Judgment of Mr. Justice Clarke delivered the 17th of October, 2012.
1 Introduction
1.1 The events surrounding the award of a GSM mobile telephone licence by the Minister for Public Enterprise in 1995 have been a matter of very significant public controversy for well over a decade now. Those events have been the subject of investigation by, and the report of, what is commonly referred to as the Moriarty Tribunal. As is widely known Esat Telecommunications Limited ("Esat"), the third named defendant in the proceedings brought by Comcast International Incorporated along with three other parties (collectively "Comcast", and the "Comcast proceedings" respectively), was successful in the competition which led to the grant of the licence in question. Comcast was one of its losing competitors. Likewise the first named plaintiff in the other proceedings which are the subject of these appeals, Persona Digital Telephony Limited, who is joined by a co-plaintiff in its action (collectively "Persona" and the "Persona proceedings" respectively), was another unsuccessful competitor. Comcast, Persona and the other plaintiffs have initiated these proceedings with a view, amongst other things, to seeking damages arising out of what was said to have been misfeasance of public office, deceit and fraud in the way in which that competition was conducted.
1.2 It can, I think, be said that if the allegations which are made in these proceedings, and which formed the subject of the findings of the Moriarty Tribunal, were to be established in a court of competent jurisdiction, they would amount to amongst the most serious factual determinations made by a court in this jurisdiction since the foundation of the State. The allegations involve the assertion that the second named defendant in the Comcast proceedings ("Mr. Lowry"), who held the office of Minister for Public Enterprise at the time of the competition, was paid money by the fourth named defendant in the Comcast proceedings ("Mr. O'Brien") in order to influence the competition. It is alleged that such monies were paid both directly and indirectly and that Mr. Lowry, as Minister, did, in return for those monies, actually influence the competition in order to procure that Esat should win.
1.3 However, this court is not now concerned with the substance of those allegations. In circumstances to which it will be necessary to refer in due course, the first named defendant in both proceedings (“the Minister”) applied to the High Court to dismiss both the Comcast and the Persona proceedings for want of prosecution, delay and on the basis of the court's inherent jurisdiction to dismiss proceedings when there is a serious risk that any trial would be unfair. Those applications came on for hearing before Gilligan J. who made the order sought on behalf of the Minister in both proceedings. It should be noted that the “non-State parties” in the Comcast proceedings, namely Mr. Lowry, Esat and Mr. O’Brien, did not participate in the Minister’s application. Comcast, Persona and their associated plaintiffs separately appealed to this court against the judgment and order of Gilligan J.. This court has already ruled that the appeals be allowed and that the order dismissing both proceedings be reversed. I support the decision of this court in that regard. However, it was indicated that reasons would be given at a later date. This judgment is directed to the issues which arise on those appeals and to my reasons for supporting the ruling of this court. The backdrop to these appeals is the sequence of events giving rise to both proceedings and the progress of those proceedings once commenced. As much of the relevant factual background is dealt with in other judgments I will turn only briefly to the history of relevant events.
2 The History of Events
2.1 There are detailed accounts of the facts to be found in the judgments of Denham C.J., Hardiman J. and McKechnie J. Those judgments set out a full account of the proceedings and their, admittedly limited, procedural history. Background facts are also set out. In addition there is an analysis of the progress of the Moriarty Tribunal insofar as it dealt with the issues concerning the award of the GSM licence. In those circumstances it is unnecessary to repeat those accounts in this judgment.
2.2 However, there are a few additional facts which are, in my view, of some limited relevance to the issues which require to be determined in these appeals. Those facts will be dealt with as they arise in the context of a discussion of the issues debated on this appeal.
2.3 Against that background it is necessary to turn to the test by reference to which the court ought to consider whether to dismiss civil proceedings on the basis of delay, on the one hand, or in furtherance of its inherent jurisdiction to ensure a fair trial, on the other hand; it being recalled that the Minister sought the dismissal of both of these proceedings on both of those grounds and that Gilligan J. acceded to the Minister's application in both cases on both grounds. I turn first to the test applicable where it is sought to dismiss proceedings for delay.
3. Dismissal For Delay – The Test
3.1 In one sense it can be said that the overall approach is well settled. In Desmond v M.G.N. Limited [2009] 1 IR 737, at p.749, Macken J. (who was part of the majority of this court in that case) adopted the tests which I had mentioned in Stephens v. Flynn Limited [2005] IEHC 148 being:-
3.2 In formulating the test in that way I had followed a long line of authority stretching back to the decisions of this court in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. I did not understand counsel on either side of these appeals to suggest that those tests were not the applicable tests. In addition I do not understand any of the recent jurisprudence in this area to question that those tests represent the appropriate questions to be considered by the court.
3.3. However, it does have to be accepted that there has been what might, at a minimum, be considered to have been a difference of emphasis apparent from certain recent judgments in both this court and in the High Court, as to the manner in which those tests should be applied and in particular whether there was to be, as I put it in Stephens v. Flynn Limited, a re-calibration or as others have described it, a tightening up, in the application of those tests.
3.4 That recent jurisprudence goes back to the judgment of Hardiman J. in this court in Gilroy v. Flynn [2005] 1 ILRM 290. That judgment suggested that the courts had become ever more conscious of the unfairness of, and increased possibility of injustice which attached to, allowing an action which depends on witness testimony to proceed a considerable time after the cause of action had accrued. The judgment also noted the decisions of the European Court of Human Rights ("the ECtHR"), in cases such as McMullen v. Ireland (Application no. 42297/98, 29th July, 2004) [2004] ECHR 42297/98, and the obligation, independent of the actions of the parties, on the courts to ensure that civil litigation is determined within a reasonable time. Hardiman J. also noted then recent changes in the Rules of the Superior Courts which appear to place a greater obligation on the courts not to excuse, save in special circumstances, repeated procedural failures on the part of litigants.
