CA Proceedings I
Cases
Collins v Minister for Justice, Equality and Law Reform
[2015] IECA 27
Judgment
Title:
Collins -v- Minister for Justice Equality and Law Reform & ors
Neutral Citation:
[2015] IECA 27
Court of Appeal Record Number:
2014 578
Date of Delivery:
19/02/2015
Court:
Court of Appeal
Composition of Court:
Peart J., Irvine J., Hogan J.
Judgment by:
Irvine J.
Status:
Approved
___________________________________________________________________________
THE COURT OF APPEAL
Neutral Citation Number: [2015] IECA 27
Appeal No. 2014/578
[Article 64 Transfer]
Peart J.
Irvine J.
Hogan J.
Carol Collins
Plaintiff/ Respondent
and
The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Defendants/Appellants
JUDGMENT of the Court delivered on the 19th day of February 2015 by Ms. Justice Mary Irvine.
1. This is an appeal against the judgment and order of the High Court (Cross J.) delivered on 23rd July 2012, in which he refused the defendants’ application to dismiss the plaintiff’s claim on the grounds of inordinate and inexcusable delay. The within appeal falls to be determined by this Court pursuant to a direction of the Chief Justice (with the concurrence of the other members of the Supreme Court) further to the provisions of Article 64 of the Constitution.
Relevant background facts
2. By plenary summons dated 16th August 2003, the plaintiff, a factory worker born in 1978, commenced proceedings seeking damages from the defendants for assault, battery, false imprisonment and breach of her constitutional rights. She alleges mistreatment at the hands of members of An Garda Síochána between 1998 and 2001, complaints first agitated on her behalf by her solicitor, Mr. Fitzpatrick of Smithwick Solicitors, in the months of January and February 2001.
3. The plaintiff purported to deliver a statement of claim on 1st June 2007 wherein she identifies some eighteen instances of abuse allegedly perpetrated by Gardaí. These include allegations of arrest and searches of her person, some of which were purportedly carried out when exercising their powers under the Misuse of Drugs Act 1997, as amended. She maintains that these incidents were motivated by spite and malice and were intended to humiliate her. The plaintiff contends that each arrest and detention was unlawful and amounted to false imprisonment. Her final claim relates to an incident which she maintains occurred in November 2000 when she was allegedly subjected to an unlawful and negligently performed highly invasive and terrifying internal examination which left her bleeding and requiring further medical treatment. All of these events, she maintains, have caused her great anxiety, loss of reputation, humiliation as well as other loss and damage.
4. The defendants’ solicitors refused to accept delivery of the Statement of Claim in circumstances where a Notice of Intention to Proceed, which had been served on 8th February 2006, had expired. As a result a further notice of intention to proceed was served on 30th August 2007 and yet another on 3rd September 2007. However, notwithstanding the delivery of these documents the statement of claim was never served.
5. On 19th October 2009 the defendants brought an application seeking to dismiss the plaintiff’s proceedings pursuant to O. 27 r. 1 of the Rules of the Superior Courts and/or O. 122 r.11 thereof and/or pursuant to the court’s inherent jurisdiction to dismiss the claim on the grounds of inordinate and inexcusable delay.
6. At the hearing of that motion the plaintiff’s solicitor sought to excuse the delay in the prosecution of the proceedings by relying upon a number of factors, namely:
i. That there had been a delay in delivery of the plenary summons as it was expected that the defendants would forward to him the results of a Garda investigation which was taking place into the allegations made by the plaintiff in correspondence in January and February 2001.
ii. That the plaintiff was out of contact because she had moved address twice between the time the plenary summons was issued and May 2007.
iii. That the litigation file had been handed to another colleague within the same firm of solicitors after which it had been mislaid and then inadvertently closed when that solicitor left the firm.
7. It is not disputed that Quirke J, on the hearing of that application, concluded that the plaintiff had been guilty of delay which was both inordinate and inexcusable and that he had formed the view that the time that had elapsed “was far too long for a fair trial to occur”. However, having regard to the fact that the allegations made against the defendants were grave and the fact that the defendants had not referred to any particular prejudice arising from the delay, he felt the balance of justice lay in favour of allowing the claim to proceed. Consistent with his conclusion that her delay had been both inordinate and inexcusable, the learned High Court judge dismissed the plaintiff’s claim “for want of prosecution on the grounds of inordinate and inexcusable delay” but put a stay on that order provided that she deliver her statement of claim (to include full particulars) on or before 21 January 2010. It is not disputed that he also advised the plaintiff that she must proceed expeditiously with her claim.
8. The statement of claim was delivered on 21st January 2010. A notice for particulars was then raised by the defendants on 4th May 2010 and a defence delivered on 12th October 2010. In their defence, the defendants admitted that records had been located detailing the detention of the plaintiff on eight occasions between August 1998 and February 2001. However, they went on to deny every allegation of impropriety and wrongdoing alleged against them in the Statement of Claim.
9. The plaintiff’s solicitors replied to the defendants notice for particulars on 18th January 2011 and later served notice of trial on 21st July 2011. Given that the nature of the claim advanced by the plaintiff included an allegation of assault, that notice of trial sought that her action be determined by a judge sitting with a jury. Consequently, the proceedings appeared in the jury list to fix dates on 12th October 2011.
10. It is common case that the Notice of Trial was struck out on 12th October 2011 due to the fact that neither solicitor nor counsel attended the list to fix dates on the plaintiff’s behalf. While the defendants were represented before the court it remains unclear as to whether or not they asked the court to strike out the notice of trial or whether the court, of its own motion, decided upon such an approach. It is however accepted that in the aftermath of the event that the defendants’ solicitor did not notify the plaintiff’s solicitor as to what had occurred.
11. The next step in the proceedings was taken by the defendants on 23 May 2012. On that date they issued their second notice of motion seeking to dismiss the plaintiff’s claim on the grounds of inordinate and inexcusable delay. That application was heard by Cross J on 23rd July 2012 and it is his judgment and order made on that motion that is the subject matter of the within appeal.
12. This Court has been furnished with a note of the ex tempore judgment of the learned High Court judge. That note, taken at face value, would suggest to the reader that the trial judge had confined his consideration to one issue, namely, whether or not there had been inordinate and inexcusable delay during the period post dating the order of Quirke J made on 14th December 2009. However, on the hearing of this appeal, counsel for the plaintiff maintained that Cross J. had in fact considered the entire period of delay, even though in pronouncing his decision he made reference only to the fact that he was satisfied that the plaintiff had established a valid excuse for the delay which had occurred subsequent to the hearing of the first motion, that being a mistake on the part of her solicitor which had resulted in the notice of trial being struck out for non attendance .
Evidence before Cross J.
13. The affidavit grounding the defendants second motion to dismiss the plaintiff’s claim on the grounds of inordinate and inexcusable delay was sworn by Ms. Frederique Duchene. In that affidavit she referred to the history of the proceedings leading up to the first motion to dismiss the plaintiff’s claim, which was heard by Quirke J. on 14th December 2009. She referred to in some detail to his ruling, details whereof have been referred to earlier in this judgement,
14. Ms. Duchene, for the purposes of demonstrating to the court the delay in the prosecution of the action, then set out a chronology of events post dating the order of Quirke J. on 14th December 2009.
i. 4th January 2010: Plaintiff delivers statement of claim
ii. 1st March 2010: Plaintiff’s solicitors demand delivery of the defence
iii. 4th March 2010: Defendants serve a notice for particulars.
iv. 12th October 2010: The defendants deliver their defence.
v. 24th November 2010: The defendants send twenty one day warning letter in
respect of the notice for particulars served on 4th March
2010.
vi. 13th January 2011: A further warning letter is sent to the plaintiff’s solicitors
regarding the defendants outstanding notice for
particulars.
vii. 18th January 2011: Plaintiff replies to the defendants notice for particulars.
viii. 26th January 2011: Defendants call for the service of a notice of trial.
ix. 21st July 2011: Notice of trial is served for a trial before a judge sitting
with a jury.
x. 12th October 2011: The proceedings appear in the jury list fixed dates.
Notice of trial is struck out as the plaintiff fails to
appear.
xi. 23rd May 2012: Defendants issue second motion to dismiss on the
grounds of delay.
15. In addition to the aforementioned delay, Ms. Duchene referred to the fact that since the first motion to dismiss the claim was brought, she had become aware of the fact, Dr. James Maloney, the general practitioner who had carried out an internal examination of the plaintiff in November 2000 and in respect of whose conduct the plaintiff makes her most serious allegation, had passed away in 2007. She stated that she had been unaware of this fact at the time that the first motion had been brought and that she only became aware of his death when she wrote to Dr. Maloney asking him to confirm his availability to give evidence at the hearing of the claim. In the light of all of the factors deposed to she maintained that the plaintiff’s delay had been inordinate and inexcusable and that the balance of justice at that time favoured the dismissal of the claim.
16. In his replying affidavit, Mr. Fitzpatrick, stated that it had taken nine months for him to deliver a reply to the defendants notice for particulars due to the fact that he had had to meet with his client to seek clarification of certain matters raised therein and also to request her to obtain certain medical information from her gynaecologist in circumstances where she had advised him that she had been unable to have children and he felt clarification was required as to whether this might have been as a result of the internal examination complained of. He then served a notice of trial on 21st July 2011 seeking that the trial be heard before a judge sitting with a jury.
17. Mr. Fitzpatrick sought to excuse the delay following the service of the Notice of Trial on 21st July 2011 by reference to a misunderstanding on his part as to the appropriate procedure to be adopted when seeking to obtain a trial date for this type of action. He said that he thought the procedure was the same as that which applied in respect of personal injuries actions where, following the service of a notice of trial, a date could be obtained by applying to the judge in charge of the list once proofs had been complied with. He was unaware that the case would appear in a list to fix dates. Consequently, he did not know the case was before the court in the jury list to fix dates on the 12th October 2011 and he complained that after the notice of trial was struck out that he was never informed of this fact. He said that had he been made so aware he would have immediately arranged to issue a fresh notice of trial so as to bring the matter on for hearing.
18. As to the prejudice alleged by the defendants arising from Dr. Maloney’s death, Mr Fitzpatrick advised that Dr. Maloney was possibly close to eighty years of age when he attended the Garda station on 17th November 2000 and that consequently he may not, regardless of any delay, have been available to give evidence at the trial. He also stated that the plaintiff had been so traumatised by Dr Moloney’s examination that another doctor, Dr. Declan Lawless, was called to the station later that night and that he would be available to give evidence, thus mitigating any potential prejudice as might arise from Dr Moloney’s unavailability.
Submissions
19. Counsel for the defendants, Mr. McDermott, B.L. submitted that the trial judge erred in focusing only on the delay subsequent to Quirke J.’s order and in finding that this delay was excusable. He argued that the trial judge should have considered the delay that had occurred throughout the entirety of the proceedings. He should have paid particular regard to the 10 month delay for the reply to particulars, the 6 month delay from that reply to the service of the notice of trial and the original delay adjudicated upon by Quirke J., as well as the obligation on the plaintiff to proceed expeditiously thereafter.
