The High Court has dismissed a €1.72 million professional negligence action brought by Niamh O’Leary against six solicitors, finding that her prolonged delay in progressing the case was inordinate, unjustified and had caused concrete prejudice to the defendants.
In a judgment delivered on 18 January 2018, Ms Justice Baker said the proceedings had begun more than five years after the alleged cause of action and, despite being issued in August 2010, were not ready for trial. The statement of claim was not served until December 2016, after the defendants’ motions had been issued.
Ms O’Leary alleged that the solicitors failed to advise her about a commercial tenant’s statutory renewal rights when she bought premises at 18 Selskar Street, Wexford, in 2005. Her claim included the purchase price, compensation paid to the tenant for vacant possession and related costs, as well as damages for stress and anxiety. The court did not determine whether the alleged negligence occurred.
The judge accepted that Ms O’Leary’s husband’s death in 2006 caused her distress and made it difficult to decide whether to sue. But she said that did not explain the lack of progress after proceedings were issued. Attempts to resolve the dispute through an intermediary in 2011 and efforts to identify the defendants’ insurers also did not justify the later delay, in the judge’s view.
The court focused in particular on the period from February 2012 to February 2015, when a notice of intention to proceed was served, and the further period before the plaintiff’s solicitors confirmed they had identified the insurers in February 2016. The judge said the defendants’ failure to take steps was not, by itself, culpable conduct that excused the plaintiff’s delay.
Ms O’Leary described personal and financial difficulties, including medical treatment, receivers being appointed over properties and disputes concerning her late husband’s family. The judge called her circumstances unfortunate but concluded they did not justify the failure to advance the case efficiently.
In assessing prejudice, the judge noted that the defendants said the solicitor who had left the firm in 2008 was the only person able to give evidence about advice provided during the 2005 purchase. She also considered the difficulty of reconstructing conversations and assessing property values and economic conditions after the passage of time. Those factors amounted to concrete prejudice and tipped the balance of justice in favour of dismissal.
The defendants had also asked the court to set aside the renewal of the plenary summons. Having dismissed the action for delay, Ms Justice Baker said she would not deal with that separate motion.