The High Court has refused to dismiss Peter Burns’s claim arising from a 2005 land sale, finding that although the delay in progressing the case was inordinate, it was excusable given the technical and complex issues involved.
In a judgment delivered on 31 March 2017, Ms Justice Stewart dismissed a motion by Maye Concrete Limited and Readymix plc to dismiss the proceedings for want of prosecution or inordinate and inexcusable delay. The hearing began on 26 January 2017 and resumed on 28 February.
The proceedings concern a contract completed on 25 August 2005 for the purchase of a building and commercial yard at Aughamore, County Sligo, for €935,000. The contract map included parts of other lands that the first defendant did not own. The judgment also records that the office building had been built in breach of planning permission and that a right of way over adjoining land did not extend to the public road. The underlying claim has not been determined in this motion.
The defendants argued that delay should be measured from when the cause of action arose in 2005 and that the balance of justice favoured dismissal. They also said they no longer had business interests in Ireland and wanted outstanding business relationships concluded.
Burns accepted that delay attributable to him was inordinate, but argued it was excusable. The judge accepted that the delay should be calculated from 30 January 2012, when the defence was filed after three motions for judgment in default. The defendants could not count time for which they were responsible. From that point, the plaintiff’s cumulative delay was four years and four months.
The plaintiff’s explanation included the technical nature of the case, the need to obtain expert evidence in conveyancing, planning and surveying, and the preparation of a substantial brief after a related professional negligence action against his former solicitors concluded in December 2013. The judge found the explanation reasonable and the delay excusable.
The defendants also relied on provisions concerning concurrent wrongdoers, referring to the earlier professional negligence case. The judge said no application under those provisions was before the court and that dismissing the claim, even partly, on that basis would be premature.
Having balanced the parties’ rights of access to the courts with the efficient conduct of litigation, the judge found that the balance of justice favoured allowing the claim to proceed. She dismissed the defendants’ motion and said she would hear counsel on any ancillary orders. The judgment did not decide the merits of the land-sale claim.