THE HIGH COURT
1986 No. 2747P

Between:
MICHAEL COLLIN GEOFFREY McMULLEN
Plaintiff
-and-

CAREN FARRELL, JOHN FARRELL, THOMAS FARRELL and
MARCUS J. FARRELL (practicing under the style of FARRELL & PARTNERS 
(formerly ADAMS FARRELL & COMPANY)

and

ENDA GEARTY, FRANCIS GEARTY and PÁDRAIG GEARTY
practicing under the sytle of F.J. GEARTY & COMPANY

and

VINCENT BEIRNE, EOIN J. BINCHY, JOHN CALDWELL, BRIAN GARTLAND, FRANCES MULVEY, MICHAEL O’HALLORAN and HUGH FRANCIS O’NEILL
practicing under the style of BINCHY & PARTNERS (formerly FITZPATRICKS)
Defendants.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 1st day of July 2002.

	The first to fourth named defendant seek an order from this court dismissing the plaintiff’s application for a review of taxation in the within proceedings for want of prosecution.
	The motion is moved on an affidavit of Donal Holohan, Solicitor of 81 Eccles Street, Dublin who is a solicitor in the firm of Giles J. Kennedy & Co., Solicitors.
	Mr. Holohan deposes to the fact that on the 18th February 1992 the plaintiff’s claim against these four defendants was dismissed by order of this court and it was further ordered that these defendants do recover against the plaintiff their costs when taxed and ascertained.  It appears that the costs were taxed by Taxing Master O’Connor on 8 July 1992. Objections and cross objections were carried in against certain items in the taxation which said objections were heard on 13 November 1992.  On the determination of the taxation the plaintiff applied to this court by notice of motion of 22 December 1992  for a review thereof.  However, before the review could be heard and determined a report of  the Taxing Master was required and this did not become available until 21 November 1994.  It appears that when this was initially furnished there were manifest errors in same and by reason of the death of Taxing Master O’Connor there were further delays before a final amended report came to hand in or about the month of February 1997.  Subsequently the plaintiff’s then solicitors issued a motion dated 18 February 1997 to come off record and this motion was allowed on 9 June 1997 and the proceedings were then adjourned generally with liberty to re-enter.  From that time onwards no further steps were taken in these proceedings but the plaintiff pursued an application to the European Court of Human Rights in which he sought declarations and relief against Ireland.  It appears that the plaintiff furnished the defendants’ solicitors with a copy of a judgment of the European Court of Human Rights dated 9 June 1999 but he has taken no further action to prosecute his review of taxation since that time or at any time since the matter was adjourned generally with liberty to re-enter.  It is in this light that the present motion is brought before this court.  It appears that no letter was written to the plaintiff and any time prior to the bringing of this motion calling upon him to re-enter the review of taxation, failing which a motion would be brought to dismiss same for want of prosecution.
	In reply to the affidavit of Mr. Holohan, the plaintiff has sworn an affidavit in which he states that following the Taxing Master’s report dated 21 November 1994 which was endorsed “Agreed between both parties” he sates that the defendants through their solicitors revealed no inclination to progress matters and readily agreed to a total of 27 adjournments until 9 June 1997, when it is stated came off record and the plaintiff in person informed the court that he had brought an application to the European Commission of Human Rights at Strasbourg. 
	The plaintiff states that then they chose not to pursue the matter and remained silent thought the decisions of the European Court of Human Rights were available to them.  The plaintiff refers to bankruptcy proceedings which were taken against him by other parties were found to be misconceived.  However, as these proceedings were taken on behalf of other parties they appear to be of no relevance to the instant proceedings or this application.
	The plaintiff contends that a formal notice of intention to proceed should have been furnished by the defendants and moving parties to this motion and complains that the affidavit of Mr. Holohan has a signature which he cannot decipher and no independent address attached thereto. 
	The plaintiff states that until receipt of the within motion any issue over the Bills of Cost of these defendants had ceased and he submits that the passing of such a long time and the many opportunities which these defendants have had to raise matters are such as to give rise to an estoppel now prevailing against the defendants.
	The plaintiff concedes that he did raise the question of liability for these Bills in his complaint to the Committee of Ministers of the Council of Europe.  He states, however, that the view taken against him was that his suit against his former solicitors was held to have been instituted in the wrong court.
	Aside from these contentions of the plaintiff he has not taken issue with the essential history of these proceedings and it appears that the review of taxation was adjourned at a time when the plaintiff had brought an application to the European Court of Human Rights alleging a violation of his rights under the European Convention.  This court has not been furnished with anything other that limited extracts from documents arising from the plaintiff’s application.
	
