High Court

PMPA (Ltd) (In Liquidation) Acting By Deasy, Official Liquidator Of PMPA Garage (Carrick) Ltd v Private Motorists Provident Society Ltd (In Liquidation) And Primor Plc (Under Administration)

1992 No 7028 P 

20 February 1997 

COSTELLO P: 

INTRODUCTION. 

The Private Motorists Insurance Company Limited was the principal company in a large group of companies which in the early 1980's dominated the motor insurance market in this country. The group collapsed disastrously towards the end of 1983. An administrator of the Insurance Company under the provisions of the Insurance (Number 2) Act 1983 was appointed on the 25 October 1983 and since then the company has been under administration under the provisions of the Act. Two other companies in the group feature in these proceedings. The first is the Private Motorists Provident Society Limited which is a body corporate registered as an Industrial and Provident Society. It was ordered to be wound up on the 19 December 1983. The second is the Private Motorists Protection Association Limited which was ordered to be wound up on the 10 December 1984. Mr William Horgan was official liquidator of both the Provident Society and the Protection Association. The present administrator of the Insurance Company is Mr Vincent Clancy. 

These two actions arise out of what is referred to as a "scheme" for the payment of insurance premiums by instalments. A motorist availing of the scheme was required to pay a deposit of 25% of the annual premium to the Insurance Company. He then obtained a loan from the Provident Society of the balance of the premium and as security he completed a promissory note in favour of the Provident Society for the amount of the loan plus interest and charges which he agreed to repay over a period of nine months. The Insurance Company issued to the motorist an insurance certificate for the twelve month period. The Provident Society made the loan to the motorist by issuing the loan cheque directly to the Insurance Company to discharge the balance of the premium due to it by the motorist and the Provident Society was given the promissory note signed by the motorist. Arising from the operation of this scheme and subsequent developments the Protection Association, by summons issued on the 2 November 1992, instituted proceedings against the Provident Society and the Provident Society joined the Insurance Company as a Third Party. In a second action the Provident Society, by summons issued on the 18 August 1995, has sued the Insurance Company. The Insurance Company has applied to dismiss the Third Party claim against it in the first action and the plaintiff's claim in the second action on the ground of delay. These applications are the subject matter of this judgment. 

THE FIRST ACTION. 

The claim by the Protection Association in the first action is as follows. It is claimed that the Protection Association (the plaintiffs) and the Provident Society (the defendant) and the Insurance Company (the third party) all fell under the common control and direction of a number of individuals referred to as "the directors". It is claimed (and accepted) that the persons who took out motor insurance with the Insurance Company were required to become members of the Protection Association and paid a membership fee to that association. In the course of the preparation of the accounts of the PMPA group of companies for the year ended the 31 December 1978 it is claimed that it became clear that there was due to the Provident Society a sum of £970,000.00 in respect of uncollected debts from individual motorists to whom loans had been made pursuant to the "scheme" to which I have already referred during the periods between the 1 January 1977 and the 31 May 1978 and it is claimed that at a date unknown "the directors" decided that the uncollected debts due to the Provident Society (ie the sum of £970,000.00) would be assigned by the Provident Society to the Protection Association. It is claimed that this was done and that the Protection Association agreed to purchase the said debts in consideration for the sum of £970,000.00, that it paid to the defendant the sum of £250,000.00 on the 11 September 1979 and a further sum of £200,000 on the 14 March 1980 making in all a sum of £450,000.00, part of the consideration of £970,000.00. It is claimed that the value of the debts as of the 31 December 1978 was substantially less than the sum of £970,000.00 and that this fact was well known to "the directors" and the Provident Society. The Provident Society continued to collect the debts due and ultimately collected a sum of £467,000.00 which was deducted from the balance of £520,000.00 due to it by the Provident Society. It is claimed that the primary purpose of the purported sale and purchase of the uncollected debts was to avoid showing the unpaid £970,000.00 in the accounts of the Provident Society, that the purchase of the uncollected debts was ultra vires the powers of the Protection Association, and that the sum of £450,000.00 paid by the Protection Association to the Provident Society remained the property of the Protection Association and a claim was made in these proceedings for a declaration that the purported agreement to purchase the uncollected debts was ultra vires and thereby null and void and, inter alia, an order directing the Provident Society to account for this sum and a tracing order if appropriate. 

