The High Court has refused Intesa Sanpaolo Life DAC’s application to strike out two wrongful-dismissal proceedings brought by Agnieszka Nowak, finding that although the delay was inordinate and inexcusable, the company had not established material prejudice caused by it.
Mr Justice Garrett Simons delivered the judgment on 9 May 2024. The proceedings concern the company’s purported termination of Ms Nowak’s employment in August or September 2015. She contends that the termination was invalid because it was not carried out by a company director. Her claims include damages, a declaration that her employment continues, and reinstatement. The damages claim was amended to €250,000 in December 2023. The 2017 proceedings also allege a breach of privacy.
The first High Court case began in February 2016 and the second in September 2017. Although the company entered appearances and requested statements of claim, none was delivered until September 2023, after the company had issued its strike-out motion in July. The judge held that the six or seven year delay was inordinate and that Ms Nowak’s decision to put the High Court cases on hold pending her statutory unfair-dismissal claim did not excuse it.
However, the company had to show that the delay caused prejudice warranting dismissal. It relied on the departure of key personnel and the loss of corporate memory. The judge noted that relevant witnesses had already given evidence at a three-day Employment Appeals Tribunal hearing in 2019, and the company confirmed that three witnesses who testified for it remained available. The judgment also noted the likely existence of contemporaneous emails and reports concerning the 2015 disciplinary process. On that record, the company had not shown material prejudice sufficient to justify striking out the cases.
The judge refused the relief sought in both motions. He did not decide whether section 15 of the Unfair Dismissals Act bars or affects Ms Nowak’s High Court claims: that issue had not been raised in the motions or written submissions, and its implications were not clear-cut. A separate statutory unfair-dismissal claim remained pending, with a related judgment directing its remittal to the Circuit Court.
The judgment proposed consolidating the two High Court cases, treating the second amended statement of claim delivered on 11 December 2023 as valid in the consolidated case, and directing the company to deliver a defence by 10 June 2024. Those were proposed case-management directions, subject to any submissions for a different order. The judge’s provisional view was that Ms Nowak should recover allowable out-of-pocket expenses for the strike-out motions; he also proposed awarding her the costs of her motions for judgment in default of defence.