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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Irish Hereford Breed Society Ltd. v. Ross & Ors [2006] IEHC 76 (28 February 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H76_2.html Cite as: [2006] IEHC 76

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Neutral Citation Number: [2006] IEHC 76

THE HIGH COURT

[1993 No. 4426P]

BETWEEN

IRISH HEREFORD BREED SOCIETY LIMITED

PLAINTIFF

AND JOHN D. ROSS MICHAEL HAYES AND BRYAN SMYTH PRACTISING UNDER THE STYLE AND TITLE OF ROSS AND HAYES, SOLICITORS

DEFENDANTS

AND MICHAEL COLLINS

THIRD PARTY

Reasons of Mr. Justice Herbert for judgment given by him on 28^th February 2005.

The events which gave rise to the original litigation between Owen O'Neill and the Plaintiff occurred in or about April 1989 and concerned alleged misconduct by Mr. O'Neill in his dealings with the Society and the registration of animals according to the society's rules. Certain legal advices were given between April and July, 1989 by the Defendants to the Plaintiff and through them by the Third Party as Counsel retained by the Defendants. By a judgment of the High Court delivered on 2^nd October, 1990, by Murphy J., (as he then was) the disciplinary action by the society against Mr. O'Neill on 11^th July, 1989 was declared void and of no effect. The decision of the learned Judge is reported at [1991] I.L.R.M. 612 under the title, Owen O'Neill and Bova Genetics Ltd v. Irish Hereford Breed Society Ltd.

On 23^rd June, 1993, the present proceedings for professional negligence were commenced by the Irish Hereford Breed Society Ltd. against the Defendants claiming damages for negligence and breach of contract. A motion on notice to dismiss these proceedings for failure by the Plaintiff to deliver a statement of claim was brought by the Defendants on 25^th October, 1994. This resulted in the delivery of a statement of claim on 19^th January, 1995, some five and a half years after the alleged failure to give correct legal advice.

A defence was delivered by the Defendants on 25^th August, 1995 after requests for particulars had been furnished by the Defendants and had been answered by the Plaintiff. On 23^rd October, 1995, the Defendants obtained leave of the High Court to join Counsel as a Third Party in the proceedings. On 15^th March, 1996, a third party statement of claim was delivered by the Defendants. On the 26^th May, 1996, the Third party delivered a defence and simultaneously served a notice seeking particulars on the Defendants. No reply was or have ever been furnished by the Defendants to this notice seeking particulars. Between 8^th November, 1995 and 18^th January, 1996 the Defendants made voluntary discovery and also furnished copies of the documents discovered. By a letter dated 14^th February, 1996 the solicitors for the Plaintiff alleged that copies of all of the items referred to in the affidavit of discovery had not been furnished and further alleged that on the instructions of the Plaintiffs the discovery itself was incomplete.

On the 28^th February, 1999, a notice of intention to proceed was given by the solicitors for the Plaintiff. Nothing further happened in the action until the 20^th May, 1999, when a motion on notice was issued by the solicitors for the Plaintiff seeking further and better discovery. By a letter dated 16^th June, 1999, the solicitors for the Defendants furnished six additional documents (no.'s 19, 20, 21, 40, 46 and 49), which had been referred to in the affidavit of discovery sworn on 25^th October, 1995 but copies of which had not been furnished and had been sought by the solicitors for the Plaintiff in their letter of 14^th February, 1996. The solicitors for the Defendants also gave notice that they intended to bring a motion to dismiss the Plaintiff's claim for want of prosecution. On 19^th February, 2000, a notice of intention to proceed was given by the solicitors for the Defendants. By a letter dated the 1^st February, 2001, the solicitors for the Plaintiff requested that they, "stay their hand", in respect of this motion because the solicitors for the Plaintiff were awaiting counsel's advices in respect of instructions from the Plaintiff that a number of documents were missing from the affidavit of discovery sworn by the Defendants.

By a motion on notice dated 7^th December, 2004, the Third Party moved to dismiss the Defendant's claim against him for inordinate and inexcusable delay on their part in prosecuting their claim. By a motion on notice dated 7^th February, 2005, the Defendants brought a similar application against the Plaintiff. Working backwards in order of time, the Third Party, (who represented himself), and also Senior Counsel for the Defendants pointed to the following time frame:-

"16 years since the date of the initial, now alleged to be defective, advices.

