IRL High Court. Judge refuses to strike out personal Injury case where there was inordinate and inexcusable delay.

In the case of McCarthy v Brandon Constrution and Others, Ryan J refused to strike out the Plaintiff's personal injury action even where the court was satisfied that there had been inordinate and inexcusable delay.

The court held that once satisfied that there was inordinate and inexcusable delay, that it should apply the the approach that was set down by The Supreme Court in Primor v Stokes Kennedy Crowley.

"In Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the Supreme Court focused on whether the delay resulted in prejudice to the defendant in meeting the claim. The Court set the bar high for a defendant applying for a dismiss, holding that the question of particular prejudice was central to the exercise of discretion and it also endorsed and emphasised the importance of the role of the defendant in relation to the plaintiff's delay. The Supreme Court held that the principles of law relevant to an application to dismiss an action for want of prosecution were that:-

1. the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;
2. the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable;

3. even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;

4. when considering this obligation the court was entitled to take into consideration and have regard to –

(a) the implied constitutional principles of basic fairness of procedures,
(b) whether the delay and consequent prejudice in the special facts of the case were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,

(c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,

(d) whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in the plaintiffs delay,

(e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the weight to be attached to such conduct depending on all the circumstances of the particular case,

(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant,

(g) the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.

O'Flaherty J. held that whilst the Court had inherent jurisdiction to dismiss a claim in the interests of justice where the delay in the proceedings was in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself, it was a jurisdiction which should not be frequently or lightly assumed."

In applying these principles to the McCarthy case Judge Ryan was of the view that the action should not be dismissed for three reasons. "First, althought he proceedings were instituted only days before the third anniversary of the plaintiffs fall, he was under age for most of the period. Second, there was an explanation for the delay that had some basis in fact, even though it was inadequate. Third, the defendant was itself responsible for substantial delay and default by its own conduct in taking more than two years to deliver its defence."

The full judgement can be found here: http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/0446f06fde6c562280257aa1003146bd?OpenDocument

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