The High Court refused an application by Martin Butterly and Company Limited to dismiss David Cassidy’s claim for want of prosecution, finding that his delay was inordinate but not inexcusable. Mr Justice Ryan said the application was being decided on affidavits and on the understanding that the first defendant had not shown actual prejudice at this stage. The defendants may raise evidence of prejudice at trial, where the trial judge can consider its effect.
Cassidy’s claim concerns his employment at Drogheda Docks and pension contributions. He says he worked as a casual docker from 1978 to 1982, then held a permanent position with one or more of the three defendants. He alleges that a workplace injury in November 1991 kept him from work, that he was fit to return in January 1999, and that the defendants refused to take him back and purported to end his employment. He also claims that required contributions were not made to a pension fund. These are claims in the underlying proceedings, not findings made in this application.
The first defendant sought dismissal, citing an approximately seven-year period between discovery requests in 2004 and a change of solicitor in 2011. Its solicitor said the delay would make it onerous to obtain documents and defend the case, and that relevant witnesses might be unavailable or have poor recollections. The plaintiff’s solicitor and Cassidy offered explanations including a period without effective legal representation and Cassidy’s efforts to obtain a Pensions Board determination. The judgment records that the Board issued a determination in Cassidy’s favour in May 2009; it does not decide the underlying employment or pension claims.
Justice Ryan held that the delay was inordinate, particularly during the period identified by the first defendant. But he found Cassidy had given a reasonable, though imperfect, explanation, including for the period when he was effectively acting as a lay litigant and pursuing the pension matter. The court therefore did not find the delay inexcusable. The judge also considered the balance of justice and said it would not favour dismissal even if the delay had been both inordinate and inexcusable. He did not find that the first defendant’s delay in bringing its application was fatal to it.
The order was limited: the application to dismiss was refused. The judge did not determine the merits of Cassidy’s claim or finally resolve whether the defendants suffered prejudice. That issue remains open for evidence and submissions at trial.