15 years since the decision of Murphy J., finding wanting the disciplinary procedures adopted by the Society.

10 years since the close of pleadings in the present action.

9 and a half years since voluntary discovery and copies of documents had been made and given by the Defendants.

8 and a half years from the date of the Third Party Defence and still unanswered notice for particulars to the Defendants.

5 and a half years since copies of the six documents were furnished by the Defendants to the Plaintiff."

Senior Counsel for the Plaintiff accepted, and in my judgment, had no option but to accept, that the delay on the part of the Plaintiff in prosecuting this action was inordinate and inexcusable. However, he submitted that between 18^th January, 1996 and 16^th June, 1999, there had been delay on the part of the Defendants in making a fully complete discovery. Senior Counsel for the Plaintiff further argued that apart from the motion to dismiss for delay in the delivery of a statement of claim on 25^th October, 1994, the Defendants had acquiesced in the delay on the part of the Plaintiff until the 7^th February, 2005, in which respect the only proper inference to be drawn was that they had been spurred into activity only by the motion of the Third Party of 7^th December, 2004. Senior Counsel for the Plaintiff submitted that the Defendants, at any time in the previous ten years, could themselves have set the matter down for trial. This point was also made by the Third Party. Senior Counsel for the Plaintiff submitted that despite the inordinate and largely inexcusable delay on the part of the Plaintiff in prosecuting the action, it remained the task of this Court to carefully balance the possible injustice to the Plaintiff in having its action struck out without a hearing on the merits against whatever prejudice could be demonstrated by the Defendants should the action be permitted to proceed to a full trial.

It was accepted on all sides that the legal principles applicable in determining this issue were those stated by the Supreme Court in the case of Primor Plc., v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at 475 by the then Chief Justice, as follows:

"(c) Even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the Court is entitled to take into consideration and have regard to:-

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the Defendant to allow the action to proceed and to make it just to strike out the Plaintiff's action,

(iii) any delay on the part of the Defendant - because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the Defendant amounts to acquiescence on the part of the Defendant in the Plaintiff's delay,

(v) the fact that conduct by the Defendant which induces the Plaintiff to incur further expenses in pursuing the action does not, in law, constitute an absolute bar preventing the Defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendant,

(vii) the fact that the prejudice to the Defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a Defendant's reputation and business."

Because this Plaintiff permitted 2 and ²/₃ years of a three year limitation period to elapse before issuing the Plenary Summons, in my judgment there was a particular onus on it to press ahead thereafter with all possible expedition. The Plaintiff did not so proceed. It required a motion to produce the Statement of Claim on 19^th January, 1995, – then five and a half years after the giving of the alleged negligent legal advice and one year and five months after the entry of an Appearance by the Defendants on 22^nd July, 1993. Even if one should ignore the passing of yet a further year, the pleadings had been closed and the Defendant had made voluntary discovery and had furnished copies of the documents so discovered by 18^th January, 1996. By their letter of 14^th February, 1996, the solicitors for the Plaintiff disputed the adequacy of the voluntary discovery. The Plaintiff now had an option of bringing a motion for further and better discovery or of accepting the discovery made and setting the action down for trial. They did neither until 1999 when they issued a motion seeking copies of documents which had been scheduled in the voluntary affidavit of discovery, copies of which had not been furnished. By a letter dated 16^th June, 1999, the solicitors for the Defendants furnished copies of the six documents. They also gave notice that they intended to bring a motion to have the proceedings struck out for want of prosecution. A further six months elapsed and then the solicitors for the Plaintiff wrote to the solicitors for the Defendant asking them not to proceed with the threat of motion to allow them to obtain the advices of Counsel in relation to their client's insistence that a complete discovery had not been made by the Defendants. A further four and a half years then elapsed during which time the Plaintiff took not further step in the action. No explanation or excuse has been offered in respect of this delay.