3.5 Relying on those matters I expressed the view in Stephens v. Flynn, in a passage immediately after that setting out the tests approved of by Macken J. in Desmond, that:-
"[I]t seems to me that for the reasons set out by the Supreme Court in Gilroy the calibration of the weight to be attached to various factors in the assessment of the balance of justice and, indeed, the length of time which might be considered to give rise to an inordinate delay or the matters which might go to excuse such delay are issues which may need to be significantly re-assessed and adjusted in the light of the conditions now prevailing. Delay which would have been tolerated may now be regarded as inordinate. Excuses which sufficed may no longer be accepted. The balance of justice may be tilted in favour of imposing greater obligation of expedition and against requiring the same level of prejudice as heretofore."
3.6 That reasoning was upheld by this court in an appeal in Stephens v. Paul Flynn Limited [2008] 4 IR 31.
3.7 However, the need for recalibration or tightening up was questioned to some extent in Desmond where Geoghegan J. (also part of the majority) indicated that he was not convinced that it was necessary to revisit the principles set out in Primor and Rainsford.
3.8 In the light of the, at least potentially, conflicting jurisprudence on the question of whether there ought properly be a re-calibration or tightening up of the criteria by reference to which the actions or inactions of parties might be judged, I suggested an overall approach in Rodenhuis and Verloop B.V. v. HDS Energy Ltd. [2011] 1 IR 611, at pp.616-617, in these terms:-
"As long as it remains the case that the procedure in this jurisdiction is left largely in the hands of the parties, then it follows that the pace at which litigation will progress will be highly dependent on the initiative shown by those parties. To the extent that it becomes clear that parties will be significantly indulged even though they engage in delay, then that fact is only likely to encourage delay. If parties feel they can get away with it, and if that feeling is justified by the response of the courts, then there is likely to be more delay. It seems to me, therefore, that it is necessary, in a system where the initiative is left largely up to the parties to progress proceedings, for the courts to make clear that there will not be an excessive indulgence of delay, because if the courts do not make that clear, it follows that the courts’ actions will encourage delay and, thus, will encourage a situation where cases will not be completed within the sort of times which would be consistent with compliance with Ireland’s obligations under the European Convention on Human Rights.
As I pointed out it is correct to say that there is no jurisprudence of the [ECtHR] dealing with the circumstances in which proceedings must be dismissed for delay. However, it does seem to me that if the courts in a common law jurisdiction, and in the absence of case management for any particular category of case, to use the words of Hardiman J., “endlessly indulge” delay then that fact is only likely to increase delay and increase a failure to comply with Ireland’s Convention obligations. It seems to me that that analysis justifies the view which I expressed in [Stephens] (and which was approved of by the division of the Supreme Court which heard the appeal in that case) which was to the effect that there needed to be a tightening up or recalibration of the application of the long established principles in the delay jurisprudence, without altering the tests to be applied.
For those reasons it seems to me that the tightening up to which I referred in Stephens is an appropriate course of action for the courts to adopt. It does not seem to me that there is any clear or authoritative view from the Supreme Court which would bind me to take a different view. I therefore propose to apply the test which I identified in [Stephens] and which was approved of by Macken J., speaking for the majority in [Desmond], but with the tightening up to which I referred in the very next paragraph of my judgment in [Stephens]."
3.9 I see no reason to depart from the views which I expressed in Roddenhuis. The overall test remains the same. That has been the consistent position adopted in all the cases. However, it seems to me that the factors first identified by Hardiman J. in Gilroy do require that the application of that test be approached on a significantly less indulgent basis than heretofore.
3.10 However, I should express my agreement with a number of the observations made on this question by McKechnie J. in his judgment in this case. First, I agree fully with the comments made by reference to Guerin v. Guerin [1993] I.L.R.M. 243. The circumstances of the parties and, in particular, any disparity in the resources available to the parties must always be a factor which the court takes into account. The degree of expedition and compliance with time limits which could properly be expected of large corporations involved in commercial disputes cannot reasonably be required of poorly resourced or otherwise disadvantaged litigants who may have to resort for representation to small law firms frequently accepting instructions without any guarantee of payment. Any legitimate tightening up must give all due consideration to the difficulties with which such parties are faced in progressing litigation which can, in many cases, be of significant importance to the party concerned.
3.11 Second, I agree with the views expressed by McKechnie J. as to the need to apply any heightened standards of expedition to defendants as well. If the true rationale for a tightening up is the need for a more time-conscious regime to ensure that proceedings are determined in a timely fashion, then it follows that the need for such a regime places obligations on defendants as well. The problem with which courts in a common law system is faced is that, in the absence of active judicial case management, the pace at which litigation is to progress is left largely in the hands of the parties. While active case management has been introduced in certain categories of cases in recent times, it may not be practicable to provide such case management in all cases. Indeed a high level of (costly) management may not be suitable for all types of cases and in all circumstances. There will, therefore, remain cases where the pace of litigation does lie, to a significant extent, in the hands of the parties. But, as McKechnie J. points out, that fact places obligations on defendants as well. The Rules of Court provide various mechanisms which allow a defendant, who is concerned by the slow pace of litigation, to seek to have the process accelerated. A defendant who does not avail of those procedures is, in my view, in a different position from a defendant who has sought to speed up the process but has been frustrated in that endeavour by a failure on the part of the relevant plaintiff to respond reasonably.
3.12 Finally, I would also agree with McKechnie J. that, while a gold standard of practice must always be striven for, it would be unjust to regard a party who, in all the circumstances, had acted with reasonable expedition, as having been guilty of inordinate delay simply because the standards of expedition demonstrated do not measure up to the very highest standards of best practice.
