High Court: Impact On Professional Indemnity Insurance A Factor In Dismissal Of Negligence Claim

Maxwell v Lysaght p/a Francis J. O'Mahony & Co. & Ors [2019] IEHC 551 (17 July 2019)

The High Court dismissed a plaintiff's action for professional negligence against two separate law firms on the grounds of inordinate and inexcusable delay. In his judgment, Barrett J. observed that "[t]here is an obligation on a plaintiff who is pursuing a claim that will involve consideration of events of no little antiquity to progress with at least some expedition."

Background

Mr. Maxwell first approached the first named defendant in relation to a personal injuries claim following a 'trip and fall' incident in 2001. He claims to have been badly served by the first named defendant. He then approached the second to fifth named defendants. A dispute arose, inter alia, in relation to whether the second to fifth named defendants were instructed to act for him. Professional negligence proceedings were then issued in October 2013 against both law firms. Pleadings were exchanged between the parties up until 2015 and the last letter from Mr. Maxwell's solicitor was received by the defendants in July 2016. The motion to strike out the proceedings on grounds of inordinate and inexcusable delay was issued in October 2018.

Legal Principles

Barrett J. considered that "as good a summary as any" of the applicable legal principles was set out in the judgment handed down by the Court of Appeal in Farrell v Aborlane Ltd & Ors [2016] IECA 224. This decision fleshes out the matters that an applicant for dismissal must establish: (i) the delay was inordinate; (ii) the delay was inexcusable; and (iii) the balance of justice favors the dismissal of the claim.

The court also approved the dicta of Clarke J., as he then was, in Greene & Anor v Triangle Developments Ltd & Anor [2008] IEHC 52, in which the judge considered that it was inappropriate to issue proceedings alleging professional negligence unless the claim was supported by sufficient expert opinion. While that decision concerned an allegation of medical negligence, Barrett J. stated that the principle applies equally to the legal profession, as solicitors also have a professional reputation which forms part of their "stock-in-trade".

Conclusions

Having concluded that the period of delay following the commencement of proceedings was inordinate, the court considered whether the delay was excusable. Barrett...