The Plaintiff's claim is for compensatory damages in respect of costs and liabilities incurred by the Plaintiff as a consequence of the decision of Murphy J., of 2^nd October, 1990. The only prejudice the Plaintiff could suffer by the striking out of these proceedings would be the loss of an opportunity to recover these damages. Their claim is entirely denied by the Defendants and indirectly by the Third Party who denies that he gave negligent professional advice to the Defendants in relation to the purported decision of the Plaintiff of 11^th July, 1989, to expel Mr. O'Neill from the society. The decision of Murphy J., of 2^nd October, 1990, cannot be translated into a finding that either the Third Party or the Defendants gave actual advice in respect of that decision or, if they did, that the advice so given was negligent. Even if advice had been given by the Defendants and the Third Party in relation to the decision of 11^th July, 1989, and even if that advice had been properly understood and correctly followed by the Plaintiff, but for the reasons given by Murphy J., was incapable of achieving the desired result, this is still a far cry from proving that the advice in question and on the particular facts was negligent.

The onus lies on the Defendants and, on the Third Party in their respective motions to show that they would be prejudiced where the action permitted to proceed to trial. The fact is so well known that the court has to take judicial notice of it that the Defendants and the Third Party are obliged by the Rules of their respective professions to have indemnity insurance in respect of claims of this nature. There is nothing on the affidavit evidence before me to suggest the contrary nor to indicate that for some particular reason the instant claim is not covered by insurance. Even accepting the absence of any issue of lack of capacity to meet this claim if it should prove successful, the court must still take cognisance of the fact that the Defendants and the Third Party are professional people who have had to endure the burden and the pressure of these proceedings, capable of causing great harm to their professional reputation if not to their finances, hanging over them for the past twelve years.

I adopt what was held by Cumming – Bruce L.J., and Drake, J. in the Court of Appeal (Civil Division) of England and Wales in the case of Hayes v. Atkins (The Times October 12^th 1983) at pages 6 and 8 of the Report. At page 6 Cumming – Bruce L.J., stated as follows:-

"He [the Trial Judge] gave a second ground for finding material prejudice in his judgment. He thought that the Defendant was severely prejudiced because there was prejudice of a professional man in having an action hanging about two years longer than it should be. Mr. Brent has made a considerable criticism of that conclusion of the judge. He has drawn our attention to the particular facts of Biss v. Lambeth, Southwark and Lewsiham Area Health Authority [1978] 1 W.L.R. 382, [1978] 2 All E.R. 125 which gave rise to the metaphor selected by Lord Denning when he first referred to the particular prejudice. I quote a passage from Lord Justice Geoffrey Lane (as he then was) picking up what had been said by Lord Denning in the leading judgment:-

'In the present case the nurses whose competence and standards of care are in question are no doubt suffering at least some apprehension as to what may happen or be said at the trial. Why, one may ask, should they continue to have to suffer? That to my mind provides enough by way of prejudice to entitle one to say in accordance with Birkett v. James… that extra prejudice beyond that caused by the pre-writ delay has occurred to the Defendants here …'.

Of course it is perfectly true that the problem in Biss v. Lambeth Southwark and Lewsiham Area Health Authority [was] quite different to the problem in Birkett v. James [1977] 1 All E.R. 801, [1977] 3 W.L.R. 38 and the facts in Biss v. Lambeth Southwark and Lewsiham Area Health Authority were so extreme that it is much easier as a matter of commonsense to assume that after such passage of time it was intolerable that an action should be regarded as still hanging over the head of professional persons who have been involved in the treatment of patients. But when that is said, I do not accept that what has been called the "Sword of Damocles" anxiety is limited to situations as extreme or outrageous as a case like Biss v. Lambeth Southwark and Lewsiham Area Health Authority. In the affidavits sworn by the solicitor for the defendants, he makes a submission that it is unfair that professional men should have to bear such a burden. I would not myself think, any indeed it may well have been the view of the judge, that the additional anxiety which the personal defendant has inevitably been subject to as a result of the inordinate delay of two and half years, on the facts of this case would come sufficiently into the balance alone to make it right to drive the Plaintiff from the door of the court. But taken with the other prejudice to which the learned judge refers, I would agree with the way in which the learned judge put it that it is a factor that adds to the prejudice already existing arising from the difficulty in procuring a fair trial after such delay. When answering the question have the two and a half year delay pre-November, 1982 materially prejudiced the Defendant?, the factor that he has had the case hanging about two and a half year longer than it should have done is a weight to be put into the scales. Thus understood I would accept the way in which the learned judge put it."

