IESC 60 · Supreme Court

THE SUPREME COURT

344 & 345/01

Keane C.J.

Murphy J.

Fennelly J.

BETWEEN

ANGLO IRISH BEEF PROCESSORS LIMITED AND DJS MEATS LIMITED

Plaintiffs/Respondents

and

DEREK MONTGOMERY, SEAMUS HAND, NATIONAL COLD STORAGE LIMITED, NORDIC COLD STORAGE LIMITED

Defendants/Appellants

AND

STOKES KENNEDY CROWLEY AND COMPANY (A FIRM)

Third Party

JUDGMENT delivered the 31st day of July, 2002 by FENNELLY J.

I fully agree that this appeal should be allowed and that the plaintiff’s claim should be dismissed for want of prosecution. I also

agree both with the account of the facts given in the judgment of the Chief Justice and with his reasons, save that, at least in

one respect I would go somewhat further.

The remarkable aspect of the history of the delay by the respondents in the prosecution of their claim is not merely that it was

inordinate and inexcusable. This is a matter which is not now contested and was never seriously open to dispute. It is rather

that the respondents have made no serious attempt to explain the delay.

The cause of action flowed from the terms of an agreement of 14th June 1989 for the sale of the appellants’ shareholding in the

second named respondent (“the company”). The respondents as from the autumn of 1989 believed that they had a claim for

£1,584,857 based on a revised audit of the liabilities of the company, said to have been duly carried out, on their behalf, in

accordance with the terms of the contract.

The respondents promptly demanded payment of that sum on 2nd November 1989. They issued the Summary Summons on 28th

November 1989. Following a notably expeditious processing of the action in the Master’s court, the case was adjourned for

plenary hearing. The pleadings were closed around the end of 1990.

More than three further years were taken up with the joining of the third party, amendments of pleadings and the making of

requests for particulars and replies and the process of discovery. During this period also, the respondents introduced a separate

heading of claim by an amendment made on 10th March 1993. This arose from a claim by the Minister for Agriculture for

repayment by the company of a sum of over £1 million in respect of export refunds paid to the company related to the export of

beef to certain African countries (“the export refund dispute”). As is stated in the judgment of the Chief Justice, the pleadings

in the main action were closed on 7th June 1994. No real controversy attaches to these events. It is not the period of the

relevant delay.

The Chief Justice has referred to the complete absence of any explanation for the “quite staggering lethargy with which these

proceedings have been pursued.” That remark applies to the period after the middle of 1994. In the period of six and a half

years from 7th June 1994 to 13th December 2000, the only action taken by the respondents in this action were:

on the second April 1996, they served Notice of Intention to Proceed and notice of change of solicitor, the latter being

necessitated by a merger of the firm of solicitors on record with another firm;

on 2nd October 1998, they served a second Notice of Intention to Proceed;

on 13th December 2000, the served a third Notice of Intention to Proceed.

The learned trial judge correctly rejected the submission of the respondent that either a Notice of Intention to Proceed or a

notice of change of solicitor constituted a proceeding for the purposes of the Rules of the Superior Courts. He followed the

decision of the Northern Ireland High Court in Bannon v Craigavon Development Commission [1984] N.I. 387. Put simply, the

respondents allowed a period of six and a half years to run without taking any action at all except to say, twice, that they

intended to proceed but without doing so. The respondent submitted that the delay during this time was “partly explained” by

the existence of the export refund dispute. This litigation between the company and the Minister for Agriculture was settled on

14th November 1995. Insofar as this litigation is proffered as an explanation for the delay, it is noteworthy that the respondent

did not notify the appellants of the fact of the compromise until they sent a letter about it on 15th March 2001. Nonetheless,

there is arguably some explanation for the delay to 14th November 1995.

The only other item mentioned as a possible explanation for delay was “the difficulties in obtaining full discovery in these

proceedings.” In support of this contention, the respondent said that affidavits of discovery were sworn by the Third Party on

6th April 1992 and 4th January 1993, but that “these were inadequate which necessitated correspondence with A & L

Goodbody, Solicitors for the Third Party.” The “correspondence,” as appears from the respondents’ affidavit sworn in the

motion in this case, consists of a single letter of complaint from the respondents’ solicitors to A & L Goodbody dated 12th

October 1998 and an acknowledgment from the latter. Thus a letter was written more than seven years after the provision of

the supposed inadequate discovery with no ensuing action to pursue the complaint. The letter was not even written to the

appellants’ solicitors.

It is no exaggeration, in these circumstances to say that the respondents have not even made pretense of an attempt to

explain, still less offered an excuse for their quite extraordinary delay in pursuing the claim. There may, of course, be cases

where the unpredictable hazards of life afflict the course of litigation. Individuals may be handicapped by poverty, illness,

ignorance or absence from the jurisdiction. Documents may be mislaid, lost or destroyed. Poor or inadequate legal advice or

service may, through no fault of the litigant, impede the progress of a claim. No comparable misfortune has been advanced in

the present case. The claim is of a purely commercial character. On the respondents’ own version of it, it is perfectly

straightforward. The claimant is a well-advised, well-known company and is fully armed with all the means of pursuing its claim

to judgment. Its stark failure to proffer even the vestige of an explanation for its delay is a circumstance which should not be

overlooked. It looks like mute, not to say insolent, indifference, when a litigant, positioned as the respondents are in this case,

evince no consciousness of the need to explain their long and egregious periods of silence. The courts are entitled to expect

something more from parties who crave its indulgence.

