by Siobhan Lafferty, Lawyer in the Employment Department, McDowell Purcell
The High Court recently granted a motion to dismiss a case further to delays where the case was not set down for hearing some twenty years after the original incidents were alleged to have taken place.
In the case of Breen v Wexford County Council[1], the Defendant brought a motion to have a case dismissed. This was the Defendant’s third attempt at such a motion. The Plaintiff had originally raised a personal injury claim in respect of various acts of bullying and harassment which were claimed to have happened between July 1999 and June 2001.
The plenary summons was issued by the Plaintiff in November 2001. Thereafter the Plaintiff did nothing to further the case for nearly two years, at which point the Defendant made its first application for dismissal for want of prosecution. As a result, the Plaintiff then provided the statement of claim in October 2003.
Thereafter, further serious delays ensued in respect of a notice of particulars. Eventually, a notice of trial was served by the Plaintiff in October 2011, but the Plaintiff took no steps to actually obtain a date for trial. Thereafter the Defendant made a second motion for the case to be dismissed.
The motion, at that stage, was not granted however Charleton J. did acknowledge that there had been an inordinate and inexcusable delay but that the balance of justice “just about” lay in favour of allowing the action to proceed. Following from that motion, the Plaintiff had to provide an undertaking stating that there would be no further delay and that the case would be called for hearing at the earliest opportunity once the documents sought by the Defendant had been provided.
Nonetheless, delays continued, and a third motion was brought for dismissal. Whilst there were arguments from the Plaintiff that the delays were due to the Defendant not providing further documents, Noonan J. felt that this in itself did not warrant the delays and the Plaintiff had continued to fail to move the process forward, particularly in light of having provided an undertaking to the Court to do so. He pointed out that sixteen and a half years had passed between the issuing of the summons and the third motion for dismissal.
Justice Noonan highlighted that once an inordinate and inexcusable delay had been established then the Court has to consider where the balance of justice lies. His view was that due to the particularly long delay, it gave rise to presumptive prejudice against the Defendant. In particular the Court commented that serious allegations were hanging over certain individuals as a result of these proceedings and they would have to give evidence many years after the event. He also noted that such delays were not acceptable under Article 6 of the European Convention of Human Rights and therefore dismissed the action.
This case is a rare but interesting example of the effects of delays, and the ability of the Defendant to have a dismissal of the case in certain circumstances. However, the delay in this case would appear to have been unusually long, and the decision seems logical given this was the Defendant’s third attempt to dismiss the case some twenty years after the events allegedly took place.
[1] [2019] IEHC 112
About the author
Siobhán is a lawyer in the Employment Department at McDowell Purcell, and regularly advises both corporate client employers as well as employees. Siobhán has extensive experience in advising on all aspects of employment law and has advised on a range of issues from redundancies to discrimination complaints. She also has experience in working on contentious matters across the UK and Ireland, including High Court proceedings.
