The High Court has ruled that most of a professional negligence claim against solicitors should be dismissed because of delay, while allowing the part concerning the Cardiff Meats litigation to continue.
Ms Justice Baker gave the ruling on an application by Reddy Charlton McKnight to dismiss proceedings brought by Mary McGrath, Patrick Joseph McGrath and Thomas McGrath for want of prosecution. The judgment, delivered on 30 March 2017, did not determine whether the solicitors were negligent or whether the plaintiffs’ claim was time-barred.
The plaintiffs said they bought reversionary interests in shopping centres in Ballyfermot and Finglas in 1991. They alleged the solicitors failed to advise them that positive covenants requiring anchor-shop occupants to contribute to common-area services could not be enforced against the freehold owners. They sought damages for the alleged loss in value and costs arising from later litigation.
A separate dispute began in 2003, when Finglas tenant Cardiff Meats Limited sued the plaintiffs over services to common areas. The plaintiffs brought a third-party claim against the anchor-shop occupiers for an indemnity based on alleged service-charge covenants. That claim was dismissed after a 2007 High Court on Circuit decision found the positive covenants unenforceable. The plaintiffs later settled with Cardiff Meats and other tenants.
The solicitors argued that the plaintiffs had failed to progress the case, including during a two-year period from 2013 to 2015, and that delay would prejudice the defence of allegations about advice given around the 1991 purchases. The plaintiffs’ solicitor attributed delays to the complexity of the case and difficulties obtaining counsel, particularly after the defence raised the possible responsibility of barristers involved in the Cardiff Meats proceedings.
Justice Baker accepted the explanation for delay relating to the Cardiff Meats part of the claim. But she found the explanation did not account for the failure to progress the distinct claim about the 1991 purchases, including the absence of a reply addressing the limitation defence. She also found the solicitors faced a real risk of prejudice defending allegations about oral advice given 25 years earlier, while the plaintiffs would suffer substantial prejudice if that part of the case were struck out.
Balancing those interests, the judge concluded that the 1991 purchase claim should not continue, but that the Cardiff Meats-related claim had been sufficiently explained and should proceed. She invited further submissions on the form of the order. The judgment therefore records the intended division of the case, with the precise order still to be settled.