The judgment of Hamilton C.J. in Primor plc v Stokes Kennedy Crowley [1996] I.R. 459 sums up the elements that are necessary

to enable the courts to dispose of motions of the present type. The important passage cited by the Chief Justice distills the

essence of the extensive case-law summarised and reviewed in the preceding part of the judgment. The governing

consideration is that first stated by Hamilton C.J., namely that “the courts have an inherent jurisdiction to control their own

procedure and to dismiss a claim when the interests of justice require them to do so.” It is always necessary for the

defendant applicant to demonstrate, and he bears that burden, that the plaintiff has been guilty of inordinate and inexcusable

delay. Subject to that, however, the court should aim at a global appreciation of the interests of justice and should balance all

the considerations as they emerge from the conduct of and the interests of all the parties to the litigation. The separate

considerations mentioned by Hamilton C.J. should not be treated as distinct cumulative tests but as related matters affecting

the central decision as to what is just. In particular, as was said by O’Dalaigh C.J. In Dowd v Kerry County Council [1970] I.R.

27 at p 41: “Litigation is a two party operation and the conduct of both parties should be looked at.”

One of the authorities cited by Hamilton C.J. was O’Domhnaill v Merrick [1984] I.R. 151, where Henchy J said:

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular

circumstances of a case. However, where as in this case, the delay has been inordinate and inexcusable, such delay is

not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on

the part of the defendant, or the inability on the part of an infant plaintiff to control or terminate the delay of his or her

agent.” (emphasis added).

That statement of the law indicates that the author of delay which is found to be both inordinate and inexcusable will not be

absolved of fault unless he can point to countervailing circumstances. If he can, the court may be able to treat him more

favourably when it comes to assess the third consideration in the cited passage from the judgment of Hamilton C.J., namely

whether “on the facts the balance of justice is in favour of or against the proceeding of the case.” As I have already

suggested, the respondents were unable to point to any disadvantage or disability affecting them. Nor was there any delay or

acquiescence of the appellants, which might redress the balance of fault.

In such circumstances, when the courts comes to strike that “balance of justice” in application of the comprehensive list of

considerations set out in the judgment of Hamilton C.J., it will need to find something weighty to cancel out the effects of the

respondents’ behaviour. It will attach weight to the character of the claim and to the character of the respondents. When

considering any allegation of delay or acquiescence by the appellants, it will be careful to distinguish between any culpable

delay in taking any step in the action and mere failure to apply to have the respondents’ claim dismissed.

O’Dálaigh C.J. Said in Dowd v. Kerry County Council at p. 41:

"... in weighing the extent of one party's delay, the Court should not leave out of account the inactivity of the other

party. The rules of court provide for actions being struck out for want of prosecution ... the adage about sleeping dogs

may be wise, but it is not specifically conceived to advance the cause of justice. In some instances, it is acted upon by

a defendant in the hope that he will 'get by' without having to face the peril of being decreed. Litigation is a two party

operation and the conduct of both parties should be looked at."

In my view, the defendant should not be lightly blamed for delay which is the fault of the plaintiff. In order to be weighed in the

balance against him, it would have to amount in the particular circumstances to something “akin to acquiescence” as indicated

in the judgment of Henchy J cited above. The learned High Court judge stated that there had been no suggestion that the

appellants had dragged their feet or that motions had to be brought to extract pleadings from them. He went on to express the

view that it was “understandable” that the personal defendants “were content to let sleeping dogs lie rather than invite upon

themselves litigation claiming damages which are now in excess of £2 million.” His conclusion was that this matter had to be

taken into account but that he “attached only little weight to it.” This approach was, in my view, perfectly correct.

I agree with the Chief Justice’s analysis of the specific prejudice advanced by the appellants in this case, arising from the death

of Mr Brendan Devine. I would add that, I agree with the conclusion of the High Court judge that the fourth-named

defendant/appellant, a corporate body, suffered prejudice by reason of the fact that, initially, its auditors issued a disclaimer in

respect of its financial statements which became, following a change in the applicable auditing standards, a note of

“fundamental uncertainty,” all by reason of the delayed litigation. Furthermore, it has long been recognised that general

prejudice arises from the natural remove of the time of trial from the contested events. The learned High Court judge accepted

that the memories of witnesses as to the events of 1989 would be affected. Henchy J, in a further passage in O’Domhnaill v

Merrick:

“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it

puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to

proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road

accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages,

or both. Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the

delay, should be freed from the palpable unfairness of such a trial.”

Those remarks must, of course, be interpreted in the light of the case before the court. Each case must be judged on its own

merits. In the present case, the dimming of memories must tend to favour the respondents. They rely on a written agreement.

It is the appellants who need to rely on oral evidence to dispute its effect.

Finally, the courts will take into account, depending on the facts, the prejudice from what was described by Keane J, as he

then was, in Southern Mineral Oil Ltd (in liquidation) v Cooney [1997] 3 I.R. 549 at 564, “suffered by particulars defendants in

having the action hanging over their heads.”

In my view, the learned High Court judge, while correctly identifying these aspects of the case, did not attach sufficient weight

to them. For that reason, I agree with the Chief Justice that the appeal should be allowed and that the action should be

dismissed.