Hartglen Pty Ltd v Geoff Mitchell & Associates Pty Ltd
[2004] QSC 67
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- Unreported Judgment
- Hartglen Pty Ltd v Geoff Mitchell & Associates Pty Ltd[2004] QSC 67
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Hartglen Pty Ltd v Geoff Mitchell & Associates Pty Ltd[2004] QSC 67
Hartglen Pty Ltd v Geoff Mitchell & Associates Pty Ltd[2004] QSC 67
SUPREME COURT OF QUEENSLAND
CITATION: | Hartglen Pty Ltd v. Geoff Mitchell & Associates Pty Ltd & Anor [2004] QSC 067 |
PARTIES: | HARTGLEN PTY LIMITED (ACN 010 299 939) HARTGLEN PTY LIMITED (ACN 010 299 939) |
FILE NO/S: | SC 8215 of 1999, SC 2545 of 2001 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 26 March 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 March 2004 |
JUDGE: | Holmes J |
ORDER: |
|
CATCHWORDS: | QUEENSLAND – PRACTICE UNDER RULES OF COURT – Time – Delay Since Last Step in Proceeding – Leave to Proceed –Rule 389 Uniform Civil Procedure Rules – Striking Out for Want of Prosecution. Uniform Civil Procedure Rules 1999, r 5, r 389 Madden v Kirkegard Ellwood and Partners [1983] 1 Qd R 649 Quinlan v Rothwell [2002] 1 Qd R 647 Tyler v Custom Credit Corp Ltd & Others [2000] QCA 178 Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493 |
COUNSEL: | Mr Couper QC with Mr Horton for the applicant Mr Lumb for the respondent defendants in SC8215 of 1999 Mr Clothier for the respondent defendant in SC2545 of 2001 |
SOLICITORS: | Tavoularis & Co for the applicant plaintiff Philips Fox for the respondent defendants in SC8215 of 1999 Minter Ellison for the respondent defendant in SC2545 of 2001 |
Background
- The applicant plaintiff seeks, in each of these proceedings, leave to proceed, pursuant to r 389 of the Uniform Civil Procedure Rules 1999. There are corresponding applications by the respondents for dismissal of the proceedings for want of prosecution. The actions arise in each case out of the plaintiff’s engagement as a sub-contractor to perform steel fabrication work on the Wacol Prison. Walter Construction Group Limited was the head contractor; the contract was entered in March 1998. The plaintiff commenced work on the site in May 1998, and finished in October 1998. In the plaintiff’s various pleadings it is alleged that it was agreed between it and Walter Construction Group Limited that the plaintiff would provide shop drawings for the steel work it was to fabricate and install, and that Walter Construction Group Limited would, to that end, supply it with drawings and specifications, including architects’ drawings. The plaintiff says that it in turn engaged Geoff Mitchell & Associates Pty Ltd, which was in the business of providing engineering drafting services, to prepare the necessary drawings. Geoffrey Robert Mitchell is a director of that company.
- The thrust of the plaintiff’s case is that errors in the drawings provided by the Mitchell parties (as I shall collectively refer to the defendants in SC 8215 of 1999) led to its having to re-draft the drawings and perform rectification works at considerable expense. Against Walter Construction Group Limited the allegation is that it provided the Mitchell parties with structural layout plans which were neither suitable nor reliable for the drawings required, rather than the agreed architectural drawings, and that it had, through an employee, misinformed Mr Mitchell that the structural layout plans were equivalent to architectural drawings, and were suitable and reliable for the purposes of the work to be performed.
- The last step in the action against the Mitchell parties was the filing and serving of an amended claim and statement and claim in March 2001, or possibly November 2001. There is a dispute about the date of service, but nothing really turns on which date applies. As against Walter Construction Group Limited the last step was the first: the filing and serving of the claim and statement of claim in March 2001.
Rule 389
- Rule 389 of the Uniform Civil Procedure Rules relevantly provides:
Continuation of proceeding after delay
….
