- Created: Monday, May 21 2018 16:10
In the recent High Court case of Brian Maxwell v Irish Life Assurance and others, Mr Justice Keane considered the meaning of "inordinate delay" in an application to have proceedings dismissed for want of prosecution on grounds of inordinate and inexcusable delay.
Brian Maxwell (“the Plaintiff”) suffered a heart attack in June 2006 and made a claim against his policy. The insurance company rejected the claim based on the Plaintiff’s non-disclosure of his smoking history.
The Plaintiff issued proceedings in 2010, seeking an order directing specific performance from Irish Life Assurance plc and its agent (“the Defendants”) under a serious illness policy or an award of damages for breach of the insurance contract.
After an exchange of pleadings that stretched over almost four years, the Plaintiff wrote seeking voluntary discovery in December 2014. The Defendants responded with an application to dismiss for want of prosecution in July 2015.
In its application to dismiss proceedings, the Defendants argued that (i) a 22 month delay by the Plaintiff before delivering Replies to Particulars, and (ii) a further two year delay until a letter seeking voluntary discovery was sent on behalf of the Plaintiff was an "inordinate delay" and that the proceedings should be dismissed as a result.
The court relied on Primor plc v Stokes Kennedy Crowley  to hold that the court had inherent jurisdiction to dismiss a claim where the interest of justice required it. The burden was on the Defendants to establish that the delay was inordinate and inexcusable. In arguing that a two year delay was inordinate, the Defendants suggested that Order 122, Rule 11 of the Rules of the Superior Courts which allows a party to apply to court to dismiss a cause "in which there has been no proceeding for two years from the last proceedings" provided a useful benchmark.
However, the court disagreed and held that an "inordinate delay" should be considered in light of the ordinary standards of litigation. It held that the first delay by the Plaintiff of over 22 months and the subsequent delay of two years amounted to an inordinate delay under these parameters.
Having found that "inordinate delay" existed, the court then considered whether the balance of justice was in favour of or against the proceeding of the case. It was held that the delay in the case had given rise to a substantial risk that it would not be possible to have a fair trial.
In granting the Defendants' application, the court ordered the dismissal of the proceedings.
The decision is of note for considering the level and various types of delay which will be considered sufficient to ground a claim and application to dismiss for want of prosecution.