The High Court has dismissed a commercial rent claim and the defendants’ counterclaim after finding that the plaintiffs’ inordinate delay in progressing the case was inexcusable and that the balance of justice weighed against continuing it.
Mr Justice MacGrath gave judgment on 23 January 2020 in proceedings brought by Myrmidon CMBS (Propco) Limited and, after a 2016 joinder, Burlington Real Estate Limited against Joy Clothing Limited, John Suttle and Marianne Suttle. The second and third defendants had applied to dismiss the proceedings for want of prosecution or delay, or alternatively to strike them out.
The case began in January 2009. The plaintiffs claimed rent and service charges, initially €70,007.95, allegedly due from Joy Clothing for the period from 25 June 2008 to 31 March 2009. They said the Suttles were liable under a guarantee. The claim later increased to €123,006.76, including further rent and service charges. Joy Clothing entered creditors’ liquidation and was dissolved in 2011.
The Suttles denied liability and counterclaimed for losses they attributed to the landlord’s conduct. Their pleaded case included alleged failures in maintenance and estate management, and an alleged refusal to consent to an assignment of the tenancy to Markamatt Limited. These were allegations, not findings on their merits in this judgment.
The judge accepted that the delay was inordinate and found it inexcusable. He rejected the argument that the defendants’ objections to setting the case down for trial amounted to acquiescence or had lulled the plaintiffs into a false sense of security. If the plaintiffs considered the discovery dispute an obstacle, he said, they could have served a trial notice and dealt with any resulting procedural challenge.
In considering whether the case should nevertheless proceed, the judge found no established concrete prejudice from the alleged unavailability of a Markamatt witness and gave that point little weight. But he considered that the case was not a simple documents dispute: issues included meetings and representations dating back more than ten years. He found likely general prejudice to the defendants’ ability to defend the claim, as well as the oppressive effect of prolonged litigation. He also considered the defendants’ stance from the outset that they would defend the claim and pursue a counterclaim if it continued, and the consequence that dismissing the main case would also end the counterclaim.
The court therefore dismissed the plaintiffs’ proceedings and also dismissed the counterclaim. The judgment decided the delay application; it did not determine the underlying rent claim or counterclaim on their merits.