The High Court has refused an application by Martin and Michele Finnegan to dismiss a solicitor’s claim for €183,971.56 over delay, finding that the eight-year delay was inordinate but excusable.
The proceedings were brought by Adrian O’Doherty, practising as McEntee & O’Doherty Solicitors, who acted for the defendants in an earlier High Court case about alleged defects in the construction of their home. The judgment says that case was settled directly for about €317,000, including compensation and costs. The Finnegans agreed to pay €53,000 towards one other party’s costs, but did not pay O’Doherty’s bill or expenses for outlay, counsel and expert witnesses.
O’Doherty issued a summary summons in September 2012, seeking the amount allowed after his bill was referred to taxation, less payments on account, together with interest and costs. The defendants sought dismissal for delay. They said they intended to defend the claim and counterclaim over what they allege was negligent advice. They argued that the passage of time could make a fair trial difficult, and that being uninsured was itself prejudicial.
The judgment identifies delays from 2014 to 2017, when O’Doherty said he could not afford about €7,000 in stamp duty; from 2017 to 2020, which he attributed to administrative difficulties at the Taxing Masters Office; and from March 2020, which he attributed to Covid restrictions. The certificate of taxation became available on the hearing date, 17 February 2022.
Justice Bolger found the overall delay inordinate, but held that all of it was excusable. She attributed the earlier period in part to O’Doherty’s cash-flow problems, which she said must have been contributed to by the defendants’ failure to pay costs and expenses incurred in their earlier case. The later delays arose from circumstances outside his control.
The judge also considered prejudice in case that conclusion was wrong. She found the proposed defence and counterclaim were largely documentary and that the defendants had not identified a specific memory or witness problem caused by the delay. Their uninsured status was not delay-related, as they had never been insured. She concluded that dismissal would cause greater prejudice to O’Doherty than continuation would cause to the defendants.
The application to strike out the proceedings was refused, including any separate relief under Order 122, rule 11. The decision is subject to O’Doherty’s undertaking to file a motion for liberty to enter final judgment within two weeks of taking up the taxation certificate, and not to seek interest for the delay period attributed to him, 2014–2017. The court gave an indicative view that costs should follow the cause, with execution stayed pending the outcome. The parties were to return on 6 July 2022 for further submissions on costs and final orders. The judgment does not determine the underlying costs claim or the proposed defence and counterclaim.