The High Court has refused to dismiss Thomas Carroll’s claim against M&P Sales and Marketing Limited and SHS Sales & Marketing Limited, despite finding that he had caused periods of inordinate and inexcusable delay in advancing it.
In a judgment delivered on 3 February 2023, Ms Justice Eileen Roberts ruled that the balance of justice favoured allowing the claim to proceed. She made continued progress with particular urgency a condition, and said the defendants could apply again to strike out the claim if further delay caused additional prejudice.
Carroll, a sole trader and former commercial agent for the defendants, began the 2011 proceedings seeking compensation under the Commercial Agents Directive following termination of his agency agreement in 2010. He also claimed commission on certain transactions concluded in the 12 months after termination. The defendants sought dismissal for inordinate and inexcusable delay or, alternatively, want of prosecution under Order 122, rule 11 of the Rules of the Superior Courts.
The judge found the case had moved promptly through the pleadings, but identified substantial periods of delay later on, including from July 2012 to December 2013, from February 2016 to May 2017, and from 2018 until November 2019. She accepted that the defendants’ 2017 assurance that they would collate discovery documents could justify some delay that year, and that preparation for expert evidence and an advice on proofs could explain some delay in 2017 and 2021. Those matters did not explain the longer periods of inactivity. The court also found that notices of intention to proceed excused no more than the one-month period after each notice.
In considering the balance of justice, the judge said the defendants had not shown particular prejudice caused by the delay. There was no evidence that relevant witnesses were unavailable or that documents had been lost. She noted that the agency arrangements were documented and that key records could support witness evidence. The defendants had also made no written complaint about delay before issuing their dismissal motion in October 2022.
The judge acknowledged the risk that memories become less reliable over time, but concluded that this did not outweigh the factors favouring a trial. Those included the prompt progress through pleadings, Carroll’s more recent steps to advance the case, the absence of an apparent alternative remedy if it were dismissed, and the nature of his claim for compensation after years working for the defendants and their predecessors.
The court retained seisin of Carroll’s case-management motion and listed it for hearing on 14 February 2023. It did not determine the underlying compensation claim or make a final ruling on costs; it said any further orders on costs or otherwise would be addressed at that hearing.
The judge noted that the dismissal motion was also intended to apply to related proceedings, but the judgment dealt only with Carroll’s proceedings. The court’s decision was that those proceedings would continue, subject to the requirement for urgent progress.