The High Court has refused an application by three solicitors to dismiss a professional-negligence claim for want of prosecution, finding that although the plaintiff’s delays were inordinate and inexcusable, the defendants had not established sufficient prejudice to risk an unfair trial.
Mr Justice Bolger’s decision, dated 13 June 2022, concerned proceedings brought by Dermot O’Brien against Thomas J. Brooks, Richard Barrett and Veronica Collins, practising as Collins Brooks and Associates Solicitors. O’Brien claims the defendants were negligent and breached their duties in handling property transactions on his behalf around 2007. Those claims have not been decided in this application.
O’Brien issued the proceedings in November 2012. After early steps over the statement of claim and replies to particulars, the defendants delivered a defence in December 2014. The court recorded that O’Brien took no further steps until November 2018, when he filed notice of an intention to proceed. His solicitors sought voluntary discovery in June 2019, and the defendants issued their dismissal motion in October 2019.
The defendants argued that the delay was both inordinate and inexcusable and that the balance of justice favoured dismissing the case. O’Brien relied, among other matters, on the complexity of the issues, difficulties obtaining an accountant’s report, and his earlier status as a litigant without legal representation. The judge rejected those explanations, noting that O’Brien had not explained why he could not instruct solicitors earlier. The court also rejected the description of the early delay as “procedural skirmishes” and found that the defendants’ conduct did not amount to acquiescence in the later delay.
The defendants said the passage of time could undermine witness recollections, that a solicitor who had handled O’Brien’s files had retired, and that bank records or relevant bank witnesses might be unavailable. They also said the claim had damaged their professional reputation. The judge noted that no specific witness was shown to have died or become unavailable, and that the defendants had provided no evidence of attempts to establish whether bank witnesses could attend or to address potential difficulties.
The court said documentary evidence would be significant, though not the only evidence. It concluded that the defendants had not established even modest prejudice sufficient to show a risk of an unfair trial. That assessment was balanced against the prejudice to O’Brien of losing the opportunity to pursue his case.
The application to dismiss was refused. The judge gave an indicative view that O’Brien was entitled to his costs of defending the application, but listed a further hearing for 17 June 2022 so the parties could make submissions on costs and any final orders. The decision did not determine the underlying negligence claim.