3.13 With those observations in mind I do, however, remain of the view that tightening up is required. While the court will, understandably, be concerned to balance the interests of justice arising in the case before it and, in that regard, to consider all relevant facts, nonetheless the overall approach of the courts, if unduly lax, has the potential to create injustice by delay across a whole range of cases whose facts may never come to be considered by a judge, but whose progress is adversely affected by a culture of delay.
3.14 It is next necessary to turn to the test by reference to which proceedings may be dismissed, even in the absence of fault, as a result of the inherent jurisdiction of the court.
4. Unfairness – The Test
4.1 That there is a separate line of authority suggesting that there are circumstances in which proceedings can be dismissed for delay, even though there is no culpability on the part of the plaintiff concerned, cannot doubted. Those authorities were analysed by Gilligan J. in his judgment in this case between pp.40 and 45. Towards the end of p.45 Gilligan J. concluded, correctly in my view, that, whilst in some of the cases there was something of a conflation between arguments relying on prejudice caused by inordinate and inexcusable delay, on the one hand, and simple unfairness, on the other hand, there remains a separate jurisdiction in the court to dismiss if there is a real prospect that the defendant will not be able to have a fair trial or that it would be unfair to require the defendant to meet the case after such a long delay.
4.2 For the reasons which I addressed in my judgment in Kennedy v. D.P.P. [2012] IESC 34 (although that case was concerned with prohibition in the criminal context), I am concerned to ensure that proceedings should be tried on the merits in all cases where no blame can lie on the party bringing the proceedings (plaintiff or prosecutor) save where there is a high degree of assurance that the relevant defendant will not be able to get a fair trial or will suffer serious unfairness. Nevertheless, for reasons which will become apparent, it does not seem to me that the facts of this case demonstrate the sort of prejudice or impairment to the Minister in the conduct of his defence which would meet the test in any of the ways in which it has been characterised in the jurisprudence. This case is not, therefore and as should become clear in the course of this judgment, one in which it is necessary to address with some precision the precise test which is to be applied in dismissing a case where there is no blameworthy delay on the part of the plaintiff.
4.3 However, I should make one general observation. It seems to me that the threshold which must be surmounted to justify the dismissal of proceedings where there is no culpable delay on the part of the plaintiff must necessarily be more onerous than that which applies in the case of culpable delay. If the thresholds were the same then the jurisprudence on delay in such cases would be meaningless for the level of impairment in the ability to present a defence which would have to be shown would be the same whether there was or was not culpable delay. Furthermore, a test which made it easier to dismiss proceedings where there was no culpable delay would be illogical. It follows, in my view, that whatever approach is adopted to the dismissal of cases where no culpable delay is established, it must, necessarily, require that a higher threshold be met. The rationale behind the existence of two separate bases for dismissal is that there will be some cases where the degree of unfairness to a defendant (whether because of severe impairment in the ability to mount a defence or other factors) may be so great the even a blameless plaintiff may have to suffer their proceedings being dismissed.
4.4 Having dealt with the relevant tests I now turn to a consideration of whether the Minister is entitled to have both of these proceedings dismissed for inordinate and inexcusable delay in accordance with the jurisprudence to which I have referred.
5. Delay
5.1 As pointed out earlier, the first leg of the relevant test is as to whether a plaintiff can be said to have been guilty of inordinate and inexcusable delay. There was no question but that Persona, Comcast and the other plaintiffs (collectively "Persona and Comcast") were guilty of inordinate delay. Neither plaintiff contested that allegation. It is, indeed, impossible to see how any contest could have been raised. The delay between the issuing of the relevant proceedings and the filing of the statements of claim was of the order of five years. Delays of much shorter periods have been found to represent inordinate delay. Even in complicated cases, where the formulation of a detailed statement of claim would undoubtedly take some time, delays of a fraction of five years have been considered inordinate.
5.2 In addition it is clear from cases such as Birkett v. James [1977] 2 All E.R. 801 (as adopted in both the High Court and this court in Stephens v. Paul Flynn Limited) that a party who starts their proceedings late, while within the relevant period provided for in the Statute of Limitations, bears an added burden of progressing their proceedings with expedition. The point is that the period within which proceedings have to be commenced is laid down by statute. It is not for the courts to second guess the choice of period provided for by the Oireachtas. However, the court’s role in ensuring a fair and just resolution of proceedings requires that all reasonable steps are taken to ensure that the gap between the events which are the subject of a trial and the trial itself is no longer than might be considered reasonable in the context of the limitation period provided for by the Oireachtas for that type of claim. Therefore, where a claim is started promptly, some greater degree of latitude may be allowed as to its pace of progress (everything else being equal) compared with a claim which is brought just as the limitation period is about to run out so that the period from cause of action to trial is going to be lengthy in any event. As noted in the judgment of Hardiman J., these proceedings were commenced at the very extremity of the limitation period and would, therefore, have been required to have been progressed with extra expedition. The fact that the respective proceedings were served at the limit of the period allowed by the rules for service and thus well outside the limitation period only adds to that requirement. Inordinate delay is, therefore, clear.
5.3 Whether the first leg of the test is met, therefore, turns on whether the undoubtedly inordinate delay which occurred can also be said to be inexcusable. Both Persona and Comcast rely on substantially the same and single excuse. It is said that it was necessary to await developments at the Moriarty Tribunal in order that the respective claims could be properly formulated and pleaded at all. In those circumstances it is said that, in the very unusual situation which arose in this case, an undoubtedly inordinate delay is excusable.
5.4 The first leg of the test, therefore, turns on whether that explanation provides an adequate excuse for the delay in question.
