Various Means of Termination
Proceedings may determine other than by reason of a final court order or a settlement. Most of these instances, involve a default by the claimant. The claimant may also discontinue the proceedings either in the context of a settlement or the apprehended failure of the claim.
However, proceedings once started, cannot be discontinued by the plaintiff/claimant without consequences. By commencing legal proceedings, the plaintiff runs the risk of liability for costs to third parties, even if he terminates them unilaterally.
Dismissal for Delay
Where there has been no proceeding or step in a legal action for more than a year, a party who desires to proceed must give at least one month’s notice to the other of his intention to proceed. Where there has been a inactivity for two years, the defendant may apply to have the case dismissed, at the court’s discretions. The application is made to the Master of the High Court.
Proceedings may be dismissed by reason of delay or lack of progress in the part of the plaintiff. A defendant may bring an application to dismiss proceedings where the plaintiff has defaulted in delivering a statement of claim. A defendant may apply to have proceedings dismissed for want of prosecution or by reason of other failures on the part of the plaintiff during the course of the proceedings.
An application can be made to dismiss proceedings on the basis that the plaintiff has not taken steps to progress the case for two years. The courts may dismiss proceedings where there has been an inexcusable and inordinate delay. Cases will not be readily struck out, by reason of delay. The primary motivation for striking out proceedings is the prejudice caused to the defendant, due to passage of time. The purpose is not to punish the plaintiff/claimant.
Even where there has been an ordinate and an inexcusable delay, the courts have discretion to decide whether on the facts, the balance of justice requires that the case be dismissed. The courts will have regard to basic fair procedures. Particular circumstances may make it unfair to the defendant to allow the action to proceed after a long and inexcusable delay. The conduct of both parties will be considered. If parties have acquiesced in or consented to the delay, this would be a factor against dismissal. Ultimately, the prejudice to a fair trial is the most important factor.
What constitutes an inordinate delay is a matter of interpretation in the circumstances. An inordinate delay will generally be one of the several years. The delay before the institute of proceedings itself will also be relevant. The excusability of the delay depends on the circumstances. If there are no good reasons for the delay, the courts may dismiss proceedings.The courts balance the interest of the parties in exercising their discretion.
Human Rights Consideration
With the incorporation of the European Convention on Human Rights into Irish law, the case law under the Convention in relation to the right to a trial within a reasonable time, is relevant in this context. The Convention provides that in the determination of civil rights and obligations, everyone is entitled to a fair and public trial within a reasonable time by an independent and impartial tribunal established by law. Courts are not directly bound by the provision, as they are not an organ of the state. Nonetheless, the courts have regard to the principle of the basic right to a trial within a reasonable time, under the Convention.
European Court on Human Rights in its case law, has reviewed the reasonableness of the lengths of proceedings in the context of the circumstances. The complexity of the case is relevant. A more complicated case may justify a longer period of preparation. The conduct of the applicant is a consideration. If he has contributed substantially to the delay, he cannot complain on the basis of the Convention. States must organise their legal system so as to ensure that proceedings are determined within a reasonable time. States themselves may be responsible, if they allow proceedings to continue beyond a reasonable time.
A long delay may mean that witnesses are no longer available or that their memories have faded. Written documents may no longer exist. It may be less easy to give an accurate account of events. Witnesses may not be found or available. The fact that litigation is pending for a long period may cast a shadow on a person’s professional career. Each of these may be relevant factors.
The conduct of the defendant is relevant. If the defendant has himself delayed, this will weaken his application. If the defendant has acquiesced in delay or induced the plaintiff to incur further expense in continuing the action, this may counter what would otherwise be a basis for dismissal.
Some courts have taken the view that the period between the time that the claim arose and the date the proceedings commenced, is not a material in this context. However, other courts have taken the approach, based on the court’s inherent jurisdiction, that a delay in commencement of proceedings may in itself or in conjunction with further post commencement delay, is relevant to the jurisdiction to dismiss the proceedings.
Statute of Limitations
The Statute of Limitations provides for time limits in which proceedings must be commenced. Generally, commencement of proceedings within this period will not constitute an unfair burden on the defendant. However, in some exceptional cases, this may do so. In some cases, the Statute of Limitations may allow for a considerable period beyond the standard periods for commencement of proceedings. This may occur where, for example, a claimant is an infant or lacks mental capacity.
It may happen that a claim is taken by or on behalf of children or young adults, many years after the initial incident or accident, but within the extended Statute of Limitation period. In some cases where there is a clear and patent unfairness in requiring the defendant to defend the claim a very long time after the events concerned, the courts may dismiss the claim on the basis of its inherent jurisdiction, notwithstanding that it is brought within the Statute of Limitations period. A number of the cases have involved claims based on sexual abuse many years beforehand. In many such cases, the courts have ruled the delay to be excusable.
