BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. This is the Plaintiff's application on foot of a Notice of Motion dated 11th October, 1996 for an order dismissing the Plaintiff's claim herein for want of prosecution and/or pursuant to the inherent jurisdiction of the Court or, alternatively, an order dismissing the Plaintiff's claim as an abuse of the process of the Court.

2. In a Statement of Claim delivered on 11th July, 1989, the Plaintiff claimed to be the successor in title of Robert Doherty who in 1963 sold his lands contained in Folio 14514 of the Registrar of Freeholders County Wexford to the Defendant. He sought the following reliefs:-

3. The basis on which the Plaintiff seeks the foregoing reliefs, as pleaded in the Statement of Claim, is that prior to the sale of his lands registered on Folio 14514 to the Defendant, Robert Doherty and his predecessors in title had enjoyed since in or about the year 1860 the use of a pier built on adjacent lands at Kearns Weir, Great Island. At the time of the sale it became apparent that, on the construction by the Defendant of a Power Station at Great Island, the Kearns Weir Pier would no longer be usable by Robert Doherty and his family for the purpose of berthing boats at all times as hitherto. In consideration of the Dohertys relinquishing their rights to berth and/or moor boats at the Kearns Weir Pier, the Defendant undertook to provide and maintain alternate facilities for them at Quay House Pier. Pursuant to that agreement an extension was constructed at Quay House Pier to allow the Dohertys access to the river at all tides. After the completion of the extension in or about the year 1965, it was maintained by the Defendant for the benefit of the Dohertys and their successors in title, of whom the Plaintiff is one. The precipitating cause of the proceedings was an indication by the Defendant of an intention to relinquish responsibility for maintaining the extended Quay House Pier and the Plaintiff's apprehension that, unless restrained, the Defendant would allow the Quay House Pier to fall into disrepair so as to be of no benefit to the Plaintiff and the apprehension that the Defendant in the course of time would deprive the Plaintiff of the right enjoyed by him and his predecessors of access to the river at all times.

4. The Plaintiff gave further particulars of the alleged agreement made in 1963 in replies dated 14th May, 1990 to a Notice for Particulars served by the Defendant in which it was stated that, to the best of the Plaintiff's knowledge, the relinquishment of the rights in relation to the Kearns Weir Pier was not in writing nor was the undertaking to provide alternative berthing and mooring facilities at Quay House Pier and to maintain the same. The extension to Quay House Pier was constructed to facilitate the Plaintiff and his predecessors in title and was constructed adjacent to lands retained by the Dohertys after the sale to the Defendant. The undertaking was given on behalf of the Defendant by Daniel Feeney. The terms of the agreement were that the Defendant would provide and maintain facilities for the Plaintiff and his predecessors in title to replace those which were enjoyed at Kearns Weir and for the loss of which they were not otherwise compensated. The Plaintiff's attitude was explained in the following reply:-

5. In its Defence delivered on 28th March, 1990, the Defendant denied the existence of the agreement alleged by the Plaintiff and asserted that the extension to Quay House Pier was constructed to facilitate New Ross Harbour Commissioners (the Commissioners) and their servants and agents, who included one William Doherty, in the pilotage of boats on the river near its mouth. The Defendant denied that it was under any obligation in law or an equity to the Plaintiff to maintain Quay House Pier so as to benefit the Plaintiff and reserved its rights as absolute owner of Quay House Pier to review its use and future disposition as time and occasion demanded. It was pleaded that, so far as it might be necessary, the Defendant would rely on the Statute of Limitations and/or the doctrine of laches. On 28th November, 1990 the Defendant gave further particulars of its defence and, in particular, of the plea of the Statute of Limitations and stated that it would rely on the extensive lapse of time between the time of the building of the extension to the pier and the making of the present claim.

6. The background to the proceedings as outlined in the grounding affidavit of Don Mahony was as follows:-

7. It was stated that the Plaintiff had instructed his solicitors to institute proceedings, but was staying his hand for the moment pending the outcome of negotiations.

8. In his replying affidavit, the Plaintiff averred to the following facts in relation to the 20 year period between 1971 and 1991:-

9. The chronology of the steps taken in these proceedings before the Defendant's Motion was issued is as follows:-

10. As to the reasons for the delay between September 1991 and April 1996, the Plaintiff has averred as follows in his replying affidavit:-

11. It was submitted by Miss Murphy on behalf of the Plaintiff that the Defendant had been selective to the point of being disingenuous in not disclosing its dealings with the Dohertys and the Plaintiff. She further submitted that the Defendant's application should be dismissed on account of its failure to make full disclosure. I am satisfied that the Defendant put before the Court such factual material as could fairly be regarded as being relevant to the grounds on which it seeks to have the proceedings dismissed, namely, delay and that the Plaintiff's claim is statute barred. Therefore, I reject that submission.

