Implementation Plan of Civil Justice Efficiencies and Reform Measures

Implementation Plan of Civil Justice Efficiencies and Reform Measures

Published 15 March 2023

In December 2020, the report on the 'Review of the Administration of Civil Justice' led by former High Court President Peter Kelly was published (the "2020 Report"), which spanned nearly 500 pages and set out 95 recommendations of reform.

The 2020 Report led to the Department of Justice publishing a plan in May 2022, the 'Implementation Plan of Civil Justice Efficiencies and Reform Measures' setting out how the recommendations of the 2020 Report will be implemented (the "Implementation Plan").

A group made up of members of the judiciary, the Courts Service, and government officials was created (the "Implementation Group") to oversee the reform process and to facilitate the provision of progress reports to the Government each year.

The Implementation Plan identified seven key areas of reform arising out of the 2020 Report, and set a primary aim in relation to those areas which are as follows:

1. Delay in civil proceedings: Modernise the civil Courts to ensure more timely hearings and reduce delays.

2. Discovery: Reform the current discovery system to reduce costs and delays. This includes a recommendation that claims are pleaded with greater particularity and a default arrangement for parties to produce their documents will occur following delivery of initial pleadings.

3. Judicial review: Introduce legislation on judicial review applications to enhance efficiency, timeliness and cost-effectiveness. This includes the likely requirement for applicants seeking leave to issue judicial review proceedings aimed at quashing a decision by a public body to establish 'substantial grounds' for their challenge.

4. Multi-party litigation: Introduce legislation for a comprehensive and effective multiparty litigation procedure in Ireland.

5. Litigation costs: Advance measures to reduce litigation costs. The 2020 report did not reach a consensus about legal cost reform and the Department of Justice has commissioned economic research on the options surrounding control of legal costs.

6. Court users: Achieve more effective outcomes for Court users and place an emphasis on vulnerable Court users.

7. Technology in Court: Consider e-litigation and create a secure digital environment to facilitate this and modernise the technology used by the Court and Court Service.

The Implementation Plan is very ambitious in its aims and seeks to radically improve the running of civil proceedings, reduce delays and improve accessibility to justice in the civil Courts. It will also promote clarity and detail in the civil litigation process, as well as more active judicial case management, from the outset, which is welcomed.

Timeline for the reforms
The introduction of the reforms in the Implementation Plan is on a phased basis, with the initial period running up to the end of 2024. It will require the introduction of primary legislation and amendments to the Rules of the Superior Courts, which can take some time due to the nature of the Irish legislative process. No specific timeline is clear as of yet, but it is hoped that changes will be seen in the near future.

Not only will the reforms take a number of years to implement, but they also will require significant investment and facilities to be provided to the Court and Court Service, particularly in terms of IT support and services. Legal practitioners and insurers alike will welcome the reforms which intend to modernise and streamline civil procedure in Ireland.

Case summaries - Strike out for Delay

A successful application by a defendant to strike out a plaintiff's case for delay was, up until relatively recently, a rare success story. In the past, the Courts were quite slow in granting such applications, but the tide is turning in this regard. The Irish judiciary are displaying their increasing reluctance to entertain prolonged and perpetuating litigation that is not being actively prosecuted by a plaintiff.

The changing attitude of the Courts is evident in recent case law which suggests that in bringing such an application, the defendant only has to prove "moderate" or "relatively modest" prejudice airing from the delay to secure an application to dismiss under the established Primor principles , discussed briefly below.

The basis for the application

In considering an application for strike out for delay, the Court tends to follow the wellestablished three-step test set by Hamilton CJ of the Supreme Court in 1996 in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459:

1. Was there inordinate delay?
2. Was the delay inexcusable?
3. If the answer to both questions is yes, where does the balance of justice lie?

The burden is on the defendant to prove that the delay is both inordinate and inexcusable as well as proving that the balance of justice lies in favour of dismissal of the claim.

Recent case law

A number of decisions throughout the course of 2022 illustrate the changing attitude of the Courts and we have set out the key highlights of the most recent jurisprudence below:

Gibbons v N6 (Construction) Ltd & Galway County Council [2022] IECA 112

• The Court of Appeal upheld an order of the High Court to dismiss a claim by the plaintiff against the first named defendant, a construction company following an eight year delay.
• The COA noted that prejudice to a defendant can arise in many ways and is not confined to the risk that a fair trial might not be possible - it can also include damage to reputation and business, as well as the oppressive nature of being involved in
  protracted litigation.

