by Joe O'Malley , Michael Kelly July-12-2018 in Litigation & Dispute Resolution


As the above maxim suggests it is an essential tenet of the effective administration of justice that proceedings must progress to hearing without significant delay. Accordingly, the courts have the right to strike out proceedings for want of prosecution.

While there is a legislative basis for this power contained in Order 27 rule 1 and Order 122 rule 11 of the Rules of the Superior Courts, the courts also have an inherent jurisdiction to strike out proceedings for want of prosecution.

The test under which the courts exercise this jurisdiction was initially set out by Finlay P on 31 July 1979[1] and was approved by the Supreme Court in the 1994 case of Primor plc v Stokes Kennedy Crowley[2].

The basics principles are as follows:

  1. The delay must be inordinate and inexcusable.
  2. If inordinate and inexcusable the court must in its discretion decide that the balance of justice lies in favour of the case not proceeding.

The courts will look at any relevant factors in particular any delay on the part of the defendant and whether the delay prejudices the defendant or creates a risk that it is not possible to have a fair trial. It is important to note that fault on the part of the plaintiff is not essential[3].

Despite the Supreme Court’s endorsement of this test such orders were granted sparingly by the courts. However, there appears to be a shift in the willingness of the courts to strike out cases for want of prosecution as illustrated in the recent case of Brian Maxwell v Life Assurance plc and John Fallon[4].

This case concerned an action against an insurance company for specific performance of an insurance contract. Despite the fact that the motion to dismiss for want of prosecution was served within a year of the Plaintiff seeking voluntary discovery the court ordered that the case be struck out for want of prosecution.

The First Named Defendant identified three specific periods of delay: three years from delivery of letter denying liability to issue of proceedings, 22 months from delivery of notice for particulars to delivery of replies to particulars and two years from delivery of replies to particulars to delivery of letter seeking voluntary discovery.

The court deemed the appropriate standard for examining whether delay was inordinate was by reference to ordinary standards of litigation[5]. The court focused on the periods of delay from issue of proceedings and found them to be inordinate.

The Court then examined whether the delay could be excusable and whether there was a reasonable or credible explanation for the delay[6]. The Plaintiff’s replying affidavit set out a number of excuses for the post-commencement delay including; a change in Plaintiff’s solicitor, an erroneous belief that a defence had not been served when it in fact had (the defence was mislaid), delay in advice on proofs from counsel and even staff holidays! The Court found none of the excuses offered to be persuasive and found that the post-commencement delay was inexcusable.

The court in examining whether the balance of justice lay in favour of granting of the order identified two issues to be examined: (1) anything which militates against the court exercising its discretion and (2) potential prejudice to the Defendants’ capacity to defend the action in a way that a fair trial could not now be held.

The Plaintiff alleged delay and acquiescence on the part of the Defendants. The court found the longest period of delay was four months and attributed little weight to same.

With regard to prejudice to the Defendants the Court focused on three issues:

  1. A phone call alleged to have taken place between the Plaintiff’s wife and the Second Named Defendant in September 2004. There was no note evidencing this call and so its contents and indeed whether the call took place would be a matter of significant dispute.

  2. Whether at the time the Second Named Defendant was aware of the Plaintiff’s family medical history. This would involve an examination of the Second Named Defendant as to knowledge he allegedly possessed some 10 years before. This would be extremely difficult to prove in the absence of documentary evidence of which there was none.

  3. The availability of the Plaintiff’s medical records. The Plaintiff claimed the records were likely still available but had not taken up copies of same.

The Court focused on the potential issues arising from the phone call. The call is alleged to have taken place some 10 years before the motion issued on an unspecified date in September 2004. The court acknowledged this call was central to the defence and acknowledged the potential difficulties in defending an action which hinged on whether a phone call was made on an unspecified date more than ten years prior to the date of trial. It is accepted[7] that where matters at issue are not, or are not fully, covered by documentary evidence, there is a greater likelihood of prejudice resulting from the delay.

The court accepted striking out a motion for delay was a draconian step however they deemed it appropriate in this case due to the potential prejudice to the Defendants’ ability to defend the proceedings.

In examining excuses for the delay the court made it clear that while it was suggested that the delay could have been blamed on the Plaintiff’s legal team, they must be viewed as being within the Plaintiff’s control. Therefore it is essential that all Plaintiffs remain in regular contact with their legal team to ensure their case is being progressed in a timely manner or they could face their claim being struck out for want of prosecution.

For further information, please contact Joe O'Malley jomalley@hayes-solicitors.ie or Michael Kelly mjkelly@hayes-solicitors.ie at Hayes solicitors.

[1] Rainsford v Limerick Corporation [1995] 2 ILRM 561

[2] [1996] 2 IR 459

[3] O’Domhnaill v Merrick [1984] IR 151/ Toal v Duignan (no.1) [1991] ILRM 135/ Toal v Duignan (no.2) [1991] ILRM 140 – these cases support the position that even where there is no fault on the part of the plaintiff it may still be in the interests of justice to strike the proceedings out.

[4] [2018] IEHC 111

[5] O’Carroll & Anor v EBS Building Society & Anor [2013] IEHC 30

[6] O’Connor v John Player & Sons Ltd [2004] 2 ILRM 321

[7] Carroll Shipping Ltd v Mathews Mulcahy & Sutherland Ltd [1996] IEHC 46

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About the Authors

Joe O'Malley
Joe O'Malley

Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.

Michael Kelly
Michael Kelly

Michael is an senior associate solicitor in the Commercial Litigation & Dispute Resolution team at Hayes. He has experience advising commercial clients with respect to a wide variety of issues, in particular restructuring and insolvency cases. He regularly acts for receivers, liquidators and examiners in High Court and Commercial Court proceedings.