	Notice of intention to Proceed:

	Order  122 r. 11 of the Rules of the Superior Courts provides as follows:

11.	In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed  shall give a month’s notice to the other party of his intention to proceed.  In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just.  A motion or summons on which no order has been made shall not, but notice of trial though countermanded shall, be deemed a proceeding within this rule.

	It appears that the issue raised on this motion by the plaintiff is not the subject of any recorded judgment of  this court.  In these circumstances I have considered the matter and I have come to the conclusion that a defendant who brings a motion to dismiss any cause or matter under the terms of this rule is not required to serve a notice of intention to proceed under the rule but if that party wished to take any other step in the action “to proceed” such a notice would be required.  In the instant case the relief sought by these defendants is to dismiss the plaintiff’s application for a review of the taxation of their costs for want of prosecution and they do not want to re-enter the matter for the purposes of the review in question.  Accordingly, I am satisfied that no notice of intention to proceed as contended for is required of the defendants in these circumstances.
	I am satisfied that this court has jurisdiction to entertain the defendants’ motion.  Hamilton C.J. stated in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at 475 that “the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so.”  This jurisdiction will normally be exercised where there has been inordinate and inexcusable delay on the part of the plaintiff and where the balance of justice is against allowing the case to proceed.  In making any such decision this court is required to strike a balance between the rights of both parties and the conduct of the parties may be relevant.
	I am satisfied that there has been undue delay on the part of the plaintiff in prosecuting his review of taxation and while the defendant consented to the matter being adjourned in light of the plaintiff’s application to the European Court of Human Rights, it is clear that those proceedings have been concluded and such forbearance as was exercised by the defendants was to enable those proceedings to be prosecuted to finality.  I am satisfied that no estoppel exists in these circumstances such as to preclude the defendants from bringing this motion.  It is clear however, that for some of the period of delay complained of there was acquiescence on the part of the defendants and I must accordingly consider as relevant the period since the termination of the plaintiff’s application in Strasbourg. 
	While Mr. Holohan in his affidavit does not contend that the delay on the part of the plaintiff has been inordinate or inexcusable, I am satisfied that such has been the case.  Nevertheless, this court must consider when the balance of justice favours the defendants.  No case of prejudice has been made out other than the desire for finality and the fact that they have had their costs taxed. 
	In conclusion I am not satisfied that the justice of the case favours the defendants in the particular relief which they seek at this stage and I believe that the plaintiff should be afforded a short interval to re-enter his review of taxation and to prosecute same, failing which this Court will have no alternative to allowing the defendants’ motion.
	In conclusion I will give the plaintiff a period of three months to re-enter his review of taxation and to prosecute same failing which I will be disposed to allow the defendants’ motion herein. Accordingly, I will adjourn this motion to 7 October 2002 for mention to ascertain what steps, if any, have been taken by the plaintiff to prosecute his review of taxation.  I believe that the defendants’ solicitors should have written to the plaintiff intimating their intention to bring a motion of this nature prior to issuing same so as to enable the plaintiff to prosecute his review in the absence of any case being made out that a review of taxation is no longer possible or that justice cannot be done to the defendants on any such review.