The High Court has dismissed a long-running claim over an unbuilt access road on lands in Arklow, Co Wicklow, after finding that the plaintiff’s delay in pursuing the case was inordinate and inexcusable and that a future trial carried a real risk of unfairness.
Mr Justice Heslin delivered the judgment on 1 April 2022 on a motion by the first and second defendants, Patrick McGuckian and Alistair McGuckian. They sought dismissal for want of prosecution and under the court’s inherent jurisdiction. The third defendant was Glenford Construction Wicklow Ltd.
The dispute arose from a 1999 agreement under which the plaintiff, Michael Herbst, sold lands to the first and second defendants for €1 million. The agreement required them to build a 25-foot-wide hardcore road within three years. The road was not built. Planning permission for it was refused in August 2017.
Herbst began Circuit Court proceedings in June 2010, seeking specific performance or damages. The judge noted long periods when he had agreed to forbear from taking steps, including while the parties pursued planning permission. But the court also found significant periods of unexplained inactivity, including more than seven years between the accrual of his claim in 2002 and the proceedings, and more than three years after the planning refusal before the defendants brought their dismissal motion in October 2020.
The judge held that the delay was both inordinate and inexcusable. He found prejudice to the defendants, including the loss of a practical opportunity to rely on contractual obligations given by Glenford before it entered receivership, and the difficulty of resolving disputed issues about negotiations in 1999 through witness memories more than two decades later. The judge also cited allegations made in 2021 about the way the planning application had been handled, which he said had not been raised at the time.
Applying the principles in *Primor* and *O’Domhnaill*, the judge concluded that the balance of justice favoured dismissal and that allowing the case to proceed risked an unfair trial or unjust result. He granted the relief sought on the defendants’ motion. The judgment did not specify the final form of order or settle costs: the parties were invited to agree those matters, with written submissions due within 14 days if they could not.