Vexatious / No Reasonable Basis
The courts have inherent jurisdiction to strike out claims that are vexatious or have no conceivable, reasonable basis. The courts uphold the integrity of the legal system, by refusing to mandate that which amounts to an abuse of the process. Proceedings may be vexatious or frivolous where there is no reasonable chance of success. This being so, it is frivolous to bring the claim and the burden imposed upon the defendant makes it vexatious.
The court may strike out individual claims or pleadings on the ground that it discloses no reasonable cause of action or defence or in any case where the claim or defence is frivolous or vexatious. There is separate jurisdiction which may be applied to part of pleadings, as opposed to the entire pleadings and case. The power may be exercised, where the claim as pleaded, has no legal basis and gives rise to no legal remedy.
The courts have inherent jurisdiction to strike out claims that have no basis. The courts will not readily strike out claims, if there is any reasonable basis. The courts acknowledge that the facts as disclosed at the trial, may put a different complexion on the pleadings. If pleadings may be corrected or amended so as to form a reasonable basis of claim, the courts will be usually willing to make an appropriate amendment.
The courts may look beyond the actual pleadings and seek evidence on affidavit or otherwise in relation to the matters in dispute. The fact that claimant’s evidence may be weak is not relevant in this context. If the case as pleaded could succeed if proved, the jurisdiction is not available. The power will only arise where the claim would inevitably fail, even if proved as pleaded.If the claimant has no reasonable chance of success or if it the claim would not confer any tangible benefit if successful, the courts may exercise its jurisdiction to strike out the claim.
Abuse of Process
The courts may strike out proceedings as an abuse of process, although they will not readily do so. A claim may bee struck out, if brought for an improper purpose such as harassment or oppression of the defendant. This may arise where the same or similar proceedings have already been brought, where issues are rolled forward into subsequent actions, where unsuccessful appeals have been taken, where costs have not been paid or where parties have blatantly and persistently failed to comply with court orders.
Claims which lack a bona fide basis, are frivolous and vexatious or are oppressive are likely to be an abuse of process. A claim that appears to be proper in form, may be an abuse of process, if they are brought for a purpose which is extraneous. An abuse of process can arise in a wide range of circumstances. It may be applied in cases where matters have already been adjudicated, but are not strictly “res judicata” (barred by final determination).
Where proceedings are taken for tactical reasons to discommode a rival, this may constitute and abuse. The courts may regard an action as an abuse of process where there is no tangible benefit available to the plaintiff and the principal purpose is to inflict detriment on the defendant.
Proceedings conducted in a wholly inappropriate manner, may amount to an abuse of process. A deliberate exaggeration in a claim may constitute an abuse. The exaggeration may be designed to exert pressure in order to achieve an improper purpose.
Serial Vexatious Plaintiff
Where a person habitually and persistently institutes vexatious or frivolous civil proceedings, courts may use their inherent jurisdiction to make an order prohibiting the institution of proceedings by that person without the leave/consent of court. These are referred to as “Isaac Wunder” orders, after a 1960s serial plaintiff. The orders protect citizens from unjustified, unnecessary harassment and expense by persistent litigants.
Such orders are only made in very exceptional circumstances. The court must conclude that its processes are being abused. Where a person institutes multiple claims on multiple occasions without any justification, an order may be made. It may be made against the person and connected parties, so that he may not institute proceedings indirectly through them. The order will only be granted where it is necessary and where the person concerned has habitually and persistently brought vexatious or frivolous claims. The courts will look at the entirety of the circumstances.
Discontinuance and Withdrawal
Proceedings may be discontinued and withdrawn. A defence can be withdrawn. A claim may be withdrawn without leave prior to receipt of the defendant’s defence or prior to the taking of any step in proceedings, other than an interlocutory application. Notice of discontinuance or withdrawal is served on the defendant. Proceedings may be withdrawn against some defendants without being withdrawn against others.
Once litigation has been commenced, it may not be terminated without possible costs implications and without determination of counterclaims that may have been commenced. If the plaintiff discontinues proceedings, he must pay the defendant’s cost of the actions or cost for defending the particular claim that has been withdrawn. This provision applies unless the court consents to the proceeding being withdrawn, other than on these terms.
Where there are multiple plaintiffs, a single plaintiff may not withdraw without the consent of the other plaintiff or the leave of court, if he is a necessary party.
Where proceedings have been being settled, the plaintiff may discontinue proceedings without leave, prior to setting down of the action for trial, by filing the consent of all parties. In other circumstances, the plaintiff must make an application for leave to discontinue proceeding, which the court may grant, upon such terms as it determines In theory, the court could refuse consent to discontinue. The defendant will generally be entitled to his cost up to the date of the order.
Where proceedings have discontinued, they may be recommenced. However, the court has discretion to grant leave on terms that no further proceedings shall be brought.
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