The High Court struck out South Dublin County Council’s claim against C. F. Structures Limited after finding that the action had lain dormant for almost 12 years and that the council had offered no explanation for the delay.
Mr Justice Allen delivered the judgment on 15 January 2021. The council had sought an injunction requiring the company to leave a strip of land at Club Road, Fox and Geese, Clondalkin, restore it and pay damages. The company denied that the council was entitled to possession and counterclaimed for declarations based on its claim of long-standing adverse possession.
The council issued its plenary summons in May 2008. The company filed its defence and counterclaim in February 2009. The council did not file a reply or a defence to the counterclaim, and no further step was taken in the action before the company issued its dismissal motion in August 2019. By the hearing, the gap since the last step was nearly 12 years.
The company argued that the delay was inordinate and inexcusable and put it at a disadvantage in defending the claim. Its director said one potential witness had died and two others had left the company. The judge found that the company had not established specific prejudice beyond the inevitable fading of memories. He nevertheless concluded that the delay created a real risk of an unfair trial, given the likely importance of oral evidence about the land’s condition between 1996 and 2001.
The council did not file an affidavit explaining the delay. It argued that the company had not been prejudiced, remained in possession of the land, and had proposed—but never applied for permission—to amend its defence. It also relied on the land being public property. The judge found none of those points justified allowing the claim to continue. He said the company’s failure to pursue its proposed amendment did not prevent the council from responding to the defence actually filed.
Mr Justice Allen held that the council’s failure to progress the action was an abject failure to prosecute. The council had not shown that the balance of justice favoured continuing the claim or clearly stated that it was ready and able to bring it to trial. The judge struck out the claim under Order 122, rule 11 of the Rules of the Superior Courts. He said the same result was warranted under the court’s inherent jurisdiction if necessary.
The company was entirely successful on the motion. The judge indicated it was entitled to the costs of the motion and the action, but gave the parties 14 days to make submissions on costs or the form of the order. The judgment did not determine the company’s counterclaim for title to the land.