Delay And Prejudice

Introduction

The ability for a defendant to dismiss a case on the grounds of delay is well established by the courts. However, there are high standards that the courts adhere to when considering whether the balance of justice lies in favour of dismissing a case.

These standards were first laid down in Rainsford v Limerick Corporation and then approved and expanded upon in Primor PLC v Stokes Kennedy Crowley. The main questions which the court must address are:

the party seeking dismissal must prove that the delay was both inordinate and inexcusable; and does the balance of justice lie in favour of proceeding with the case. This article will focus solely on the issue of where the balance of justice lies.

The balance of justice

In assessing the balance of justice the courts have regard to a range of factors including:

constitutional principles of basic fairness and procedure; whether the delay and the resulting prejudice make it unfair to the defendant to proceed with the case; any delay on the part of the party seeking to dismiss the case; does the delay give rise to the risk that it is not possible to have a fair trial; and has the delay caused a risk of prejudice to the defendant. Prejudice and recent judgments

The risk of prejudice causing an unfair trial is a key factor considered by the courts when they examine whether the balance of justice lies in favour of the dismissal of the case. If the delay has resulted in prejudice which would make it impossible to proceed with a fair trial, the courts have been more likely to find in favour of the defendant's application, provided that their conduct has not amounted to acquiescence i.e. - that they contributed to the delay.1

The question of prejudice was recently examined in the Supreme Court in the cases of Desmond v Doyle and Desmond v Times Newspapers Ltd., Rory Godson and John Burns. These were both defamation cases, where the High Court refused a motion to dismiss on the basis of delay and which were then appealed to the Supreme Court. The High Court and Supreme Court issued a combined judgement dealing with both cases.

The first case against Mr Tom Doyle related to a letter he had sent to the Moriarty Tribunal where he claimed that he, and not Mr Desmond, was responsible for the original idea behind the IFSC in Dublin.

The second case related to the publication of an article in the Sunday Times under the heading "Desmond was not the Man behind the IFSC idea, Tribunal told". The article...