The Provident Society obtained an order joining the Insurance Company as a third party. In a statement of claim delivered by it on the 30 August 1995 it was pleaded that on the 27 June 1994 the Provident Society consented to judgment in favour df the Protection Association for the sum of £450,000.00 and that the High Court determined that interest should be applied at the rate of 10% per annum in respect of the sums paid by the Protection Association to the Provident Society. The Provident Society claimed to be indemnified by the Insurance Company against the judgment and the interest. The claim against the Third Party is based on the following (in an amended Statement of Claim of the 30 August 1995). It is pleaded that the Provident Society and the Insurance Company fell under the common control and direction of a number of individuals called "the Directors". The "scheme" to which I have already referred is set out. It is pleaded that for the year ended the 31 December 1979 that there was still due to the Provident Society the sum of £976,956.00 (not £970,000) in respect of uncollected debts from motorists arising between the 1 January 1977 and 13 May 1978. The agreement to assign the debts is pleaded the consideration being £976,956.00. The payment by the Protection Association to the Provident Society of the sum of £450,000.00 is then pleaded. It is claimed that the Provident Society collected a total of £476,856.00 (not £467,000.00) from motorists and that this was deducted from the sum of £526,956.00 (due to the Provident Society from the Protection Association) leaving a balance of £50,100.00 unpaid to the Provident Society either by the motorists or the Protection Association. 

It will be recalled that it was pleaded by the Protection Association that the purchase by this company of the loans was ultra vires. It is pleaded in the Third Party statement of claim that the making of the loans by the Provident Society was ultra vires in that the Provident Society had no power to make such loans or alternatively had no power to make such loans without obtaining security therefore. It is further claimed that the Insurance Company "was at all times aware or ought to have been aware that the defendant had no such power to make the said loans and receive the monies in respect of the loans knowing such to be the case". It is claimed that the sum of £450,000.00 advanced by the Provident Society to the motorists, but paid to the Insurance Company on their behalf, remained the property of the Provident Society and declarations were sought that the purported loan to the motorists were ultra vires the defendant and void and that the Insurance Company as recipient of the monies arising from the loans "knew at all material times that the loans to the motorists were ultra vires the defendant", that the Insurance Company holds all sums received less any repayments in trust for the Provident Society and tracing orders or accounts as appropriate are sought in order to ascertain the amount of interest to which the defendant is entitled in relation to outstanding balances. 

THE SECOND ACTION. 

The second action was commenced by summons of the 18 August 1995. The Provident Society is plaintiff and the Insurance Company is defendant. This raised issues similar to those in an action commenced by the Provident Society in 1994 but which discontinued in August 1995. The statement of claim is dated the 30 August 1995 (that is, the same day as the Third Party Statement of Claim in the first action). There are two sums claimed; 

(a) £50,100.00, due it is claimed by the Insurance Company to the Provident Society together with interest on the principal sum of £976,956.00 and various reducing balances from the 14 May 1978 to date and 

(b) the sum of £73,801.00, being an amount due and owing by the defendant to the plaintiff together with interest from the 1 January 1977 to date. 

The cause of action is the same as that pleaded against the Insurance Company in the Third Party proceedings in the first action and the second action arises because the Provident Society claims that there are further sums, over and above the sum of £450,000.00 referred to in the first action due to it by the Insurance Company. 

The claim in the second action is pleaded in the same manner as the claim in the Third Party proceedings, namely, the 1977 "scheme" is set out, the agreement to assign the debts to the Protection Association is pleaded as is the continued collection of the debts by the Provident Society from the motorists. It is claimed that the making of the loans was ultra vires for the reasons given in the Third Party proceedings and that the Insurance Company was at all times "aware or ought to have been aware that the plaintiff had no such power to make the said loans and receive the monies in respect of the loans knowing such to be the case". 