20. In relation to the excuses proffered for the relevant delays, counsel contended that:
(i) the excuse for the first period of delay, namely, that the file had been lost, was not acceptable as a copy could have been requested from the defence at any time.
(ii) the explanation proffered for the 10 month delay for the delivery of the reply to the defendants notice for particulars, i.e. the procurement of medical evidence, did not withstand scrutiny as no medical issue had been raised in the notice,
(iii) in relation to the final period of delay, counsel submitted that the plaintiff must take responsibility for the error of her legal team. That error in any event provided no explanation for the failure to call the case on for trial and there was no indication as to when, if ever, in the absence of the defendants’ motion, that would have occurred.
21. In relation to where the balance of justice in the case lay, counsel emphasised that the defendants were not under any duty to progress the case, and that they had not acquiesced in the delay. There were numerous indicia such as the lack of an affidavit from the plaintiff to suggest that she did not, contrary to what was maintained by her solicitor, wish to progress the case.
22. In addition, counsel claimed that the defendants had suffered both general and particular prejudice arising from the delay. Counsel accepted that Dr. Maloney’s death had occurred in 2007 and had only been discovered after the judgment of Quirke J. However, he highlighted the key role of Dr. Maloney in relation to the issue of consent to the internal examination complained of by the plaintiff and to her claim that this had been negligently carried out as a result of which she had sustained some bleeding and had required medical attention.
23. Finally, counsel emphasised the “tightening up” of the court’s attitude to delay which was alleged to be inordinate following the decision in Comcast v. Minister for Public Enterprise (Unreported, Supreme Court, 17th October, 2012).
24. In response, counsel for the plaintiff, Mr. Treacy S.C., maintained that Cross J. had indeed considered the delay that had occurred throughout the entire proceedings. He highlighted the chronology of events that had been handed up by counsel for the defendant during the hearing and he asserted that the judge had engaged with counsel in relation to the delay from the inception of the claim.
25. Counsel submitted that the plaintiff’s legal team had made a procedural error as a result of which the notice of trial had been struck out. He submitted that the defendants, who were in attendance when the court made this order, ought not to be allowed to rely upon any delay resulting therefrom, as they had not advised the plaintiff’s solicitors as to what had occurred. Mr Treacy submitted that had the defendants made the position known to Mr Fitzpatrick the high likelihood is that he would have immediately endeavoured, by whatever means was necessary, to obtain a date for the hearing.
26. Mr Treacy also argued that the defendants should not be entitled to rely upon Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms in an attempt to reconfigure the law in that no reliance had been placed upon the Convention and it had not formed part of the courts consideration when it had dealt with the motion at first instance.
27. In relation to where the balance of justice in this case lay, counsel argued that such part of the defendants submission as related to plaintiffs likely whereabouts or which were destined to undermine her stated intention to progress her claim, were more suited to an application to dismiss a claim as being vexatious or an abuse of process rather than one based on delay
28. In considering where the balance of justice lay, Mr Treacy submitted that the court must take into account the extraordinarily serious nature of the plaintiff’s claim and the public interest in proceedings concerning an allegation that a female member of the public had been subjected to a malicious, unwarranted and unlawful internal medical examination.
29. Counsel for the plaintiff further disputed the particular prejudice alleged by the defendants arising from the death of Dr Maloney in circumstances were a second doctor, Dr Lawless, was available to give evidence on behalf of either party. He further highlighted that, as was apparent from the defence, the defendants had available to them documentary records upon which they could rely in respect of the majority of the complaints made by the plaintiff.
Principles to be applied.
30. The defendants’ application before Cross J. was based upon the submission that the plaintiff had been guilty of inordinate and inexcusable delay such that the balance of justice then favoured the dismissal of the action. In such circumstances it is worth reflecting briefly on the circumstances in which a court should exercise its jurisdiction in favour of granting relief of that nature.
31. The first matter of importance in relation to this jurisdiction is that the onus of proof to establish that the delay complained of has been both inordinate and inexcusable lies on the party who seeks to have the proceedings dismissed, as was advised by Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM. If the court is satisfied that the delay can be so described it must then decide whether the balance of justice is in favour of or against the case proceeding. This is a difficult task because it involves, as was stated by Henchy J. in O’Domhaill v. Merrick [1984] IR 151, the court in trying to “strike a balance between a plaintiff’s need to carry on his or her delayed claim against the defendants basic right not to be subjected to a claim which he or she could not reasonably be expected to defend”.
32. The principles which govern the circumstances in which proceedings may be struck out for delay were laid in some detail by Finlay P. in Rainsford and were approved of by the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 499 where they were expanded upon by Hamilton C.J. in the following manner: –
“The principles of law relevant to the consideration of the issues raised on this appeal may be summarised as follows: –
(a) 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;
(b) it must, in the first instance, be established by the party seeking dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgement on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case I such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant – because litigation is a two-party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the way to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in(vi) may arise in many ways and be other than that merely caused by the delay, including damage to defendant’s reputation and business.”
33. Another consistent principle which has been reinforced in many recent judgments of the Superior Courts dealing with the issue of delay is that in considering whether or not the delay has been inordinate the court may have regard to any significant delay prior to the issue of the proceedings: (see Cahalane and another v. Revenue Commissioners and others [2010] IEHC95 and McBrearty v. North Western Health Board [2010] IESC27. These decisions support the proposition that where a plaintiff waits until relatively close to the end of the limitation period prior to issuing proceedings that they are then under a special obligation to proceed with expedition once the proceedings have commenced.
34. It is also important to note, in the context of the Draconian nature of the type of relief claimed, that the use of this jurisdiction is not intended to be a punishment for a plaintiff’s delay but rather to ensure that justice is done, as was advised by O’Flaherty J. in Primor where he stated at p.516 that:-
“Courts do not exist for the sake of discipline but rather to deal with the essential justice of the case before them.”
35. Finally, the rationale behind the court’s jurisdiction to dismiss a claim on the grounds of inordinate and inexcusable delay is as was stated by Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Limited [1968] 2 Q.B. 229 at p254:-
“The chances of the courts been able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard.”
36. In addition to its right to dismiss a claim on the grounds of inordinate and inexcusable delay, there is what was described by Geoghegan J. in McBrearty .v. North Western Health Board [2010] IESC 27, a jurisdiction which permits the court to dismiss a claim, even where there has been no fault on the part of the plaintiff, if satisfied that the interests of justice would require such an approach. This jurisdiction was first considered in detail by the Supreme Court in O’Domhnaill v. Merrick where Henchy J. expressed himself satisfied that a court might dismiss an action if it was satisfied that to ask the defendant to defend the action would place that defendant under an inexcusable and unfair burden.
37. The courts’ inherent jurisdiction to dismiss a claim where the length of time which has elapsed between the events giving rise to the claim and the date at which the action comes on for trial may only be exercised by the court, in the absence of culpable delay on the part of the plaintiff, where the delay is so great that it would be unjust to ask the defendant to defend the claim. As Henchy J. stated in O’Domhnaill v. Merrick:-
“While justice delayed may not always be justice denied, it usually means justice diminished, and in a case such as this, it puts justice to the hazard to such an extent that to allow the case to proceed to trial would be an abrogation of basic fairness.”
However, it is not this jurisdiction which the defendants seeks to invoke on the present application.
38. More recently, the constitutional imperative to end stale claims so as to ensure the effective administration of justice and basic fairness of procedures has been emphasised in a number of judgments dealing with cases of delay. In addition, it must be recalled that Article 34.1 of the Constitution requires the courts to administer justice and that Article 40.3.2 guarantees the citizen the right to protect their good name. Quite independently of guarantees of basic fairness of procedures, these specific constitutional obligations also pre-suppose that litigation will be conducted in a timely fashion. If, to adopt the graphic phrase of Henchy J. in O’Domhnaill, justice is put to the hazard in a given case by undue and excessive delay, how, then, can the courts fulfil their constitutional mandate under Article 34.1? Moreover, where – as in the present case – the right to a good name of individuals is potentially put at issue by the litigation, the effective protection of that right as guaranteed by Article 40.3.2 requires that such claims be adjudicated upon within a reasonable time.
39. In Quinn v Faulkner t/a Faulkner’s Garage and another [2011] IEHC 103 Hogan J. criticised the courts’ prior tolerance to inactivity on the part of litigants when he stated:-
“While as Charlton J. pointed out in Kelly v. Doyle [2010] IEHC 396 it would be wrong for the court to strike out proceedings because of judicial disapproval, it must also be acknowledged that experience has also shown that the courts must also become more pro-active in terms of undue delay, since past judicial practices which had tolerated such inactivity on the part of litigants and which led to a culture of almost “endless indulgence” towards such delays led in turn to a situation where inordinate delay was all too common: see, e.g., the comments of Hardiman J. in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290 and those of Clarke J. in Rodenhuis and Verloop BV v. HDS Energy Limited [2010] IEHC465.”
40. Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms is also now a material consideration on an application such as that under consideration. In Gilroy v. Flynn [2005] 1 ILRM 290 at pp.293-294 Hardiman J. stated as follows:-
“[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attached to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued ….[F]ollowing such cases as McMullan v. Ireland [ECHR422 97/98 29th July 2004] and the European Convention on Human Rights Act 2003, the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.”
41. He also went on to state, albeit in an obiter comment, that he considered that the principles as outlined in Primor v. Stokes Kennedy Crowley [1996] 2.I.R.459 ought to be revised in light of Article 6.1 of the Convention.
42. Further consideration was given to the extent to which the Primor principles might need revision in Michael McGrath v. Irish Ispat Limited [2006] IESC 43 where Denham J. concluded that the court’s discretion to decide whether it was in the interests of justice that a claim be dismissed for want of prosecution was to be exercised both in accordance with settled constitutional principles and “in light of developing European jurisprudence on reasonable time”.
43. In Stephens v. Paul Flynn Ltd [2005] IEHC 148 and Rodenhuis & Verloop BV v. HDS Energy Ltd [2011] 1.I.R. 611, Clarke J. also questioned whether there should be a recalibration or tightening up of the criteria by reference to which the actions of the parties might be judged. He stated that while the overall test and applicable principles remain the same, the application of those principles might require some typing up to avoid excessive indulgence: At para.11 of his judgment he stated as follows:-
“It is necessary, in a system where the initiative has left largely up to the parties to progress proceedings, for the courts to make clear that there will not be an excessive indulgence of delay, because of the courts do not make that clear, it follows that the courts actions will encourage delay and, thus, will encourage a situation of cases will not be completed within the sort of times which would be consistent with compliance with Ireland’s obligations under the European Convention on Human Rights.”
44. To conclude on this issue it is perhaps worth referring to the fact that in McMullen, the court when considering a sixteen year delay in the context of Article 6.1 of the Convention gave some guidance as to what might be considered to be reasonable in terms of the duration of proceedings when it concluded that:-
(i) Legal proceedings for determination of civil rights and obligations should be resolved within a reasonable time.