Herbst v. McGuckian [2022] IEHC 563

• The High Court granted the defendant's application to strike out the plaintiff's claim on the basis that there was inordinate and excusable delay and awarded the defendant the entire costs of the proceedings and stated that it would be a "patent
  injustice" not to award the entirety of costs of the defendant, as the successful party.
• The Court found that the instances of delay occurred over a long period of time, in this instance spanning over 20 years, from 1999 to the likely date of the trial which would have been in late 2022.

Doyle v Foley [2022] IECA 193

• The Court of Appeal upheld an order of the High Court striking out the plaintiff's claim for inordinate and excusable delay. The Court found a delay of nearly six years by the plaintiff was inordinate and inexcusable and the balance of justice lay in favour of dismissing the claim. The Court reiterated that a defendant is only required to prove modest prejudice, and is not required to prove prejudice to the point that there is a significant risk of an unfair trial.

J. Heery (Joinery) Ltd v. Grogan [2021] IEHC 820

• Mr Justice Meenan granted the defendants application to strike out for inordinate and inexcusable delay. A period of over four years elapsed where no action was taken.
• The plaintiff, in resisting the application stated that the cause of the delay was owing to the death of his wife. The Court conceded that the plaintiff was entitled to a period of time to deal with his legal and financial affairs following the death of his
  wife, however four years was too long and caused the defendants to suffer prejudice as a result, including an effect on the memory of its witnesses.

Byrne v. McGreevy [2021] IEHC 772

• The plaintiff's proceedings were issued against the personal representative of the estate of the deceased arising out of a dispute over land. The High Court dismissed the plaintiff's claim due to a five year delay by the plaintiff in prosecuting the
  proceedings and found that there was a real risk of injustice to the defendant owing to the delay and also owing to the fact that they were already disadvantaged by the death of the deceased.

However, the decisions also illustrate that the Courts on occasion refused to grant the
dismissals sought, where prejudice was not established and where there was delay on
the part of both the Plaintiff and Defendant.

Barrett v. Traymount Construction Limited [2022] IEHC 502

• Mr Justice Barr in the High Court refused to accede to the defendant's application to dismiss the plaintiff's claim finding that although there had been considerable delay in the proceedings progressing, there was active delay of nearly ten years on the part of both the defendant and plaintiff.
• The Court did however, make a number of orders in the proceedings to ensure that the litigation progressed expeditiously to hearing and criticised the parties for their delay.
• This serves as a reminder that a defendant's actions will also be examined and scrutinised by a Court in an application for strike out for delay.

O'Brien v. Brooks [2022] IEHC 355

• Similar to Barrett above, in this case relating to solicitors' professional negligence, the High Court refused the application to strike out the plaintiff's claim on the grounds that the prejudice arising to the plaintiff if the action was struck out would be greater than any prejudice to the defendants.
• The defendants argued that there was a delay of over four and a half years by the plaintiff, but they did not satisfy the Court that they would suffer sufficient prejudice to justify the application and they presented no evidence on the unavailability of
  their witnesses for the trial of the action. This case serves as an important reminder that all three limbs of the Primor test will be examined by the Court, and inordinate and inexcusable delay alone is not enough to ground an application to strike out -
  defendants must also carefully document the prejudice arising due to that delay.

Conclusion
It is clear from the above case law, that the decision clearly rests on the facts of each
individual case and even where there is considerable delay, this fact in and of itself is
not enough to warrant a dismissal of the case. The Court will carefully examine all three
limbs of the Primor test, and if there is delay on the part of the defendant, or if the
prejudice which will accrue to the Plaintiff is far greater than the prejudice suffered by the
Defendant on foot of the delay by the Plaintiff, the Court may refuse the application to
strike out.

Continued determinations in a Defendants' favour will ultimately mean a reduction in
the presence of historic proceedings, leading to smaller and less congested court lists
and therefore a reduction in litigation costs - which would be a positive development for
litigators and insurers alike.

Our colleagues on the Healthcare Team have explored the topic of strike out for delay as
it has played out in the Healthcare arena later this publication.

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