The High Court has struck out a professional negligence action against two solicitors, finding that delay in prosecuting the case and the death of the original plaintiff left the defendants significantly prejudiced because they could no longer cross-examine him.
Mr Justice Cian Ferriter ruled on an application to dismiss the proceedings for want of prosecution. He found that the delay was inordinate and inexcusable and that the balance of justice favoured dismissal. The court did not determine whether the solicitors had been negligent or whether the estate was entitled to damages.
The case was brought by Diarmuid Vaughan, administrator of his late father Donal Vaughan’s estate. It concerned legal advice given during Mr Vaughan’s 2007 departure from Dublin Airport Authority (DAA). The pleaded claim was that the solicitors failed to identify or rely on a contract clause providing for a lump sum equal to three years’ salary if permanent incapacity due to ill health required premature retirement. The estate sought €323,221, calculated as the difference between the claimed three years’ salary and a €55,000 severance payment.
The defendants denied negligence and disputed that Mr Vaughan met the clause’s permanent incapacity requirement. They pleaded that he had raised the clause with DAA before instructing them, but knew he could not meet its criteria. They also relied on records concerning his health, his discussions with DAA and his stated relocation to Tipperary. Those were disputed matters in the underlying case, not findings made at this application.
Justice Ferriter said there had been no inexcusable delay up to October 2017, when the plaintiff’s senior counsel certified the case as ready for trial after discovery and medical consultations. But he found much of the following four-year period, until the proceedings were reconstituted in October 2021, was inexcusable. The original plaintiff died in July 2020; the proceedings were reconstituted in his son’s name in October 2021.
The estate argued that the action could proceed on documents and expert opinion. The judge rejected that characterisation, finding that the defendants needed a fair opportunity to challenge key factual issues through cross-examination, including Mr Vaughan’s understanding of the clause, the instructions he gave and his health at the time. His unavailability caused at least moderate prejudice, the judge held, and that prejudice was causally connected to the delay. He gave no material weight to the defendants’ separate claim of reputational harm, for which specific evidence had not been provided.
The court therefore ordered the proceedings struck out. The order ended the action at the delay application stage; it was not a ruling on the merits of the negligence allegations.