(ii) Reasonableness is to be assessed by reference to the circumstances of the case, its complexity, the conduct of the applicant and of the relevant authorities and the importance of what is at stake.
(iii) The state is obliged to organise its legal system to comply with the reasonable time requirement of Article 6.
43. As to what may be considered to be the guidance which emerges from the aforementioned decisions which make reference to Article 6 of the Convention, it appears to be the case that while it is necessary for the Irish courts to be vigilant about culpable delay and that when faced with an application to dismiss a claim on the grounds of delay, the Court should factor into its consideration Ireland’s obligations under Article 6 of the Convention, there has been no major departure from the well established principles.
Scope of appeal from the decisions of the High Court
45. The first question which requires to be examined is the extent to which this Court can or should review the decision of the High Court judge not to strike out the present proceedings on the ground of undue delay. On the date on which the present appeal was lodged the appellant enjoyed a constitutional right of appeal from the High Court to the Supreme Court by virtue of Article 34.4.3 of the Constitution, subject to such exceptions and regulations as might have been “prescribed by law.” Following the establishment of this Court on 28th October 2014, the provisions of the 33rd Amendment of the Constitution (Court of Appeal) Act 2013 took effect. Article 34.4.1 now provides that this appellate jurisdiction from decisions of the High Court is to this Court, save that Article 34.4.4 also allows the Supreme Court to entertain a direct appeal from the High Court to that Court where it is satisfied that there are “exceptional circumstances warranting a direct appeal to it.”
46. In addition, Article 64.3.1 also permitted the Chief Justice with the concurrence of the other members of the Supreme Court to transfer certain categories of existing appeals to this Court. Where the cases were so transferred, then this Court was to have “jurisdiction to hear and determine each appeal the subject of that direction.” As the present appeal was so transferred to this Court pursuant to Article 64.3.1, it follows, accordingly, that the appellate jurisdiction of this Court vis-à-vis decisions of the High Court is co-extensive with that previously enjoyed by the Supreme Court pursuant to the (then existing) Article 34.4.3.
47. What, then, was that jurisdiction so far as decisions of this kind were concerned? As will next be seen, there are, in fact, two different strands of the Supreme Court authority on this point. We are accordingly obliged for present purposes – as the Supreme Court itself, but for the transfer of this appeal to this Court pursuant to Article 64.3.1 would have been obliged – to choose as between these divergent lines of authority.
48. In any consideration of this question, the starting point remains the decision of the Supreme Court in In bonis Morelli, Vella v. Morelli [1968] I.R. 11, a case where the scope of that Court’s Article 34.4.3 jurisdiction was fully examined by both Walsh and Budd JJ. That case was a probate action where it was contended that a particular will had been irregularly executed. This claim was rejected by the High Court and the defendants (but not the plaintiffs) were awarded their costs. The plaintiffs appealed this costs order, contending that by reference to established practice, an unsuccessful party was entitled to be paid his or costs out of the estate where there were reasonable grounds for the litigation. The defendants contended in response that a decision of this kind should not be interfered with unless the trial judge erred in principle in some manner in the way in which his discretion was exercised.
49. In his judgment, Walsh J. traced the error in principle approach back to the practice which had emerged following the enactment of s. 52 of the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”). Section 52 of the 1877 Act had provided that:
“No order made by the High Court…being costs which by law are left to the discretion of the Court, shall be subject to any appeal, unless by leave of the Court or Judge making such order”
50. Where leave had been granted pursuant to the section, then the (pre-1922) Court of Appeal was at large and it had been held that it could exercise a discretion of its own and substitute its own decision for that of the court in which the costs order was made: see Whitmore v. O’Reilly [1906] 2 I.R. 357, 399 per FitzGibbon L.J.
51. Having described this practice, Walsh J. then examined the circumstances in which the old Court of Appeal entertained appeals against costs order, even in the absence of leave pursuant to s. 52 of the 1877 Act. While it might have been thought that a statutory court of this kind could never entertain such appeals in the face of a statutory requirement that leave be obtained, a practice had nevertheless evolved whereby such appeals were, in fact, entertained in cases where it was shown that the trial judge had erred in principle. Walsh J. then explained ([1967] I.R. 11, 20-21):
“It is unnecessary here to describe the growth of the appeal jurisdiction in respect of the non-appealable discretionary order, that is to say where leave to appeal not been given by the court or by the judge. It is sufficient to indicate that appeals against such orders were entertained and decided, notwithstanding the absence of leave to appeal, if it could be shown that the judge had acted arbitrarily or capriciously or recklessly, or that he had based his decision upon ground which the law did not recognise, or that there was no evidence of the existence of any lawful ground for his decision. In many of these instances the judge was held to have ‘gone wrong in principle’ and thus there grew up the practice that the appellate tribunal would not interfere with the discretion of the judge ‘unless he had gone wrong in principle.’”
52. Walsh J. continued by saying that the defendant’s submission that the pre-1922 practice regarding discretionary orders of this kind had no application to the Supreme Court exercising its jurisdiction under Article 34 of the Constitution. This conclusion was reached by him for essentially two reasons. First, it was clear – and not really disputed – that s. 52 of the 1877 Act had not survived the enactment of the Constitution, because as the earlier decision in The State (Browne) v. Feran [1967] I.R. 147 had already made clear, the only restrictions on the right of appeal under Article 34.4.3 which could lawfully be imposed (i.e. an “exception” or “regulation” which might be “prescribed by law”) were laws enacted by the Oireachtas after the coming into force of the Constitution itself and the 1877 Act quite obviously did not fall into this category. Second, a practice of this kind which restricted the right of appeal which had not been imposed by law would have been inconsistent with the very wording of Article 34.4.3.
53. As Walsh J. then explained ([1967] I.R. 11, 21):
“Apart from the fact that no such restriction existed in respect of appeals taken by leave of the High Court of Justice under the Act of 1877 or in respect of appeals where no leave was necessary, such a submission, if accepted, would restrict the appellate jurisdiction of this Court which by the terms of the Constitution can only be restricted within the limits permitted by the Constitution by a law enacted subsequent to the coming into force of the Constitution; and no practice could be permitted to restrict litigants from exercising the right of resort to this Court guaranteed to them by the Constitution. Furthermore, it would be quite anomalous to seek to restrict an unrestricted appellate jurisdiction by the imposition of a practice invented by the courts to circumvent and evade the restrictions placed upon a former appellate jurisdiction.”
54. Budd J. also spoke to the same effect ([1968] I.R. 11, 29):
“…the plaintiff’s appeal to this Court against the President’s order for costs is, by virtue of the provisions of the Constitution, a full and open appeal, untrammelled and unfettered by such principles practice as previously applied to appeals against discretionary orders; and applies notwithstanding also the provisions of the Rules of the Superior Courts which state that the costs of the proceedings shall be in the discretion of the Court.
That is not to say that this Court will not give great weight to the views of the trial judge and to any reasons stated by him for the course he has taken with regard to costs…”
55. The analysis contained in Vella is most instructive as it shows the historical origins of the error in principle approach.
56. As it happens, in the aftermath of Vella, there were a number of authorities dealing with applications for security for costs under s. 390 of the Companies Act 1963 which confirmed that the Supreme Court was free to exercise its own discretion in the matter and that it was not confined to those cases where it could be shown that the High Court judge had erred in principle. Some of this case-law can now be briefly mentioned.
57. In Jack O’Toole Ltd. v. MacEoin Kelly Associates [1986] I.R. 277, 283 Finlay C.J. dealt with this argument in the following terms:
“It was contended on behalf of the plaintiff in this Court that the exercise of the discretion, which undoubtedly exists under s. 390 of the Act of 1963, by the High Court judge should not be set aside unless this Court was satisfied that he had erred in principle. For the reasons set out in detail in the judgment which is about to be delivered by McCarthy J., I am satisfied that this contention is unsound and that this Court has a right and an obligation to substitute its discretion for that of the learned High Court judge, if it is satisfied that it should do so.”
58. McCarthy J. delivered a concurring judgment in which he referred at length to the decision in Vella, adding ([1986] I.R. 277, 287):
“This submission is based upon what appears to have been the long-established practice of the Court of Appeal in England and, certainly in respect of costs, of the like court in Ireland since the turn of the last century. Whether or not the use of this discretion touches upon orders for costs or otherwise, I reject the submission that any such qualification lies upon the appellate jurisdiction of this Court. [In Vella v. Morelli] it was stated…in the most emphatic terms that such an assumed restriction on the appellate jurisdiction of this Court could not survive the enactment of the Constitution.”
59. This approach was followed by Barron J. in Lismore Homes Ltd. v. Bank of Ireland [1999] 1 I.R. 501, 529 where he stated:
“It is clear therefore that the court has a discretion. This discretion must be exercised independently of the manner in which the discretion has been exercised in the court below.”
60. It is against this general background that the comments of Lynch J. in Martin v Moy Contractors Ltd. [1999] IESC 14 now fall to be considered. In that case the plaintiff had sued a variety of defendants in respect of a foot injury which was said to arise from an industrial accident which had occurred in August 1988. The plaintiff commenced proceedings towards the close of the limitation period. There had already been one motion to dismiss for want of prosecution and there was a further delay of just four years in replying to a notice for particulars. In the meantime, the consulting engineer who supervised the construction project had died.
61. In the High Court Morris P. struck out the proceedings on the ground on inordinate and inexcusable delay. The relevant defendants had suffered prejudice in that the supervising engineer who was responsible for safety at the time had since died. This decision was upheld by the Supreme Court, with Lynch J. stating:
“The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution. Provided that the High Court decision is within the limits of reasonable discretion this Court should not interfere with it. In this case the learned President gave a reasoned judgment and his reasoning is clearly valid. His decision naturally followed from such reasoning and is also therefore clearly valid. There is accordingly no basis on which this court should interfere with the judgment of the learned President….”
62. As it happens, no authority for this proposition was cited by Lynch J. and nor was there any reference to the earlier decision in Vella v. Morelli or, for that matter, subsequent cases such as Jack O’Toole Ltd.
63. The matter was considered again by the Supreme Court in another undue delay case, Stephens v. Paul Flynn Ltd. [2008] IESC 4, [2008] 4 IR 31. In that case, Clarke J. had struck out the proceedings on the grounds of inordinate and inexcusable delay. In the Supreme Court Kearns J. dismissed the appeal, saying:
“While counsel for the plaintiff has urged this Court to treat this appeal as a completely fresh hearing of the original application, I am satisfied that this is not a correct approach where a discretionary order of the High Court is under review by this Court. Where, as in this case, a judge of the High Court makes a discretionary order, I am firmly of the view that this Court should not interfere with such order unless it is clear that the discretion has not been exercised within the parameters of what might be described as a reasonable exercise of that discretion.”
