McGivern vs McHale & Co

This case concerned an application to strike out a professional negligence claim against solicitors due to inordinate and inexcusable delay.

TLDR:

• McGivern filed a lawsuit against McHale & Co for professional negligence.
• The court considered the significant delay in the prosecution of the claim.
• The court ruled in favor of McHale & Co, striking out the claim due to inordinate and inexcusable delay.

The plaintiff, Mr. McGivern, retained the defendants, McHale & Co, to act as his solicitors in relation to the sale of his shares in several companies. The plaintiff alleged that the defendants allowed him to sign a draft share purchase agreement without ensuring his removal as a guarantor for the companies' debts, resulting in significant financial loss.

The proceedings were initiated with a plenary summons issued on 30 March 2012, and the pleadings closed with the delivery of a defense in June 2014. The plaintiff made discovery of documents in June 2015, and the defendants furnished their affidavit of discovery in January 2017. The plaintiff served several notices of trial, the first dated 03 July 2023, followed by the defendants' notice of motion to strike out the action on 17 July 2023.

The defendants argued that the plaintiff delayed almost to the end of the limitation period before instituting proceedings, delayed in serving the plenary summons, and did nothing substantial from June 2017 to July 2023. They contended that this delay caused significant prejudice as their witnesses would struggle to recall events from seventeen years ago, particularly since the partner who dealt with the plaintiff, Ms. McHale, retired in 2017.

The plaintiff, represented by Mr. Gaffney BL, argued that the delay was not inexcusable due to unique case facts and his serious health issues. He contended that the defendants were aware of the potential claim since 2009 and had ample opportunity to prepare. Additionally, the plaintiff argued that the defendants also contributed to the delay by not making timely discovery.

The court, after reviewing the extensive medical evidence and the facts, found the delay inordinate and inexcusable. The court held that the plaintiff's health issues did not sufficiently excuse the delay and noted that the plaintiff had been involved in other business activities and litigation during the relevant period.

Considering the balance of justice, the court concluded that the defendants would suffer significant prejudice if the case proceeded, as it would be unrealistic to expect witnesses to accurately recall events from nearly twenty years ago. Consequently, the court granted the defendants' application to strike out the action on grounds of delay.

Legal representatives: Mr. O'Neill SC for the defendants, Mr. Gaffney BL for the plaintiff

Judicial Panel: Mr. Justice Barr

Case Citation Reference: [2024] IEHC 225