The High Court has dismissed Thomas and Rosaleen McCormack’s action against Oliver Rouse after finding that the plaintiffs’ delay was inordinate and inexcusable and that the balance of justice did not favour a trial.
The action concerned the McCormacks’ allegations that Rouse had tried to associate his jewellery business with their former business, Harte and McCormack Jewellers, which had traded from premises on Pearse Street, Ballina. They sought an injunction, damages or an account of profits, and other orders. Those allegations were not determined at trial.
The McCormacks sold the premises in 1998 and ceased trading. Rouse later leased the property from its new owner and traded there as Rouse’s Jewellers. The plaintiffs alleged that his conduct misled the public about ownership of their former business’s goodwill. The judgment recounts that a proposed sale of the goodwill to Rouse did not proceed.
The plaintiffs issued their summons in February 2001. After pleadings and a prolonged discovery process, the court said the case did not progress to a notice of trial until January 2013. The defendant applied in June 2013 to dismiss the action for delay. The judgment records that three witnesses had died: auctioneer Miko Browne and Jack and Mrs Gaughan. The parties disputed how relevant their evidence would have been, including to issues about fixtures and fittings and the plaintiffs’ claimed loss.
The plaintiffs’ solicitor cited discovery delays, efforts to arrange settlement discussions, the plaintiffs’ residence in the United States, and bereavements in his own family during 2010 and 2011. The court accepted that the defendant had contributed to delay through inaction and had waited before bringing his dismissal motion. It found, however, that most of the delay lay with the plaintiffs and that the defendant’s inaction did not amount to acquiescence. The court also rejected the explanations offered as sufficient to excuse the delay.
Applying the principles in *Primor v Stokes Kennedy Crowley*, the court found that the delay was inordinate and inexcusable. It concluded that the case would require oral evidence and could not be decided solely on documents. The deaths of witnesses and the passage of time created a substantial risk that a fair trial was no longer possible, with likely serious prejudice to the defence. The court also considered the harm to the defendant’s reputation and business from having long-running litigation pending.
The order dismissed the proceedings. The court did not decide whether the plaintiffs’ allegations about the goodwill were true or determine their underlying claim for relief.