5.5 Before going on to deal with that issue it seems to me to be appropriate to make a number of observations. First, there is the question of covert wrongdoing. In many cases a plaintiff wishing to pursue civil proceedings will, either of that party's own knowledge, or with the assistance of known witnesses of fact or experts whom that party can employ, have sufficient information available to it to be able to plead their case. Persons injured in accidents, whether on the roads or in the workplace, will normally be able to give a reasonable account of how the accident occurred such that their lawyers can formulate a claim on their behalf in negligence if that be stateable. Likewise, experts such as engineers or doctors can be employed to provide necessary detail if required. Similarly, parties aggrieved, in the commercial context, with those with whom they have contractual relations will normally, from their own knowledge, be able to specify the terms of any relevant contract and, at least generally, be able to set out any alleged breaches and their consequences. It may, of course, be the case that such parties will require the aid of procedural measures such as discovery or interrogatories in order to be able to present their case to its best advantage at trial. Evidence or lines of inquiry may be suggested which may lead to a stronger case. However, it would be rare in such cases that the party would not be able to formulate their claim in any meaningful way.
5.6 However, different considerations may well arise (although not necessarily in all cases) where an allegation is made of covert wrongdoing. The problem with covert wrongdoing is, of course, that it is covert. A person who suffers from covert wrongdoing may have little or no direct knowledge of the wrongdoing. In some, perhaps many, cases a party may entertain a suspicion of, for example, fraudulent or anti-competitive behaviour which is said to have operated to their detriment. However, a suspicion that could lead to no more than a vague generalised allegation could not provide a proper basis for commencing proceedings. As was noted in discussion between the court and counsel during the appeals in this case, it will often be as a result of some event over which an aggrieved party had no control or influence that information may become available such as would allow such a party to turn a mere suspicion of covert wrongdoing into a stateable allegation. Inquiries by public authorities (including prosecution authorities) may sometimes provide the necessary detail. Whistleblowers may bring information into the public domain. A party may chance upon some useful material capable of turning a suspicion into an allegation. The important point to emphasise is that persons who wish to make an allegation of covert wrongdoing will inevitably face difficulties in being able to formulate a claim. It seems to me that all due allowance needs to be made for that fact in assessing cases where delay is alleged in claims of covert wrongdoing.
5.7 That being said, the difficulties which such parties may encounter cannot be allowed to be an excuse for procedural inaction. It is equally the case that persons facing the kind of serious allegations which are frequently at the heart of covert wrongdoing claims are just as entitled as any other party facing a serious allegation to have the allegation concerned heard and determined in a timely manner. A party bringing a claim for covert wrongdoing cannot just sit on its hands and hope that something will turn up. Such a party is obliged to take all reasonable steps to progress their claim. However, the speed at which the claim progresses must be judged, provided that all reasonable steps are taken, against the backdrop that it may, nonetheless, be difficult to progress such a claim in as expeditious a way as the type of claim where most of the information necessary for the formulation of the claim in question will be available to the claimant.
5.8 Second, it seems to me that a party, who wishes to adopt what might, in ordinary circumstances, be considered to be an unorthodox approach to litigation (such as by putting the proceedings on hold pending some event), is required to, at a minimum, place on record with all other parties to the litigation, that that course of action is being adopted. It does not seem to me that it is legitimate for a party to adopt an unorthodox approach to litigation on a unilateral basis. Indeed, it was the failure of the plaintiff in Desmond v. M.G.N. to inform the defendant that it was intended to await developments at the Moriarty Tribunal that led this court to view the explanation given as not being sufficient to excuse the delay in question. While Desmond v. M.G.N. and this case involved a party who was in the unusual circumstances of electing to await developments at a public tribunal of inquiry, it seems to me that the overall principle is more far-reaching. A party who is likely to have to spend a much longer period than might ordinarily and reasonably be expected in preparing court documents or in preparing to take an important step in proceedings (such as serving a notice of trial or certifying the case as being ready) because of delays being encountered in, for example, procuring expert reports, has, in my view, an obligation to bring those difficulties to the attention of all other parties.
5.9 In different contexts it has often been said that litigation is a two-way process. However, it seems to me that all parties are entitled contemporaneously to reasonable disclosure of an intention to adopt an unorthodox approach which is likely to lead to a delay of a significant variety in the progress of litigation. It seems to me that much greater weight ought legitimately be placed on explanations which are tendered contemporaneously thus affording other parties a reasonable opportunity to take whatever steps may be considered appropriate in the event that it is considered that the proposed unorthodox course of action is not justifiable. Unorthodox action signalled contemporaneously and not contested at the time is likely to be more readily accepted by the court as providing an excuse than the same action taken unilaterally and only referred to after the event as retrospectively providing an explanation.
5.10 Against that backdrop it is necessary to turn to the facts of these cases. In that context there is a slight difference between the respective plaintiffs. I will deal with that difference in due course. However, as pointed out, the broad excuse tendered is the same. It is accepted that the proceedings were only issued at the last minute so as to ensure that the Statute of Limitations did not run. Both plaintiffs seemed to suggest that suspicions about the integrity of the licence awarding process were held from the beginning. However, it does not seem on the evidence currently before the court that those suspicions could have matured into anything more than a mere suspicion until certain matters came into the public domain in the period immediately prior to the expiry of the limitation period. One such matter was a newspaper report which suggested that a company which formed part of the winning consortium had made a significant party political donation at or around the time when the licence process was afoot. The second, and it would appear connected, development was the announcement by the Moriarty Tribunal that it intended to inquire into the award of the GSM licence. On the evidence currently available it does not seem to me to be unfair to characterise those events as being ones which could reasonably cause a mere suspicion to mature into an at least stateable allegation.