The sums claimed in this second action are claimed on the following basis. It is claimed that for the year ended the 31 December 1978 the sums due to the Provident Society by the motorists between the 1 January 1977 to the 31 May 1978 was the sum of £976,956.00, that this was the sum assigned to the Provident Association, that the sum paid by the Provident Society for the debts amounted to £450,000.00, that the Provident Society continued to collect the debts from the motorists and ultimately collected a total of £476,856.00 which it deduced from the balance of £526,956.00 due by the Protection Association to it leaving a balance of £50,100.00. This is the first sum in respect of which judgment against the Insurance Company is claimed. The second sum of £73,801.00 is made up as follows. It is claimed that in the financial year ended 31 December 1976 (a year in respect of which no claim is made in the first action) the Provident Society advanced to motorists the sum of £521,607.28 and that as of the 31 December 1978 there was due and owing to the Provident Society in respect of these loans a sum of £73,801.00. It is claimed that both these sums had been advanced by the Provident Society to motorists for the benefit of the Insurance Company and that at all times these sums remained the property of the plaintiff. Declaratory relief, similar to that in the first action, is claimed as well as a tracing order and accounts and directions as may be appropriate and judgment for the two sums to which I have referred together with interest is also sought. 

CHRONOLOGY 

The Insurance Company which has brought these motions to dismiss proceedings against it in the first and second actions claims that the delay which occurred in instituting these proceedings and in prosecuting them has resulted in prejudice which makes a fair trial impossible. Before examining its case in detail it will, I think, be of help if I set out a chronology of the relevant dates, as follows; 

(1) January 1976 At a date unknown the "scheme" commenced by which the Provident Society made loans to motorists for the balance of premiums due to the Insurance Company, and paid the amounts of the loans to the Insurance Company. 

(2) 1979 At a date unknown the Provident Society agreed to assign debts then due by motorists to it amounting to £970,000.00 or alternatively £976,956.00 to the Protection Association (the plaintiff in the first action). The agreement was to assign these debts for the sum of £970,000.00 or alternatively £976,956.00. On the 11 September 1979 the Protection Association paid a sum of £250,000.00 in part discharge of the purchase price to the Provident Society. 

(3) 1980 On the 14 March the Protection Association paid to the Provident Society a further sum of £200,000.00 in respect of the Assignment of the motorists debts. 

(4) 1983 The group collapsed. On the 25 October Mr Kevin J Kelly appointed administrator of the Insurance Company (later replaced by Mr Peter Fitzpatrick and later by Mr Vincent Clancy). On the 19 December 1983 Mr Horgan was appointed official liquidator of the Provident Society. 

(5) 1984 Discussions between Mr Kelly and Mr Horgan concerning the "scheme" took place. On the 10 December 1984 Mr Horgan was appointed official liquidator of the Protection Association. 

(6) 1986 For the first time a claim was made by Mr Horgan against Mr Kelly in relation to the operation of the "scheme" prior to the month of May 1978. On the 30 July 1986 Mr Kelly on behalf of the Insurance Company repudiated the claim and the matter was then dropped. 

(7) 1992 Plenary Summons issued by the Protection Association against the Provident Society claiming a declaration that its agreement to purchase for £970,000.00 the debts due by motorists to the Provident Society was ultra vires null and void and the return of the sum of £450,000.00 paid under the agreement. 

(8) 1993 5 of July an order of the High Court giving liberty to the Provident Society to issue and serve a Third Party notice on the Insurance Company. On the 16 July such a notice was served. On the 19 July a second Third Party notice was served and on the 26 August an appearance to it was entered. 

(9) 1994 1 of June a Plenary Summons was issued by the Provident Society against the Insurance Company. On the 23 August 1995 those proceedings were discontinued. On the 27 June the Provident Society consented to Judgment in the first action in favour of the Protection Association in the sum of £450,000.00. Later interest at the rate of 10% was determined as being payable by the Provident Society to the Protection Association. 

(10) 1995 A summons (issued on the 18 August) was served on the Insurance Company. These are the proceedings referred to in this judgment as "the second action". On the 30 August the Provident Society served a statement of claim in the first action and a statement of claim in the second action. 

(11) 1995 The Insurance Company had instituted proceedings against the company's former auditors and accountants and by an order of the Supreme Court of the 19 December 1995 it was ordered that because a fair trial was not possible by reason of the delay which had occurred the proceedings should be dismissed. 

(12) 1996 By motion of the 20 May 1996, and the 24 June 1996 the claims to dismiss were instituted. 

It appears from the above that; 

(a) The "scheme" under which the Provident Society made loans to motorists who entered into Insurance Contracts with the Insurance Company and which is now claimed was ultra vires the powers of the Provident Society was made in 1976 that is, twenty one years ago. A claim by the Provident Society in the second action relates to a balance due for loans made in that year. 

