The High Court has refused to dismiss a professional negligence claim against solicitor Robert Dore, finding that although the plaintiff’s delay was inordinate and inexcusable, the balance of justice strongly favoured a trial.
Mr Justice Mark Heslin delivered the judgment on 21 December 2022. Mr Dore had asked the court to dismiss Garry Cullen’s claim because of delay and because, he argued, the passage of time created a real risk that he could not receive a fair trial. The court also considered the separate O’Domhnaill test for whether it would be unfair to require a defendant to defend a case. Mr Dore did not pursue a request to dismiss under Order 122, rule 11, which applies where no step has been taken in proceedings for more than two years.
The claim concerns an assault at the Red Cow Hotel in Dublin on 18 August 2005. Cullen alleges that he instructed Mr Dore to bring a personal injuries claim against the hotel, but that proceedings were not issued within the two-year limitation period. Mr Dore accepted that Cullen had engaged him as a solicitor and that personal injuries proceedings were not issued in time, but made no admission of liability. The judgment stressed that Cullen’s allegations had not been tested at trial and that Mr Dore had not yet delivered a formal defence.
The court found Cullen responsible for 51 months of post-commencement delay, including a period of three years and four months before he served a notice of intention to proceed in September 2018. It also found that his delay was inexcusable. Mr Dore was responsible for 32 months of post-commencement delay, including the period before he brought his dismissal motion in January 2021. The judge noted that Mr Dore had earlier failed to respond to requests for Cullen’s file and had not acted promptly on his stated intention to seek dismissal.
Mr Dore argued that the delay had damaged his firm’s reputation, affected his ability to remember events, and made it difficult to identify witnesses to the hotel assault. He also raised uncertainty over insurance cover. The court found no specific evidence of lost clients, increased insurance costs, unavailable witnesses or lost documents. It concluded that the evidence did not establish a substantial risk that a fair trial was impossible.
Applying the Primor principles, the judge concluded that the balance of justice decisively favoured letting the claim proceed. The court also rejected dismissal under the O’Domhnaill approach, finding no real risk of an unfair trial or unjust result. It refused the relief sought. The judge expressed a preliminary, strongly held view that the costs of the motion should be costs in the cause, and directed the parties to address costs or the form of the order if they disagreed, as well as to seek agreement on a timetable for the case to proceed towards trial. The ruling did not decide the merits of Cullen’s negligence claim.