At page 8 of the Report, Drake J., expressed similar sentiments. This decision was referred to by O'Hanlon J., in the case of Celtic Ceramics Limited v. Industrial Development Authority [1993] I.L.R.M. 248 at 256, which decision was in turn cited by Hamilton C.J., (as he then was) in Primor Plc. v. Stokes Kennedy Crowley (above cited) at page 471 of the Report.

It was submitted by Senior Counsel for the Defendants and, it was also submitted by the Third Party, that the instant case is a "recollection" case rather than a "documents" case. They submitted that the issues at a trial would fall to be decided solely on the recollections of witnesses as to what was said at consultations and in the course of telephone calls. They stated, and were not contradicted, that any relevant advices by them were not contained in written opinions or in correspondence. No contemporaneous notes or memoranda of consultations or of telephone conversations have been disclosed or discovered.

Having read the affidavits and the exhibited documents and having listened to the arguments by Counsel, I find that the Defendants and the Third Party have demonstrated substantial and irreparable prejudice sufficient to tilt the balance of justice in favour of these proceedings being dismissed without further hearing. I am satisfied that at this juncture a fair trial of the action would not be possible. I am prepared to accept that lawyers, as an essential part of their professional training and by reason of the daily discipline of practice, are required to and do develop a capacity for recall of events beyond that of the ordinary person. I am prepared to accept that some aid to memory may be supplied by the proceedings before and by the judgment of Murphy J. in O'Neill and Bova Genetics Ltd. v. Irish Hereford Breed Society Ltd. (above cited). However, even with those advantages, I am satisfied that because of the inevitable defects in recollection after a passage of 16 years, a fair trial of this action would not now be possible even in the absence of any evidence of specific difficulties to the Defendants and the Third Party. The Third party has pointed to particular difficulties which would materially affect him in the proper and fair conduct of his defence.

In the course of his judgment in the case of O'Neill and Bova Genetics Ltd. v. Irish Hereford Breed Society Ltd. (above cited), at page 622 and 623 of the report, Murphy J., held as follows:

"No case was pleaded in relation to bias by the council or any of its members nor was it otherwise alleged that there had been any want of natural or constitutional justice. Ironically it is in the defence that one finds particulars of the suggestion of breaches of the rules of the Society. The Defendants then deal with the validity of the expulsion in the following terms:-

'(3) After notification to the first Plaintiff of matters alleged against him and after giving him the opportunity to explain his conduct and defend himself, the council of the Society at a meeting duly constituted in accordance with rule 13 of the rules of the Defendant lawfully expelled the first named Plaintiff.'

To that extent it seemed that the Defendants were prepared to meet a claim that the decision taken on the 11^th July, 1989, was ultra vires because of want of natural justice. This was not the case pleaded on behalf of the Plaintiff. It was only in the running of the case that it emerged that such an argument was to be made and eventually by letter dated the 24^th July, 1990, the solicitors on behalf of the Plaintiffs furnished particulars of the grounds relied on to sustain that case. The crucial particulars are those set out in paragraphs (h) to (m) of that letter and which read as follows:-

'(h) The fact that the council meeting was attended by members of the editing committee who had already recommended expulsion and that those editing committee members fully participated in the decision of the council gave rise to a real likelihood of bias.

(i) The fact that the council meeting was attended by members of the editing committee who had already recommended expulsion and those editing committee members fully participated in the deliberation of the council gave rise to a reasonable suspicion of bias.

(j) The fact that the chairman of council initiated the complaints against the Plaintiffs, brought the complaints before the editing committee, sat on the editing committee and adjudicated on the complaint he had himself laid before the committee and then presided at the council meeting which considered the recommendation of the editing committee gave rise to a real likelihood of bias.

(k) The fact that the chairman of the council initiated the complaints against the Plaintiffs, brought the complaints before the editing committee, sat on the editing committee, adjudicated on the complaints he had himself made and then presided at the council meeting which considered the recommendation of the editing committee gave rise to reasonable suspicion of bias.