(2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
- The factors relevant in considering whether leave to proceed ought to be granted were set out in the judgment of Atkinson J, with whom the other members of the Court of Appeal agreed, in Tyler v Custom Credit Corp Ltd & Others [2000] QCA 178 as including:
“(1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2)how long ago the litigation was commenced or causes of action were added;
(3)what prospects the plaintiff has of success in the action;
(4)whether or not there has been disobedience of Court orders or directions;
(5)whether or not the litigation has been characterised by periods of delay;
(6)whether the delay is attributed to the plaintiff, the defendant or both the plaintiff and the defendant;
(7)whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
(8)whether the litigation between parties would be concluded by the striking out of the plaintiff’s claim;
(9)how far the litigation has progressed;
(10)whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
(11)whether there is a satisfactory explanation for the delay; and
(12)whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.”
The history of the litigation
The period up to the filing of the claim in SC 8215 of 1999: July 1998 - September 1999
- The sequence of events from the plaintiff’s perspective is deposed to by Mr Tavoularis, the principal of the firm of solicitors which at all stages acted for it. He says that Mr Rogers, one of the plaintiff’s directors, told him at the beginning of July 1998 about the plaintiff’s problems in the performance of the work at Wacol because of deficiencies in the drawings prepared by Geoff Mitchell & Associates Pty Ltd: steel had been fabricated to incorrect dimensions and wrongly installed; the plaintiff had had to check and re-draw the Mitchell plans, and to re-fabricate and re-assemble pieces of steel. On Mr Tavoularis’ advice, a letter was sent in mid-July 1998 to the Mitchell parties, raising the issue of the defective drawings and suggesting that they notify their insurer. Mr Tavoularis says that he also discussed the prospect of a claim for damages “against Mitchell and any other relevant party” and explained the sort of expert reporting that would be needed. Mr Rogers’ response was that the plaintiff was in a serious situation and it was better that the directors directed their energy into rectifying it.
- In December 1998 there was telephone contact with Mr Pokarier, a partner in the firm of solicitors acting for the Mitchell parties’ professional indemnity insurer, who advised that the matter was being investigated and that a loss adjuster’s report would be prepared. Mr Tavoularis’ office sent a follow-up letter in April 1999, with copies directed to Mr Mitchell, the loss adjuster and AMP. AMP responded on 21 April 1999, advising that the loss adjuster was no longer retained and that any enquiries should be directed to Mr Pokarier. Mr Tavoularis says that he had received no further response by mid 1999. When he advised Mr Rogers of that, the latter said that the plaintiff was not in any position to fund litigation, nor reports from a forensic accountant and an independent engineering expert proposed by Mr Tavoularis; but he did accede to a suggestion that Mr Tavoularis’ firm undertake some investigation in the way of examining the relevant documentation and speaking to the plaintiff’s in-house draftsmen. That was done between July and September 1999. Counsel’s opinion on prospects and quantum was also obtained and a claim and statement of claim was drawn and filed in SC 8215 of 1999 on 10 September 1999.
The statement of claim in SC 8215 of 1999
- In that statement of claim the plaintiff alleged as against the first defendant, Geoff Mitchell & Associates, breach of a contract between them for preparation of the drawings, negligence in that preparation, and contraventions of s 52 of the Trade Practices Act 1974 in the first defendant’s representations as to its competence and its capacity to complete the drawings by specified dates, and of s 53 of that Act in its representation that the drawings would be of a particular standard or quality. Against the second defendant, Geoffrey Robert Mitchell, it was alleged that he similarly engaged in contraventions of s 52 and s 53, or alternatively s 38(1) and s 40 of the Fair Trading Act 1989, and that he was a person involved in a contravention of the provisions of Part 5 of the Trade Practices Act.
The period up to the amended statement of claim in SC 8215 of 1999 and the filing of the claim in SC 2545 of 2001: September 1999 – April 2001
- On 17 November 1999, the solicitors for the Mitchell parties requested further and better particulars, which Mr Tavoularis says the plaintiff could not provide without material from the loss adjusters and without expert engineering reports. It was agreed that the solicitors from the Mitchell parties would not file a defence, either before the particulars were given, on the defendants’ version, or before the expert reports were filed, on the plaintiff’s; it does not matter greatly for present purposes which is correct.
