Hughes & Anor v Cusack

Factual and Procedural Background

The case concerns a claim of professional negligence and breach of contract brought by the Plaintiffs against the Defendant, a solicitor, regarding his investigation of the title to a property acquired by the Plaintiffs at Crossguns Bridge, Prospect Road, Dublin. The Plaintiffs purchased the property in February 2001 intending to develop a licensed premises. They retained the Defendant to investigate the title to ensure good and marketable title was acquired. Subsequently, in March 2003, a letter from C.I.E. revealed that a portion of the land was held under a yearly tenancy dating back to 1930, indicating the Plaintiffs had only possessory title to part of the property.

The Plaintiffs completed the purchase and development, incurring costs exceeding €7 million. They issued proceedings against the Defendant on 25th February 2005, alleging failure to uncover C.I.E.'s interests during the title investigation. The Defendant seeks to strike out or dismiss the proceedings for want of prosecution, citing inordinate and inexcusable delay by the Plaintiffs in prosecuting the claim.

The procedural history shows the plenary summons issued in February 2005, with the Defendant entering appearance in April 2005. The Plaintiffs delivered their Statement of Claim in April 2005, and the Defendant filed a Defence in May 2006. There was minimal progress between 2006 and 2011, with a significant gap in prosecution. Various requests for particulars and discovery were exchanged between 2011 and 2014, with delays on both sides. The Defendant filed a motion to strike out in March 2014 due to the Plaintiffs' delay in prosecution.

Legal Issues Presented

1. Whether the Plaintiffs' delay in prosecuting the proceedings was inordinate and inexcusable, justifying dismissal for want of prosecution.
2. Whether, in the exercise of the Court's discretion, the balance of justice favours allowing the proceedings to continue despite the delay.
3. The extent to which delay on the part of the Defendant affects the assessment of the Plaintiffs' delay and the overall balance of justice.
4. The nature and degree of prejudice to the Defendant arising from the Plaintiffs' delay, including potential impact on fair trial rights.

Arguments of the Parties

Defendant's Arguments

• The Plaintiffs' delay in prosecuting the claim, particularly between 2006 and 2011, was both inordinate and inexcusable.
• The delay has caused or risks causing prejudice, including difficulties in assessing damages and potential unavailability of witnesses and counsel.
• The Court has inherent jurisdiction and statutory power under Order 122, Rule 11 to dismiss proceedings for want of prosecution due to delay.
• The Plaintiffs issued proceedings late and then failed to progress them diligently, despite correspondence and notices to proceed.
• The Defendant's reputation has been damaged by the continuing proceedings, constituting additional prejudice.
• The delay undermines the Defendant's right to a fair trial, justifying dismissal of the claim.

Plaintiffs' Arguments

• Although there has been delay, it is not inordinate or inexcusable given the circumstances.
• The delay is explained by a protracted dispute between the first Plaintiff and a co-director involved in the project management and planning of the property development.
• The dispute was resolved by a Settlement Agreement in January 2013, which included cooperation to expedite the proceedings.
• The Defendant has also been guilty of delay, including late filing of Defence, late requests for particulars, and delayed discovery affidavits.
• The Defendant’s delay constitutes acquiescence to the Plaintiffs’ delay and must be considered in the balance of justice.
• The Defendant has not demonstrated actual prejudice; any prejudice is speculative or apprehended.
• The core issues relate to documentary evidence, which remains available, minimizing potential prejudice from delay.
• The balance of justice lies in favour of allowing the Plaintiffs to proceed with their claim.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first examined whether there was inordinate delay by the Plaintiffs. It rejected the Defendant's submission that the delay in issuing proceedings (up to February 2005) was inordinate, noting the claim was issued within the statutory six-year limitation period. However, the Court found the Plaintiffs' failure to prosecute their claim between May 2006 (Defence filed) and February 2011 (Reply to Defence) was inordinate. The Court found the Notices of Intention to Proceed served during this period insufficient to mitigate the delay, especially given no substantive steps were taken within one month as required.

Next, the Court considered whether the delay was excusable. The Plaintiffs attributed the delay to a protracted internal dispute with a co-director who managed the property development and planning. The Court found this explanation insufficient to excuse the delay, as the Plaintiffs had a duty to prosecute with appropriate dispatch and could have employed procedural mechanisms to address non-cooperation by the co-director. Thus, the delay was both inordinate and inexcusable.

In applying the balance of justice test, the Court recognized the Defendant's right to a fair trial but found that right was not impaired by the delay. The core issues involved documentary evidence dating back decades, which remained available. Potential prejudice regarding witness availability and memory was speculative. The Court noted the irony that the delay may have benefited the Defendant by strengthening the Plaintiffs' assertion of ownership through development over time.

The Court also observed that no complaint of prejudice was made by the Defendant during the lengthy delay, and the Defendant's solicitors only raised concerns when seeking to compel particulars in 2014. The Defendant's claim of reputational damage was unpersuasive, made for the first time in this application without supporting counterclaim.

Overall, the Court applied the Primor principles and relevant case law, giving due consideration to delay by both parties, the nature of the evidence, and the absence of demonstrated prejudice. The Court concluded that despite the inordinate and inexcusable delay, the balance of justice favoured allowing the proceedings to continue.

Holding and Implications

The Court's final decision was to REFUSE the Defendant's application to strike out or dismiss the proceedings for want of prosecution.

This decision means the Plaintiffs may continue with their claim despite the delay. The Court emphasized that the delay did not prejudice the Defendant's right to a fair trial given the documentary nature of the evidence and the absence of specific prejudice. No new legal precedent was established; rather, the Court applied established principles to the facts, underscoring the discretionary nature of delay-related dismissals and the importance of balancing fairness to both parties.