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Power & anor v Creed p/a John Creed and Associates
Factual and Procedural Background
This judgment concerns a motion brought by the Defendant on 27 September 2017 seeking to strike out the Plaintiffs' professional negligence claim due to inordinate and inexcusable delay, or alternatively to dismiss the proceedings for want of prosecution under Order 36 Rule 12(b) of the Rules of the Superior Courts. The Plaintiffs retained the Defendant, a chartered engineer, in June 2005 in relation to the construction of their dwelling house, which was practically complete by August 2007 and occupied by March 2008.
The Plaintiffs commenced proceedings by plenary summons on 23 February 2010, with pleadings completed by April 2011. The claim alleges negligence in various respects including recommending a builder without adequate insurance, failure to advise on defects, failure to address notified defects, failure to provide or advise on a snag list, and certifying stages of completion without warning of problems.
After pleadings closed, the Plaintiffs set the matter down for trial in February 2012, but the Defendant's solicitors indicated that discovery was incomplete and the matter was not ready for trial. Further particulars of damages and remedial works were exchanged, but no formal notice for particulars of costs was served. Correspondence ceased by mid-2013, and a tender offer served in September 2013 was not replied to by the Plaintiffs. The notice of trial was struck out in October 2013. The Defendant contends that no formal steps have been taken since February 2012, and the delay is excessive considering the construction completed over ten years ago.
Legal Issues Presented
- Whether the Plaintiffs' claim should be struck out for inordinate and inexcusable delay pursuant to the court's inherent jurisdiction.
- Whether the proceedings should be dismissed for want of prosecution under Order 36 Rule 12(b) of the Rules of the Superior Courts.
- Whether any excuse offered by the Plaintiffs for the delay is satisfactory and legally sufficient.
- Whether the balance of justice favors allowing the claim to proceed despite delay and prejudice claimed by the Defendant.
- Whether parts of the Plaintiffs' claim based on alleged oral assurances and recommendations should be struck out due to prejudice caused by delay.
Arguments of the Parties
Defendant's Arguments
- The Plaintiffs have not taken formal steps to progress the case since it was set down for trial in February 2012, resulting in an inordinate and inexcusable delay of over five years.
- The delay prejudices the Defendant, particularly given the passage of time since construction was completed in 2007 and the last inspection.
- The Defendant has suffered prejudice through the prolonged hanging over him of professional negligence allegations, including the need to notify insurers annually.
- The Defendant contends that parts of the claim based on oral assurances and conversations from ten years ago cannot be fairly defended due to faded memories and should be struck out.
- The liquidation of the building contractor complicates discovery and witness availability, further prejudicing the Defendant.
- The Defendant relies on established case law to support the striking out or dismissal of proceedings for delay and prejudice.
Plaintiffs' Arguments
- The delay was partly due to difficulties and personnel changes in the Plaintiffs' solicitors' office between 2014 and 2015, resulting in lack of oversight of the file.
- Further expert reports were required, and delays in funding these reports explain part of the delay between 2015 and 2017.
- The Plaintiffs served a notice of intention to proceed in September 2017 after receiving expert reports and clarifications, demonstrating that the case was not left entirely idle.
- The Defendant did not avail of established remedies to obtain discovery or further particulars after complaining of deficiencies, and thus cannot rely on this as an excuse for delay.
- The Plaintiffs argue there is no actual prejudice caused by the delay, and that the case primarily involves documentary and expert evidence which remains available.