(l) The chairman of the council attended personally at Tully breeding station and personally made the report to the editing committee on which the editing committee purported to rely in making the report to council, which under the chairmanship of the chairman purported to expel the Plaintiff from membership of the Defendant.

(m) The tone and atmosphere of the meeting of the 11th July and in particular of the demeanour adopted and the remarks made by certain members of the council gave rise to a real likelihood of bias and a real suspicion of bias."

As I have already said I am satisfied that there was no personal hostility by Mr. Holloway or Mr. Heslip to the first Plaintiff and I accept the evidence of Mr. Holloway that the members of the council generally bore no ill-will to him and that their preference would have been to have received a satisfactory explanation for what appeared to be allegations of serious misconduct. It seems to me that the case stands or falls on the issue of bias and the unusual circumstances were that the first Plaintiff, though advised by distinguished lawyers, did not at any time during the course of the various hearings allege the existence or appearance of any such bias nor was it pleaded or alleged in this action until after the commencement of the hearing. The issue in relation to arbitration was dealt with by me with the consent of the parties as a preliminary issue. I held that the Plaintiffs were not entitled to have the issues in question referred to arbitration or alternatively that the decision in relation to the expulsion of the Plaintiff need not be postponed pending such an arbitration. The outstanding issue in the present case is, therefore, the question of bias."

At paragraph 11 of their Defence in the instant case, delivered on 25^th August, 1999, the Defendants plead that they at all times instructed the Third Party in relation to the matters the subject of these proceedings and acted in accordance with his advice and instructions and therefore are not guilty of the alleged or of any breach of contract. At paragraph 5 and 6 of the Third Party Statement of Claim delivered on 15^th March, 1996, the Defendants plead as follows:

"5 The Third Party gave various advices to the Defendants and was at all times aware or ought to have been aware that the procedures to be adopted by the Plaintiff in removing Mr. O'Neill as a member of the Council of the Plaintiff and as a member of the Plaintiff complied with the rules of natural justice.

6. The Third party was negligent in so advising the Plaintiff in that the Third Party failed to advise expressly or impliedly that persons who are members of the editing committee and had attended a meeting on that committee on 4^th May, 1989 could not participate in the meeting of the Council on 11^th July, 1989, which was to decide whether Mr. O'Neill was to be removed as a member as the members of the editing committee had prejudged some of the crucial facts which would fall to be decided by the Council of the Society at its meeting on 11^th July, 1989."

At paragraphs 3 and 4 of his Affidavit sworn on 6^th December, 2004, to ground this Application the Third Party deposes as follows:-

"3. I have retained no papers whatever in the matter and do not recall the incident particularly well. It was the only occasion on which I had ever received instructions from Hayes and Ross, Solicitors. The only work I have done in this case was a verbal consultation and two draft letters of response. I had dealt with a kindred case at the time brought by a Mrs. Ayers v. Irish Hereford Breed Society who was Secretary of the Society at the time and who, it was alleged, had an involvement with the Plaintiff, Mr. O'Neill.

When the matter came for hearing I was not briefed in the matter nor did I advise Proofs. I do not know why this was. As I said I did not draft any proceedings, advise any Proofs, give any written Opinions or anything in the matter and the work I did was done on or about the year 1989 and all appears to have been verbal.

4. The next I heard was a letter from Houlihan and Son, Solicitors, acting on behalf of Hayes and Ross who had been sued by the Plaintiffs herein and who joined me as a Third Party in 1995. A Statement of Claim was furnished in March, 1996 and the said Statement of Claim makes clear from the particulars, that I never gave any written advices in the matter, but attended consultations had telephone consultations, etc. I was not, as I said, briefed in connection with the hearing, nor did I advise Proofs or anything of that nature."

No issue was taken by the Plaintiff or by the Defendants with what is stated in these paragraphs. At paragraphs 6 and 7 of the Defence of the Third Party delivered on 28^th May, 1996 it is pleaded as follows:-

"6. It is denied that there was any negligence on the part of the Third party in giving advice to the Plaintiff or that there was any negligence in the alleged failure to advise expressly or impliedly that the persons who were members of the Editing Committee and had attended a meeting of the Editing Committee on the 4^th May, 1989 could not participate in the meeting of the Council on 11^th July, 1989, which was to decide whether Mr. O'Neill was to be removed as a member of the Editing Committee had prejudged some of the crucial facts which would fall to be decided by the Council of the Society at its meeting of the 11^th July, 1989, either alleged or at all.

