, Mr Justice Noonan held that the balance of justice favoured the dismissal of the Plaintiff’s proceedings, with Collins J. and Costello J. concurring.
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