The High Court has ruled that a commercial dispute between Nahj Company for Services and the Royal College of Surgeons in Ireland must be dismissed because of inordinate and inexcusable delay by the plaintiff.
In a judgment delivered on 31 July 2023, Mr Justice Garrett Simons found that Nahj had accumulated about 40 months of culpable delay. He concluded that the balance of justice favoured dismissal, citing prolonged reputational damage to the college, reduced ability to adjudicate fairly on the claim after the passage of time, and Nahj’s failure to act after the court warned in November 2020 that delay was a concern.
The underlying claim concerns an arrangement for recruiting students from Saudi Arabia to the college’s medical commencement programme. Nahj claimed it was entitled to €5,000 commission for each Saudi student registered between early 2010 and November 2014. The college disputed the nature of the arrangement and pleaded that a Saudi Ministry of Higher Education directive in June 2010 had made it impossible to continue.
Nahj also alleged that Saudi officials were wrongly told the programme fee was €21,000 rather than €16,000, and that the college continued to include commission in fees after the 2010 directive. The college strenuously denied those allegations. The judge stressed that they were unproven; the dismissal did not determine the merits of the claim.
The judgment identified four periods of delay, including late provision of security for costs, a seven-month delay in seeking to enter judgment, late answers to interrogatories, and roughly two years without progress after April 2021. The judge rejected the explanations offered, finding that the delay after April 2021 was proximately caused by Nahj’s failure to pay its former solicitors’ fees. He also noted that the case had not been set down for trial and that no positive procedural step had been taken by Nahj since April 2021.
The court considered that a trial would require assessment of oral evidence about events in 2009, including an alleged telephone conversation. The judge said witness recollections would be limited and a trial would be inferior to one that could have taken place in 2020. He also found that Nahj had recognised the potential reputational effect on the college and hoped to use public disclosure as leverage in settlement discussions.
The proceedings were therefore to be dismissed without any decision on the underlying allegations. The judge’s provisional view was that the college should recover its costs. Either side was given 14 days to file written submissions seeking a different costs order.