Delay at your peril
Delay at your peril
A recent decision by Mr Justice Simons in the case of Eirgrid v Dunphy Engineering highlights again the importance of taking steps as swiftly as possible in proceedings to avoid an application for strike out.
In this case the Defendant issued a third party notice i.e. bringing a third party into the proceedings seven months after it filed its defence. The High Court rules provide that such a notice should be delivered 28 days after the defence is submitted. The third party in this case brought an application seeking to have the third party notice struck out.
In making a decision to reject the third parties’ application, Mr Justice Simons made a number of important and interesting observations:
1. That the delay on the part of the Defendant is regarded much more seriously and is likely to penalised to a much greater extent than in the case of a plaintiff.
2. The onus is on the Defendant to show that any delay on its part was reasonable in all of the circumstances.
3. The third party did not have to prove specific prejudices to set aside a third party notice- in this case Mr Justice Simons referred to a previous case of Kenny v Howard.
4. The third party had argued that the court needed to take account of the time period that had elapsed between the plaintiff’s application to PIAB and not to the issuing of court proceedings but Mr Justice Simons rejected this argument and said the delay could only be considered in the context of the actual court proceedings.
5. The Court assessed a seven month delay which had taken place between November 2019 when the defence was delivered and June 2020 when the motion to join the third party was issued. The Defendant argued that the 7 month delay was justified as a result of it gathering information and evidence before it could make a decision to join the third party. Mr Justice Simons said that on balance this delay was reasonable and it was for this reason that it rejected the third party’s application.
In this case the third party had delivered the defence and the Defendant argued that the delivery by the third party of a defence effectively precluded it from bringing the application to set aside the notice but Mr Justice Simons said that this was not the case as in its defence it had clearly indicated its opposition to the third party notice being issued. Nevertheless it still decided that the delay was reasonable
Even though Mr Justice Simon found in favour of the Defendant it made it very clear that delay in any proceedings is being treated much more seriously by the Court and it appears that there are a greater number of applications brought before the courts to strike out proceedings as a result of delay.
For any queries on any matter relating to any litigation matter please don’t hesitate to contact Brendan Dillon or Donna Phelan on 01 296 0666.