O'Brien v BDO Simpson Xavier & Anor (Approved) [2023] IEHC 358 (23 June 2023)

O'Brien v BDO Simpson Xavier & Anor (Approved) [2023] IEHC 358 (23 June 2023)

The plaintiff was guilty of inordinate and inexcusable delay, but the defendant failed to demonstrate sufficient prejudice to warrant striking out the proceedings; a general assertion of difficulty in finding witnesses was not enough given the identification of a key individual able to give evidence.

Citation
[2023] IEHC 358
Parties
Plaintiff: Liam O'Brien; First Named Defendant: B.D.O. Simpson Xavier; Second Named Defendant: The Governor and Company of the Bank of Ireland
Jurisdiction
Ireland
Judgment Date
23 June 2023
Procedural Posture
Plenary Proceedings / Application to Dismiss for Inordinate and Inexcusable Delay And/or Want of Prosecution
Outcome
Application to dismiss proceedings refused
Legal Topics
Inordinate and Inexcusable Delay, Want of Prosecution, Negligence, Breach of Contract, Statute of Limitations
Civil Procedure Contract Law Tort Law Inordinate and Inexcusable Delay Want of Prosecution Negligence Breach of Contract Statute of Limitations

Case Brief

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Parties

Liam O'Brien

Plaintiff

B.D.O. Simpson Xavier

First Named Defendant

The Governor and Company of the Bank of Ireland

Second Named Defendant

Procedural Posture

Plenary Proceedings / Application to Dismiss for Inordinate and Inexcusable Delay And/or Want of Prosecution

Legal Issues

  1. 1 Whether the plaintiff's delay in prosecuting proceedings was inordinate and inexcusable
  2. 2 Whether the balance of justice favours dismissal of the proceedings
  3. 3 Whether prejudice to the defendant justifies striking out the claim

Ratio Decidendi

The plaintiff was guilty of inordinate and inexcusable delay, but the defendant failed to demonstrate sufficient prejudice to warrant striking out the proceedings; a general assertion of difficulty in finding witnesses was not enough given the identification of a key individual able to give evidence.

Court Disposition

Application to dismiss proceedings refused

Orders

  • Application by second named defendant to strike out proceedings dismissed
  • Costs reserved to trial; parties may file written submissions on costs by 14 July 2023