5.11 However, at the time both proceedings commenced it does not seem to me that either plaintiff would have had available to it anything remotely like sufficient information to formulate a detailed statement of claim. It is in that context that both Persona and Comcast say that it was legitimate for them to await developments at the Moriarty Tribunal so as to place them in a position where they would be able to formulate a statement of claim. At the level of principle it seems to me that Persona and Comcast are correct in that regard. The allegation made is of highly covert activity. There was no reasonable basis on which either Person or Comcast could have been expected to have had sufficient information to formulate a statement of claim in any meaningful way at the time their respective proceedings were issued. There is, in my view, a significant difference between having sufficient information to justify issuing proceedings in circumstances which would not amount to an abuse of process, on the one hand, and having sufficient information to be able to formulate a claim in a detailed way, on the other.
5.12 Against that general proposition, however, the Minister makes a number of arguments. It is said that there were courses of action available to both Persona and Comcast which could, and it is said should, have been adopted in the light of the undoubted obligation which rested on Persona and Comcast, having regard to their very late commencement of proceedings, to progress with all possible expedition.
5.13 First, it is said that pre-statement of claim discovery of documents could have been sought. While there are, undoubtedly, circumstances in which the court has a jurisdiction to depart from the normal procedure of allowing discovery only when the issues between the parties have been knit by the exchange of pleadings, I am not convinced on the facts of this case that pre-statement of claim discovery could have appeared to Comcast or Persona as being likely to supply them with the necessary information to formulate their claims. Doubtless any documents held by the Department of Public Enterprise, arising out of the award process, could have been sought. However, the key information concerning the very serious allegations of wrongdoing, which are at the heart of these proceedings, involved a money trail. One should, of course, avoid over-reliance on hindsight. Nevertheless, it is clear that establishing the series of transactions which, in the view of the Moriarty Tribunal, demonstrated monies being paid to Mr. Lowry, involved a significant degree of forensic disclosure from financial institutions and others with the benefit of the significant powers of compellability which are available to a tribunal of inquiry. Even without the benefit of that hindsight it seems to me that it was not unreasonable for Persona and Comcast to conclude that discovery was unlikely to produce the necessary detail and that it was much more likely that any such detail would, if it existed, become available through the tribunal.
5.14 The second and third matters relied on by the Minister are the suggestions that Persona and Comcast could have either applied to the court to stay their own proceedings pending developments at the Moriarty Tribunal or, alternatively, ought at least to have indicated to the Minister that it was their intention to "park" the proceedings pending such developments at the Moriarty Tribunal and thus enabling the Minister to take whatever action might have been considered appropriate in those circumstances.
5.15 It seems to me that both of those factors can be considered together. It is true that there have been come cases (such as Doe v. Armour Pharmaceutical Company Inc. [1994] 3 I.R. 78) where the court has allowed a plaintiff to put its own proceedings on hold (by granting a stay). However, most of those cases involved parties who had other proceedings in being (perhaps in another jurisdiction) which it was suggested ought to be decided first or where a challenge existed to the entitlement of another jurisdiction to determine certain issues and where the Irish proceedings were a fallback to preserve the plaintiff's position in the event that the challenge to the foreign court's jurisdiction was successful. None of the cases cited in argument came close to the circumstances which existed in these cases. However, that leads to the third point. Whether or not Persona and Comcast could have been proactive and sought to stay their own proceedings, I am satisfied, for the reasons already analysed, that it is not appropriate for a party to take the unorthodox step of, in effect, "parking" proceedings without at least making some attempt to raise that question with the other parties to the relevant litigation. Subject to one matter which arises only in the context of the Persona proceedings, no attempt so to do was made by either plaintiff in these proceedings. This is an issue to which I will return.
5.16 Finally, attention is drawn by the Minister to the fact that, long before the statements of claim in these proceedings were filed, counsel on behalf of the Moriarty Tribunal had, as is the normal practice, given a lengthy opening statement at the commencement of the module of the tribunal which was concerned with the award of the GSM licence. On that basis it is said that, at least from that time, there was significant information available to both plaintiffs which would have allowed the formulation of a statement of claim in, it is said, much the same form as the statements of claim which were ultimately filed. It is in that context appropriate to note that, in reality, the statements of claim only came to be filed when motions were brought which had the effect of compelling the delivery of statements of claim on risk of the respective proceedings being struck out. I will also return to this issue.
5.17 It seems to me that there is some substance to the State's argument under the latter two headings just referred to.
5.18 In that context, it is, however, important to note three countervailing factors which have some influence on an overall assessment of those issues. First, attention was drawn to the fact that a warning letter was sent by the Minister to the solicitors for Persona which gave a period of 21 days within which to file a statement of claim in default of which an application to "strike out these proceedings for want of prosecution" was threatened. The statement of claim in those proceedings was, in fact, filed within that period of 21 days.
5.19 There are two express provisions to be found in the rules which allow for an application to dismiss for want of prosecution. The more general provision is to be found in O.122, r.11 which says the following:-
"[…] In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just.[…]"
5.20 A more specific provision is found in O.27 which applies in circumstances where a statement of claim is not filed in the time required by the rules and where, in cases such as those with which this judgment is concerned and involving a claim for unliquidated damages in contract or tort, the moving party is required to write a preliminary letter which offers an extension of time.
5.21 It may be that it is also possible to invoke the courts inherent jurisdiction to dismiss in the case of inordinate and inexcusable delay even in cases which are not governed by the two specific rules to which reference has been made. In that context it is relevant to note paras. 15-73 of Delaney and McGrath Civil Procedure in the Superior Courts (3rd Edition Thomson Round Hall 2012) and the reference therein to the decision of this court in Collins v Dublin Bus (Unrep., Supreme Court, Murphy J., 22nd October, 1999).
