Title:	Comcast International Holdings Inc. & ors -v- Minister for Public Enterprise & ors; Persona Digital Telephony Ltd & anor -v- Minister for Public Enterprise & ors
Neutral Citation:	[2012] IESC 50
Supreme Court Record Number:	213, 215 & 216/07
High Court Record Number:	2001 9223P, 2001 15119P & 2001 9228P
Date of Delivery:	10/17/2012
Court:	Supreme Court
Composition of Court:	Denham C.J., Hardiman J., Fennelly J., McKechnie J., Clarke J.
Judgment by:	Fennelly J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Denham C.J. Link Hardiman J. Link Fennelly J. Link McKechnie J. Link Clarke J. Link

Between/

1. I agree that the appeals in these cases should be allowed. I agree with the reasoning in the statements of reasons given by the Chief Justice and by McKechnie J and Clarke J. However, on the question of the treatment of the delivery of a 21 day letter by the Office of the Chief State Solicitor in the Persona case, seeking delivery of a statement of claim within 21 days under threat of a motion to strike out in default, I prefer the reasons of the Chief Justice and of McKechnie J.

2. More generally, I would emphasise that the delay of both plaintiffs was, as is accepted, on any view, inordinate. That delay was, however, in the special and unique circumstances of this case, excusable. In the vast majority of cases, this Court would regard it is quite unacceptable that a party should take a deliberate decision to delay indefinitely in the pursuit of his or her claim, certainly where no fair notice is given to the opposing party.

3. The case of Desmond v. M.G.N. Limited [2009] 1 I.R. 737 indicates the approach that will normally by taken by this Court. The plaintiff issued proceedings for libel against a newspaper in January 1999. He took no further step until February 2005, when he notified the defendant that he would give notice of intention to proceed. The defendant issued a notice of motion seeking an order striking out the proceedings on the grounds of inordinate and inexcusable delay. The plaintiff claimed that the reason for the delay was that he had acted on legal advice not to progress the proceedings, given that the matters to which the proceedings related formed a substantial part of the subject matter of the Moriarty tribunal. This decision was not communicated to the defendant, who had taken the view that the proceedings were dormant.

4. Although the three members of the Court were divided on the question of where the balance of justice lay and the fact the action was for defamation in which a plea of justification had been filed was the determining consideration for the majority, the Court was unanimous in its view that the delay had been both inordinate and inexcusable. All three judges strongly criticised the plaintiff for “failing to proceed with his action for his own tactical reasons….. without giving any notice of his intention to the defendant…” (Geoghegan J page 741); for the fact that “the defendant was never informed of the plaintiff's decision to "park" the case nor was it invited to acquiesce in it.” (Kearns J page 752). Macken J said at page 759:

“It is certainly a telling factor against excusing delay, if a party retains to himself, as the plaintiff did here, the right unilaterally to take no further steps in the proceedings for an indeterminate period into the future without, as a very minimum, notifying the other party of his intention to do so.”

6. Thus, I concur in the decision to allow the appeals.