Time Matters ' Court Of Appeal Affirms High Court Decision Striking Out Proceedings For Inordinate And Inexcusable Delay

• Published date: 02 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: William Fry
• Author: Ms Lisa Carty and Hilary Rogers

The Court of Appeal (COA) has upheld an Order of the High Court striking out the plaintiff's claim for inordinate and inexcusable delay: Doyle v Foley [2022] IECA 193. The plaintiff's claim arose out of a 2008 Syndicate Agreement for a share purchase in a stallion standing at the defendant's stud farm. The stallion was leased to a stud in France in 2011 and was ultimately purchased by the French stud in 2014.

The plaintiff issued proceedings in January 2013 claiming damages for breach of contract, negligence, breach of duty and specific performance in respect of the Syndicate Agreement (Proceedings). Thereafter the relevant chronology is as follows:

• January 2014 Statement of Claim delivered
• February 2014 defendant raised Notice for Particulars
• June 2014 plaintiff secured an interim injunction preventing the defendant from selling the stallion prior to the conclusion of the Proceedings
• July 2014 injunction vacated
• August 2014 plaintiff replied to Rejoinders
• April 2018 plaintiff filed Notice of Intention to Proceed
• 5 March 2020 plaintiff issued motion to remit the Proceedings to the Circuit Court
• 20 March 2020 plaintiff issued fresh Notice of Intention to Proceed
• February 2021 plaintiff issued second motion to remit the Proceedings
• May 2021 defendant issued motion to strike out the Proceedings (Application).

Two periods of delay formed the basis of the Application: from August 2014 to April 2018, a period of three years and eight months (First Period), and from April 2018 to February 2021, a period of two years and ten months (Second Period).

Applicable Legal Principles

The High Court (Court) and the COA determined the Application by reference to the principles set out by Hamilton CJ in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 (Primor):

1. Was there inordinate delay?
2. Was the delay inexcusable?
3. If the answer to both questions is yes, where does the balance of justice lie?

(Access a detailed review of these principles in our briefing Putting Justice to Hazard: When does delay justify the dismissal of proceedings).

The Court concluded that the First and Second Periods amounted to inordinate and inexcusable delay on the part of the plaintiff. The Court concluded that there was no active delay on the defendant's part and that any inactive delay should not be "counted against the defendant".

On the balance of justice, the Court noted that the case was not a pure documents case, it would require oral testimony and held that a fair trial was not...