With the downturn in the economy, there has been an increase in professional negligence cases against Solicitors, particularly in relation to property transactions. However, there is now an increasing propensity for the Courts to strike out litigation cases for delay or want of prosecution. This will naturally lead to an increase in professional negligence actions taken against Solicitors in litigation matters where cases have been struck out for delay and want of prosecution.
When a claimant Solicitor has issued proceedings, they are under an obligation to progress the case in a diligent and timely manner. Therefore, if the action is struck out for failure to comply with time limits or want of prosecution, the Solicitor will have no defence to an action brought for breach of duty of care unless the client has caused or consented to the delay. Even if counsel has caused the delay, this will not afford the Solicitor a defence as it is up to the Solicitor to chase up and ensure that the barrister does not cause delay, otherwise the instructions should be withdrawn and passed to another barrister (Jackson and Powell on Professional Liability, 6th Edition 2007).
The cases of Primor plc v Stokes Kennedy Crowley (1996) and Anglo Irish Beef Processors v Montgomery (2002) established a three part test that should apply when considering whether a case should be struck out:
- Was the delay inordinate
- Was it inexcusable
- Where does the balance of Justice lie
A fourth consideration was added in the case of Stephens v Paul Flynn Ltd (2008);
- If a party is acting through a Solicitor, the litigant’s personal blameworthiness is to be considered.
It should be noted that decisions on inordinate or inexcusable delay are at the discretion of the Court and there is flexibility over and above the Rules of the Superior Courts (C v McG and ors (2009)).
Further, as we can see from the decision in Mc Brearty v North Western Health Board (2010), where there is a delay prior to the issuing of proceedings, a Solicitor is under a special obligation to progress the matter in an expeditious manner.
In the Supreme Court case of Mary Margaret Flynn v Allied Irish Banks Plc (2008), Justice McMahon stated:
The Courts will, in this new climate, look on delays on the part of the Plaintiff much more closely and will demand of Plaintiffs in the future greater urgency in prosecuting their claims. Nevertheless, even in this new climate, the Court must still exercise a judgment on whether, in its discretion, on the facts before it, if the balance of justice is in favour of the case proceeding.
It is clear from the above comments that there in now considerably less tolerance of procedural delays than in previous times. This places a greater onus on Solicitors to prosecute cases in an expeditious manner as failure to do so can lead to the case being struck out for delay and want of prosecution. If this happens, the Solicitor in question will leave himself or herself open to a very strong case of professional negligence being taken against them.
If you require any information regarding this matter please contact:
- Damien Conroy, Associate Solicitor
26 July 2013