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To strike out or not to strike out - that is the question

26/06/2015

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Ireland

Have you ever been involved in a legal action that started in a blaze of activity only for it to subsequently go dormant? Mark Kelly, solicitor in the Dispute Resolution and Litigation Unit highlights that in light of the recent pressure on Court time and resources, Courts are getting stricter on litigants who do not progress their cases.A Defendant to any legal action has the option to apply to the court to have the claim struck out on the basis of delay on the following ...

Have you ever been involved in a legal action that started in a blaze of activity only for it to subsequently go dormant? Mark Kelly, solicitor in the Dispute Resolution and Litigation Unit highlights that in light of the recent pressure on Court time and resources, Courts are getting stricter on litigants who do not progress their cases.

A Defendant to any legal action has the option to apply to the court to have the claim struck out on the basis of delay on the following grounds;

  1. The proceedings were not commenced in a timely manner; and/or
  2. The proceedings have been commenced but are not being advanced in a timely manner.

There are 2 different legal tests for dealing with each scenario.

The O’Domhnaill test is used in relation to situations where the acts complained of occurred well before the commencement of the proceedings. In this scenario, the question for the court to decide is whether by reason of the passage of time, there is a real or substantial risk of an unfair trial or an unjust result of the delay.

The Primor test is used in cases where the proceedings have commenced but have not been progressed quickly enough. In this scenario, where a party seeks to dismiss proceedings for want of prosecution or delay, they must satisfy the court that:-;

  1. That the delay was inordinate, and
  2. That the delay was inexcusable, and
  3. That the balance of justice is in favour of the dismissal of the proceedings.

Recent Caselaw

The Court of Appeal recently examined both of these legal tests in the case of Cassidy v Provincialate [1]. The case was commenced over 30 years after the Plaintiff had allegedly been sexually abused by a member of a religious order.

Ms Cassidy did not introduce any additional information to explain the delay in issuing the proceedings other than what had already been pleaded in her Personal Injuries Summons. The court found that the delay was inexcusable on the following basis;

  1. It was not disputed by the Plaintiff that she had been guilty of inordinate delay in instituting the proceedings;
  2. There was no evidence provided by the Plaintiff that there was a continued control or duress by the Plaintiff’s abuser during the intervening period;
  3. The death of the Plaintiff’s abuser “visited the grossest imaginable prejudice” upon the Defendant who was not in a position to challenge or counter challenge the allegations of abuse by the Plaintiff.

To avoid any doubt, the court also considered whether the defendant’s application could succeed under the O’Domhnaill test. The court considered whether there was a real or serious risk of an unfair trial or an unjust result if the action proceeded to trial. The court took account of the fact that many acts of the alleged abuse took place at locations away from the Defendant’s premises, that the Plaintiff herself was not a resident or in the care of the Defendant at the time of the alleged abuse and finally the fact that the Plaintiff had not reported the alleged abuse to anybody until November 2009. The court rejected the contention that the risk of an unfair trail or unjust result was reduced because the Defendant had located one former employee who, over 30 years ago, recalled a man with the same name as the alleged perpetrator working at the Defendant’s premises.

Another recent High Court case of Mary Doherty v David Ryan [2] primarily focused on the test provided for in Primor. The Plaintiff brought an action pleading defamation on the part of the Defendant. Both parties had procrastinated during the proceedings; however the court was satisfied that in considering where the interests of justice lay, the court had regard to the fact that the majority of the delays had been occasioned by the Defendant and that the Defendant was unable to establish that he had suffered prejudice as a result of the delays that occurred. The High Court also case managed the proceedings from this point onwards to ensure a speedy resolution to the proceedings.

Conclusion

While these two judgments do not lay down any new principles, they helpfully recite the applicable lines of authority when dealing with a Defendant’s application to strike out proceedings on the basis of delay. The decisions also highlight the interchangeable relationship of the principles established in Primor and O’Domhnaill.

The Courts are becoming increasingly conscious of the finite resources within which they must operate and Plaintiffs can no longer expect that they will be afforded every latitude in allowing their cases to drift. For their part, Defendants must not stand idly by or acquiesce in the delay if they wish to subsequently challenge the Plaintiff’s tardiness.

Remember that this article is for information purposes only and does not constitute legal advice. Specific advice should always be taken in given situations.

[1] Cassidy v The Provincialate [2015] IECA 74

[2] Doherty v Ryan [2015] IEHC 242

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