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An intolerable level of delay?
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
In McClean v Sunday Newspapers Limited(1) the High Court considered whether the delay in prosecuting proceedings justified dismissing the proceedings. The decision sets out the applicable test for considering such a question of delay. In the specific context of the rationale put forward by the plaintiff, the decision is also indicative of the approach of the Irish courts.
In April 2000 the defendant's newspaper published allegations about the plaintiff. The plaintiff commenced proceedings for alleged libel in July 2000 and the proceedings initially progressed at a relatively normal pace. By late 2002 trial seemed imminent, but then everything stopped until April 2010, when the plaintiff issued a notice of intention to proceed. Absent further activity, in August 2013 the defendant's solicitors wrote to request that the proceedings be discontinued. When this was not done, the defendant issued a motion seeking to strike out the proceedings for want of prosecution.
In a replying affidavit seeking to justify its position, the plaintiff outlined how, in the aftermath of initial publication and commencement of the proceedings, the defendant had desisted from publishing anything further. In these circumstances the plaintiff had said that he was happy to let matters rest; but in 2010, when a further publication was made, he instructed his solicitors to progress the litigation. He also referred to a period of ill health, which – although it did not stop him from prosecuting the proceedings – did interfere with his ability to do so.
The court disregarded the latter contention regarding ill health, noting that even on the plaintiff's own affidavit evidence, his ill health was not such as to impede him from prosecuting the case. The court also observed that notwithstanding his period of ill health, he also managed to commence and settle other litigation. On that basis, the court had to consider whether, having taken the tactical decision not to prosecute the case while the defendant desisted from further publications, the defendant had sufficient basis to resist the application before it.
The court observed that the application was made under Order 122, Rule 11 of the Rules of the Superior Courts, which provides that where a matter has not been advanced in two years, a defendant may apply to dismiss the proceedings for want of prosecution, in respect of which the court may make such an order on terms it deems appropriate. The court also cited from Primor plc v Stokes Kennedy Crowley(2) in acknowledging that the courts have an inherent jurisdiction to control their own procedures and to dismiss proceedings where the interests of justice requires this. In addition to those general principles, it noted that special considerations apply to defamation proceedings, in that a plaintiff in such proceedings is under a particular onus to institute the proceedings speedily, not least to restore his or her good name.(3)
In considering the application the court noted that Primor effectively set the following three limb test to be applied in cases involving delay:
- Is the delay inordinate?
- Is the delay inexcusable?
- Even if the delay is inordinate or inexcusable, is the balance of justice in favour or against a case proceeding?
The court also observed that there is a separate line of authority from O'Domhnaill v Merrick,(4) which identifies the need:
"to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."
The interaction between and validity of the Primor and O'Domhnaill lines of authority was approved by the Supreme Court in McBrearty v North Western Health Board,(5) from which the High Court here acknowledged that it should determine the present application by reference to both.
On the questions from Primor of whether the delay was inordinate and inexcusable, the court found the Supreme Court decision in Desmond v MGN Limited(6) instructive. In Desmond the plaintiff issued libel proceedings in May 1998, but served a notice of intention to proceed only in 2005. The reason offered by the plaintiff for the delay was that he had acted on legal advice pending the determination of certain issues by a statutory tribunal of inquiry. The Supreme Court felt that the delay there was inordinate and inexcusable and referred specifically to the fact that the defendant was never informed of the decision to 'park' the case. This was also the case here, and the defendant was therefore justified to conclude that the litigation had gone away. This all led to the inexorable conclusion that the delay was not just inordinate, but inexcusable.
Although the Supreme Court majority in Desmond found that the balance of justice lay in favour of permitting the litigation to continue, the High Court found to the contrary in McClean. In the first instance, Desmond was authority for the proposition that the plea of justification (as raised by the defendant) mandated the plaintiff to progress his claim to vindicate his good name.(7) The High Court noted that this was also consistent with the constitutional imperative that the courts put an end to stale claims and ensure the effective administration of justice and basic fairness of procedures,(8) and that Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms requires a fair and independent hearing within a "reasonable time".
The court was unable to reconcile these principles with the delay here, especially as the plaintiff had allowed the proceedings to subside twice.
On the balance mandated by O'Domhnaill, the court felt that the plaintiff's conduct of the litigation was inconsistent with a party genuinely desirous of defending his good name. For the defendant, there must also be a time when it ought not be subjected to the continuance of proceedings. In addition, the court observed that a free press is not free if trammelled by litigation that neither proceeds nor ends. Accordingly, the defendant's application succeeded.
Although the decision sets down no new principles, it usefully details the applicable authorities when dealing with a defendant's strike-out application premised on delay. It also highlights the interaction of the principles from Primor and O'Domhnaill. It is clear that for defamation proceedings there is an additional factor which militates against a plaintiff who does not progress the litigation.
For further information please contact Gearoid Carey at Matheson by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (firstname.lastname@example.org). The Matheson website can be accessed at www.matheson.com.
(1)  IEHC 304.
(2)  2 IR 459.
(3) Citing Keane CJ in Ewins v Independent Newspapers (Ireland) Lts  1 IR 583, at 590.
(4)  IR 151, Page 157.
(5)  IESC 27.
(6)  1 IR 737.
(7) Ibid, per Geoghegan J at Page 741, Kearns J at Page 756 and Macken J at Page 765.
(8) As referred to by Hogan J in Donnellan v Westport Textiles Limited  IEHC 11.
This article first appeared in the International Law Office Litigation newsletter 22 July 2014