- On 8 December 1999, Tavoularis and Company wrote to Philips Fox requesting certain documents, drawings and information necessary to provide answers to the request for further and better particulars. That information appears from the correspondence to have been forwarded in February 2000.
- According to Mr Tavoularis there was an agreement that the “parties’ experts” would meet on 23 May 2000; one assumes that to be a reference, on the plaintiff’s side, to its in-house draftsmen. A settlement meeting two days later was unproductive. Mr Tavoularis says that it then became clear to him that the existing pleadings required amendment, and that consideration should be given to proceeding against Walter Construction Group Limited. It was also, he says, apparent to him that the plaintiff’s draftsmen, Mr Hosie and Mr Anderson, would not be competent to provide expert evidence. He obtained quotations from an expert in engineering and drafting and a forensic accountant for the costs of such reports. Mr Rogers, on seeing the quotations, told him that the plaintiff could not afford such a report for at least one or two years.
- On 21 September 2000, Tavoularis and Company wrote to Philips Fox advising that the further and better particulars would be provided after amended pleadings were served. The amended pleadings were, in September 2000, said to be within a week of being provided.
- In August 2000, the plaintiff’s accountant had been given instructions to prepare a report as to the financial damage suffered by the plaintiff on the Wacol project. It was completed in December 2000. Mr Tavoularis said that he realised then that amendments were required to the pleadings in relation to quantum as well as liability. At the same time it became obvious, from a report prepared by Mr Hosie and Mr Anderson, the in-house draftsmen for the plaintiff, and what Mr Tavoularis describes as “further investigations” by his office and by counsel, that proceedings should be commenced against Walter Construction Group Limited.
The amended statement of claim in SC 8215 of 1999
- On 20 March 2001, an amended statement of claim was filed in respect of the Mitchell parties. In this statement of claim reference to contraventions by the second defendant of the Fair Trading Act was removed. The allegations of misleading and deceptive conduct and false representations said to contravene the Trade Practices Act were expanded, and as against the first defendant, an alleged failure to exercise proper skill and diligence was also relied on as a particular of breach of an implied term in the contract and of negligence. There is some dispute as to whether this amended statement of claim was served on the Mitchell parties then, or in November 2002.
- In March 2001, the claim and statement of claim against Walter Construction Group Limited were also filed. It does not appear that Walter Construction Group Limited had any earlier notice of a potential claim by the plaintiff. The statement of claim pleaded the contract between the plaintiff and Walter Construction Group Ltd and alleged that it was an express term of the contract that the latter would provide drawing specifications and other documents including architects’ drawings, and that it was an implied term that it would provide accurate information. It is alleged that Walter Construction Group Limited did not provide the Mitchell parties with the architectural drawings but instead with structural drawings, having advised them that they did not need architectural drawings and that the drawings for the plaintiff could be based on structural layout plans. It is said that that advice, and Walter Construction Group Limited’s conduct in providing the parties with the structural drawings, amounted to contraventions of ss 52 and 53 of the Trade Practices Act, and that the failure to provide architectural drawings and the provision of structural layout drawings instead were a breach of contract and a breach of the duty of care owed by Walter Construction Group Limited to the plaintiff.
- On 2 April 2001, the solicitors who then acted for Walter Construction Group Limited asked for better particulars of the statement of claim. Tavoularis and Company advised on 5 April that they would reply shortly, but it does not appear that any response was forthcoming.
The Mitchell parties’ claim against Walter Construction Group Limited
- Shortly after, proceedings were also commenced by the Mitchell parties against Walter Construction Group Limited. The essence of the allegations contained in the statement of claim was that the Mitchell parties were provided with the structural drawings, not architectural drawings, for the buildings at the Wacol site, and advised that the former could be relied on for the purpose of preparing its drawings since they constituted an overlay of the architectural layout plan of the buildings. In fact these structural drawings did not, it is pleaded, accurately reflect the architectural layout. The remedies claimed were damages for negligence and/or misleading or deceptive representation contrary to s 52 of the Trade Practices Act and indemnity or contribution in respect of the plaintiff’s claim against Geoff Mitchell and Associates Pty Ltd.