(b) A claim that the "scheme" was invalid was made in 1986 by the official liquidator of the Provident Society three years after his appointment but not proceeded with at that time. 

(c) The first action was commenced in 1992. A claim that the "scheme" was ultra vires the powers of the Provident Society and that the Insurance Company should indemnify the Provident Society in respect of the claim made by the Protection Association was made in a third party notice served on the 16 July 1993, that is 17 years after "the scheme" was first operated. 

(d) The present claim in the second action was commenced in August 1995, that is 19 years after the operation of "the scheme" commenced. 

THE ISSUES. 

In both these actions the Insurance Company has applied under Order 122 rule 11 of the Rules of the Superior Court or alternatively under the court's inherent jurisdiction dismissing the claim of the Provident Society for want of prosecution. The order relied on refers to a situation in which there has been no proceedings for two years from the last proceedings (which is not applicable in these cases) and it seems to me that the more appropriate rule in this case is order 63 rule (8) which allows the Master to dismiss a claim for want of prosecution. The point, however, is not of importance because counsel on behalf of the Provident Society accepts that the court has the inherent jurisdiction claimed. When a claim is considered under this jurisdiction the principles which are to be applied are well settled. The judge has a discretionary power to strike out an action for want of prosecution if two preconditions are satisfied, viz (1) that the plaintiff has been guilty of inordinate and inexcusable delay and (2) that such delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or to have caused serious prejudice to the Defendant (Roebuck v Mungovin [1994] 1 All ER 568 and Primor plc v Stokes Kennedy Crowley and another, Supreme Court, 19 December, 1995). But the Chief Justice in the Primor Case made clear that the court's inherent jurisdiction is not just to strike out proceedings in which there has been delay causing prejudice in prosecuting them, but also where there has been delay in instituting them (see page 49). This has been accepted by counsel for the Provident Society and so the debate has been (a) whether the delay in (i) instituting and/or (ii) prosecuting these two actions has been inordinate and inexcusable and if so whether a fair trial has been fatally prejudiced. 

The Insurance Company claims that the delay in the first action in instituting and prosecuting the Third Party proceedings was inordinate and inexcusable and the court should exercise its jurisdiction under the Rules or alternatively its inherent jurisdiction and strike out the Third Party proceedings because a fair trial is now impossible. 

As to the second action, there has been no delay in prosecuting these proceedings because after the service of the summons and statement of claim (which were effected simultaneously) the defendant moved to have them dismissed on the ground of delay. In these proceedings the court is asked to exercise its inherent jurisdiction to dismiss. 

In both actions the prejudice to the Insurance Company is the same. It is pointed out that the central allegation in both proceedings is that the making of loans by the Society to motorists in accordance with the Scheme was ultra vires the Society's powers in that it had no power to make loans or no power to make loans without obtaining security and that the persons referred to in the pleadings as the "directors" were at all times aware or ought to have been aware that the Society had no such power. It is claimed that these two actions could not be determined without an inquiry into the facts surrounding the "scheme" referred to in the pleadings and the awareness of the directors that the loans were ultra vires the Society's powers. A schedule was prepared of the persons described as "the directors" for the relevant period, that is between 1976 to 1978, and the examiner, Mr Clancy, avers as follows: 

"As will be seen from the Schedule, for the year 1976 two of the four directors, namely, Mr Joseph Moore and Mr JP Anderson are deceased. As far as Primor is concerned, the most crucial loss is the death of Mr Joseph Moore. I believe that it is commonly accepted that he had day to day control over Primor and the PMPA group of companies during the relevant period. Given my understanding of the workings of Primor I believe that Mr Joseph Moore would have been the central figure in devising and operating the scheme. Mr Moore died in June, 1989 almost three years after Mr Horgan first intimated to this claim but four years before proceedings were first issued. Therefore, it is hard to see how a trial could take place in relation to the Scheme without him. Of the other two directors Mr MJ Dore is now in his 80's and I believe he has been quite ill over the last number of years and Mr JN Jennings is in his 90th year. I am advised that these proceedings are still at an early stage and that even if they were to proceed with all haste, it might be another couple of years before the case comes to trial. Everyone's recollection must fade with time, but, moreover in this case, I think it would be unreasonable and unrealistic to expect that Mr Dore and Mr Jennings would at their stage in life be able to recall for the first time events of 20 years ago. Furthermore, I consider that the preparatory work and stress associated with having to give evidence in a trial which would be an unnecessary burden for them to have to bear after all these years. For the years 1977 and 1978 there were two additional directors Mr MP Phillips and Mr Michael Martin. Mr Phillips is now 86 years of age and my comments in relation to Mr Dore and Mr Jennings equally apply to him. I am informed and believe that at the relevant time Mr Michael Martin was a non-executive director and, in fact, was and remains a solicitor in private practise. I say and believe therefore that it is unlikely that MrMartin would have any detailed knowledge or recollection of the Scheme". 

