The High Court has refused Mayo County Council and Westport Town Council’s application to strike out a claim over alleged misrepresentations about road access, despite finding that the plaintiff was responsible for 2 years and 8 months of inordinate and inexcusable delay.
In an ex tempore judgment delivered on 27 April 2023, Ms Justice Hyland said the balance of justice did not favour striking out the claim, by a narrow margin. The application concerned delay by the plaintiff, not whether a fair trial was possible under the approach in O’Domhnaill v Merrick.
The proceedings allege that interactions between the plaintiff and the councils in 2006 led him to believe that proposed access points to land he was interested in buying had been approved by the relevant roads authorities. He bought the land in spring 1997, according to the judgment. After pre-planning discussions in 2008, he applied for planning permission; Mayo County Council refused it in February 2009, and An Bord Pleanála refused it in September that year. The plaintiff seeks the purchase price and special damages, relying also on estoppel.
The case began in December 2012. The judge identified the main culpable delay as the period from an order allowing amendments in July 2016 to delivery of the amended statement of claim in March 2019. The plaintiff cited difficulty progressing an appeal, caring for his ill mother, and delays involving solicitors. The judge rejected those explanations, finding that the approved amendments were limited and could have been delivered without waiting for the appeal.
The court did not attribute delay to the plaintiff between March 2019 and December 2020, when the defendants took time to file an amended defence. It also found that the defendants’ motion had been prompted by the plaintiff’s proposed substantial further amendment, rather than a fresh period of inaction.
The defendants argued that witnesses’ memories would be affected by the passage of time, particularly regarding disputed conversations and meetings in 2006. Justice Hyland accepted that the case would require oral evidence and that there was moderate general prejudice. But the defendants had not identified which witnesses’ memories were impaired, how badly, or why the documents they held could not help address the problem. The judge said they had not shown that the plaintiff’s 2 years and 8 months of delay caused prejudice sufficient to warrant striking out the case.
The judge acknowledged concern that events from 2006 might not be determined until 2024 or 2025, but gave little weight to predicted future delay. She concluded that much of the elapsed time was not the plaintiff’s responsibility, including time taken by the appeal, the defendants’ own delay and the court’s delay in hearing the motion. The application was refused; the underlying claim was not decided.