Timing is everything – when is the appropriate time to bring a motion to strike out?

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Timing is everything – when is the appropriate time to bring a motion to strike out?

Published 28 February 2022

The recent High Court decision in Somers –v- Kennedy & Ors sheds some light on how the Courts may approach applications by Defendants to dismiss proceedings going forward. Whilst most practitioners will be well aware of the difficulties in securing a strike out Order, the judgment in the Somers case is useful in providing practitioners with an overview of the key factors a Court may take into consideration in applications of this nature.

In Somers, the Defendant, in his Defence, raised “preliminary objections to the effect that the proceedings do not reveal a cause of action to be recognised by law.” However, the Defendant did not make a preliminary application under O.19 r.28 of the Rules of the Superior Courts to strike out the Plaintiff’s claim. Instead, at the outset of the hearing, Counsel for the Defendant advised that it was his intention to apply to have the proceedings struck out as all issues raised by the Plaintiff were either non-justiciable or subject to absolute privilege. The Defendant relied on O.25 r.1 which allows “the court to dispose of any point of law raised by the pleadings at or after the trial” and “the consequent power under O.25 r.2 to dismiss the action if the decision on the point of law subsequently disposes of the whole action.”

The judge in Somers, Mr. Justice Butler, remarked that it was his preference that the Defendant’s application was dealt with by way of preliminary application rather than being “left over to a plenary trial.” However, he also noted that as “the defendant points out, the rules do allow a point of law raised by the pleadings to be determined at trial.” Ultimately, Mr. Justice Butler was satisfied that the Plaintiff’s proceedings were bound to fail and struck the proceedings out in their entirety.

In light of this judgment, the Defendant brought an application for his costs in the proceedings. Ultimately, the Defendant was awarded his costs, with Mr. Justice Butler noting in his decision that “…the issue is not just whether the defendant is entitled to his costs but what those costs should be.” Mr. Justice Butler commented on how the Defendant had a choice in the manner in which he could have pursued his application to have proceedings struck out, and that his actions (i.e. bringing an application by way of O.19 r 28 or allowing the matter to be listed for plenary hearing, proceeding to trial and making an application by way of O.25 r1) had added to the costs of the proceedings. Noting that the costs of litigation are “very high” in Ireland, Mr. Justice Butler commented that he believed it is “incumbent on both sides of a case to ensure that it is conducted in the most cost effective manner possible so that the ultimate costs burden - no matter who has to bear it - will be as low as possible” and refused to award the Defendant his full costs in respect of the trial. Instead he awarded costs “...to the defendant on the basis that they should be adjudicated as the costs of a motion to have the justifiability of the plaintiff’s proceedings determined as a preliminary issue which motion was listed for a full days hearing in the Chancery list.

This judgment should be a salient reminder for all practitioners and parties to litigation that they have an ongoing duty to limit the legal costs being incurred as much as possible. When coming to a decision on whether to bring an application to strike out proceedings, practitioners should consider not only the likelihood of success of such an application, but also the costs of the proceedings as a whole.

A copy of this judgment can be read in full here.

Authors

Lisa Broderick

Lisa Broderick

Dublin

+353 (0) 1 231 9683

Rowena McCormack

Rowena McCormack

Dublin

+353 (0)1 231 9628

Julie-Anne Binchy

Julie-Anne Binchy

Dublin

+353 (0) 123 19636

Charlotte Burke

Charlotte Burke

Dublin

+353 (0)1 2319679

David Freeman

David Freeman

Dublin

+353 1588 2558

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