64. This issue was further considered by the Supreme Court in Desmond v. MGN Ltd. [2008] IESC 56, [2009] 2 IR 737 where there was a clear difference of opinion on this topic. This was an application to strike out a libel action on the grounds of undue delay. The article in question had been published in January 1999, but the plaintiff elected to await the deliberation of the Moriarty Tribunal before advancing the matter to trial. In the High Court, Hanna J. had refused to strike out the proceedings, even though he accepted that the delay was inordinate and inexcusable.
65. A majority of the Supreme Court (Geoghegan and Macken JJ., Kearns J. dissenting) dismissed the appeal. On the question of the scope of review, Kearns J. adhered to the view which he had expressed in Stephens. Having quoted the words of Lynch J. in Martin (which has been quoted above), Kearns J. continued:
“…. an exercise of discretion by a High Court judge must remain reviewable where it is incorrectly premised. Therefore nothing in Martin v Moy Contractors should be taken, nor could it be taken, as overturning the jurisprudence established by the seminal decision of a five judge court in In bonis Morelli: Deceased; Vella v. Morelli [1968] I.R. 11.”
66. Kearns J. then set out the background to Vella and he then observed:
“It may be seen therefore that this decision related, firstly, to the entitlement to bring an appeal which up to that point had been precluded and, secondly, it was a case concerned with costs only and not with discretionary orders generally. I do, of course, accept that it was a decision which strongly asserted the principle that discretionary orders could be challenged afresh in this Court, albeit…. that this Court will always give due weight and importance to the views of the trial judge who makes the initial decision. It is really a question of deciding the circumstances in which a discretionary order should be reversed. For my part I prefer the approach outlined by Lynch J as to how this Court should exercise its jurisdiction when determining such appeals: that it should be slow to interfere unless there has been an unreasonable exercise of discretion or the discretion has been incorrectly premised. Such an error would include a failure to take into account a relevant consideration.”
67. However, Geoghegan J. expressed a different view on this topic ([2009] 1 IR 737, 742, 743):
“Traditionally the common law view was that a discretionary order should not be interfered with by an appellate court unless the judge at first instance made an error of law in the exercise of the discretion. In a landmark case cited by Kearns J. in his judgment, In bonis Morelli: deceased; Vella v. Morelli [1968] I.R. 11, it was pointed out by this Court that an appeal lay from every decision of the High Court to the Supreme Court unless otherwise provided for by law. Any rule by which the court was inhibited from interfering with a discretionary order was not therefore compatible with the Constitution. However, in the Morelli case as Kearns J. points out, Budd J. indicated that the court would have to give “great weight to the views of the trial judge”. I think that that is the true legal principle in the light of the Constitution now. But there is an added factor in my opinion. The expression “discretionary order” can cover a huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including mundane day to day procedural orders such as orders for adjournments etc. I think that in reality over the years since Morelli this Court has exercised common sense in relation to that issue. The Court would be very slow indeed to interfere with the High Court judge’s management of his or her list, but in a case such as this particular case where much more substantial issues are at stake the Court, while having respect for the view of the High Court judge, must seriously consider whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different direction.”
68. Macken J. expressed no view on this question.
69. This is issue was further considered, albeit briefly, by MacMenamin J. in Lismore Builders Ltd (in Receivership) v. Bank of Ireland Finance Ltd. [2013] IESC 6. That case concerned an appeal from the decision of Quirke J. in the High Court dismissing the plaintiff’s claim on the grounds of inordinate and inexcusable delay. Delivering the judgment of the Supreme Court, MacMenamin J. dealt with the circumstances in which an appellate court might review an order made by a High Court judge in the exercise of his discretion in the following manner: –
“Although great deference will normally be granted to the views of the trial judge, this court retains the jurisdiction of exercising its discretion in a different manner in an appropriate case. This is especially so, of course, in the event there are errors detectable in the approach adopted in the High Court. The interests of justice are fundamental. This is clear from the judgement of Geoghegan J. in Desmond v. MGN [2009] 1 IR 737….”
70. In our view, whatever doubts and differences might have existed on this point prior to the judgment in Lismore Homes have really been dispelled by that decision. In any event, we consider that the views expressed by MacMenamin J. are those which best accord with the balance of authority and, indeed, with first principles.
71. So far as the balance of authority is concerned, it must be noted that neither judgments in Martin or Stephens had referred to the earlier judgment of a five member Supreme Court in Vella where the point had been examined in almost exhaustive detail. Nor was there any reference to Jack O’Toole Ltd., another judgment of a five member Supreme Court where the issue received extensive consideration.
72. It is not, with respect, easy to see how the dictum of Lynch J. in Martin can be satisfactorily aligned with these earlier decisions. While different views were expressed in Desmond, the approach of Geoghegan J. was approved in unequivocal terms by the Supreme Court’s most recent decision in Lismore Homes.
73. This view is, we think, also supported by first principles. First, while the scope of the right of appeal conferred by the Constitution from decisions of the High Court to the Supreme Court prior to the establishment of this Court in October 2014 was not defined by Article 34.4.3, it may be assumed that it was intended that this right of appeal would be an effective one. As O’Higgins C.J. said in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384, 406:
“If the Constitution confers on the [Supreme] Court a particular appellate jurisdiction, it may be assumed that it also confers the necessary powers to make that jurisdiction effective to remedy that which is complained of.”
74. If, however, the scope of appellate review was to be confined to demonstrating that there had been an error of principle on the part of the trial judge, then, as was pointed out in Lismore Homes, this might have compromised the ability of the Supreme Court to do justice or to provide an effective remedy in any given case.
75. Second, the very structure and language of Article 34.4.3 pre-supposed that the right of appeal from the High Court to the Supreme Court would be a full appeal, subject only to limitations necessarily inherent in the appellate process. If it were thought desirable that the scope of that appeal should be restricted in some fashion then, as both Walsh and Budd JJ. pointed out in Vella, this would have to be done by means of legislation to the this effect enacted by the Oireachtas which sought to “regulate” that jurisdiction in the manner expressly permitted by Article 34.4.3. An ex ante limitation on the scope of that jurisdiction of the kind suggested in Martin requires to be imposed by legislation and not by judicial decision.
76. Third, in any event, as Geoghegan J. pointed out in Desmond, the decision to strike out proceedings could not properly be described as a discretionary decision in this sense. Questions such as whether, for example, the delay has been inordinate or inexcusable or whether the delay has been prejudicial to the defendant are mixed questions of law and fact, not presenting discretionary questions as such.
77. Fourth, the reason for any supposed restriction on the scope of appeal in this manner is not immediately apparent. There are, of course, limitations inherent in the appellate process, as any court hearing the appeal is denied, for example, the benefit of hearing and seeing witnesses, so that the court of trial is much better placed to assess credibility: see generally the judgment of Henchy J. in Northern Bank Finance Co. v. Charlton [1979] I.R. 149, 190-195.
78. Nevertheless, in cases of the present kind where the evidence is invariably set out on affidavit and where much generally turns on the documentary record, it is hard to suggest any reason why the merits of the High Court decision on this question should not be fully re-considered on appeal, given that this Court (or, as the case may be, the Supreme Court) will be in as a good a position as the court of trial to arrive at the appropriate conclusion: see, for example, the comments of McCarthy J. in Jack O’Toole Ltd. [1986] I.R. 277, 288. It is, of course, entirely accepted that the views of the trial judge will carry great weight. Yet if the interests of justice require that a different conclusion should be reached on appeal, it would be wrong and purely formalistic to suggest that that first instance should remain invulnerable to appeal simply because no error of principle was disclosed.
Conclusions on the scope of appeal
79. For all of these reasons, therefore, we consider that the true position is that set out by MacMenamin J. in Lismore Homes, namely, that while the Court of Appeal (or, as the case may be, the Supreme Court) will pay great weight to the views of the trial judge, the ultimate decision is one for the appellate court, untrammelled by any a priori rule that would restrict the scope of that appeal by permitting that court to interfere with the decision of the High Court only in those cases where an error of principle was disclosed.
Decision
80. In giving its decision the Court is mindful of the fact that the defendants’ motion was heard in the course of a lengthy Monday Common Law List. It is accordingly acutely aware of the difficulty faced by any judge asked in such circumstances to assimilate all of the material facts and then to correctly apply to those facts the relevant legal principles.
81. Having considered the submissions of the parties and the evidence that was before him when he made his decision, the court is satisfied that Cross J. fell into error when he concluded that the plaintiff had not been not been guilty of inordinate and inexcusable delay, a finding without which an application to dismiss on grounds of delay must fail. While he may well have engaged with counsel in relation to all of the delay since the commencement of the proceedings, the court is satisfied that when he came to make his decision he incorrectly focused entirely on the delay post dating the order of Quirke J. in December 2009 or alternatively attributed insufficient weight to a number of factors namely:
(i) the delay preceding the Order of 14th December 2009,
(ii) the conclusions of Quirke J. on that application and the nature of the order which he made,
(iii) the direction given by Quirke J. that the plaintiff should pursue her claim with expedition and
(iv) the fact that there were three separate periods of substantial delay post 14 December 2009.
82. The Court is also satisfied that, on the evidence, it was not open to the learned High Court Judge to excuse the delay subsequent to the 14th December 2009 by reference to the mistake on the part of the plaintiff’s solicitor as to his understanding concerning the manner in which a date might be obtained for the trial of the action.
83. A brief analysis of the overall delay in these proceedings is warranted to explain the Court’s conclusions.
84. Given that the complexity of the proceedings is a factor for the court, not only in considering whether or not delay is inordinate and inexcusable, but whether having regard to the importance of the issues raised, the balance of justice would favour allowing the action proceed, it is relevant to identify the particular claims being put forward by the plaintiff.
85. The first claim advanced on the plaintiff’s behalf, relates to an assertion that she was maliciously harassed by members of An Garda Síochána who subjected her to a series of arrests on innumerable occasions between 1998 and 2000. She maintains that she has a claim for assault, battery and false imprisonment in relation to each of such events as are set forth in her statement of claim.
86. The second aspect of the plaintiff’s claim relates to an alleged assault and breach of her right to bodily integrity arising from the fact that whilst in Garda custody she was, at the defendants’ direction, allegedly and without justification subjected to an internal physical examination by a Dr. Maloney, in November 2000. Implicit in the plea relating to this claim is the fact that she did not consent to the procedure and that it had been represented to her that the defendants were entitled to remove her undergarments and carry out such an examination without her consent for the purpose of carrying out a drugs search.
87. The final claim made is one allegedly arising from negligence concerning the manner in which the aforementioned internal examination was conducted by Dr. Maloney, for whom she maintains the defendants are vicariously liable. She contends that he inserted a long probe like instrument in a manner that caused her internal bleeding and that this resulted in her receiving medical treatment at Clonmel hospital, where she was admitted some hours later.
88. From the evidence that was before the Court it is clear that the plaintiff had engaged a solicitor, at the very latest, by early January 2001 given that he wrote two letters on her behalf dated the 16th day of January and the 7th day of February 2001 setting out all of the complaints which later became the subject matter of the present proceedings. Further, as appears from the correspondence exhibited on this application, as of May 2001 the plaintiff’s solicitor was in possession of all of his client’s custody records which he had sought in a letter of 16 January 2001.
