The High Court has dismissed a professional negligence action brought by farmer and agricultural contractor John Killeen, finding that the proceedings had been delayed in an inordinate and inexcusable way and that the balance of justice favoured dismissal.
Mr Justice Garrett Simons made the ruling on 22 November 2022. He said the dismissal was based on the effect of the delay on the defendants’ ability to defend the case and the prolonged period they had faced an outstanding claim. The court did not decide whether the solicitors had been negligent.
The claim concerned the administration of Mr Killeen’s late father’s estate. His father died in 1996. The claim alleged that the defendant solicitors, retained by the estate’s executors, failed to advise them about the surviving spouse’s legal right to a share of the estate. A deed of family arrangement was drawn up in March 2000. The plaintiff’s mother later brought separate proceedings seeking to set it aside; those proceedings settled in July 2009.
Mr Killeen issued the professional negligence proceedings in February 2006. His claim sought compensation for legal costs from the probate proceedings and for the loss of use of estate money while those proceedings were ongoing.
The statement of claim was delivered in July 2011, more than four years after the case began. After the plaintiff replied to the defendants’ request for particulars in September 2012, neither side took further steps until the defendants applied to dismiss the case in September 2020. The defendants had entered an appearance but never delivered a defence, although one was due by October 2012 at the latest.
The judge found that the plaintiff’s four-year delay in delivering the statement of claim and the subsequent eight-year period of inactivity were inordinate. He also found the delay inexcusable, rejecting the explanations advanced on the plaintiff’s behalf. The defendants’ failure to file a defence was culpable delay and was considered in the balance of justice, but it did not outweigh the prejudice to them.
That prejudice included the fading recollections of witnesses about events from 2000, limited contemporaneous correspondence, and the effect of the long-running claim on the defendants’ professional indemnity insurance premiums. The case was also not ready for trial: pleadings remained open and discovery had not taken place.
The court dismissed the proceedings without adjudicating the negligence allegations. It also ordered an amendment to the case title to correct the spelling of the plaintiff’s surname. The judge’s provisional view was that the defendants should recover their costs, with oral submissions on any alternative costs order to be heard on 5 December 2022.