McDonald v A Z Sint Elizabeth Hospital (Approved)

Factual and Procedural Background

The Plaintiff, a solicitor, was engaged by the Defendants to act for them in High Court proceedings arising from defects in the construction of their home. The Defendants settled that case directly with one of the other parties for an all-inclusive amount of approximately €317,000, from which they agreed to pay €53,000 towards the costs of one of the other parties. However, the Defendants did not pay the Plaintiff for his costs or expenses incurred, including outlay, counsel, and expert witnesses.

The Plaintiff furnished a final bill of costs on 17 July 2007, which the Defendants refused to pay. After taxation, a lesser amount was allowed by the Taxing Master, but the Defendants still refused payment. The Plaintiff issued proceedings by summary summons on 27 September 2012, seeking judgment for €183,971.56 plus interest and costs.

There was significant delay in progressing the claim, some attributable to the Plaintiff and some due to administrative difficulties with the Taxing Masters Office. The Plaintiff filed multiple notices of intention to proceed between 2014 and 2019, keeping the Defendants aware of the intention to continue the claim.

The delays were categorized as follows: (i) 2014-2017 due to the Plaintiff's inability to pay stamp duty; (ii) 2017-2020 due to administrative issues at the Taxing Masters Office; and (iii) March 2020 onwards due to COVID-19 restrictions. The certificate of taxation was only made available on the day of the hearing of this motion (17 February 2022), with the Plaintiff’s counsel confirming intentions to proceed promptly thereafter.

The Defendants made complaints to the Law Society against the Plaintiff, which were not upheld, and allegedly engaged in an online campaign of unfair and defamatory criticism.

Legal Issues Presented

1. Has there been inordinate delay in the proceedings?
2. If so, is the delay excusable?
3. If the delay is both inordinate and excusable, does the balance of justice favour dismissing the proceedings?

Arguments of the Parties

Defendants' Arguments

• The Defendants suffered considerable stress from the defects in their home and the Plaintiff’s delay exacerbated this.
• They intend to defend and counterclaim for alleged negligent advice by the Plaintiff, supported by a chronology of events mostly based on documentation.
• The Defendants argue that the delay will cause difficulty in obtaining a fair trial due to disputed recollections, though no specific witnesses or reasons for unreliable memory were identified.
• They rely on precedent that even marginal prejudice from inordinate and inexcusable delay may justify dismissal of proceedings.
• The Defendants claim their uninsured status constitutes prejudice, citing Supreme Court authority where loss of insurance cover due to delay was deemed prejudicial.

Plaintiff's Arguments

• The Plaintiff acknowledges some delay from 2014-2017 but attributes other delays to excusable causes such as administrative issues and COVID-19.
• He disputes that the delay was inordinate or that the Defendants have suffered actual prejudice.
• The Plaintiff argues that the Defendants’ defence and counterclaim rely mostly on documentary evidence, which remains intact, and thus the delay will not impede a fair trial.
• He relies on case law supporting the continuation of document-heavy cases despite delay.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court applied the established three-step test for dismissal due to delay: whether there was inordinate delay, whether that delay was excusable, and if so, whether the balance of justice favours dismissal. The delay of approximately eight years was found to be inordinate. However, the Court accepted the Plaintiff’s explanations for the delay as excusable, including financial difficulties, administrative issues at the Taxing Masters Office, and COVID-19 restrictions.

The Court noted that the delay post-2017 was excusable despite being a consequence of earlier delay attributable to the Plaintiff. The Plaintiff’s cash flow problems causing delay from 2014-2017 were also excusable, partly due to the Defendants’ failure to pay costs incurred in the original proceedings.

Given the excusability of all delay periods, the Court did not need to consider prejudice in depth but proceeded to do so in the alternative. It found no substantial risk of an unfair trial due to the documentary nature of the Defendants’ defence and counterclaim. The Defendants had ample time to prepare and did not identify any specific reliability issues with witness recollections.

The Court rejected the Defendants’ argument that their uninsured status constituted relevant prejudice, distinguishing prior cases where insurance was lost due to delay. The Defendants were never insured, so their stress from potential liability was a consequence of litigation, not delay.

Finally, the Court found the balance of justice favoured the Plaintiff, as dismissal would cause greater prejudice to the Plaintiff who seeks to recover costs for work performed. The Defendants disputed quality but not existence of the Plaintiff’s work, including costs for counsel and experts.

Holding and Implications

The Court refused the Defendants' application to dismiss the proceedings for delay.

The Court held that although the delay was inordinate, it was excusable and the Defendants did not establish prejudice sufficient to justify dismissal. The balance of justice favored continuation of the proceedings. The Plaintiff was ordered to expedite the litigation by filing a motion for liberty to enter final judgment within two weeks of receiving the certificate of taxation and undertook not to seek interest for the delay period attributable to himself (2014-2017).

The decision directly affects the parties by allowing the Plaintiff's claim to proceed, with no new precedent established beyond reaffirming existing principles on delay and excusability.