An Intolerable Level Of Delay?

In McClean v Sunday Newspapers Limited1 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.

Facts

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.

Case law

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...