The High Court declined to dismiss a long-running dispute over the management of the band LIR, despite finding that the plaintiffs’ delay in pursuing their claim was both inordinate and inexcusable.
In a judgment delivered on 19 May 2010, Ms Justice Dunne considered an application by all defendants except Samantha B. Coker to dismiss the proceedings for want of prosecution. She refused to make that order at that point, citing the defendants’ own delays in the discovery process and their acquiescence in the plaintiffs’ delay. She said she would hear the parties further about an alternative way to resolve the dispute.
The case was brought in 1997 by Muchwood Management Ltd and David Reilly. They seek damages and other relief over alleged breach of contract, misrepresentation, breach of warranty and breach of fiduciary duty. The dispute arises from agreements under which Muchwood was to manage LIR. The original agreement was made in 1990 and later extended and modified. The judgment said oral evidence about an alleged variation towards the end of 1994 was likely to be disputed.
The plaintiffs accepted that the delay was inordinate but argued it was excusable, pointing to problems with discovery and delays by the defendants. Justice Dunne found that the plaintiffs had allowed discovery issues to drift and could have sought the court’s help earlier. The proceedings had been at a standstill for long periods, including between late 2003 and the discovery motion issued in October 2008. The judge concluded that the discovery process did not excuse the plaintiffs’ delay.
But the judge also criticised both sides’ handling of the case. The defendants had initiated discovery in 2004 and participated in a process that took years, including providing a supplemental affidavit in September 2009, after their dismissal motion had been issued. Justice Dunne found that they had acquiesced in the delay.
The defendants described prejudice from the passage of time, including diminished recollections and missing US records. Coker, who had since been discontinued from the case and was described by the defence as a vital witness, reportedly had minimal recollection and no documents from the period. Justice Dunne considered the prejudice moderate and said it did not outweigh the defendants’ conduct in the circumstances.
The court did not determine the underlying contractual claims or make a final order ending the proceedings. The judge said it was unclear whether the parties had the resources to continue and urged them to consider a less costly, more practical way to resolve the dispute. The judgment records that she would hear them further on that issue.