The High Court has struck out Hugh McGivern’s professional negligence action against his former solicitors, finding that lengthy delays and the passage of time created a significant risk of an unfair trial.
In a judgment delivered electronically on 17 June 2024, Mr Justice Barr granted the defendants’ application to strike out the proceedings for delay. The court said the matter would return for mention on 11 July 2024 to make final orders, after the parties had two weeks to provide written submissions on the order, costs and any other matters.
The action concerned Mr McGivern’s sale of shares in a number of companies to a fellow shareholder in November 2006. He alleged that the solicitors failed to ensure he was released from personal guarantees for the companies’ debts before the share sale. He claimed losses exceeding €2 million. The defendants denied negligence. Those allegations were not determined at trial.
The proceedings began in March 2012 and the defendants were served in March 2013. The pleadings closed in July 2014. The defendants agreed to make discovery in June 2015, but delivered their affidavit of discovery in January 2017 and the documents in June 2017. The judge accepted that this two-year delay was attributable to the defendants.
After receiving those documents, Mr McGivern took no further steps to progress the case until serving a notice of trial in July 2023, apart from notices of intention to proceed. The defendants applied to strike out the action that month.
The court considered medical evidence describing Mr McGivern’s physical and mental health difficulties from 2013 onwards. It found that those difficulties did not prevent him from instructing his solicitors to advance the case. The judge also concluded that the claim would require oral evidence about instructions and advice given during meetings or telephone calls, as well as evidence concerning a disputed letter dated 8 June 2006.
Given the likely trial date in the first quarter of 2025, the defendants’ witnesses would be asked to recall conversations from almost 20 years earlier. The judge found that this created significant, at least moderate, prejudice and a significant risk of an unfair trial. He therefore struck out the action on grounds of delay.