The obtaining of the expert reports: mid 2001 – December 2003
- Mr Tavoularis says that in mid 2001 Mr Rogers advised him that the plaintiff was in a better financial position, and instructed him to engage experts and senior counsel. In August 2001, Mr Tavoularis began enquiries as to an appropriately qualified consultant engineer, and was referred to a Dr Peter Mullins. In September and October there were meetings with Dr Mullins in connection with the collection of material for his report. He was formally engaged on 22 October 2001. A Mr Keith Cooper was engaged as accountant by letter of 22 October 2001. On 7 December 2001, Tavoularis and Company advised Mr Pokarier that the further and better particulars he had long ago sought would be provided “on completion of the current examination of various materials by our client’s experts”, which was expected to be “shortly”.
- In October and November 2002, there was correspondence, and there were evidently conversations between Mr Pokarier’s firm and the plaintiff’s solicitors about the amount of time things were taking. In a long letter of 21 November 2002, Tavoularis and Company set out some of the difficulties entailed in the experts’ preparation of reports, and expressed their belief that the reports would be available by the end of December 2002. On 24 December 2002, they advised Mr Pokarier by letter that after “recent discussions” with both experts they could report that both reports were near completion and that they anticipated their delivery before the end of January 2003. In a letter of 30 January 2003, the reports were to be available within two weeks. Mr Penfold, the solicitor presently acting for Walter Construction Group Limited, says that on 21 January his firm received notice of intention to proceed from Tavoularis and Company and advice that the two reports would be obtained and forwarded within the next two weeks. That was the first correspondence to his client since 5 April 2001. On 24 March 2003, Dr Mullins’ report was delivered to the solicitors for the Mitchell parties, and they were advised that the forensic accountant’s report was, it was reported, held up by problems with the plaintiff’s computer system. It was not until 16 June 2003 that the solicitors acting for Walter Construction Group Limited were provided with Dr Mullins’ report. The forensic accountant’s report was provided to the defendants in both proceedings on 8 January 2004.
The stage the litigation has reached
- Mr Tavoularis swears that the completion of the two reports has necessitated a re-drafting of the claim and statement of claim in one of the proceedings. This is presumably a reference to a draft claim and statement of claim served on the Mitchell parties in January 2004, which was made an exhibit on this application. It alleges that the contract for preparation of drawings was made between the plaintiff and both defendants and breached by both defendants. It also alleges that both defendants owed the plaintiff a duty to exercise the care and skill of a reasonably competent engineering draftsperson. Various deficiencies in the preparation of the shop drawings are said to constitute breaches of contract and duty of care by both defendants; but the Trade Practices Act claims are omitted.
- To date the litigation has not proceeded at all expeditiously. The last of the amended statements of claim (as one hopes it is) in respect of the Mitchell parties was only served in January. It seems entirely likely that the pleadings in the case of Walter Construction Group Ltd will also require amendment. All defendants still await further and better particulars, which remain, one would expect, necessary to the preparation of defences. On the other hand, a major hurdle in the plaintiff’s preparation, the obtaining of expert reports, has been overcome. Nonetheless, the proceedings remain at a very early stage.
The delay and the explanation for it
- The events alleged in the statement of claim in this case occurred almost six years ago, in May to October 1998. The litigation as against the Mitchell parties was commenced in a timely fashion, four and a half years ago, in September 1999, after negotiation with the insurer; the real delay in the proceedings against them has been in the provision of expert reports, particulars and amended pleadings. As against the Walter Construction Group Ltd, there was a delay of almost three years in commencing proceedings. However, it is of some importance to note that both proceedings are still within the limitation period.
- As to initial delays in commencing, Mr Rogers has sworn an affidavit in which he says that following the Wacol Prison contract, the business run by the company was “in a very difficult financial position” and could not afford expert reports which, when ultimately obtained, cost more than $50,000. There is in the material a profit and loss statement and balance sheet for the plaintiff for the period up to 30 June 2000. The profit and loss statement shows a net profit for the year of $426,792.11, the balance sheet current assets at $1.55 million (the bulk of which is the amount of $1.25 million owed by trade debtors) and liabilities of $1.43 million, of which $767,000 is owed to trade creditors. Mr Robert Leavy, the plaintiff’s expert accountant, has set out in his report rectification costs and loss of profits totalling some $682,000 resulting to the plaintiff from the Wacol project.
