The High Court has dismissed an action by Stephen McCann against Michael Smurfit over an alleged promise of a share in Pony Express Limited, finding that six and a half years of inordinate and inexcusable delay made it unjust to allow the case to proceed.
Mr Justice Allen delivered the judgment on 20 May 2022 on the defendant’s motion to dismiss for delay. The court did not decide whether the alleged promise was made or whether the plaintiff was entitled to any share or payment.
McCann’s action, begun in October 2011, sought declarations that he beneficially owned 10% of Pony Express and was entitled to 10% of its net sale proceeds, along with damages and an account of sums allegedly due. He claimed that in 2008, while employed by the company, Smurfit promised him a stake and a share of profits to induce him to stay. Smurfit denied making that promise. The company was sold in 2009, according to the judgment.
The defence was delivered in June 2013. No positive step in the action was taken by the plaintiff until a notice of intention to proceed was served in January 2020. McCann’s solicitor argued that the delay was not his personal fault and that there was no serious risk of an unfair trial. But the judge found that contemporaneous correspondence contradicted the account that McCann had been misled by his former solicitors. The judge concluded that the delay was culpable and personally attributable to McCann.
The court also considered the action’s changing account of the alleged promise. In March 2021, the plaintiff obtained consent to amend his statement of claim. The revised claim included an alleged promise of shares, dividends, a wage increase and a company vehicle. The judge noted that the amendments came more than a decade after the events and that the defendant had not been on notice from the outset of the case he would eventually face.
The judge found that the dispute was likely to depend on oral evidence. Although no specific lost witness or document was identified, the passage of time created a risk that memories had faded and relevant documents were no longer available. The court also found prejudice from the continued existence and revival of litigation that potentially affected the defendant’s business reputation.
The action was dismissed for inordinate and inexcusable delay. The judge said the costs of the motion and action should follow the result, but listed the matter for mention on 31 May 2022 to allow the plaintiff to argue otherwise. The judgment does not record a final costs order.