The High Court has refused to dismiss Mark Conan’s claim against Sherry Fitzgerald (Commercial) Limited over a 2013 valuation of a Dublin commercial property, despite finding that his delay in progressing the proceedings was both inordinate and inexcusable.
Mr Justice Mark Heslin delivered the judgment on 31 March 2023. The defendant had applied to dismiss the claim for want of prosecution, relying on the court’s inherent jurisdiction and Order 122 of the Rules of the Superior Courts. The judge dismissed that application. He did not decide whether the valuation was negligent or whether the plaintiff suffered the losses alleged.
Mr Conan’s claim concerns a valuation of the Fade Street property at €1,686,000. He alleges that the valuation was negligently prepared and breached contractual and other duties. He claims €840,989 in financial losses, which he says followed from failing a loan-to-value covenant and included investment sales, currency conversion, property sales and lost rental income. His counsel told the court the case was not a personal injuries claim.
The plenary summons was issued in June 2018. After the plaintiff delivered replies to the defendant’s request for particulars on 14 February 2019, he took no formal step to advance the claim before the defendant issued its dismissal motion on 11 January 2022. The judge found no explanation for about 13 months of that inactivity before the Covid-19 pandemic. He accepted that the plaintiff’s financial difficulties during the pandemic and cardiac problems explained part of the later delay, but found that neither explained the period after November 2021, when the plaintiff took no steps before the defendant’s motion.
In assessing the balance of justice, the judge found no specific or concrete prejudice to the defendant. The central dispute is expected to depend on expert valuation evidence, and the court was not told that relevant documents or witnesses were unavailable. The defendant’s assertions about professional reputation and insurance consequences were general and unsupported by evidence of actual harm. The judge also noted that the defendant had itself taken almost five months to deliver its defence, and had not sought discovery when the pleadings closed in 2019.
Although the judge said the delay met the first two parts of the test for dismissal, he was not satisfied that the balance of justice favoured striking out the claim. He found that a fair trial remained possible and that allowing the proceedings to continue would not cause the defendant real and tangible injustice.
The court’s preliminary view was that the costs of the dismissal motion should be costs in the cause, with the parties invited to make short written submissions if either sought a different order. They were also invited to agree a timetable of steps towards trial. The judgment did not determine the underlying claim or make a final costs order in the text provided.