5.22 Under the rules, therefore, a claim to dismiss for want of prosecution arises either where the statement of claim is not filed on time, in which case an opportunity to file within 21 days must be given, or where there has been no action for two years. In the latter case no offer of an extension of time need be made. An application to dismiss for inordinate and inexcusable delay may also arise under the court's inherent jurisdiction in other circumstances.
5.23 It is clear, therefore, that the Minister had a number of options available to him. It is certainly the case that the Minister could have moved under O.122 for it is clear that a period of much more than two years had elapsed with no proceeding. It may also be that the Minister could also have moved under the inherent jurisdiction. It is interesting to note that the motion brought by the Minister in the Persona proceedings seeks, in the alternative, an order "pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the defendants for delay and/or want of prosecution" and an order "pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the defendants in the interests of justice". No specific provision of the Rules of Court is referred to. It is not clear, therefore, as to whether the Minister actually considered that he was proceeding under O.27. Certainly the fact that a warning letter of the type that is required, by the rules, to be sent in advance of making an application to dismiss for want of prosecution under O.27 was written. However, be that as it may, it is clear that the Minister had a number of options open to him at the time when it was decided to write to Persona. Even if the Minister considered moving under O.27 (which would, as has been pointed out, have required the writing of a letter extending time for 21 days) the Minister could have chosen an alternative means of action.
5.24 It seems to me that O.27 r.1 and r.1A are primarily designed as a method of speeding up proceedings even though the form of the order which may ultimately be sought, is to dismiss for want of prosecution. That situation is analogous to that which now pertains under O.27 r. 8 where, in the cases to which that rule applies, a plaintiff is required to write a similar letter extending time for defence prior to initiating a motion for judgment in default of defence. While the ultimate order which would be sought in the absence of the defence being filed within the extended period granted by the letter is an order for judgment nonetheless the primary purpose of the order is to provide a mechanism whereby the filing of a defence may be speeded up rather than the proceedings brought to an end.
5.25 There can be little doubt, therefore, that by choosing to write a letter extending time (whether because of a desire to move under O.27 or otherwise) the Minister would have conveyed the impression to Persona that he was more concerned with ensuring that the proceedings were now moved along after a period of inaction rather than that the Minister desired to bring the proceedings to an end. While it does not seem to me that such an action on the part of the Minister creates a formal estoppel preventing the Minister from thereafter moving to dismiss (in the absence of further significant delay) and while I would not go so far as McKechnie J. in treating the Minister's actions as an abuse sufficient to debar the Minister from seeking to have the Persona proceedings dismissed, nonetheless the choice by the Minister to write the letter extending time seems to me to be a factor to which some very significant weight must be attached insofar as Persona is concerned for it would reasonably have conveyed to Persona that the Minister was not then contemplating the dismissal of the proceedings for delay. Persona acted on that understanding to its detriment by incurring the costs of preparing and serving the statement of claim. It seems to me that that situation also needs to be taken into account in assessing the next factor on which Persona places reliance.
5.26 The second factor relied on by Persona is a conversation deposed to in the affidavits filed which is said to have occurred, at the tribunal, between a member of the solicitors firm representing Persona and a solicitor in the Chief State Solicitor's Office who was involved in representing State interests at the Moriarty Tribunal. It does not appear that there is any evidence denying that such a conversation took place. On that basis it seems that the court must, on the evidence, conclude that there was a conversation in which it was intimated on behalf of Persona that the Persona proceedings would not be progressing pending developments at the tribunal and that no objection to that course of action was intimated on behalf of the Minister either then or subsequently.
5.27 It seems to me that too great a weight cannot be attached to what was a relatively informal conversation which occurred while both solicitors happened to be present at the tribunal. In order to properly comply with the obligation to keep all other parties informed of any proposed unorthodox conduct of proceedings (on the basis of the analysis which I have earlier conducted) it seems to me that something more formal than that casual conversation was required. Nonetheless, it seems to me that the fact of that conversation can be taken into account in the overall assessment of excusability. In addition, it seems to me that it would have been reasonable for Persona, on receiving the relevant correspondence extending time for filing a statement of claim by 21 days, to have assumed that the Minister had broadly accepted inaction up to that point in time, but then wished the proceedings to progress.
5.28 Finally, attention was drawn to the fact that, when a senior official of Persona was giving evidence before the tribunal, counsel for the Minister put it to him that the tribunal was being used as a "stalking horse" for the proceedings; thus indicating, indirectly at least, an implicit knowledge of the plaintiff’s intended course on the part of the Minister.
5.29 Taking all three factors together it seems to me that the Minister must, at least in a general way, have been aware of the fact that the respective plaintiffs (certainly in the case of Persona and, by implication, it would follow that of Comcast also) were awaiting developments at the Moriarty Tribunal before progressing their claim.
5.30 It is next necessary to turn to the point made on behalf of the Minister to the effect that, whatever might have been the situation when the proceedings were issued, at least from the time when the opening statement on the GSM licence module was made by counsel for the tribunal, both plaintiffs had sufficient information available to formulate a statement of claim. It is again important not to view matters with the benefit of hindsight. However, it does need to be noted that it is in the nature of tribunals, conducted as they are in an inquisitorial manner, that developments are likely to occur as the hearings progress. Developments of some materiality to the issues which arise in both of these proceedings did in fact occur. While it is unnecessary to set it out in detail, certain payments alleged to have been routed to Mr. Lowry by Mr. O'Brien through the English football club Doncaster Rovers were the subject of developments at the tribunal which, in fact, post-dated the time when the statements of claim in these proceedings were filed. In that context it is said that there may well be applications to amend the proceedings to include further allegations based on what were said to be the revelations made in that regard at the Moriarty Tribunal. I express no view on whether such an amendment could or should be allowed.
