The High Court has refused an application to dismiss a professional negligence and breach of contract claim arising from a proposed 2006 purchase of a Foxrock property, despite finding that the plaintiffs had caused several periods of inordinate and inexcusable delay.
Terry Byrne and Janet Byrne allege that their solicitor, Eamonn V. Carney, did not advise them that failing to complete the purchase could leave them liable for a shortfall if the property was resold. They say they were told they would lose their deposit. The plaintiffs signed the contract in September 2006 but did not complete the purchase. They forfeited their deposit, and proceedings by the vendors were later compromised with a payment of €237,865 by the plaintiffs.
The current proceedings were issued in July 2012. The defendants sought dismissal for want of prosecution and delay. Justice Niamh Hyland identified three periods of inordinate and inexcusable delay by the plaintiffs: two years between the close of pleadings in October 2013 and the notice of trial in November 2015; six months between agreeing to make discovery in December 2017 and swearing the discovery affidavit in June 2018; and two years and 10 months from a discovery affidavit in September 2019 until the defendant brought the dismissal motion in July 2022. The judge rejected the plaintiffs’ reliance on the COVID pandemic as an explanation for not progressing the case.
The judge also found that the defendant contributed to delay by waiting until September 2017 to seek discovery of copies of its own files. The request came after a trial date had been assigned and led to the December 2017 hearing date being vacated. The ensuing discovery process took about two years. The judge said the defendant should have considered the document position after delivering its defence in 2013.
Justice Hyland accepted that the passage of time and the likely importance of oral evidence caused moderate prejudice to the defendant. The defendant had also described effects on professional indemnity insurance, but provided no specific details of increased premiums, changed terms or loss of business.
By a narrow margin, the court refused to dismiss the claim, concluding that the defendant’s active contribution to the delay tipped the balance of justice against ending the plaintiffs’ case. The court directed that the matter be actively case managed, with the parties to take necessary steps so a trial date could be considered at a mention on 4 October. The judge’s provisional view was that there should be no order for costs; either side could make submissions on costs at that mention.