Factual and Procedural Background
The Plaintiff commenced two sets of High Court proceedings claiming wrongful dismissal following the purported termination of her employment contract by the Defendant in August/September 2015. The Plaintiff contends the termination was unlawful, specifically arguing it was invalid as it was not executed by a director of the Defendant company. The relief sought includes damages (originally €200,000, increased to €250,000), a declaration of invalid termination, continuation of employment, and reinstatement. The second set of proceedings also alleges a breach of privacy by the Defendant.
Parallel to these proceedings, the Plaintiff pursued statutory claims under the Employment Equality Act 1998 (unsuccessful) and the Unfair Dismissals Acts 1977 to 2007, with the unfair dismissal claim still pending. The statutory claim is to be remitted to the Circuit Court for hearing. The Defendant applied to strike out the High Court proceedings on grounds of inordinate and inexcusable delay.
Legal Issues Presented
- Whether there has been inordinate delay in the prosecution of the two sets of High Court proceedings.
- Whether any such delay is inexcusable.
- Whether, if delay is both inordinate and inexcusable, the balance of justice favours allowing the proceedings to continue or warrants their dismissal.
- Whether the Defendant’s application to dismiss complied with procedural requirements under Order 27 of the Rules of the Superior Courts.
- The relevance and application of statutory provisions requiring election between remedies under the Unfair Dismissals Act 1977.
Arguments of the Parties
Defendant's Arguments
- The Defendant contends there has been an inordinate and inexcusable delay of six to seven years in delivering a statement of claim, justifying dismissal.
- The Defendant asserts prejudice due to loss of corporate memory and unavailability or unwillingness of key personnel involved in the original events to engage with the litigation.
- The Defendant relies on procedural rules, including Order 27, and inherent jurisdiction to dismiss for delay.
- Orally, the Defendant’s counsel referenced section 15 of the Unfair Dismissals Act 1977, arguing the Plaintiff must elect between statutory and common law remedies, potentially barring the High Court claims.
Plaintiff's Arguments
- The Plaintiff argues the delay is justified by the need to await the determination of the parallel statutory unfair dismissal claim, which was considered essential before progressing the High Court proceedings.
- The Plaintiff submits that the limitation period would have allowed initiation of proceedings as late as 2021, and thus the delay should not be criticised.
- The Plaintiff contends the Defendant’s application is procedurally irregular for failure to send the required twenty-eight day letter under Order 27.
- The Plaintiff’s position before the Employment Appeals Tribunal was that it lacked jurisdiction, supporting the argument that the statutory claim should not bar the High Court proceedings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 |
Established the principles governing dismissal of proceedings for inordinate and inexcusable delay, including the inherent jurisdiction of courts and the balance of justice test. |
The Court applied the tripartite test from Primor: (1) inordinate delay; (2) inexcusable delay; and (3) balance of justice. The Court carefully considered each element in the context of the case. |
| Cave Projects Ltd v. Kelly [2022] IECA 245 |
Reiterated that dismissal for delay requires significant delay and a balance of justice clearly against proceeding; emphasized the causal connection between delay and prejudice. |
The Court relied on this authority to emphasize the need for a causal connection between delay and prejudice, and to guard against over-hasty dismissals depriving plaintiffs of legitimate claims. |
| Gibbons v. N6 Construction Ltd [2022] IECA 112 |
Clarified that the burden is on the defendant to establish prejudice caused by delay in order to justify dismissal. |
The Court noted the Defendant’s failure to establish material prejudice as required under this precedent. |
| Dawson v. Irish Brokers Association [2002] IESC 36 |
Guidance on costs entitlement for litigants in person. |
The Court provisionally awarded costs to the Plaintiff as a litigant in person, referencing this authority regarding allowable expenses. |
Court's Reasoning and Analysis
The Court applied the established Primor test, first finding that the delay of six to seven years in delivering a statement of claim was inordinate. The Plaintiff’s argument regarding the limitation period was rejected on the basis that initiating proceedings late imposes a duty to proceed expeditiously thereafter; a two-year delay following a late start is inordinate.
Regarding excusability, the Court found the Plaintiff’s strategy to "put on hold" the High Court proceedings pending the outcome of the statutory unfair dismissal claim unjustified. The Court noted the internal inconsistency in the Plaintiff’s position before the Employment Appeals Tribunal, where she claimed lack of jurisdiction, yet relied on that claim to justify delay. The Court emphasized that litigants must pursue initiated proceedings with reasonable expedition and cannot hedge bets by parking claims.
In assessing the balance of justice, the Court considered the Defendant’s asserted prejudice due to loss of corporate memory and unavailability of witnesses. However, it found this prejudice minimal, given that key witnesses remained available and that a full hearing before the Employment Appeals Tribunal had already occurred within a reasonable time of the events, generating extensive contemporaneous documentation. The Court also noted the existence of further statutory proceedings providing an alternative forum.
The Court rejected the Plaintiff’s procedural objection regarding the absence of a twenty-eight day letter, clarifying that such a letter is only required under Order 27 applications for want of prosecution, not under the High Court’s inherent jurisdiction to dismiss for inordinate and inexcusable delay.
Finally, the Court declined to consider the Defendant’s oral submissions on section 15 of the Unfair Dismissals Act 1977, as this was not part of the formal application and would be unfair to the Plaintiff, a litigant in person, who had not had an opportunity to respond. The Court noted the unclear implications of section 15 and that it was inappropriate to address it without proper notice.
Holding and Implications
The Court REFUSED the Defendant’s application to strike out the two sets of High Court proceedings on the grounds of inordinate and inexcusable delay. The Defendant failed to establish material prejudice sufficient to justify dismissal.
The proceedings will continue, with directions proposed to consolidate the two sets of High Court proceedings, deem the latest amended statement of claim as validly delivered, and require the Defendant to deliver a defence by a specified date.
No new precedent was established. The decision underscores the importance of balancing the need for litigation expedition with fairness to plaintiffs pursuing legitimate claims, especially where prejudice to defendants is not clearly demonstrated.