The High Court has ruled that a company’s professional negligence proceedings should be struck out after finding that a four-year gap in prosecuting the case was inordinate and inexcusable. The court also found that the balance of justice favoured the second defendant, citing prejudice including the death of the first defendant, who could have given evidence.
The judgment, delivered by Mr Justice Meenan on 10 December 2021, concerned a claim by J. Heery (Joinery) Limited arising from its 2006 purchase of property at Mill Lane, Saggart, County Dublin, for €2,325,000. The company alleged that replies to title requisitions were inaccurate because part of the property had already been registered in third parties’ names. It claimed that the second defendant, who acted as solicitor for the first defendant in the sale, was negligent in failing to ensure the replies were accurate and complete.
The company issued proceedings in July 2008 and later joined the solicitors who acted for it in the sale as third defendants. In June 2020, the second defendant applied to strike out the claim for inordinate and inexcusable delay. The court noted that no step had been taken by the company to prosecute the proceedings between October 2015 and December 2019, and that any trial was unlikely before late 2022.
The company’s director, James Heery, said his wife, a fellow director, died in May 2015. He described being devastated by her illness and death and said he could not engage with solicitors to review documents or provide instructions. He also said he had significant difficulty reading and writing, and that his wife had previously handled the correspondence and knew the details of the case.
Justice Meenan said he did not doubt the tragedy or its effects, but considered that the director’s time away from legal and financial matters should not have extended to about four years. He found the delay inexcusable as well as inordinate.
The second defendant said the first defendant would have corroborated his account that he acted on the instructions received when preparing the replies. The first defendant had since died. The judge rejected the company’s submission that the case was essentially documentary, finding that the first defendant’s potential evidence would have been crucial. He also found that the second defendant had not acquiesced in the delay and that the prejudice was more than modest.
The judge said he would grant the relief sought by the second defendant. His provisional view was that the second defendant should receive the costs of the application and of defending the proceedings to date, with costs to be adjudicated if not agreed. The company was given 14 days to make written submissions on costs. The matter was listed for mention on 13 January 2022 to deal with the orders and costs; the judgment does not record the final orders made at that later listing.