Putting Justice To Hazard: When Does Delay Justify The Dismissal Of Proceedings?

• Published date: 12 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: William Fry
• Author: Mr Paul Convery, Adele Hall and Gail Nohilly

There has been an increase in applications to dismiss legal proceedings for want of prosecution on the grounds of delay before the Irish courts in recent months. In this Briefing we look at the principles a court will apply to such applications, and their likelihood of success, with reference to these recent cases.

INTRODUCTION

The procedure, including the time periods, for the prosecution of civil proceedings before the High Court (Court) is regulated under statutory court rules, the Rules of the Superior Courts (RSC). The RSC make specific provision for applications to dismiss civil proceedings for want of prosecution where there is a failure to comply with certain procedural rules. Separate to applications under the RSC, the Court has an inherent jurisdiction to dismiss proceedings for want of prosecution on the grounds of delay where so required by the interests of justice.

In recent months several applications to dismiss proceedings for want of prosecution on the grounds of delay came before the Court. These judgments continue to illustrate that the success of an application to dismiss proceedings will depend on the particular facts of each case. A period of delay found to be prejudicial in one case may not be determinative of the point in subsequent cases of similar delay.

THE GUIDING PRINCIPLES

1) Post Commencement Delay

The principles to be applied by the Court on an application to dismiss civil proceedings on the grounds of delay depends on the nature of the delay. In the case of delay after the institution of the proceedings (post-commencement delay), the Court will apply a three-stage test, which has its roots in the Supreme Court decision of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 (Primor). The Court must determine:

1. whether the plaintiff's delay is inordinate,
2. whether that inordinate delay is excusable and if not,
3. whether the balance of justice favours the dismissal of the action in all the circumstances.

INORDINATE DELAY

Whether delay can be characterised as "inordinate" is not capable of precise definition. The Court has held that it is primarily a question of fact. What constitutes inordinate delay in one case, may not be found to be so in another case. To illustrate this point, it is notable that three individual periods of delay of 15 months, two years and eight months, and four years and four months were each found to be inordinate in O'Reilly v National Document Management Group Ltd and Anor [2022] IEHC 37 (O'Reilly)...