89. Against the aforementioned backdrop, it took a further two and a half years for the plaintiff to deliver what can only be described as the sparsest possible plenary summons. This was not issued until 16th July 2003. No further step was taken to advance the proceedings in 2004, 2005 or 2006. Then, on 1 June 2007, more than six years after the events complained of, the plaintiff’s solicitors endeavoured to serve a statement of claim. Having had the service of that document rejected on the basis that no notice of intention to proceed had been served, it is remarkable that it was not served expeditiously following the service of a further notice of intention to proceed in September 2007. The statement of claim had still not been served two years later even though it was clearly available for service.
90. In circumstances where the statement of claim had not been delivered six years following the delivery of the plenary summons the defendants issued their first motion to dismiss the plaintiff’s proceedings on the grounds of delay which was returnable for hearing in October 2009. It is hardly surprising that in light of the time that had elapsed between the events the subject matter of the claim and the bringing of that motion that Quirke J. came to the conclusion that the plaintiff had been guilty of inordinate and inexcusable delay. This was not a case in which the plaintiff had maintained that the delay in the delivery of the statement of claim had been because of the complexity of the proceedings or due to the fact that she had been frustrated or delayed, as often happens in more complex proceedings, due to any number of factors including the disappearance of witnesses, documents or the unavailability of expert evidence.
91. From the nature of the order made by Quirke J, whereby he actually dismissed the plaintiff’s claim on terms that she deliver her statement of claim including full particulars by the 21st January 2010, it could not have been clearer that the court was resolute that no further delay would be tolerated. Indeed, it is not disputed that the trial judge actually stated as much when he warned that the plaintiff’s claim had to be pursued thereafter with all due expedition.
92. Far from pursuing her claim with expedition, the plaintiff still had not brought her action to trial some two and a half years later when the defendants issued their second motion to dismiss her claim on the grounds of delay. The court is satisfied that this period of delay, when viewed against the backdrop of the earlier delay in the proceedings prior to the order of Quirke J can only be described as inordinate and inexcusable.
93. In respect of the aforementioned two and a half years, three significant periods of delay emerge. The first is a ten month delay in replying to a notice for particulars served by the defendants on 4th March 2010. In his effort to explain this delay, Mr. Fitzpatrick advised that he had received a draft reply to that notice from counsel on the 18 May 2010. However, because he was then advised by his client that she had suffered significant gynaecological problems and as a result would not be able to have children he wanted her to clarify with her doctor the cause of her condition prior to asserting any nexus between this state of affairs the assault of November 2000.
94. However, as counsel for the defendants pointed out in the course of his submissions, the defendant’s notice for particulars had not raised any query concerning any injury sustained by the plaintiff. Accordingly, while Mr. Fitzpatrick may have wanted to investigate the potential nexus between the plaintiff’s inability to have children and the assault, that does not provide a valid excuse, having regard to the earlier history of the proceedings, for failing to deliver the replies that were to hand in May 2010 until 18 January 2011, some eight months later.
95. The second period of delay relates to service of the notice of trial. In this regard, the defendants’ solicitors, having received the replies to particulars the previous week, called for the service of a notice of trial by letter dated the 26th of January 2011. A further period of six months was allowed to elapse before the notice of trial was ultimately delivered on the 21st July 2011. While at para. 13 of Mr. Fitzpatrick’s affidavit of the 19th July 2012 he maintained that his client had at all times remained anxious to pursue her claim and had been available to render assistance and deal with any enquiries in relation thereto, the timeline of the proceedings would suggest otherwise.
96. Finally, there is a 10 month period of delay between the service by the plaintiff of the notice of trial on 21st July 2011 and the 23rd May 2012 when the defendants issued their second motion to dismiss the claim on grounds of delay.
97. Mr. Fitzpatrick sought to excuse this period of delay by reference to his misunderstanding as to the procedure which pertained for obtaining a date for a jury action. He stated that he thought that the procedure was the same as that which applies in a personal injuries action; namely that an application is made to the judge in charge of the personal injuries list when one is ready to seek a date. He did not understand that this, being a jury action, would be listed, following the service of the notice of trial, in the next jury list fixed dates. This is why nobody attended on the plaintiff’s behalf when the case was struck out for non-attendance at the call over of such list in October 2012.
98. While Mr. Fitzpatrick complains that the defendants solicitors had not appraised him of the fact the notice of trial was struck out for non attendance – a sentiment with which this Court is sympathetic – he nonetheless fails to explain in his affidavit why, at no stage, during the ten month period prior to the issue by the defendants of their second motion to dismiss the claim, he had made no application to obtain a date for the trial of the action. While in the course of the hearing on this appeal is was mooted that counsel’s advice on proofs was outstanding as a potential reason for why no date had been obtained for the action, there is no mention of this fact at all in Mr Fitzpatrick’s affidavit notwithstanding the fact that in respect of other periods of delay he refers to his engagement with counsel.
99. It is, of course, completely understandable that a solicitor might not understand the procedure for obtaining a date for a jury action, particularly given that such actions are not regularly dealt with otherwise than by specialist practitioners. However, the fact that the notice of trial was struck out is somewhat of a red herring as the plaintiff took no step to obtain a date for the hearing between the date of the service of the notice of trial and the issue of the defendants’ second motion.
100. There is authority for the proposition that where a plenary summons is issued close to the expiration of the limitation period provided for the bringing of a particular type of claim, that there is an onus on that plaintiff to proceed with greater diligence or with more expedition than had they commenced the proceedings at an earlier date. As Henchy J. said in Sheehan v. Amond [1982] I.R. 235:
“…when the period of limitation for instituting proceedings has been all but allowed to expire, a plaintiff’s solicitor should thereafter be astute to ensure that he is not dilatory in regard to any of the further procedural steps that are necessary to avoid the taint of prejudicial delay.”
101. By analogy, it would seem to follow that where a plaintiff has already been found culpable in respect of inordinate and inexcusable delay and a court is later asked to consider a complaint of further delay, what might be considered excusable in terms of delay must be viewed through the prism of the court’s earlier findings and directions.
102. The delay in the prosecution of this claim is hard to understand or excuse. On any analysis, this claim is not a complex one. Counsel for the plaintiff has accepted that this is so. It is a claim which effectively rests upon the credibility of the plaintiff’s own evidence when compared to the evidence that may be advanced by the defendants in relation to certain specified events. Such records as the plaintiff identified that she needed to pursue her claim were forwarded by the defendants to her solicitor in May 2001 and the relatively straightforward nature of this claim is perhaps evidenced by the fact that no formal application for discovery has ever been pursued by the plaintiff. Further, she has not considered it necessary to seek any particulars arising from the defence which was delivered by the defendants on 12 October 2010.
103. It is also, in this Court’s view, extremely material that every reason advanced to excuse the delay in these proceedings, relates to matters concerning the plaintiff and her own advisors. This is not a case where the plaintiff maintains that her inability to pursue the action has been thwarted by the actions of the defendants or those of third parties such as witnesses as to fact or expert witnesses. Further, from the affidavit of Mr Fitzpatrick it is clear that the plaintiff has at all times, at least since the order of Quirke J. in December 2009 been available to give instructions in relation to her claim.
104. Finally, it is probably worthy of comment that at no stage subsequent to the order of Quirke J. did the plaintiff at any stage write to the defendants solicitors indicating that they were encountering any difficulties in progressing the case for trial.
105. Overall, Mr Fitzpatrick has failed to satisfy this court that Cross J. had evidence before him sufficient to conclude that the totality of the delay in the proceedings was anything other than inordinate and inexcusable. This is particularly so in light of the fact that some 2 ½ years previously Quirke J had already come to that conclusion.
Balance of Justice
106. Having concluded that the plaintiff’s delay was both inordinate and inexcusable it now falls to the court to consider whether the balance of justice favoured the striking out the claim.
107. The first matter to be addressed by a court when considering where the balance of justice lies is the extent to which the defendants would likely be prejudiced if the proceedings are allowed to continue. Of significant relevance to that issue must be the nature of the claim being advanced by the plaintiff in the proceedings. In this regard the court is satisfied that the plaintiff’s claim is a very serious one in so far as it makes substantial allegations of wrongdoing against those who are charged with upholding the rights of citizens in this state. In particular, the court considers her claim surrounding the events that she maintains occurred in November 2000 to be extremely serious. A claim by a woman to the effect that she was subjected to an unwarranted, unlawful and negligent internal medical examination is one which the court should be cautious to dismiss because public confidence in An Garda Síochána would best be met by a full hearing and determination of such a claim. Such a hearing not only potentially benefits a plaintiff who has been wronged but also affords a defendant against whom very serious allegations are made the opportunity of clearing their good their name and restoring their reputation.
108. Having considered the affidavit of Ms. Duchene, the court is satisfied that the defendants have established that they would have been significantly prejudiced in their ability to defend all claims arising out of the events of November 2000 if this action had been allowed to proceed to trial, as was intended by Cross J.
109. Insofar as the plaintiff complains that the internal examination was carried out negligently, clearly the absence of Dr. Maloney, who carried out that examination, would leave the defendants, who are alleged to be vicariously liable for his actions, tremendously exposed. In this respect the fact that Dr. Lawless is available to give evidence at the hearing does noting to mitigate that prejudice. He was not present when the examination was carried out and did not arrive until several hours after it had taken place. He is not in a position to give any evidence as to how the procedure was preformed, the condition of the plaintiff during that procedure or as to the environment in which the same was carried out. Further, he could have nothing to offer in terms of evidence on the issue as to whether or not the procedure was carried out with or without the plaintiff’s consent or the circumstances in which any purported consent was obtained.
110. The court rejects the inference that it was asked to draw from the fact that at the time they brought their first application the defendants were not aware of Dr. Maloney’s death that he was not viewed as an essential witness. At the time that motion was issued a statement of claim had not been delivered by the plaintiff and in those circumstances it would be unrealistic to have expected that the defendant’s solicitors would necessarily have been in contact with Dr. Maloney. Further, the fact that Ms. Duchene in her affidavit makes it clear that she only found out about Dr. Maloney’s death when she sought to contact him to ascertain his availability for the trial would support the defendant’s contention that he was advised as an essential witness for the defence of the claim. The Court is therefore satisfied that the delay by the plaintiff in prosecuting her case was causative of the prejudice contended for by the defendants at the hearing before Cross J.
111. The Court must also have regard to the conduct of the defendants in deciding whether or not justice would favour the dismissal of the proceedings. In this case at no stage did not defendants acquiesce in what the court has concluded was inordinate and inexcusable delay. From the earliest of times the defendants made it clear that they expected that the rules of court would be complied with. They sent back the first statement of claim delivered in 2007 because it was not delivered further to the service of a valid notice of intention to proceed. Further, by its conduct in bringing the first motion to dismiss before the court in December 2009 they made it abundantly clear that there were not prepared to acquiesce in the plaintiff’s delay in advancing her claim. The defendants, moreover, as referred to in Ms. Duchene’s affidavit, delivered their defence on 12th October 2010 notwithstanding the fact that they had not at that time received a reply to their notice for particulars which had been raised on 4th March 2010. Further, they had pursued the plaintiff’s solicitors for replies to the notice for particular by warning letters delivered on 24th November 2010 and 13th January 2011. In addition, having received the replies to particulars the defendants, by letter dated 26th January 2011, called upon the plaintiff to serve her notice of trial which was not then delivered until 21st July 2011.