12. The parties are agreed that the principles governing applications such as the Defendant's application to dismiss for want of prosecution are to be found in the judgment of the Supreme Court in Primor Plc. -v- Stokes Kennedy Crowley [1996] 2 I.R. 459. In his judgment, Hamilton C.J., having considered the authorities, stated as follows at page 475:-

13. The Defendant contended that it had established both inordinate and inexcusable delay on the part of the Plaintiff. The Plaintiff admitted inordinate delay but did not admit that the delay was inexcusable. In addition to the reasons for the delay averred to by the Plaintiff in his replying affidavit, which I have quoted above, Miss Murphy contended that the delay was justified in that the Plaintiff was faced with a major undertaking when the discovery documents, which ran to 700 documents, were taken up. There were certainly factors which mitigated the Plaintiff's delay - the suspension of his former solicitor from practice and the difficulties encountered by his new solicitors in getting the papers - but it is difficult to conclude that those factors excused a delay of 4½ years. Therefore, I think the proper approach is on the basis that there has been both inordinate and inexcusable delay and that I should consider whether, in the exercise of the Court's discretion, on the facts the balance of justice is in favour of or against proceeding with the case.

14. It seems to me that many of the factors enumerated by Hamilton C.J. as being factors which the Court should take into consideration and have regard to in exercising its discretion are of no relevance on the facts of the present case. In particular, the last factor, prejudice, other than prejudice caused by delay, which is frequently an ingredient in applications to dismiss for want of prosecution, does not come into play at all in the instant case. For over 30 years the Plaintiff and the persons whom he represents that he succeeds have been asserting rights to Quay House Pier and the Defendant has been endeavouring to avoid acknowledging the existence of the alleged rights. However, it seems to me, on the evidence adduced by the Defendant on this application, that the Defendant was since 1966 faced with the inevitability of the dispute with the Dohertys and their successors having to be litigated if the Defendant at any time was not prepared to accommodate them. In short, the dispute is a dispute in relation to property rights which was hanging over the Defendant for almost a quarter of a century before the proceedings were initiated in 1989 and which the Defendant was going to have to confront sooner or later.

15. Essentially, in applying the criteria identified by Hamilton C.J. by reference to which the Court should exercise its discretion, two questions arise in this case, namely, whether the Defendant is prejudiced by the delay and, in particular, whether there is a substantial risk that it is not possible to have a fair trial because of the delay, and whether there was anything in the conduct of the Defendant which militates against granting the relief sought.

16. The case of prejudice advanced on behalf of the Defendant was that given the lapse of time since the acquisition of the Doherty lands in 1963 most of the Defendant witnesses have died or retired or have become unavailable due to advanced years and inevitably there would be a dimming of recollections. It is true that the alleged source of the rights asserted by the Plaintiff is an alleged agreement made or undertaking given before 1965 and it is true that both the Defendant and the Plaintiff are handicapped, because of the lapse of time, in disproving or proving the creation of the asserted rights. However, from the mid-1960s the asserted rights have been in controversy and have resulted in frequent, if not continuous, interaction between the parties inter se and between the parties and the Commissioners and there is a case made and there is a case to be answered arising out of the actions of both sides over a period from the early 1960s down to the institution of the proceedings in 1989 as to the existence of the asserted rights. Moreover, it is clear that the dealings of the Defendant with the Dohertys and the Plaintiff and with the Commissioners in relation to Quay House Pier were documented through the 1960s, the 1970s and the 1980s. Therefore, I do not think that the Defendant has established a serious prejudice or a substantial risk that it is not possible to have a fair trial.

17. Mr. Finlay, on behalf of the Defendant, relied on the decision of the Supreme Court in Toal -v- Duignan & Others (No.1) [1991] I.L.R.M. 135 and, in particular, the manner in which the Supreme Court dealt with the application made on behalf of the fifth named defendant, a general practitioner in respect of whom an allegation of negligence was made concerning matters which she was alleged to have omitted or failed to do in 1971, in proceedings initiated in October 1984 on foot of claims first intimated in August 1984, to dismiss the claim against her . The Supreme Court held that, after a lapse of sixteen years, it would be unjust and unfair to expect the fifth named defendant to be able to properly defend herself. In my view, that case is distinguishable on the facts from the instant case. In that case, the claim against the fifth named defendant came, as it were, "out of the blue" after thirteen years. In the instant case, the rights asserted by the Plaintiff have been a source of controversy since the early 1960s between the parties, a controversy which was never resolved and which, inevitably, was going to have to be resolved at some stage.

