The High Court struck out Paul Kenny’s claim over an allegedly defective concrete mixer vehicle after finding that years of delay in progressing the case were inordinate and inexcusable.
In an ex tempore judgment delivered on 7 November 2017, Mr Justice Twomey granted a motion by the second defendant, J Harris Assemblers, to strike out the proceedings for want of prosecution. The court said about six and a half years had passed between the close of pleadings and the motion to strike out.
Kenny alleged that he bought the mixer from Motor Network Limited, trading as Jennings Truck Centre, on 22 September 2005, and that Harris supplied it. He claimed the vehicle was defective almost from the outset and sought the vehicle’s cost and losses to his business, which used the mixer for work with Kilsaran Concrete. These were the plaintiff’s claims; the judgment concerned delay, not a determination of whether the vehicle was defective or whether the claimed losses were established.
Proceedings were issued on 30 September 2009. Harris filed its defence on 3 February 2010. Replies to Harris’s request for particulars were delivered on 9 February 2012, after a two-year delay. Kenny attributed that delay to working as a driver in continental Europe and the time taken by him and his accountant to finalise business-loss figures. The judge found that explanation insufficient.
There was then no further action by Kenny for about two years and two months. His solicitor wrote in April 2014 that a certificate of readiness was expected shortly, but none was issued. In September 2016, the solicitor said the pleadings needed amendment and would revert, but no further step followed before Harris’s motion on 30 November 2016. The court noted that Kenny offered no explanation for the roughly four and a half years after the replies to particulars.
The judge found no countervailing factors that justified allowing the straightforward product claim to proceed. He also concluded Harris would face prejudice because staff had retired, the co-defendant had gone into liquidation, and the passage of time would make it harder to recall details and evidence. Harris’s inactivity did not make it responsible for the delay, the court said.
The court additionally relied on its duty to ensure litigation was conducted in a timely fashion. It struck out the proceedings on the basis of inordinate and inexcusable delay and the balance of justice. It did not decide the underlying allegations about the vehicle or award damages.