5.31 However, that fact does show that it was not unrealistic to anticipate that there might be developments as the proceedings at the tribunal continued. In fairness to Persona and Comcast it does also need to be noted that it was anticipated at the time when the module concerning the GSM licence commenced that the tribunal would complete the hearing of evidence on that module in a relatively short period of time. As we all know that turned out not to be the case. However, a decision to await developments needs to be seen in the context both of the likelihood that such developments might well occur and the fact that it was anticipated that all relevant information would be available in a relatively short period of time. In that context I agree with the views of Hardiman J. that there could be no basis for awaiting the result of the tribunal itself. The views expressed by a tribunal may be of considerable public importance. However, those views could have no bearing on civil proceedings. It follows that, while the parties might, undoubtedly, be very interested to hear the conclusions of the tribunal, those conclusions could have no effect on civil proceedings and therefore awaiting the result of the tribunal's findings could not provide any justification for delaying the progress of civil proceedings. What is, at least in general terms, potentially justified, is waiting to see what information may become available through the exercise by the tribunal of its powers of compellability. Any such waiting would necessarily only justify delay up to the conclusion of the evidence hearing process for, after that time, there could be no reasonable expectation of any further material developments which could have a bearing on the proceedings.
5.32 While it might be said that Persona and Comcast did, when counsel for the tribunal's opening statement had been completed, have a significant factual basis which ought to have allowed a statement of claim to be formulated in both cases, there does seem to me to be some merit in the point made in response by counsel for both plaintiffs. It was said that it was reasonable to anticipate, given the fluid nature of tribunals, that there would be developments. For the reasons already set out, I am satisfied that that is a reasonable position to take. However, counsel went further and suggested that if, as the Minister argued, a statement of claim should have been filed soon after the opening statement, there was a very real likelihood that that statement of claim would need to have been reassessed from time to time in the light of developments at the tribunal (leading, in all likelihood, to a number of amendments to the statements of claim) and that, in those circumstances, it was reasonable to await developments during the module concerned with the GSM licence so as to be able to formulate the claim in as comprehensive a fashion as possible. In that context both counsel responded to the point made on behalf of the State, to the effect that the statements of claim may still need to be amended, by drawing attention to the fact that both plaintiffs were placed in a position where they had to file the best statement of claim that they could or else face their respective proceedings being dismissed. All in all I am satisfied that it was not unreasonable for Persona and Comcast to seek to await as many developments of the Moriarty Tribunal, relative to their proceedings, as they could before filing a statement of claim. However, it seems to me that the point made against both Persona and Comcast, which accuses both of having taken unilateral action in that regard without putting the Minister on notice, applies equally to the excuse tendered for failing to file a statement of claim after the opening statement as it does to the general excuse tendered for delay.
5.33 Taking all of those factors together, the matter which causes me most concern is the fact that neither Persona nor Comcast took any formal steps to inform the Minister that it was their intention to, in effect, "park" the proceedings pending developments at the Moriarty Tribunal. By not adopting that formal position, it seems to me that the Minister was, at least to some extent, prejudiced by being deprived of the opportunity of taking advice on, and taking whatever steps might be advised in relation to, the situation which would then have become clear. For that reason it does not seem to me that it can properly be said that the delay in these cases is fully excusable.
5.34 However, in assessing the extent to which delay might nonetheless be blameworthy it seems to me that the court must take into account the fact that, in the context of an allegation of covert wrongdoing where a public tribunal with significant powers of compellability was conducting a highly relevant investigation, it was, at least in general terms, reasonable to await developments. It is the failure to make sufficiently clear that that course of action was being adopted that leads me to conclude that the delay is not fully excusable. For the reasons already analysed I am not satisfied that pre-statement of claim discovery could reasonably have been seen by either plaintiff as being likely to provide the information necessary to produce a statement of claim on the facts of this case. In addition, while some reasonable detail must have been available to both plaintiffs as soon as counsel's opening statement at the tribunal had been made, it was not, again at the level of principle, unreasonable to wait for what then seemed likely to be a relatively short period of time, to ascertain whether further information might come out. The only real criticism that can be made of both plaintiffs in that context was that it would, perhaps, have been more prudent, as it became clear that the relevant module was going to take a lot longer than was first anticipated, to again adopt the formal position that the statement of claim was to await further potential developments at the tribunal, thus enabling the Minister to take whatever action it might consider appropriate in the light of that position being adopted. Finally, for the reasons already analysed, I am satisfied that the Minister must have been, at least in general terms, aware, despite the fact that neither Persona nor Comcast had formally notified it of the fact, that the proceedings were being parked pending the developments of the Moriarty Tribunal.
5.35 In all those circumstances it seems to me that it is appropriate to characterise this case as one where the explanations given by both plaintiffs go some significant way towards providing an excuse but do not render the delay fully excusable in all the circumstances. In that context it is, therefore, necessary to turn to the balance of justice.
6 The Balance of Justice
6.1 On the facts of this case it seems to me that the starting point for consideration of where the balance of justice lies must be to give all proper recognition to the fact that the delay in question, while inordinate, was, for the reasons already analysed, in my view, significantly, although not completely, excusable. In addition to that factor, the issues which are raised in these proceedings involve questions of high public interest. While that fact is not, of itself, decisive, it does seem to me that some significant weight needs to be attached to it. A definitive ruling by a court of competent jurisdiction on the serious questions of fact which lie at the heart of the allegations in both of these cases is a matter to which appropriate weight should be attached.