- Although it does not appear from that material that the plaintiff’s position was parlous, I accept that outlaying $50,000 for expert reports alone was no small matter for an enterprise of the size of the plaintiff, and that there might well have been some delay in mustering its resources to that end. I accept also that its losses on the Wacol project, which on its case are attributable to the defendants, while not ultimately ruinous, caused it some short-term difficulty.
- It is difficult to understand, however, why it took three years to perceive that an action might lie against Walter Construction Group Limited, in circumstances where it was always known by the plaintiff that it was the provider of the original drawings on which the Mitchell parties would base their work; and why there was a lapse of some 9 months between the realisation by Mr Tavoularis that consideration should be given to suing that company and the filing of the statement of claim in March 2001.
- Once proceedings were commenced, neither defendant could reasonably have been required to file a defence in absence of the further particularisation each had sought. Indeed, it seems to have been understood between the parties that that was so. The delay in providing particulars in turn seems to have been brought about by the delay in production of the expert reports, which is not really satisfactorily explained. According to Mr Tavoularis, Dr Mullins worked on his report from November 2001 until 24 March 2003. The report itself, he says, consists of five lever arch folders including 100 pages of findings. Mr Cooper’s practice went through various mergers and changes of personnel; Mr Leavy delivered the completed report in mid December 2003. During the intervening period, Mr Tavoularis says Mr Cooper and/or Mr Leavy were contacting him or the directors of the plaintiff on at least a monthly basis. It was necessary for them to quantify the cost of each incident of misfabrication as a result of the deficient drawings by way of additional labour hire costs, additional transport costs and additional re-drafting and correction costs. Mr Rogers swears to the fact that there was delay in the preparation of the forensic accounting report of approximately two and a half months caused by computer difficulties with the plaintiff’s accounting software package.
- It is understandable that those reports would take some time to prepare and allowance must be made for the ten weeks or so during which the plaintiff was experiencing difficulty with its computing system. But the sheer length of time taken by the experts is very difficult to understand, and is not explained by any material from them. On the other hand, there is no indication of any conduct by the plaintiff which contributed to it; and the tenor of its solicitors’ correspondence does rather suggest a long-held and genuine, if increasingly fragile, belief in their imminent production over the entire period of delay.
Prejudice
- There is no allegation of prejudice of the part of the Mitchell parties, who have long been aware of the likelihood of litigation although not with any great clarity as to its basis in contract, tort or statutory contravention. That is not so in the case of Walter Construction Group Ltd: in his affidavit, Mr Penfold says that a Mr Stewart, a site engineer who is said to have made the statement to Mr Mitchell that the structural drawings were an overlay of the architectural layout plan and could be relied on to prepare shop drawings, had first been asked about that conversation in early to mid 2001 and had no recall of it. There is some clear disadvantage to the defendant in the failure of the recollection of Mr Stewart as to the conversation attributed to him which is crucial to those proceedings. The prejudice arises really from the delay between the loss and the institution of proceedings against Walter Construction Group Ltd, for which neither want of means nor expert delay seems a complete answer.
- Mr Couper SC, for the plaintiff, pointed out that in any event, the action remaining within the limitation period, it could be reinstituted if now dismissed; so that the removal of any prejudice would be doubtful. Mr Clothier, for the Walter Construction Group Limited, says that if it were dismissed and reinstituted his client would be in a position to make an application to have it dismissed. But Madden v Kirkegard Ellwood and Partners[1] does not provide great confidence that such an application would be successful:
“Where an action has been discontinued or dismissed for want of prosecution and a second action in the same court between the same parties seeking the same relief and based on the same grounds as in the earlier action is then commenced within the limitation period, that action should not for that reason alone be stayed or dismissed as an abuse of process. That this is so appears from the speeches in Birkett v James [1978] AC 297, especially at pp 320-321 per Lord Diplock, pp 328-329 per Lord Salmon and pp 333-334 per Lord Edmund-Davies.
