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Inordinate and Inexcusable delay Judgement

By: Alison Kelleher and Ryan Callnan | Posted on: 11 Sep 2020

The Court of Appeal has set aside an order of the High Court which had struck out personal injuries proceedings on the grounds of inordinate and inexcusable delay in a case of Reilly v Campbell Catering and others [2020] IECA 222.

Facts

The Appellant suffered injuries during the course of her employment in June 2015, after having fallen on a stairwell.  PIAB Authorisation issued in January 2017 against the first and third named Defendants.

The Appellant’s Solicitor enquired with the second named Defendant, the cleaning service providers, in March 2017 whether any other party might have potential liability. This letter was not responded to.

PIAB Authorisation issued in May 2017 against the second named Defendant and a Personal Injuries Summons was issued in November 2017 against the first, second, and third named Defendants.

In February 2018, the second named Defendant stated that they had not been providing cleaning services on the date of the incident, without identifying any other party who may have been providing the service. The second named Defendant subsequently entered an Appearance.

In January 2019, the second named Defendant wrote to the Appellant, identifying the party which was providing cleaning service on the date of the incident (the Respondent).

The Appellant sought and obtained PIAB Authorisation against the Respondent, a second cleaning company in February 2019 and issued proceedings in April 2019, almost 4 years from the date of the injury. 

The High Court struck out the proceedings for inordinate and inexcusable delay. The Appellant subsequently appealed this decision to the Court of Appeal.

Decision

The Court of Appeal summarised the three-step test to be applied in applications to dismiss for inordinate and inexcusable delay, also known as the ‘Primor test’, which originated in the case of Primor plc v. Stokes Kennedy Crowley[1].

  • The first step is for the court to decide whether the party’s delay can be considered inordinate, having regard to the nature of the proceedings and all of the relevant circumstances.
  • The second step, if the party’s delay can be considered inordinate, is for the court to decide whether the party’s delay can be excused.
  • The third step, if the party’s delay can be considered inordinate and cannot be excused, is for the court to consider whether the balance of justice favours the dismissal of the proceedings.  The court, in its decision, must have regard to all of the relevant circumstances including matters such as delay or acquiescence on the part of the defendant(s) and the potential prejudice resulting from the delay of the party.

The High Court found that the Appellant had not complied with section 8 of the Civil Liability and Courts Act, 2004, which requires a party to serve a letter of claim, stating the nature of the alleged wrong, on the alleged wrongdoers within one month of the cause of action. The Court of Appeal found that this omission by the Appellant was ‘’wholly immaterial to the exercise’’ to be undertaken by the High Court.

The Court of Appeal further held that the High Court had relied incorrectly on the cases of Simpson v. Norwest Holst Southern Ltd.[2] and Cressey v. E. Timm & Son Ltd.[3] in relation to Statute of Limitations. In the opinion of the Court of Appeal, these cases were ‘’not relevant to the issue’’ which was before the High Court.

The Court of Appeal further found that the High Court had incorrectly applied the third limb of the Primor test and found that on the balance of justice did not favour dismissing the proceedings.

If you would like any further information on this judgment or the issues raised, please contact our partner Alison Kelleher on alison.kelleher@ckt.ie

[1] [1996] 2 IR 459.
[2] [1980] 1 WLR 968.
[3] [2005] EWCA Civ. 763.
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