112. In the foregoing circumstances it can hardly be said that the defendants by their conduct added in any material way to the delay in the prosecution of this action.
113. Finally, in considering where the balance of justice lies in this case, it is important to recognise that in dismissing a claim such as the present one the court is, in effect, revoking the plaintiff’s constitutional right of access to the courts. However, that is not an unqualified right and is one which must be considered against the backdrop of the other competing rights in the case, namely; the right of the defendants to protect their good name as is their entitlement under Article 40.3.2. and the court’s own obligation to administer justice in a fair and timely manner as is to be inferred from Article 34.1.. Nobody against whom serious allegations of the nature at the heart of these proceedings are made, particularly where their professional reputation is at stake, should have to wait 10 or more years before being afforded opportunity to clear their good name. Neither should they have to do so in circumstances where a court is satisfied that a fair trial and a just outcome can no longer be assured.
114. Accordingly, having reconsidered all of the evidence before the High Court judge and having given due weight to his conclusions, this court is satisfied that the within proceeding must be dismissed and we will therefore allow the appeal.
Murphy v. Roche
Finlay C.J.
[1987] IR 108
S.C.
Finlay C.J.
18th December 1986
This is an appeal brought by the Attorney General as notice party against an order made by Hamilton J. (as he then was) in the High Court on the 3rd December, 1984, directing that a preliminary point of law be disposed of in this action by a judge, prior to the trial of the action, namely, whether a member of an unincorporated members’ club can maintain an action for negligence against the representatives of the club and, if it is part of the law of Ireland that a member is prohibited from suing representatives of such an unincorporated members’ club, whether such law is invalid, having regard to the provisions of the Constitution.
The plaintiff is and was at all material times a member of the Wolfe Tone na Sionna G.A.A. Club. On the 2nd August, 1980, he attended a dance being organised and run by the said club on its premises, paying the admission fee of £1.50 for entry to the dance. Whilst on the said premises and attending the dance, the plaintiff alleges that he was injured as a result of a fall caused by the negligence and breach of duty of the persons who were organising and running the dance.
The plaintiff instituted proceedings against the three defendants as trustees of the club, claiming damages for these injuries. The defendants entered a defence containing a full denial, including a denial of negligence and breach of duty, and further raising a special defence at para. 8 in the following terms:”
“Further or alternatively, and without prejudice to anything hereinbefore pleaded, the plaintiff is and/or was at all material times a member of the Shannon Wolfe Tone Gaelic Athletic Association Club, and was and is thereby estopped from maintaining these proceedings against the said club or the defendants as trustees thereof.”
By way of special reply to that defence, the plaintiff at para. 3 of the reply pleaded as follows:”
“The plaintiff denies that he is estopped from maintaining these proceedings and will aver that any estoppel alleged by the defendants is a matter of law repugnant to the Constitution of Ireland.”
The plaintiff by notice of motion sought an order pursuant to order 25 of the Rules of the Superior Courts setting down for hearing, prior to the trial, points of law raised in the defence and reply which I have quoted, and served notice of that motion on not only the defendants but also on the Attorney General by reason of the issue arising with regard to the constitutional question. The defendants’ attitude on the hearing of the motion was to consent to the trial of these as preliminary issues, but the Attorney General objected.
The notice party in his notice of appeal submitted a number of different grounds but, in short, the submission made to this Court was that by reason of the fact that the issue of negligence was raised in the defence and was to be determined in the action, that the trial of any question involving a constitutional issue as a preliminary issue was inappropriate and might eventually prove to have been the determination by the Court of an issue of constitutional law in the form of a moot. It was submitted that such a consequence was inconsistent with a number of the decisions of this Court. Reliance was placed on the following cases:” Cooke v. Walsh [1984] I.R. 724; Cahill v. Sutton [1980] I.R. 269; McDonald v. Bord na gCon [1965] I.R. 217; Kilty v. Hayden [1969] I.R. 261 and Tara Mines v. Minister for Industry and Commerce [1975] I.R. 242.
There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it. Secondly, it has also clearly been established that where the issues between parties can be determined and finally disposed of by the resolution of an issue of law other than constitutional law, the Court should proceed to consider that issue first and, if it determines the case, should refrain from expressing any view on the constitutional issue that may have been raised.
These principles, however, must, of course, be subject in any individual case to the overriding consideration of doing justice between the parties.
The plaintiff in the present proceedings is, as he is entitled to, asserting his right to have the issue of negligence and damages tried by a judge sitting with a jury. And there are good reasons why in the interests of both convenience and economy that the action should, if possible, take place in Limerick, where the accident occurred and where the expert witnesses who would be called on behalf of the plaintiff reside and carry on their professions.
The plaintiff is a person of limited means and it is urged on his behalf that if, as the Attorney General seeks, the issue of law concerning club membership and, if it arises, the issue as to the validity of that law, having regard to the provisions of the Constitution, were to be tried after the conclusion of his jury action, he might be involved in the expense of mounting a jury action, successfully establishing negligence and damages and yet eventually be deprived of obtaining any judgment and, presumably, suffer to be condemned in the full costs of both the jury action and of the subsequent legal issues to be tried.
If, on the other hand, the plaintiff contends, the preliminary issues were tried before the commencement of the jury action and the plaintiff is as a result of the decision in them estopped from maintaining proceedings he at least only suffers the costs and expense of legal arguments without the much greater expense of the provision of witnesses and the proof of damages and liability.
I am satisfied it is necessary to resolve these conflicting contentions in a practical manner so as to try and provide a just method and, a convenient method, of trying this litigation. In general, I take the view that the balance of convenience and, therefore, the balance of justice is in favour of the trial of the legal issues arising in this case as a preliminary issue, rather than subsequent to the hearing of the jury action.
There are, however, in my view, difficulties in trying them as two issues at the same time. Those difficulties can best be identified by considering the possible outcome of the issues presently directed. If the High Court were satisfied that the law did not provide an estoppel arising from the plaintiff’s membership of the club then it would not be entitled to consider whether if that decision was wrong and if the law did so provide, such law was valid, having regard to the provisions of the Constitution. The proper course for the High Court is that instance would simply be to decide the first issue set down for trial and thus dispose of the matter. If that decision, however, was appealed to this Court, and this Court came to the conclusion that the law did so estop the plaintiff, this Court could not, in accordance with practice, proceed to consider the constitutional issue for it would not be doing so by way of appeal, no determination having been reached on that issue in the High Court. It would then become necessary to remit the case back to the High Court for the determination by the High Court of the constitutional issue and either of the parties or the Attorney General would be entitled to bring that decision to the Supreme Court by way of appeal. What would result from such proceedings would be a series of trials to all of which there would be three parties: the plaintiff, the defendants, and the Attorney General.
If on the other hand the High Court decided that the plaintiff was estopped and proceeded to determine the constitutional issue and on appeal this Court reversed the decision on estoppel then the decision of the High Court possibly setting out certain constitutional principles would remain without being considered by this Court.
To seek to avoid that possibility and having regard to the fact that the Attorney General has no interest in arguing the issue based on club membership as distinct from any constitutional issue, it seems to me preferable to divide the issues which are to be tried preliminary to the trial, since in certain eventualities only one issue as between the plaintiff and the defendants may be necessary.
I would, therefore, vary the order of the High Court by directing the trial by way of preliminary issue of law, without evidence and without pleadings of the following question:”
“Whether the plaintiff, being a member of an unincorporated club, can maintain an action against the representatives of that club in respect of damages alleged to have been suffered by reason of the negligence of the servants or agents of the club in the maintenance and care of the premises, notwithstanding the fact that the accident complained of occurred at a dance to which the plaintiff was admitted only after payment of an admission fee.”
The form of this question which somewhat differs from the first question settled by the learned President in the High Court, arises from a query which arose before this Court as to whether the defendants were asserting an estoppel irrespective of the fact that the plaintiff on the occasion of his accident had paid for admission to the dance as an ordinary member of the public. The Court was informed by counsel for the plaintiff, after consultation with counsel for the defendants, that this was the form of the plea being raised.
I would adjourn the other issue arising in this appeal, namely, the timing of any preliminary issue or constitutional question until such time as this first issue of law has been finally determined either in the High Court or, if there is an appeal, in this Court. Depending on the result of that determination, an issue on the constitutional law will either become unnecessary or, if it is necessary, can then be directed by this Court to be heard as a separate preliminary issue before the High Court to which the Attorney General would be a notice party. It would not, in my view, be necessary to make the Attorney General a notice party or a participant in the issue now directed.
Henchy J.
I agree.
Griffin J.
I agree.
Dalton v Minister for Finance
[1989] ILRM 519
Finlay CJ
This is an appeal brought by the defendant against the assessment of damages awarded to the plaintiff in the High Court, arising out of a motor accident. The plaintiff now brings before this Court two separate motions. They are
(1) An application pursuant to O. 58 r. 3(4) of the Rules of the Superior Courts enlarging the time for the service of a notice of appeal to the Supreme Court by the plaintiff against so much of the order made in the High Court on 21 October 1986 as awarded to the plaintiff the sum of £22,000 damages for pain and suffering in the future on the grounds that such award was inadequate.
(2) A motion for an order pursuant to O. 58 r. 8 of the Rules of the Superior Courts that on the hearing of the defendant’s appeal against the order of the High Court made on 21 October 1986 that affidavits of a surgeon and of the plaintiff be admitted as further evidence for the consideration of the court upon that appeal.
Each of these motions was supported by an affidavit or affidavits, and the material facts are as follows.
(1) The plaintiff suffered personal injuries arising from a motor car accident for which the defendant accepts responsibility which occurred on 16 December 1982.
(2) The plaintiff having instituted proceedings, they were heard by a judge sitting with a jury in Galway on 21 October 1986, and the damages were assessed as follows:
Special damages (agreed)
£980
Pain and suffering to date
£33,000
Pain and suffering in the future
£22,000
Total
£55,980
Against that assessment of damages the defendant appealed within twenty-one days of the perfection of the order, that is to say, before the end of 1986, and the plaintiff did not serve any notice of cross-appeal nor any notice to vary.
It is not suggested that at that time or within the time permitted for the service of a cross-appeal or notice to vary the plaintiff formed any intention of appealing against the assessment of her damages on the grounds of inadequacy.
Some time which has not been identified in evidence between the conclusion of the trial and the autumn of 1988, that is to say, something short of two years later, the plaintiff began to complain of a worsening in her condition, and on the advice of her solicitor was submitted for further examination by her surgeon, Mr Murphy, in August 1988. His affidavit would indicate that at that time he found a worsening of the plaintiff’s condition.
