Truck & Machinery Sales Limited (plaintiff) v General Accident Fire and Life Assurance Corporation plc (defendant).

Practice - Motion to strike out action for want of prosecution - Whether delay inordinate and inexcusable - Whether defendant prejudiced by action proceeding - Plaintiff no longer a "mark" for defendant's costs - Undertakings to be required of plaintiff before action allowed to proceed.

The High Court (before Mr Justice Geoghegan ); judgment delivered 12 November 1999.

There was no suggestion that there would be any prejudice to the defendant in allowing an action to proceed, other than a concern that the plaintiff would not be able to meet an order for costs in the event that it was unsuccessful.

Mr Justice Geoghegan so held in refusing an application to strike out the plaintiff's claim for want of prosecution, subject to the plaintiff's undertaking not to seek Courts Act interest for the years for which it had delayed in its prosecution of the proceedings, and subject to an order for security for costs being made in an amount to be agreed by the parties, or a court order for security for costs.

John Trainor SC and Paul Fogarty BL for the plaintiff; Paul Gallagher SC and John Gleeson BL for the defendant.

Mr Justice Geoghegan said that this was the defendant's application for an order dismissing the plaintiff's claim for want of prosecution or alternatively for an order requiring the plaintiff to furnish security for costs pursuant to section 390 of the Companies Act 1963. The plaintiff was suing on foot of a contract of insurance, and the defendant alleged that there was material non-disclosure rendering the policy voidable and that the defendant had avoided it.

The plenary summons had been issued on 26 March 1987 and, ultimately, a notice of trial had been served by the plaintiff on 16 September 1993. That notice of trial had been struck out on 2 July 1998 for non-appearance at a list to explain non-certification. Mr Justice Geoghegan said that the early history of the case involved delays on both sides, and the defendant could only legitimately complain of delay from about 1 December 1993, by which time the action ought to have been certified as ready for hearing and ought to have been included in a list to fix dates for the Hilary Term.

The question which now had to be considered was whether the delay since that date was of a kind which would entitle the defendant to dismiss for want of prosecution or under the court's inherent jurisdiction.

Mr Justice Geoghegan said that while there was a substantial body of case law on the principles to be applied he need not go beyond the Supreme Court decision in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. The principles of law had been set out at page 475 and required the party seeking a dismissal of proceedings for want of prosecution to show that the delay was inordinate and inexcusable. Even where the delay had been both inordinate and inexcusable, the court must exercise a judgment whether, in its discretion, on the facts the balance of justice was in favour of or against the proceeding of the case. The Supreme Court had then listed a number of factors to be considered in exercising that discretion.

Mr Justice Geoghegan said that he had no doubt that the delay was inordinate, but whether it was inexcusable was a more difficult question. The director of the plaintiff company had explained in two affidavits that the company was involved in other forms of litigation which threatened the continuing viable existence of the plaintiff, and that these took up all the time and energy of the plaintiff's management. Mr Justice Geoghegan said that he doubted that those were the kind of excuses (however genuine) which the Supreme Court had in mind when using the expression "inexcusable". It seemed to him that the excuses relied on should relate in some way to the actual proceedings in hand, because an opposing party could hardly be expected to stand aside and wait while the other party resolved its problems which had nothing to do with the litigation. Nevertheless, he was satisfied that all the surrounding circumstances, including so-called excuses based on extraneous activities, must to some extent be taken into account and weighed in the balance in finally considering whether justice required that the action be struck out or allowed to proceed.

The Supreme Court had ruled that, even if the delay was inordinate and inexcusable, the court must consider whether the delay and consequent prejudice in the special facts of the case were such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action. Mr Justice Geoghegan said that in this case, even if the delay was to be regarded as inexcusable (a point which he did not find it necessary decide), it would not be just to strike out the action. The just course was to refuse the application upon exacting certain undertakings from the plaintiff.

Provided those undertakings were complied with, the defendant would not be seriously prejudiced in the conduct of its defence. The issue would largely be determined on documentary evidence and there was no real suggestion, nor had it been established as a matter of probability, that the defendant could not properly defend the case.

Mr Justice Geoghegan said that the defendant was rightly concerned that the plaintiff would not now be a "mark" for costs in the event of the defendant being successful. That would not have been the case had the action been heard at the proper time. It had also been submitted by the defendant that a liability for Courts Act interest would be unjust. The plaintiff was prepared to submit to an order for security for costs, but the defendant was concerned that this should be fixed at too low a level.

Mr Justice Geoghegan said that he would require the plaintiff to undertake not to claim Courts Act interest for the period 1 January 1994 to 1 January 1999. He said he would also require an undertaking relating to security for costs, but would not fix the terms of that undertaking immediately in the hope that agreement might be reached between the parties as to an appropriate security.

He therefore adjourned the matter for mention. Subject to those undertakings, he refused the application to strike out the action.

Solicitors: Noel Smyth & Partners (Dublin) for the plaintiff; Mays O'Sullivan (Dublin) for the defendant.