Mc Andrew v Bourke [Practising under the style and title of Adrian P. Bourke & Co. Solicitors] (Approved)

Factual and Procedural Background

The Plaintiff initiated professional negligence proceedings against the Defendant in 2010, alleging failure to provide proper legal advice regarding the conveyance of three properties. The Plaintiff sought damages for negligence and breach of duty, including exemplary damages related to the Defendant's alleged failure to comply with an undertaking to a financial institution. Neither the initial pleadings nor the statement of claim referenced monies from the sale of the Plaintiff's properties held in the Defendant’s client account.

The Defendant contended that the Plaintiff had not progressed the case since delivering replies to particulars in July 2014. The Plaintiff made several applications for discovery concerning the alleged failure of the Defendant to furnish documents related to the undertaking, all of which were refused. The Defendant voluntarily provided two affidavits of discovery, but the Plaintiff maintained that relevant documents were withheld.

A prior application to dismiss the proceedings for delay was made by the Defendant and heard by Judge Hyland in October 2021. Judge Hyland found the delay to be inordinate and unexcused but declined to dismiss the case at that time, citing unresolved issues regarding the alleged undertaking and approximately €41,000 held by the Defendant. The Plaintiff was ordered to advance the proceedings promptly.

The Plaintiff failed to progress the case until February 2024, serving a notice of trial nearly two and a half years after Judge Hyland’s ruling. The Plaintiff’s delay was partially attributed to awaiting the outcome of unrelated proceedings against a third party, Launceston Property Finance DAC, and its subsequent appeal. The court found this strategy legally unrealistic and unrelated to the professional negligence claim.

The Plaintiff’s further delay included a refusal by the Defendant to consent to amendments sought by the Plaintiff in 2023 and additional correspondence in 2024 concerning matters outside the scope of the original claim. The Defendant clarified that references to undertakings were mistaken and explained the retention of monies as part of a separate settlement, issues not encompassed by the Plaintiff’s pleaded claim.

Legal Issues Presented

1. Whether the Plaintiff’s inordinate and inexcusable delay in prosecuting the proceedings justifies dismissal.
2. Whether the balance of justice favors dismissal of the proceedings given the history of delay and related circumstances.
3. Whether the issues relating to undertakings and retention of monies affect the appropriateness of dismissing the proceedings for delay.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff has not taken any meaningful steps to progress the case since 2014, except for unmeritorious discovery applications.
• The delay since October 2021 is inordinate and unjustified, especially given the Plaintiff’s failure to proceed promptly following Judge Hyland’s ruling.
• References to undertakings in earlier correspondence were mistaken, and the monies held relate to a settlement and professional obligations outside the claim.
• The Defendant will suffer prejudice if the case continues, including difficulties locating witnesses, the winding up of a relevant bank, challenges in obtaining professional indemnity insurance, and adverse health impacts.
• The Defendant denies responsibility for delay following the Plaintiff’s request to amend pleadings and asserts the Plaintiff’s claim of delay caused by the Defendant’s solicitors is unfounded.

Plaintiff's Arguments

• The Plaintiff contended that delay was partly due to awaiting the outcome of related proceedings and an appeal involving a third party, which he believed were connected to this claim.
• The Plaintiff asserted that the Defendant delayed responding to his request to amend pleadings, contributing to further delay.
• The Plaintiff argued that the Defendant failed to furnish documents related to undertakings and monies held.
• The Plaintiff sought court intervention concerning monies held and dealings with the third party, although these matters were outside the scope of the original proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the prior ruling by Judge Hyland, which found the Plaintiff’s delay inordinate and unjustified but allowed the case to proceed due to unresolved issues concerning undertakings and monies held. Since then, the Plaintiff failed to advance the proceedings for over two years, relying on unrelated litigation that was not a valid excuse for delay.

The court analyzed correspondence and affidavits clarifying that references to undertakings were mistaken and that the monies held were part of a separate settlement and professional obligations, not subject to the Plaintiff’s claim. These clarifications removed the prior justification for withholding dismissal.

The Defendant's evidence of prejudice, including difficulty finding witnesses, the winding up of a relevant bank, insurance complications, and health impacts, was accepted as sufficient under the established Primor test despite being general in nature.

Balancing these factors, the court concluded that the Plaintiff's delay was inordinate and inexcusable, and the balance of justice favored dismissal of the proceedings.

Holding and Implications

The court GRANTED the Defendant's application to dismiss the proceedings due to inordinate and inexcusable delay.

The direct effect is the termination of the Plaintiff's professional negligence claim. No new remedies or claims regarding undertakings or monies held are permitted within these proceedings. The court indicated no award of costs would be made in principle, considering the late clarification of issues that had caused confusion. The matter of costs was reserved for further submissions.