6.2 In all cases where the court has to consider the balance of justice the extent of any prejudice to the defendant caused by delay needs to be assessed. In that context it is important to note that the Minister did not put forward any claim to specific prejudice in the form of absent witnesses or missing documentation. The Minister sought solely to rely on the undoubted general prejudice that may arise when any proceedings are conducted a very long time after the events under scrutiny. It was in that context that Gilligan J. characterised the State's prejudice as moderate.
6.3 While one should not become overly enmeshed in terminology on degree such as "mild", "moderate", "severe" or "extreme", I would, respectfully, disagree with Gilligan J. and would instead characterise the prejudice established on behalf of the Minister in this case as being mild. A number of factors need to be taken into account. At least so far as many of the issues which are likely to arise in these proceedings at trial are concerned, this case can be regarded as a so-called "documents" case, where there are contemporary records of much of the matters which will require to be addressed in evidence. It is, of course, the case that this is not a pure "documents" case where the issues turn on the construction of documents and where oral testimony is likely to be of only marginal relevance. In such cases prejudice caused by delay will be non-existent or extremely remote. However, the availability of contemporary records will, in my view, at least so far as a lot of the issues likely to arise are concerned, minimise any risk of prejudice.
6.4 There are, it has to be said, some issues which are likely to arise (if one takes into account the matters which influenced the views of the Moriarty Tribunal and which are, subject to appropriate evidence being capable of being led, likely to figure at the trial of these respective proceedings) which are not reflected in contemporary documents. In that context counsel for the Minister drew attention to a passage from my judgment in Stephens v. Flynn Limited where, at p.13, I said the following:-
"He has not, however, been able to point to any specific witness who is no longer available. It must also be taken into account that there are, apparently, statements of the relevant witnesses to the events of the 5th December, 1995 taken by the Gardaí on the occasion in question. That being said an issue as to the credibility of witnesses (which will almost certainly arise) will be all the more difficult of resolution where those witnesses are being asked to recollect matters that occurred so long ago. While the prejudice may not be quite as great as the Defendant contends for I am satisfied that it will nonetheless be of some significance."
6.5 Based on that passage, it is said that, while the fact that almost all of the witnesses likely to be called in these proceedings will have made statements to the Moriarty Tribunal in which they will have recorded their accounts is a matter to which some weight can be given, it does not displace the prejudice that may arise when the court is called upon to assess the credibility of those witnesses. The reasoning behind that passage from Stephens v. Flynn Limited is that experience tells that a court, when faced with having to choose between the accounts of two or more witnesses and in the absence of contemporary objective or forensic evidence which may give a clear indication as to which account should be preferred, will often have to base an assessment of the evidence on the court's impression of both the truthfulness and accuracy of the recollection of the witnesses concerned. In at least some cases the choice may be difficult. In that context little things can matter. Against that background, while the fact that parties may, a long time ago, have made a witness statement, which may provide some, but not too great, assistance for the court in forming its impression of the truthfulness of witnesses; ultimately the court’s assessment may turn on their ability to describe aspects of the events not recorded in their witness statements.
6.6 However, the circumstances of this case are almost unique. Not only have all (or almost all) likely witnesses given careful written statements to the Moriarty Tribunal, those witnesses have been the subject of exhaustive cross examination on behalf of many interested parties and, indeed, on examination by the tribunal itself. Thus any likely points of detail on which the credibility of witnesses might turn, even if not included in the relevant witnesses' written statements to the tribunal, are likely to have already been explored in oral testimony. That is not to say that some further nuanced questions might not arise at a trial of these proceedings. However, because the relevant evidence has not only been recorded in writing but also tested by cross-examination, it seems to me that the likelihood of prejudice is significantly reduced.
6.7 Having regard, therefore, to the significant, although not complete, excusability of the delay, to the significant public interest in having these matters of high public controversy determined in a court of law, and to the mild level of any prejudice, I am satisfied that the balance of justice in this case falls in favour of allowing the proceedings to continue. I have come to that view despite applying a stricter approach to excusability and the balance of justice which, for the reasons already analysed, I am satisfied is appropriate. However, it bears repeating that the facts of this case are truly unique.
6.8 Having reached those conclusions it is necessary to turn briefly to the second leg of the case made on behalf of the Minister which was to the effect that the proceedings should be dismissed, even in the absence of any culpable delay, because of the real risk of an unfair trial.
7 Risk of an Unfair Trial
7.1 Irrespective of whatever threshold might be appropriate (and for the reasons already analysed it may be that a somewhat higher threshold than that identified in the existing jurisprudence might need to be considered in an appropriate case) I am satisfied that the Minister has failed to establish a sufficient risk of an unfair trial.
7.2 For the reasons already analysed I am satisfied that it is appropriate to characterise the likely prejudice or impairment to the Minister in the conduct of its defence as being mild. While it is true that it is likely that the trial of these proceedings will take place the best part of 20 years after most of the events which will be under scrutiny, nonetheless there are a whole series of unique factors which render the conduct of such a trial nonetheless unlikely to be unfair. For those reasons, it seems to me, the second leg of the State's application must also fail.
8 Conclusions
8.1 For the reasons set out, I am, therefore, satisfied that there was inordinate delay which, although significantly excused, was not fully excusable. On that basis it is necessary to consider the balance of justice. For the reasons set out I am satisfied that that balance favours the continuance of these proceedings.
8.2 Likewise I am satisfied that the Minister has failed to establish the sort of impairment to his ability to conduct a defence of these proceedings, or, indeed, any other delay-induced unfairness, such as would warrant the dismissal of the proceedings even if there were no culpable delay.
8.3 It is for those reasons that I support the ruling already given to allow the appeals in both cases and substitute an order dismissing the Minister's application on each of the notices of motion before the court.
