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'Justice Delayed is Justice Denied'

19 September 2018
Potential Consequences of Delay in Prosecuting Litigation

We know from the Supreme Court decision in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and later decisions that a court has inherent jurisdiction to strike out a claim for want of prosecution where the delay is both inordinate and inexcusable and where it is in the interests of justice that that the case should be dismissed.

A delay that causes significant prejudice to a defendant and creates a real risk of an unfair trial is another important factor that will be considered by a court.

While traditionally the courts were slow to grant orders to strike out proceedings for delay recent decisions illustrate an increased willingness to strike out in appropriate circumstances.

The decision of the High Court in McGarry –v- McGuinness and Ors [2018] IEHC 350 provides another example of the consequences for plaintiffs for failing to progress proceedings in a timely fashion.

The plaintiff was employed as a school teacher in Co. Donegal. In October 1998 he was suspended by the Board of Management (the "Board") for refusing to teach a class. His employment was terminated in 2002. He issued Judicial Review proceedings seeking declaratory relief from the Board, the Minister for Education and Science, Ireland and the Attorney General. The High Court refused to grant leave. In September 2003 he issued High Court proceedings seeking damages and declaratory relief against the same entities. A statement of claim was delivered in December 2003. The Board delivered a defence in February 2005 and a defence was delivered on behalf of the other defendants in July 2007. After several years of inaction the Plaintiff filed a Notice of Intention to Proceed in March 2017. In July and October 2017 two motions to strike out the proceedings for delay were issued on behalf of the defendants.

The court focused on 3 significant periods of delay in the proceedings as follows: the period between the accrual of the cause of action in 1998 and the issue of proceedings in 2003, the period between the delivery of the defences and the Notice of Intention to Proceed in November 2012 and the delay that occurred thereafter.

The court noted that the plaintiff did not adequately explain the "… significant pre-commencement delay" other than seeking to largely attribute this to his efforts to avoid litigation and difficulties progressing matters with his then solicitor. Mr Justice O'Connor refused to accept these arguments and stated the plaintiff "… has offered no justifiable explanation as to why he did not retain new solicitors". In addition, he noted that Article 6 of the European Convention on Human Rights places "…an onus on litigants to recognise the necessity for the administration of justice within a reasonable time…"

As regards the second period of delay, it was submitted by the plaintiff that he understood that he could not set the matter down for trial until a defence was received on behalf of all defendants. The court rejected this as an explanation for the delay.

The plaintiff sought to justify the third period of delay (between November 2012 and March 2017) by referring to difficulties he was experiencing with his former solicitor. Again, the court refused to accept this as a justification for the delay.

The court considered the issue of prejudice and accepted that the memories of witnesses relating to events from 1998 to 2002 have faded and there was a risk of an unfair trial. The court referred to material sought by the plaintiff which relate to a period dating back 26 years as an example of the challenges now faced by the defendants.

Mr Justice O'Connor was particularly concerned with the examples of actual prejudice suffered by the defendants which included the retirement of a majority of members of the then Board, the death of essential witnesses and the inability of the remaining members of the Board to defend the proceedings. In concluding his judgement, he held, "… it is clear that he is responsible whether directly or vicariously for significant delays in the prosecution of these proceedings…I am satisfied that the presumed and specific prejudice arising for the defendants in allowing these proceedings to proceed to trial is overwhelmingly in favour of the defendants as opposed to allowing the plaintiff air and substantiate his various allegations and grievances at this late stage. In those circumstances, I direct and order that the proceedings be struck out".


The decision of Mr Justice O'Connor is particularly critical of the plaintiff for his failure to provide reasonable justification for the delays that had occurred in the proceedings. A Plaintiff must be in a position to provide reasonable justification for delays when they are opposing an application to strike out otherwise their claim may be dismissed.

The courts are becoming less tolerant of inaction in proceedings especially where specific prejudice creates a risk of an unfair trial. This judgement should be welcomed by insurers. A defendant or insurer that is facing the prospect of defending stale proceedings may consider a strike out application where they can show they have suffered clear prejudice.

Further Reading

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