The Court of Appeal has dismissed an appeal by Renaissance Security Services Limited and Mateusz Grzeskowika seeking to have Alan Barry’s personal injury claim struck out for delay. It upheld the High Court’s refusal to dismiss the proceedings, but ordered a strict timetable for the case to move forward.
The claim arises from an alleged assault on 24 or 25 July 2011. Barry’s case alleges trespass to the person, assault and battery, and negligence or breach of duty. The Court of Appeal made no finding on those allegations.
The defendants argued that the High Court had given insufficient weight to the length of the delay and the prejudice they said it caused. The High Court had found the delay inordinate and inexcusable but refused to dismiss the claim, concluding that the defendants had not established that the balance of justice favoured that step.
In a judgment dated 20 May 2022, Ms Justice Faherty said there was a clear basis for the High Court’s finding that the delay was inordinate and inexcusable. The Court of Appeal rejected the defendants’ argument that the High Court had wrongly assessed the balance of justice, including their criticism of its consideration of the defendants’ failure to file a defence.
The defendants relied on the first defendant company’s liquidation in May 2017 and asserted that delay had made it difficult to verify a draft defence and ensure witnesses would be available. The appeal court said the evidence did not identify a particular witness who could not be located or was unavailable. It also noted that the defendants had not shown that the liquidation prevented them from participating in the proceedings, and that the second defendant could have filed a defence.
The court said the plaintiff’s delay was serious, but the asserted prejudice was largely hypothetical and unsubstantiated. Dismissing the case would wholly defeat the claim, while the evidence did not establish prejudice sufficient to justify that outcome. The judgment also noted that the defendants had been on notice of the claim since 2013.
The Court of Appeal therefore upheld the High Court order of 7 July 2020 and dismissed the appeal. It directed the defendants to file their defence within three weeks of the appeal order being perfected, if it had not already been filed. Barry must deliver any reply within 10 days after the defence. The parties were also given deadlines for seeking discovery. The court proposed that Barry receive his costs of the appeal, subject to either party seeking a different costs order within 21 days.