There may be certain circumstances in which the conduct of the plaintiff is such that a stay would be justified as, for example, where the plaintiff’s conduct in the previous proceedings has induced the defendant to do something which will create more difficulties for him in presenting his case at the trial than he would have had if the previous proceedings had never been started (ibid, at p 320) or where the plaintiff has so misled the defendant that it might be wrong to allow him to sue afresh (ibid, at p 334), but such cases should be regarded as exceptions to the general rule.”[2]
Prospects of success
- No particular point was made about the plaintiff’s prospects of success as against Geoff Mitchell & Associates Pty Ltd or against Walter Construction Group Limited. However in relation to the claim against Geoffrey Robert Mitchell & Associates, Mr Lumb, for the Mitchell parties, points out that the claims of contraventions of the Trade Practices Act and Fair Trading Act have been abandoned, and where as it was originally pleaded that the contract was with the first defendant only, there is now sought to be made out a claim that the contract was also with Mr Mitchell as an individual. The contract between the plaintiff and the Mitchell parties is said to have been formed by the acceptance by the plaintiff of a quote from the Mitchell parties for the work. The quote is on the letterhead of Geoff Mitchell & Associates, and is signed by Mr Mitchell as director. There is nothing in it to suggest that he was contracting as an individual. The response of the plaintiff was addressed to Geoff Mitchell & Associates Pty Ltd.
- The statement of claim pleads a duty owed by both defendants to exercise the care and skill of a reasonably competent engineering draftsperson, but pleads no basis on which it is said that that duty was owed. The fact that the proceeding original statement of claim and amended statement of claim did not assert any contractual relationship or duty of care on the part of Mr Mitchell does not inspire confidence in the allegations now made. That is a factor in considering whether the plaintiff should be permitted to continue as against him; on the other hand, there remains the consideration that the limitation period has not expired.
Disobedience of court orders or directions
- There has not in this case been any instance of non-compliance with any court order, possibly only because of the defendants’ forbearance from applications, but Mr Lumb relied heavily on r 5 of the Uniform Civil Procedure Rules which provides as follows:
“5 Philosophy—overriding obligations of parties and court
(1) The purpose of these rules is to facilitate the just and expeditious
resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the
objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4) The court may impose appropriate sanctions if a party does not
comply with these rules or an order of the court.”
- Here, Mr Lumb said, when the plaintiff commenced its action against the Mitchell parties it could not have supposed that it would be in any position to proceed expeditiously. It was not even in a position to provide further and better particulars. The sanction provided for by r 5(4) ought to be imposed in the form of dismissal of the current proceeding.
- I do not think however that r 5(3) does more in this context than reinforce the importance of expedition in proceedings as a consideration in applications such as the present. As Thomas JA observed in Quinlan v Rothwell [3]
“At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that the parties have the opportunity of full preparation of their case before the trial commences.”
It would be wrong in my view to apply rr 5(3) and (4) in a punitive way by dismissing the plaintiff’s application, although the commitment to expedience required by r 5(3) is clearly a consideration.
Conclusion
- Taking all the factors I have identified as salient in this case into account I have concluded, notwithstanding the element of prejudice to Walter Construction Group, and the fact that the case against Geoffrey Robert Mitchell as presently framed is not compelling, that leave to proceed should be given in both actions. The former is of some significance; but it is not the product of delay since the institution of proceedings, which were brought well within the limitation period. The case against it seems to have substance, and there is every prospect that a further proceeding could and would be brought should this be dismissed. Mr Mitchell similarly could be the subject of further proceedings. He, at least, has long had notice of the gist of the claim against him; one would expect that his recollection of the relevant dealings has been committed to record. The delay involved is not so inordinate as of itself to require refusal of leave to proceed, and it is to some extent, although not entirely satisfactorily, explained. The major stumbling-block, in the form of the need for the plaintiff to obtain its expert reports, is now removed, and one might reasonably expect greater expedition from this point.
- I will grant the applicant plaintiff leave to proceed against all respondent defendants. The applications for dismissal for want of prosecution by those respondents are accordingly dismissed.
- I will hear the parties as to costs.