The High Court has struck out proceedings brought by Ernest Fahy and Liam Fahy over a failed purchase of a licensed premises, ruling that years of inordinate and inexcusable delay made it unjust to let the case proceed.
The judgment by Mr Justice Michael Peart, delivered on 14 July 2011, concerned a motion by Thomas Scanlon and Aidan McGuinness to dismiss the case. The proceedings began in October 2001 after the parties agreed in November 1999 that the Fahys would buy the premises for €1.2 million. The sale did not complete. The defendants forfeited the deposit and resold the property.
The Fahys alleged that the defendants had misrepresented the premises’ annual turnover as about €600,000 and said an accountant’s certificate would be available. They claimed turnover was actually about €300,000 a year and sought rescission of the agreement, return of the £120,000 deposit and damages. Those allegations were not determined at trial.
The defendants relied in part on sale-agreement conditions stating that the written agreement prevailed over conflicting oral agreements and that the purchasers were not induced by representations unless attached to and signed with the agreement. The judge noted no such representation was annexed. He did not decide the defendants’ alternative argument that the claim disclosed no reasonable cause of action.
The court focused on the prosecution of the case. Although the defendants’ motion also raised difficulties in serving the summons, the judge said the decisive delay occurred after the statement of claim was delivered in November 2004. The Fahys did not answer a request for particulars until November 2010, shortly after the defendants issued their motion. The judge found the explanations about illness and changes among the solicitors handling the file did not excuse the delay. Neither plaintiff had filed an affidavit describing efforts to press for progress.
The judge also found that the delay prejudiced both sides, particularly because Frank Fahy, who had operated the premises and was described as the only person with access to its audited accounts, died in 2010. His evidence could have addressed turnover and conversations about the business. The judge said the long passage of time also impaired witnesses’ recollections and that the case depended on oral statements made more than 11 years earlier.
Applying the balance-of-justice test, the court ordered the proceedings struck out for inordinate and inexcusable delay. The ruling disposed of the case on that procedural ground; it did not resolve whether the alleged misrepresentations occurred.