Both these motions have been contested and two major issues arise with regard to them. The first is as to whether on the facts as I have outlined them the court should grant to the plaintiff liberty to appeal against the assessment of damages on the grounds that they were inadequate.
Secondly, the issue arises whether if the court were to refuse to extend that time it would be open to the court upon hearing the appeal filed by the defendant to vary the order made in the High Court on the grounds that the damages were inadequate, and if it were, whether the Court should in the exercise of its discretion permit the further evidence referred to of the medical condition of the plaintiff between the hearing in the High Court and now as material to be considered on that appeal.
I will deal first with the question as to whether the time for filing a notice of appeal by the plaintiff should be extended.
I would first emphasise that what the plaintiff is now seeking is an extension of the time to appeal by a period of something over two years.
Furthermore, the grounds of appeal set forth in the notice of appeal are to the effect, firstly, that the award for damages in the sum of £22,000 for future pain and suffering was against the evidence and the weight of the evidence and, secondly, that it was inadequate and unjust and, thirdly, that it was inadequate having regard to the very significant deterioration in the appellant’s medical condition and the increase in her disability since the date of the High Court trial. In the evidence supporting this motion in which I have regard to the evidence supporting the motion for the introduction of new evidence, an arguable case may possibly have been made out with regard to the third ground of appeal contained in the draft notice, but no arguable case has been put forward with regard to the first or second ground. Having regard to the decision of this Court in the case of Clonmel Foods Limited v Eire Continental Trading Company Limited [1955] IR 170, the ordinary principles applicable to this motion would be that as a precondition to obtaining an exercise of the discretion of the court, it would be necessary for the applicant to establish:
1. That she had formed an intention within the time limited for the service of her notice of appeal to appeal.
2. That it was due to a mistake occurring either by her or by her lawyers that she did not within the time limited serve a notice of appeal, and
3. That she has an arguable case on her appeal.
It is clear, as I have indicated, that the plaintiff cannot establish that she formed any intention of appealing within the time limited therefor. Neither can she, in my view, establish any mistake which led to her failure to serve a notice of appeal within that time. It is suggested in the affidavit of the solicitor acting on her behalf that at some stage between the hearing in the High Court and August of 1988 he was of the impression that if the plaintiff wished to seek from the Supreme Court a decision increasing her damages that it would be open for her to make that case on the defendant’s notice of appeal. He does not identify that in any way as a mistake communicated to the plaintiff which led to her failure to bring a notice of appeal within the time limited.
With regard to the question as to whether the plaintiff has an arguable ground for appeal against this figure for damages on the basis of its inadequacy the position appears to me to be as follows. The assessment of damages by a judge sitting with or without a jury for personal injuries in tort actions has always had one fundamental feature. That is that the jury was instructed where the assessment fell to be carried out by them that neither the plaintiff nor the defendant could come back again if there was a change in the situation after the verdict had been brought in and that, therefore, their task was on the evidence before them, as a matter of probability to try and assess what the future situation would be and to award the appropriate damages on that probability. A judge sitting alone without a jury to assess damages must, either expressly or impliedly, give to himself the same direction and follow the same guideline.
If, as is contended on behalf of the plaintiff in this case, it were possible for a plaintiff to set aside a verdict obtained by him or her on the grounds that he or she suffered more damage after the date of the trial than appeared probable on the evidence given at the trial, then, of course, as a necessary just corollary it would have to be open to a defendant at any time after the hearing of an action in which damages were assessed in favour of a plaintiff to move the court by way of appeal and, if necessary, to obtain an extension of time to appeal in order to obtain a finding that the damages awarded to the plaintiff whilst appropriate on the evidence heard on the hearing were excessive, having regard to the rapid improvement in the condition of the plaintiff after the termination of the trial.
Such a proposition of law is without any authority and is, in my view, wholly unsound in principle. It is of the essence of litigation that subject to a proper right of appeal, as provided by law, the judgment of a court is a final judgment. In the case of a decision of the High Court, the appeal to the Supreme Court is limited to an appeal based on an assertion either that the learned trial judge in the High Court erred in some issue of law which he determined, erred on some principle in exercising a discretion or assessing damages, or made a finding or findings not supported by the evidence before him. If an order made in the High Court were to be varied or set aside on the basis of events which occurred after the making of that order and which, therefore, neither were nor could possibly be in evidence before the High Court judge, this would be wholly inconsistent with the appellate jurisdiction of this Court.
With particular regard to the assessment of damages for personal injuries, it is clear that very many plaintiffs indeed may feel after the conclusion of their case and with the passage of years and reflecting upon the matter that they have been inadequately compensated. Many defendants may equally be of the impression, seeing the plaintiff, if they happen to do so, moving around and apparently being able to cope with life that the plaintiff has been exorbitantly compensated. To allow either of these two categories of persons subsequently to seek a variation of the assessment of damages based on after events would be to cut across the entire finality of litigation in this context.
I am, therefore, satisfied that with regard to the third stated ground of appeal, that it is not a ground of appeal known to the law in an appeal from the High Court to the Supreme Court.
It follows that none of the three preconditions laid down by this Court in the Clonmel Foods Ltd case, to which I have referred, is satisfied on this application for an extension of time. There can, therefore, in my view, be no conceivable question of the court exercising any discretion in favour of the applicant which might conceivably arise were some but not all of these preconditions satisfied. I would, therefore, refuse the motion to extend the time for the appeal.
Patently, the motion to admit the further evidence of surgeon Murphy and of the plaintiff with regard to a deterioration in her condition would be relevant evidence only if the court were entitled on the hearing of the appeal brought by the defendant to have regard to matters other than those available and heard in evidence at the trial concerning the plaintiff’s condition, and were entitled, as I am satisfied they are not entitled, to vary or set aside the order of the High Court on the basis of events which have occurred to the plaintiff since the time that order was made. In these circumstances, it follows, in my view, that this motion should also be dismissed.
Harvey v Minister for Social Welfare
[1990] ILRM 185 Finlay CJ
In this appeal against the order of the High Court dated 8 April 1987 which dismissed an application for judicial review of a decision by the Minister for Social Welfare, ground no. 5 of the notice of appeal was in the following form:
5. That the learned trial judge was wrong in law in failing to hold that if the provisions of article 38 of the Social Welfare (Overlapping Benefits) Regulations 1953 as inserted by article 4 of Social Welfare (Overlapping Benefits) (Amendment) Regulations 1979 were made intra vires the powers of the first-named respondent the provisions of ss. 3, 32 and 75 of the Social Welfare Act 1952, s. 8 of the Social Welfare Act 1973 and s. 9 of the Social Welfare (No. 2) Act 1974 were and are unconstitutional in so much as they purport to vest the power to legislate in the first-named respondent.
It was agreed by counsel on behalf of the appellant that although a number of different statutory provisions, all of which are sections enabling the Minister to make statutory rules and orders by way of regulation under the Social Welfare Acts, were challenged by this ground of appeal that the section to which the challenge really related was s. 75 of the Social Welfare Act of 1952. S. 75 of the Social Welfare Act 1952 reads as follows:
(1) Regulations may with respect to cases in which two or more of the following, that is to say, any benefit, pension allowance or assistance under the Old Age Pension Acts 1908 to 1952, the National Health Insurance Acts 1911 to 1952, the Unemployment Insurance Acts 1920 to 1952, the Unemployment Assistance Acts 1933 to 1952, the Widows’ and Orphans’ Pension Acts 1935 to 1952, or the Childrens’ Allowances Act 1944 and 1946, are payable to a person, provide for adjusting any benefit pension, allowance or assistance such as aforesaid (including disallowing payment thereof wholly or partly) that may be payable to such person.
The constitutional validity of this section is impugned in a sense conditionally for the submission made is that if it authorised the making of the Social Welfare (Overlapping Benefits) (Amendment) Regulations 1979 which is SI No. 118 of 1979, it authorised the carrying out of a legislative function by the Minister for Social Welfare in contravention of Article 15.2 of the Constitution. The relevant portion of SI No. 118 of 1979 which is rule 4 of it, reads as follows:
The Social Welfare (Overlapping Benefits) Regulations 1953 (SI No. 14 of 1953) are hereby amended by the addition after article 37 (inserted by the Social Welfare (Overlapping Benefits) (Amendment) Regulations 1974 (SI No. 224 of 1974) of the following article:
38. Where a woman who has attained pensionable age would, but for this article be entitled in respect of any period to widow’s non-contributory pension or deserted wife’s allowance or unmarried mother’s allowance or prisoner’s wife’s allowance and either old age (non- contributory) pension or old age (contributory) pension, only one such pension or allowance shall be payable.
Prior to the passing of the Social Welfare Act 1979 the entitlement of a woman to a non-contributory widow’s pension ceased either when she remarried or when she attained pensionable age, whichever was the sooner.
S. 7 of the Act of 1979 provided as follows:
For the purpose of ensuring that widow’s (non-contributory) pensions, deserted wife’s allowance, social assistance allowance for unmarried mothers and prisoner’s wife’s allowance shall not cease to be payable when a recipient attains the age of 66 years
(a) S. 21 of the Act of 1935 inserted by the Act of 1964 and amended by the Act of 1977 is hereby repealed;
(b) The following is hereby substituted for s. 22(1) (as amended by the Act of 1977) of the Act of 1935;(1) A widow’s (non-contributory) pension payable to a widow shall, subject to this Act, continue to be payable unless she remarries, and in such a case the pension shall cease on and from her remarriage.
The submission of the appellant is that the purported effect of the regulations of 1979 is in direct contradiction to the expressed intention and unambiguous effect of s. 7 of the Act of 1979 for it is urged, as the terms of the added article 38 indicate, a woman who has attained pensionable age would, but for the terms of that article, by virtue of s. 7 of the Act of 1979, in its effect on the pre-existing social welfare legislation be entitled to both a widow’s non-contributory pension and an old age non-contributory pension.
The decision of the court
The impugned section having been enacted in 1952 is entitled to the presumption with regard to constitutional validity which has been laid down by this Court and in particular falls to be construed in accordance with the principles laid down in the decision of this Court pronounced in the case of East Donegal Co-Operative v Attorney General [1970] IR 317.
This means that it must be construed so that as between two or more reasonable constructions of its terms that which is in accordance with the provisions of the Constitution will prevail over any construction that is not in accordance with such provisions. Secondly, it must be implied that the making of regulations by the Minister as is permitted or prescribed by s. 75 are intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice and, therefore, that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to that section contravene the provisions of Article 15.2 of the Constitution.
The court is satisfied that the terms of s. 75 of the Act of 1952 do not make it necessary or inevitable that a Minister for Social Welfare making regulations pursuant to the power therein created must invade the function of the Oireachtas in a manner which would constitute a breach of the provisions of Article 15.2. The wide scope and unfettered discretion contained in the section can clearly be exercised by a Minister making regulations so as to ensure that what is done is truly regulatory or administrative only and does not constitute the making, repealing or amending of law in a manner which would be invalid having regard to the provisions of the Constitution.
