The Court of Appeal has dismissed Val Clarke and Coilear Rosmuc Teoranta’s appeal against the striking out of their claim against Conor O’Boyle, practising under the style and title of O’Boyle and Associates. The court found that years of inactivity and the absence of a statement of claim made the delay inordinate and inexcusable, and that the balance of justice favoured dismissal.
The plaintiffs issued a plenary summons in September 2016, alleging breach of contract and negligence, and seeking declarations and damages. It was served in August 2017. No statement of claim followed. The plaintiffs issued a notice of intention to proceed in October 2020, but took no further step after it was served.
O’Boyle entered an appearance on 24 January 2023. The next day, he applied to strike out the claim for want of prosecution or inordinate and inexcusable delay. The High Court granted the application on 11 May 2023. The plaintiffs appealed.
On appeal, the plaintiffs argued that related Tax Appeals Commission proceedings had prevented them from finalising their claim. The Commission heard their tax appeal in April 2023 and issued its determination on 21 August 2023. They said they needed time to assess its implications before completing a statement of claim. The Court of Appeal held that this explanation had not been set out in the pleadings or correspondence, and the defendant had not been kept informed about the connection between the proceedings. It also rejected the plaintiffs’ reliance on the defendant’s failure to request a statement of claim: the plaintiffs accepted they had not been in a position to provide one before the High Court’s decision.
At the appeal hearing, the plaintiffs sought permission to submit a recently drafted statement of claim. The court refused. It had not been before the High Court, was presented on the morning of the appeal without giving the defendant a meaningful opportunity to respond, and did not meet the requirements for admitting new evidence on appeal.
The Court of Appeal agreed that the delay was inordinate and inexcusable. It found significant trial prejudice in the defendant having no pleaded case to answer, alongside the lengthy delay and the action’s lack of readiness for hearing. The court dismissed the appeal.
The court also allowed the defendant’s cross-appeal over costs. It held that the rules did not require him to seek the plaintiffs’ consent before entering a late appearance, so that failure was not a proper basis for denying costs after he succeeded in the High Court. For the appeal and High Court proceedings, the judge’s provisional view was that the defendant should receive his costs, to be adjudicated if the parties could not agree. The plaintiffs may contest the proposed order by written submissions within 14 days; the defendant may reply within 14 days after that. The judgment says the proposed orders will be made if no such notification is filed.