18. Moreover, the Defendant's conduct both before and after the initiation of these proceedings militates against granting the relief claimed. The Defendant did not at any time prior to the initiation of the proceedings seek to restrain the Plaintiff from exercising the rights he asserted, as the successor of his uncle, although the existence of such rights was denied. After the proceedings were initiated and the pleadings closed and discovery exchanged in September 1991, despite a delay of 4½ years, the Defendant took no steps to have the proceedings brought to trial or dismissed for want of prosecution until after the proceedings were reactivated by the Plaintiff's new solicitors. No complaint of prejudice was made during that period. Having regard to the ongoing controversy between the Defendant, on the one hand, and the Plaintiff and his uncles, on the other hand, which had endured for 30 years without resolution and without direct action being taken by the Defendant against the Plaintiff or his uncles to terminate the controversy, in my view, the inaction by the Defendant during the 4½ years tilts the balance of justice against acceding to the Defendant's application.

19. The basis of the Plaintiff's claim that the proceedings should be dismissed as an abuse of the process of the Court is that the Defendant's plea of the Statute of Limitations must be a bar to the Plaintiff succeeding. On behalf of the Defendant, Mr. Finlay submitted that the Plaintiff's claim is a contractual claim: the Plaintiff seeks specific performance of an alleged agreement. The Defendant denied the existence of the agreement by the letter dated 28th February, 1997 and thereupon the Plaintiff's action for breach of contract accrued and that action was barred after the lapse of six years at the end of February 1983. Miss Murphy, on the other hand, argued that it is the Plaintiff's case that the rights created by the alleged agreement made between the Dohertys and the Defendant were in the nature of equitable easements in perpetuity. There was no interference by the Defendant with the exercise of the alleged rights, which were continuously exercised by the Plaintiff and his predecessors up to 1989, and there was no resiling in practice by the Defendant from its alleged maintenance obligation in relation to Quay House Pier, which was complied with up to 1989. In particular, following the denial of the agreement granting the rights in 1977 the Plaintiff's exercise of the rights was not interfered with and the Defendant continued to maintain Quay House Pier. In the circumstances, there was no need for the Plaintiff to take action to protect his rights. The relief sought by the Defendant is injunctive relief to restrain interference with his equitable easements, which only became the subject of a threat of interference in 1989, at which stage his right of action accrued.

20. In support of his submission that the Plaintiff's claim should be struck out as being frivolous, vexatious and an abuse of the process of the Court, Mr. Finlay cited the decision of the English Court of Appeal in Ronex Properties Limited -v- John Laing Construction Limited (1983) Q.B. 398 and, in particular, the following passage from the judgment of Stephenson L.J:-

21. In a similar vein, Donaldson L.J. had in his judgment stated as follows:-

22. In order to accede to the Defendant's application, I would have to be satisfied that there is a very clear case that the Defendant would succeed in its plea that the Plaintiff's claim is statute barred. The parties have advanced two distinct bases of the Plaintiff's claim, each of which is open on the pleadings. There is a dispute as to whether the Plaintiff's claim is a claim for breach of contract or a claim for interference with proprietarial rights. In my view, it is not necessary and it would be inappropriate on a motion of this nature to try and resolve that dispute. All that is necessary is to determine whether it has been clearly established that the Plaintiff's claim was statute barred before the proceedings were initiated. In my view, that has not been established, because one could not conclude that the Plaintiff's only basis of claim is for a breach of contract which occurred in February 1977 and in respect of which a right of action accrued in February 1977. Indeed, it is of significance that when particulars were sought of the Defendant's plea of the Statute of Limitations, no specific breach of any limitation period was advanced and the particulars given seem to support the plea of laches rather than the plea that the claim was statute barred. In the circumstances, the Defendant has not established that the Plaintiff's claim should be dismissed as an abuse of the process of the Court.

23. Accordingly, the Defendant's application is refused.

24. Finally, it is necessary to comment on what it must be acknowledged has been inordinate and inexcusable delay on my part in delivering this judgment given that I heard the application on 20th March, 1997. The delay was not due to any systems failure; it was solely due to failure on my part and I regret it. On a practical level I have written to the President asking him to facilitate the parties with an early hearing when the matter is ready to proceed.