The Examiner also referred to the prejudice which he said would result from the problems caused by the delay in making a full and proper discovery. He stated:- 

"It would be an enormous burden on Primor to embark on discovery of documents relevant to the issues in these proceedings at this time. The ongoing insurance business of Primor was sold to GRE in 1989. Primor currently has no employees and is concerned with the wind-down of pre- 1989 claims. Accordingly, I believe that there is real doubt as to whether all relevant documents could be located and adequate discovery provided. I believe that the same considerations probably applied to PMPS also". 

In answer to these arguments the Provident Society makes a number of points; 

(a) The principles to be applied are not denied but it is firstly claimed that in considering the lapse of time the court should start from the date of the liquidation of the society, namely December 1983 and in the light of the particular circumstances of this case it is urged that the delay in instituting the Third-Party proceedings and in prosecuting them was neither inordinate or inexcusable. I cannot agree. 

(i) Firstly it is clear from the judgment in the Primor case (p 49 of judgment of the Chief Justice) that the period of the delay is to be considered by reference to the date on which the wrong was committed by the Society in making the ultra vires loans, not the date on which the Society's liquidator was appointed. 

(ii) Secondly, the delay in instituting a claim which was made in the Third Party proceedings and the delay in prosecuting that claim, and the delay in instituting the second action were both inordinate and inexcusable. The Third Party claim relates to loans made in 1978 and subsequently. It was initiated in 1993, that is 16 years after the first ultra vires loan was made. The second action relates to loans made in 1976 and subsequently. It was initiated in 1995, that is 19 years after the first ultra vires loan was made. Such delays, by any standard, must be regarded as inordinate. It is to be remembered that a claim in respect of these loans was raised in 1983 by the liquidator of the Society and when liability was denied no further action was taken until the dates I have just mentioned. No plausible reason has been advanced as to why such inordinate delays should be excused by the Court. The first condition therefore which would justify the court in dismissing both proceedings is fulfilled. 

(b) It was submitted on behalf of the Society that even if the delay was inordinate and inexcusable it does not cause such prejudice as would render a fair trial impossible. This is because the evidence of the directors or indeed any witnesses to the "Scheme" under which the loans to motorists were made by the Society is not necessary and that once the Society can establish that the loans were ultra vires they are recoverable as a matter of law. 

I cannot agree that a fair trial could now be held. It seems to me that the delay has deprived the Insurance Company of the opportunity of obtaining the attendance of witnesses whose evidence would certainly be admissible and perhaps decisive for determining the issues in the case. The law in relation to the power of a lender who has made an ultra vires loan to recover it from the borrower and to recover it from a guarantor who has guaranteed the borrowers debt was considered by Mr Justice Murphy in In Re PMPA Garages Limited (No 2) [1992] 1 IR 332. This was also a case relating to the PMPA group of companies and to ultra vires loans made by the Private Motorists Provident Society Limited, the defendant in the first action and the plaintiff in the second action before me. Murphy, J considered the circumstances in which a lender can recover from a borrower monies lent ultra vires its powers. He pointed out that loans could be recovered in an action in rem (where the monies borrowed could be traced) or in an action for monies had and received where it would be unjust and inequitable to allow the borrower to retain the monies borrowed. But it is important to remember that this is not a case in which a lender who lacked capacity made a loan and is then seeking its recovery from the borrower. In this case the borrowers (ie the motorists) directed the Provident Society to pay the monies they borrowed to discharge debts due by them to a Third Party (the Insurance Company). Thus the transaction did not create a debt by the Insurance Company to the Provident Society and it seems to me that different considerations may well apply when considering whether or not it would be unconscionable and inequitable to allow the Insurance Company to retain the money they received than in a case where a lender claims the return of monies lent to a borrower. The issues that arise in the present cases could only be properly determined by evidence relating to the entire transaction and in particular the evidence of the persons involved in the "Scheme". 

