Letting sleeping dogs lie – how much delay is too much?

By Lisa Mansfield
9 May, 2018

As Mr Justice Keane recently stated in the High Court case of Brian Maxwell v Irish Life Assurance and others ^[1] , there is no strict chronological or arithmetical answer to the question: what constitutes an inordinate delay in the prosecution of proceedings? Instead, the question of whether inordinate delay arises is a mixed question of fact and law, dependent on the circumstances of each case.

We look at this recent case and consider the court’s views on the level of delay necessary to ground a successful application for want of prosecution.

The Facts
The plaintiff suffered a heart attack in June 2006 and made a claim against his policy. The insurance company rejected the claim based on the plaintiff’s non-disclosure of his smoking history. Following a letter before action in 2007, the plaintiff finally issued proceedings in 2010, seeking an order directing specific performance from the defendant insurance company under a serious illness policy or an award of damages for breach of the insurance contract.

After an exchange of pleadings that stretched over almost four years, the plaintiff wrote seeking voluntary discovery in December 2014. The defendants responded with an application to dismiss for want of prosecution in July 2015.

In their application the defendants argued that there were three key periods of unexplained delay:

1. The three year delay between the declinature of the claim and proceedings issuing.
2. The 22 month delay between the delivery of the notice for particulars and the provision of the replies to particulars.
3. The two year delay between the delivery of the replies to particulars and the request for voluntary discovery.

The Law
The fundamental test under which the court exercises its inherent jurisdiction to dismiss a claim for delay was approved in Primor plc v Stokes Kennedy Crowley ^[2] In the first instance, the court must establish that the delay was inordinate and inexcusable and secondly, even where the delay has been both inordinate and inexcusable, the court must exercise a judgment on whether, in its discretion based on the facts, the balance of justice is in favour of or against the proceeding of the case.

Despite the primacy of the Primor test, recent judicial decisions have also pointed out that even where there has been no fault on behalf of the plaintiff, circumstances may arise in which it is in the interests of justice to strike out proceedings in order to put an end to stale claims and ensure basic fairness of procedures and the effective administration of justice.^[3]

The burden was on the defendants to establish that the delay was inordinate and inexcusable. In arguing that a two year delay was inordinate, the defendants suggested that Order 122, Rule 11 of the Rules of the Superior Courts, which allows a party to apply to court to dismiss a cause "in which there has been no proceeding for two years from the last proceedings" provided a useful benchmark. However, the court disagreed and held that an "inordinate delay" should be considered in light of the ordinary standards of litigation. While it held that the time before the issuing of the proceedings should be to a large extent disregarded in order to give due deference to the statute of limitations, it held that the first delay by the plaintiff of over 22 months and the subsequent delay of two years amounted to an inordinate delay under these parameters. The court also commented that the late start in commencing proceedings made it all the more incumbent on him to proceed with all due speed.

Having found that inordinate and inexcusable delay existed, the court then considered whether the balance of justice was in favour of or against the proceeding of the case. In this regard it looked at two issues;

1. whether there was anything in the defendant’s conduct that militates against the exercise of the court’s discretion to dismiss, and
2. whether the plaintiff’s delay had prejudiced the defendants’ capacity to defend the action to the point that a fair trial could not now be held.

It was held by the court that the delay by the defendants in bringing the motion to dismiss was not itself inordinate and did not tilt the balance of justice away from granting the application. Furthermore, the court found that the circumstances of the case meant that the underlying issues would fall to be decided on a “swearing match” between opposing witnesses and as such the march of time had given rise to a substantial risk that it would not be possible to have a fair trial. Accordingly the court granted the order to dismiss the proceedings for want of prosecution.

Key points
The decision is of note for considering the level and various types of delay which will be considered sufficient to ground a claim and application to dismiss. Delay prior to the issuing of proceedings will not count against a plaintiff as regards consideration of the delay being inordinate. However, it will be considered by the court in determining whether that delay was excusable and failure to proceed with haste if one has already delayed before issuing proceedings will count against a plaintiff if they continue to drag their feet.

Also key is that while the court reiterated the defendants’ responsibility “to not let sleeping dogs lie” in taking applications of this type, it confirmed that there is some margin that must be afforded between the period an application to dismiss will be deemed premature, on the one hand and the point after which it will be considered late to the point of acquiescence in the plaintiff’s delay, on the other.