The High Court dismissed Noel Mulligan’s professional negligence proceedings against Wilkie & Flanagan, Solicitors, finding inordinate and inexcusable delay and want of prosecution. The decision was made under the court’s inherent jurisdiction; the judgment did not decide whether the underlying allegations were true.
The case concerned allegations that Mr Wilkie transferred his interest in a contract for the sale of land without telling intended co-purchasers, and misadvised them, leaving them contractually obliged to buy property without planning permission. The court described these as allegations only.
Mr Justice Max Barrett delivered judgment on 3 May 2019. He confined his consideration to the application’s delay ground, saying it provided a clear basis to decide the matter. The defendant said the proceedings had been issued more than seven years before the dismissal motions and concerned events 13 to 14 years earlier. The court recorded a pre-commencement delay of about five to six years and several periods of delay after proceedings began.
The court said it was undisputed that the plaintiff had caused inordinate and inexcusable delay. It also said it would have reached that conclusion, and found want of prosecution, even if the point had been contested. The remaining question was where the balance of justice lay.
In favour of dismissal, the judge noted that nearly six years passed before an attempt to serve the summons, with no indication of a complaint or intention to sue. The defendant had complained about delay from the outset. The plaintiff had taken no voluntary step to advance the case after service; steps had followed court orders or motions brought by the defendant. The court also considered the effect of the unresolved claim on the defendant’s professional indemnity insurance and reputation.
The judge said the case would turn almost entirely on oral evidence because the key agreements and advice were not written down. A trial was not expected before the following year, by then 14 to 15 years after the events. The court identified specific prejudice: an architect who might have supported the defence had retired to Spain and could not be traced, while an auctioneer whom the defendant considered a potential defence witness had died in July 2013. The judgment said bank officials or documents might also be unavailable.
The court therefore ordered dismissal in the interests of justice, based on inordinate and inexcusable delay and want of prosecution since the proceedings began.