The High Court recently delivered judgment in a successful application, brought by Beauchamps, on behalf of Mr Con Cronin, Receiver, to strike out the plaintiff's claim for failure to comply with a previous order of the High Court.
The defendant, acting in his capacity as statutory receiver, agreed to sell a property in Rathmines to the plaintiff.
The plaintiff raised certain requisitions on planning matters notwithstanding the exclusion of any warranty pursuant to General Condition 36 and Special Condition 11(1). The latter condition provided that the purchaser shall make no objection or raise any requisitions or inquiry in relation to the absence or adequacy of planning permission. Despite a notice of intention to rescind, the plaintiff declined to withdraw the objection and the defendant formally rescinded the contact in July 2014.
The plaintiff issued plenary summons in September 2014 seeking damages for breach of contract. In May 2015, a statement of claim was delivered. No reference was made in the statement of claim to the rescission and no relief was included seeking to challenge the rescission or enforce the contract by way of specific performance. The claim was exclusively for damages. A defence was delivered in October 2015, which pleaded that the contract was rescinded because
After the delivery of the defence, no steps were taken by the plaintiff. After three years, in September 2018, the defendant was successful in an application to vacate a lis pendens that the plaintiff had registered. Thereafter, in February 2019, the defendant brought a further motion seeking to strike out the plaintiff's claim for want of prosecution and/or inordinate and inexcusable delay. This application was unsuccessful however, and in July 2019 the Court awarded the costs of the motion to the defendant and directed the plaintiff to take all steps necessary, within 4 calendar months, to apply to have the matter listed. Following the 2019 Order, no steps were taken by the plaintiff to apply to have the matter listed for hearing. In January 2020, without any explanation for its failure to comply with the order, the plaintiff issued a notice for further particulars of the defence delivered in October 2015.
Serious and persistent breach
The Court noted that there was wholesale failure to comply with the July 2019 High Court Order. Following the Supreme Court decision in Tracey v McDowell  IESC 44, the Court held that there was a serious and persistent breach with no legitimate explanation for the non-compliance.
The arguments raised by the plaintiff were described by the Court as having an air of complete unreality, given the reliefs sought in the substantive claim. The Court observed that the plaintiff indicated an intention to alter the case by both challenging the purported rescission and issuing a fresh set of specific performance proceedings, six years following institution of the case. There was a clear intention to very significantly reformulate the present case. The Court noted that if the reformulation was permitted, a very significant period would elapse before the case could be set down. Ms Justice Hyland stated that there was no reason why this approach could not have been adopted in 2014/2015. Furthermore, the Court indicated that it was too late for the plaintiff to do an about turn in 2020 and decide after it had been ordered to set the case down within four months, they would instead ignore the order and substantially recast the case.
The Court was satisfied that there was a considerable prejudice to the defendant in the failure to abide by the July 2019 Order.
Remedy must be proportionate
The second limb of the test in Tracey is that the remedy sought is a proportionate response to the serious and persistent breach. The Court noted that the essence of a proportionate decision is that there is a reasonable relationship between the aim sought to be achieved and the means used to achieve it. In this case, as per the aim stated in Tracey – the Court must have an effective means of ensuring that proceedings are determined within a reasonable time. The question posed was whether the dismissal was necessary to achieve that aim – the Court was satisfied that it was.
The motion, in the alternative sought dismissal for inexcusable and inordinate delay and want of prosecution. The matter was decided on the first relief, however, for completeness, the Court concluded that the delay was inordinate in the circumstances.
Parties must ensure to prosecute their claims in a timely manner. There is a renewed emphasis to ensure that our legal system appropriately sanctions a significant, material or persistent procedural failure. Most recently, the Review of the Administration of Civil Justice Report published by the Minister for Justice in October 2020 recommends that an automatic discontinuance should apply to proceedings that are not ready for trial within a period of 30 months from their commencement.