- The Plaintiffs submit that the claim should proceed confined to breach of contract and professional negligence related to certification and inspections, excluding claims based on oral assurances and recommendations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rainsford v. Limerick Corporation [1995] 2 ILRM 561 | Principles for striking out proceedings for delay: inordinate delay and excusability of delay. | Applied to assess whether delay was inordinate and whether Plaintiffs provided satisfactory excuse. |
| Primor Plc. (Under Administration) v. Stokes Kennedy Crowley [1996] 2 IR 459 | Elaboration of principles regarding delay and striking out; balance of justice test. | Used to guide court’s exercise of discretion balancing fairness and prejudice. |
| Anglo Irish Beef Processors Ltd. v. Montgomery [2002] IESC 60 | Delay excusability is concerned solely with plaintiff’s conduct; defendant’s failure to avail remedies does not excuse plaintiff’s delay. | Supported rejection of Defendant’s argument that their inaction excuses Plaintiffs’ delay. |
| McBrearty v. North Western Health Board [2007] IEHC 431 | Delay by solicitors imputes culpability to plaintiff for purposes of excusability. | Adopted to hold Plaintiffs responsible for solicitors’ delay. |
| McAndrew v. Egan [2017] IEHC 345 | Approved approach to imputing delay to plaintiff via solicitor’s conduct. | Reinforced treatment of delay causation in this case. |
| Millerick v. Minister for Finance [2016] IECA 206 | Explanation for delay must be concrete and supported by evidence to excuse delay. | Applied to scrutinize Plaintiffs’ explanation for delay and reject general assertions of busyness. |
| Collins v. Minister for Justice Equality and Law Reform [2015] IECA 27 | Detailed principles governing striking out for delay and balancing justice. | Quoted extensively to set out factors for court’s discretion. |
| Comcast International Holdings Inc. v. Minister for Public Enterprise [2012] IESC 50 | Ultimate test is what justice demands between parties in the particular circumstances. | Applied to emphasize evaluation of all relevant material without single conclusive factor. |
| Rogers v. Michelin Tyre Plc (No. 2) [2005] IEHC 294 | Defendant’s conduct may be relevant but defendant’s passivity is minor weight in balance. | Considered in assessing Defendant’s failure to take procedural steps. |
| Leech v. Independent Newspapers (Ireland) Ltd. [2017] IECA 8 | Defendant not penalised for failing to resurrect dormant action; inactivity not culpable unless positive acquiescence. | Applied to reject argument that Defendant acquiesced to delay. |
| Stephens v. Paul Flynn Ltd [2005] IEHC 148; [2008] IESC 4; [2008] 4 IR 31 | Delay and excusability coupled with prejudice to defendant justifies dismissal; court may consider prejudice pre- and post-commencement. | Used to assess prejudice and justify dismissal of parts of claim. |
| Cassidy v. The Provincialate [2015] IECA 74 | Inordinate and inexcusable delay can justify dismissal even with marginal prejudice. | Supported approach to dismissal on grounds of delay and prejudice. |
| Farrell v. Arborlane [2016] IECA 224 | Prejudice from professional negligence claims hanging over defendant and difficulty renewing insurance can justify striking out. | Distinguished on facts; no evidence of insurance difficulty here, but prejudice from delay acknowledged. |
| McDonagh v O'Shea [2018] IECA 298; Burke v. Beatty [2016] IEHC 353; McGrath v. Reddy Charlton McKnight [2017] IEHC 210 | Discretionary principles guiding striking out parts of claims on grounds of delay and prejudice. | Applied to dismiss parts of claim based on oral assurances and builder recommendation. |
Court's Reasoning and Analysis
The court began by applying established legal principles governing delay in prosecution of proceedings, primarily from Rainsford v. Limerick Corporation and Primor Plc., to determine whether the delay was inordinate and whether the Plaintiffs offered a satisfactory excuse. The delay was found to be inordinate, with a striking out of the notice of trial in 2013 and no meaningful formal steps until a notice of intention to proceed was served in 2017.
The Plaintiffs’ excuse related to personnel changes and lack of oversight in their solicitors’ office, and delays in obtaining expert reports partly due to funding difficulties. The court held that solicitor delay imputes culpability to the Plaintiffs and that the explanation of workload pressure was insufficient to excuse a four-year delay. The delay in obtaining expert reports was also not excusable, and no explanation was given for failure to act after the notice of trial was struck out.
In balancing justice, the court considered the Defendant's prejudice, including the passage of time since construction, potential difficulty in ascertaining defects due to wear and tear, and the impact on the Defendant's professional reputation. However, the court found that the claim primarily concerned defects at the time of certification and that expert evidence could isolate inherent defects from subsequent deterioration.
The court also examined the Plaintiffs’ expanded claim based on alleged oral assurances and recommendations made ten years prior. It found that such claims would cause prejudice due to faded memories and could not be fairly defended, thus these parts of the claim were struck out.
The Defendant’s contention that the liquidation of the building contractor prejudices discovery was rejected as speculative, especially since the Defendant did not pursue remedies to compel discovery. The court distinguished the present case from Farrell v. Arborlane, noting no evidence of difficulty obtaining professional indemnity insurance by the Defendant.
Ultimately, the court exercised its discretion to allow the core claim for breach of contract and professional negligence related to certification and inspections to proceed, but dismissed claims based on oral assurances and builder recommendation due to prejudice and delay.
Holding and Implications
The court granted in part and refused in part the Defendant’s motion. It struck out those parts of the Plaintiffs’ claim founded on alleged oral assurances, representations, and the recommendation of a builder due to prejudice caused by delay and the difficulty of fair defence. However, the court allowed the remainder of the professional negligence claim, relating to breach of contract and certification inspections, to proceed to trial as it was ready and no sufficient prejudice was demonstrated to justify dismissal of the entire claim.
The direct effect is that the Plaintiffs may continue their claim on a narrowed basis, excluding claims reliant on conversations and assurances from a decade prior. No new precedent was established; the decision applies established principles on delay, excusability, prejudice, and the balance of justice in striking out proceedings for want of prosecution.
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