7. The Third Party pleads that he was not expressly or impliedly requested to advise that persons who were members of the Editing Committee and had attended a meeting of that Committee on 4^th May, 1999, were entitled to participate in the meeting of the Council on 11^th July, 1989, or upon any matters related thereto and in the premises he did not owe the alleged of any duty of care as pleaded.

Despite the pleading at paragraph 4(a), (c), (d) and (f) of the Particulars in the Third Party Statement of Claim delivered on 15^th March, 1996, that written instructions were sent by the Defendants to the Third Party on 11^th May, 1989, 15^th May, 1989, 18^th May, 1989, 31^st May, 1989 and 2^nd June, 1989, no reply were ever furnished by the Defendants to the Third Party's notice for particulars dated 16^th May, 1996. By way of illustration, one of the particulars sought, - number 14 (c), - requested the Defendants to:-

"(c) State whether the Defendants or any of them specifically asked the Third Party as to actual or potential conflicts arising from the fact of person or persons attending at the Editing Committee on 4^th May, 1989, and participating therein would also be attending a meeting of the Council on 11^th July, 1989, and participating therein."

In my judgment there can be no doubt from a consideration of these excerpts from the documents put in evidence at the hearing of these Applications that a resolution of the matters in dispute in this action on the pleadings between the Plaintiff and the Defendants and between the Defendants and the Third Party, could only be achieved by means of the Trial Judge assessing the accuracy and reliability of the recollection of the various witnesses as to fact and the credibility of those witnesses.

In particular the Defence of the Defendants and that of the Third Party are both, the former to an enormous degree, and the latter, almost totally, dependant on the accuracy of the recollection of the Third Party. In such circumstances, I am satisfied that it would be altogether unjust to permit this outrageously stale action to proceed to a trial.

In the instant case there was both pre-commencement and post-commencement delay on the part of the Plaintiff. It was argued that the failure of the Defendant to take any steps to move the court to have this action dismissed for want of prosecution, or to set the action down for trial themselves, amounts to acquiescence on their part in the Plaintiff's delay. I cannot accede to this argument. The onus is on an intending Plaintiff and, on a Plaintiff who has commenced proceedings, to initiate proceedings and thereafter to prosecute those proceedings with all practicable dispatch.

In the case of Anglo Irish Beef Processors Limited and Anor. Messrs. Montgomery and Ors. (Unreported – July 31^st, 2002, Fennelly J.), the Supreme Court emphasised the important difference between culpable delay on the part of a Plaintiff in failing to take a crucial step in an action, in the instant case in failing in 1996 to bring a motion seeking further and better discovery or alternatively to set the case down for trial, and inactivity on the part of the Defendant in merely failing to seek to dismiss the action for want of prosecution.

The failure on the part of the Defendants either to seek to have this action dismissed for want of prosecution or, to set the action down for trial themselves, even from 1999 onwards, does not in my judgment amount to acquiescence in the Plaintiff's delay or to conduct inducing the Plaintiff to incur further expense in pursuing the action. I consider that it is entirely understandable that professional men would be most reluctant to do anything which might serve to animate a cause of action which appeared to be expiring due to inanition or, to force on to trial a timorous Plaintiff, in proceedings which could possibly cause serious damage to their professional reputation even if they should prove to be successful in their defence. This is a very great dilemma for professional persons whose hard earned reputation can so easily be damaged or destroyed by litigation and who therefore can hardly be faulted, to anything like the same degree as the tardy Plaintiff, in hoping that the litigation is motivated by opportunism rather than by a bona fide assertion of a claim of right and will not survive the pleading and interlocutory stages and will whither away without the possibility of damaging publicity. I find that the Defendants did not, nor did the Third Party, by word or by conduct induce the Plaintiff to continue with these proceedings or cause or encourage them to behave in a dilatory manner in the conduct of the action.

The court will therefore order that the action by the Plaintiff against the Defendants stand dismissed and that the Third Party Issue between the Defendants and the Third Party do also stand dismissed.


approved: Herbert J.