The High Court dismissed Moloney Enterprises Limited’s proceedings against third party Brendan Grimes, finding that a ten-year delay was inordinate and inexcusable and that the balance of justice favoured dismissal.
Mr Justice Gilligan’s judgment, delivered on 20 January 2016, concerned the defendant’s claim for an indemnity or contribution in an underlying dispute brought by purchasers of houses in a development in Skerries, County Dublin. The purchasers had alleged trespass, saying the developer had not retained rights over a road used to access a second phase of houses. The developer denied the claim and sought rectification, alleging a mapping error.
The developer said Grimes had been retained to prepare maps for the development. Grimes denied the allegations and pleaded that any loss was due to the acts or omissions of the developer’s former solicitors, Matthews Solicitors. The present application sought dismissal of the claim against Grimes for being unsustainable or for delay. The court said the application was determined on delay; it did not find sufficient grounds to dismiss the claim as unsustainable.
Grimes delivered discovery in December 2004. Although the developer served a notice of intention to proceed in 2006, it took no further step on foot of that notice until another was served in May 2014. The court treated the period from discovery to the 2014 notice as the relevant delay: ten years, rather than the eight years argued by the developer. It found the explanations inadequate, including the developer’s reliance on separate proceedings against Matthews Solicitors and on completing conveyances for the second phase.
The purchasers’ claim against the developer had been settled in February 2009 for €80,000, including costs. The separate claim against Matthews Solicitors was settled in April 2015 for €180,000, including costs, without Grimes’s participation or reference to him. The court said Grimes had been deprived of an opportunity to participate in the defence and settlement of that case. It also noted that the basis of the claim against him had recently shifted from an indemnity relating to the purchasers’ settled claim towards a direct claim for the developer’s alleged loss.
The court considered the effect of delay on a fair trial and Grimes’s professional reputation. While it noted the loss of his records, it said that was not decisive. It concluded that the delay and the developer’s conduct had placed Grimes at a significant disadvantage and that a fair trial within a reasonable time was not possible in the circumstances. The order dismissed the developer’s proceedings against Grimes on the ground of delay.