The Court of Appeal has affirmed the dismissal of Tom Darcy’s proceedings challenging the constitutionality of the Land and Conveyancing Law Reform Act 2013, after finding that his indication he did not intend to pursue the case tipped the balance of justice in favour of striking it out.
The judgment, delivered by Ms Justice Tara Burns on 9 October 2023, rejected Darcy’s appeal against a High Court order dismissing the proceedings for want of prosecution and delay. The Court of Appeal said the High Court had correctly dismissed the case, even though the respondents had suffered only slight, if any, prejudice.
Darcy began the proceedings in February 2014, challenging the 2013 Act, particularly its retrospective application. Pleadings closed in October 2015. No further steps were taken until the Attorney General and the Minister for Justice and Equality brought a dismissal motion in March 2022. The High Court found that the delay of six and a half years was inordinate and inexcusable.
The court noted that Darcy had cited family bereavements, personal tragedies, health issues and the absence of civil legal aid as reasons for the delay. Similar reasons had been rejected in a separate case involving Darcy, and the Court of Appeal said the High Court was bound to follow that earlier ruling on the issue of delay.
Darcy argued that the High Court judge showed bias and had prejudged the matter by drawing counsel’s attention to the earlier Court of Appeal judgment. The court rejected those allegations, finding it appropriate to bring a relevant and binding decision to the parties’ attention. It also said the hearing had been conducted fairly.
The court said the appeal did not determine the underlying constitutional challenge. The motion before the High Court concerned only whether the proceedings should be dismissed for want of prosecution. It also rejected Darcy’s argument that the trial judge should have assigned him legal representation, stating that civil legal aid is within the Legal Aid Board’s jurisdiction and that the transcript showed no application for it had been made.
In addressing the balance of justice, the Court of Appeal held that a plaintiff’s indication that a case will not be prosecuted should carry very significant weight. In that situation, it said, a defendant need not establish moderate prejudice for dismissal to be justified, save in exceptional circumstances.
The court affirmed the High Court order. As Darcy had lost the appeal, it said the usual rule that costs follow the event should apply. It gave him leave to file a written submission of no more than 1,000 words within 14 days if he wished to argue otherwise, with the respondents allowed 14 days to reply.