(c) In support of its argument the Provident Society submitted that oral evidence would not be as relevant in this case to establish whether the directors of the Insurance Company knew that the loans were ultra vires the Provident Society -- knowledge of the ultra vires nature of the loans would be imputed to them as a matter of law. Again, I cannot agree. Section 8 of the Companies Act 1963 and the European Communities (Companies) Regulations, 1973 SI No 163 of 1973 apply in this case. This means that as a matter of law it cannot be said that they had constructive knowledge the Provident Society's lack of capacity to make the loans. 

(c) It was further submitted that there is in fact a witness available a Mr Gordon Gallagher, a former group financial controller has "knowledge of the genesis of the scheme and its day-to-day working". But even if this were so the fact that there is only one witness as to the "genesis" of the "scheme" only highlights the prejudice which the delay will cause. There must have been many persons with his knowledge. The delay will have deprived the court of the benefit of the evidence and it would not be just to allow the issues now to be determined when, but for the delay, they could have been determined with much greater certitude. 

(c) The Provident Society has raised one final issue to which I should refer. It is claimed that the Provident Society and the Insurance Company and other companies in the PMPA group entered into an agreement of compromise on the 11 July 1994 and that by virtue of this agreement the Insurance Company is now estopped from disputing the Provident Society's claims in the two actions or alternatively has waived the right to contest them. 

The agreement was entered into between 52 companies in the PMPA Group. It recited that the parties had agreed to compromise the debts due by each party to the other parties "with the exception of those matters specified in the second schedule". It provided for a "payment date" and that every debtor (as defined) would pay to its creditors the sum specified in the fourth schedule and that every creditor would accept the payment received from every debtor in full and final settlement of all liabilities of the debtor "with the exception of the excluded matters". 

The "excluded matters" were described as "issues arising in litigation entitled" (a) the High Court proceedings which are referred to in this judgment as the first action "being issues between the defendant and the Third Party". This meant that the issues between the Private Motorists Protection Association Limited and the Private Motorists Provident Society Limited in the first action were not "excluded matters" but that the claims by the Provident Society against the Insurance Company were excluded matters. Secondly, issues in the proceedings between the Society and Primor Plc (Record Number 1994 No 3293P) were also excluded. These are referred to in paragraph 9 of the chronology set out earlier in this judgment. These 1994 proceedings were in fact discontinued but the issues arising in them were immediately revived in the proceedings to which I have referred to as the "second action" and no point is taken that the compromise agreement should not be read as excluding the issues in this second action. 

I cannot agree with the submission that by entering into the compromise agreement the Insurance Company acquiesced in the payment by the Provident Society to the Private Motorists Protection Association of the claim against it in the first action and that by this acquiesence the Insurance Company is now estopped from contesting both the Provident Society's claim in the Third Party proceedings in the first action and its claim in the second action. The compromise was between each of the named parties and their own creditors. By executing this agreement the Insurance Company made no agreement relating to the debts of the other parties to the agreement and, in particular, the debts which the Provident Society may have owed to the Protection Association. Nor did it make any representation relating to the debts of others. The issues relating to the claims made by the Provident Society against the Insurance Company were specifically excluded from the terms of the compromise agreement and accordingly the Insurance Company is no way debarred from contesting its liability to the Provident Society in both the first and second action. Furthermore the issue that is now before the court in both actions is whether the claim should be struck out by virtue of the delay of the Provident Society. By entering into the compromise agreement I cannot see how the Insurance Company is now debarred from raising this issue -- it is one expressly excluded by the terms of the compromise agreement. I should add that in negotiating the terms of the compromise agreement the examiner did not waive his claim to have these actions dismissed merely because he failed to refer to the possibility that such a claim might subsequently be advanced. 

I must conclude, therefore, that in respect of both actions there has been inordinate and inexcusable delay on the part of the Provident Society, that this delay would prejudice the fair trial of the claims by the Provident Society against the Insurance Company in both actions. This prejudice arises not only because of the absence of necessary oral testimony but also the difficulty in obtaining the relevant documentary evidence. Accordingly in the exercise of the courts inherent jurisdiction I must dismiss the Third Party claim in the first action and the plaintiff's claim in the second action.