Without the necessity, therefore, for the court to decide whether the terms of SI No. 118 of 1979 which have been quoted in this decision do in fact constitute an invasion of the legislative function of the Oireachtas the court is satisfied that the appellant has not shown that the provision of s. 75 of the Social Welfare Act 1952 is invalid, having regard to the provisons of the Constitution and will so declare.
FINLAY CJ
(Hamilton P, Walsh, Griffin and Hederman JJ concurring) delivered his judgment on 10 May 1989 saying: This is an appeal brought by the appellant against the order of the High Court dated 8 April 1987, made by Blayney J dismissing her application for judicial review.
The facts out of which the application and appeal arise are not in dispute and they are as follows. The applicant was born on 2 June 1919 and accordingly reached the age of 66 years, which under the statutes now applicable is ‘pensionable age’ on 2 June 1985. The applicant’s husband died on 19 January 1982 and the applicant then applied for a widow’s non-contributory pension, and a pension was awarded to her, taking into account her means from other sources, on 5 March 1982. The applicant having applied for a pension in respect of blindness and having failed to satisfy the authorities of the extent of her blindness at a prior time applied again in 1982 for such a pension and was awarded a pension of £30.45 per week in respect of her blindness from 3 June 1982.
She was paid both her widow’s non-contributory pension and the pension in respect of her blindness from that time until 2 June 1985 when as a result of a ruling made on behalf of the Minister for Social Welfare the pension in respect of her blindness ceased and she was continued to be paid the widow’s non-contributory pension only. This decision was made in pursuance of the provisions of article 38 of the Social Welfare (Overlapping Benefits) Regulations 1953 as inserted by way of addition by the Social Welfare (Overlapping Benefits) (Amendment) Regulations 1979, being SI No. 118 of 1979.
The appellant’s case is that this statutory instrument either does not apply to the position of the appellant or if it does apply to the position of the appellant is invalid and in either event cannot justify the decision of the Minister. It is agreed on behalf of the respondents that if the Minister’s decision to confine the appellant to one pension, namely, the widow’s non-contributory pension, is valid, it can only be justified by the provisions of article 38, as inserted by this statutory instrument.
The relevant provisions of the regulations of 1979 are those contained at ss. 3 and 4 and are as follows:
3. In these Regulations:
‘old age (non-contributory) pension’ means an old age pension under the Old Age Pensions Acts 1908 to 1979;
‘old age (contributory) pension’ means an old age (contributory) pension under the Social Welfare (Amendment) Act, 1960 (No. 25 of 1960).
4. The Social Welfare (Overlapping Benefits) Regulations, 1953 (SI No. 14 of 1953) are hereby amended by the addition after article 37 (inserted by the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1974 (SI No. 224 of 1974)) of the following article:
38. Where a woman who has attained pensionable age would, but for this article, be entitled in respect of any period to widow’s non-contributory pension or deserted wife’s allowance or unmarried mother’s allowance or prisoner’s wife’s allowance and either old age (non-contributory) pension or old age (contributory) pension, only one such pension or allowance shall be payable.
The first submission made on behalf of the appellant is that the pension paid to the appellant as a result of her blindness which commenced from 3 June 1982 is not an old age non-contributory pension within the meaning of these regulations and that since the appellant is admittedly not entitled to any old age contributory pension the provisions of article 38 do not apply to her at all.
This submission was rejected by Blayney J in the High Court and I am satisfied that he was correct. The primary modern provision for what is colloquially known as the ‘blind pension’ occurs in the provisions of the Old Age Pensions Act 1932 and, in particular, in s. 6 thereof. The material provisions of that section are as follows:
In lieu of s. 1 (repealed by this Act) of the Blind Persons’ Act 1920, it is hereby enacted that every blind person who has attained the age of 30 years shall be entitled to receive and to continue to receive such pension as under the Old Age Pensions Acts 1908 to 1928, as amended by this Act, he would be entitled to receive if he had attained the age of 70 years, and the provisions of those Acts as so amended … shall apply in all respects to such persons subject to the following modifications, that is to say,
(a) For the first statutory condition contained in s. 2 of the Act of 1908 there shall be substituted the condition that the person must be a person who has attained the age of 30 years and satisfies the pension authorities that he is so blind, that either he cannot perform any work for which eyesight is essential or that he cannot continue his ordinary occupation ….
This provision was amended, particularly with regard both to the age of old age pension and with regard to the age at which a pension in respect of blindness could be granted, which is now 18 years, and the modern statutory base for this pension is to be found in s. 175 of the Social Welfare (Consolidation) Act of 1981, the material portion of which reads as follows:
(1) Every blind person who has attained the age of 18 years shall be entitled to receive and to continue to receive such pension (in this Act referred to as a ‘blind pension’) as under this chapter he would be entitled to receive if he had attained pensionable age, and the provisions of this chapter and of s. 4 as to expenses shall apply in all respects in the case of such person subject to the following modifications:
Considerable stress was laid on behalf of the appellant on the phrase contained in this subsection referring to the pension as a ‘blind pension’ and to the follow-up of that which is contained in the Act of 1981 and in schedules increasing pensions in subsequent Acts whereby the old age pension and blind pension are separately referred to.
The Act of 1981 being a consolidation Act, there must be a rebuttable presumption in law that it does not alter the law. This does not mean, it seems to me, that a consolidation Act, though passed by the Oireachtas on the basis that it consolidates the existing law only, is not capable, unambiguously, of altering the law, and if it does, effect must be given to that alteration.
I am not satisfied, however, that there is sufficient in this alteration in terminology, having regard to that presumption to justify the assertion that the terms of that Act and of subsequent Acts following it make the pension paid in respect of blindness a pension separate from the old age pension. The law still is that it is not open, without a substantial alteration of the legal position, for a blind pension to be of a different amount from an old age pension. I would accept the final reasoning of the learned trial judge that when one considers the position of a person in receipt of what is described as a blind pension who reaches old age pension age and then applied or applies for an old age pension in addition that the incorrectness of this submission becomes most clearly manifest. I would, therefore dismiss the appeal on this ground.
The second ground submitted on behalf of the appellant was that the provisions of article 38, as inserted by the regulations of 1979 did not apply to this particular applicant, because s. 75 of the Act of 1952 gave to the Minister power to make regulations only in respect of cases where pensions were payable, whereas the applicant in this case was a person to whom a pension was being paid. I can see no justification for distinguishing between a situation where a pension is payable and where a pension is being paid in the terms of s. 75 or in the power to make regulations pursuant to it, and I would accordingly reject this submission.
The third submission made on behalf of the appellant was that the provisions of the regulations of 1979 were so unreasonable as to be ultra vires. Shortly speaking, this was based on an assertion that the applicant having been for some period prior to her reaching the pensionable age of 66 in receipt of both a widow’s non-contributory pension and of a blind pension was, by virtue of this order deprived of one of the two pensions at a time when, by reason of age, if anything, she needed more social assistance than heretofore.
With regard to this submission, firstly, I am satisfied that it is not for the courts to determine what the social policy of the State shall be at any given time, but rather for the Oireachtas. Quite clearly, the questions as to whether after the age of 66 years a person should or should not be entitled to two concurrent pensions of any specified amounts from the State by way of social welfare assistance is a matter for the legislature and not for the courts. Secondly, it is clear that up to March of 1979 when the Social Welfare Act 1979 was passed, persons who were in receipt of a widow’s non-contributory pension and also a blind pension would, by reason of the provisions which made the widow’s non-contributory pension terminable at pensionable age, upon reaching that age become entitled to one pension only. The blind pension is, on the face of the provisions creating it, one related to incapacity to work and not merely a compensation for physical handicap and, therefore, it is not illogical that it should cease effectively as an additional pension upon a person reaching an age at which the other social welfare legislation deems they probably will no longer by reason of age be able to work. In these circumstances I am not satisfied that there is anything unreasonable in the terms or effect of this regulation and if it were properly enacted as part of the law it would, in my view, be an effective provision.
The fourth submission made on behalf of the appellant is that the provisions of article 38, as inserted by the regulations of 1979, is in direct contradiction to the provisions of s. 7 of the Social Welfare Act 1979 and, as such, is an impermissible intervention by the Minister pursuant to the powers of making regulations vested in him by s. 75 in the legislative function and is, therefore, an unconstitutional exercise of that power which breaches Article 15.2 of the Constitution. I accept that this submission is correct. The very terms of article 38, as inserted, themselves make clear what its effect is and is intended to be, and that is that where a woman would, but for that article be entitled to two pensions she shall be entitled to one only. The situation which made her a person, at the time of the passing of that regulation, entitled to two pensions, was a situation created either by the direct provisions of s. 7 of the Act of 1979 or by the statutory provisions contained in the social welfare code throughout prohibiting for the purposes of the means test, the taking into consideration of the payment of social welfare pensions or allowances. If the effect of article 38 is to be construed as terminating the widow’s non-contributory pension, after pensionable age has been reached, then it is in direct breach of s. 7 and of the expressed purpose of s. 7. If, on the other hand, it is to be taken as abolishing the old age or blind (non-contributory) pension, then it is doing so by reason of the receipt of the social welfare pension or allowance and is in direct contradiction of the provisions which prevent that occurring.
Quite clearly, for the Minister to exercise a power of regulation granted to him by these Acts so as to negative the expressed intention of the legislature is an unconstitutional use of the power vested in him.
Notwithstanding the fact that as appears from the judgment of the learned trial judge and as has been conceded by counsel, this point was not expressly made in the court below, though it was covered in the statement of claim in the application for judicial review in the particular circumstances of this case and where the respondents have had an ample opportunity of meeting it, I would agree that it should be considered by the court, and, having been considered, I would allow this appeal on those grounds and would for this reason hold that the order made in the regulations of 1979 is ultra vires and is invalid of no effect.
Bakht v Medical Council
[1990] ILRM 840 Griffin J.
The above-named Muhammod Murad Bakht (‘the applicant’) qualified as a bachelor of medicine and surgery at the University of Dacca, Bangladesh in July 1973. At the end of 1977 he came to Ireland and, on 14 December 1977, he applied for and received a certificate of temporary registration from the Medical Registration Council pursuant to s. 3 of the Medical Practitioners Act 1955. This permitted him to practise medicine ‘in a hospital or other institution approved of by the council’ for the period of six months commencing on 1 January 1978, the designated hospital being Peamount Hospital in County Dublin. S. 3(2) of the 1955 Act permitted that council to extend the period of six months for such period or periods as it might determine. There was, under s. 3, no limitation on the period or periods for which the council might extend the permitted period.
After the applicant took up his employment in Peamount Hospital, the Medical Practitioners Act 1978, came into force. That Act provided for the establishment of the Medical Council (‘the council’) to fulfil the functions assigned to it by the Act (s. 6) and it is required to hold at least four meetings per year. It was required by s. 26 to prepare and establish a register of medical practitioners, the register to indicate whether the person registered is fully registered, provisionally registered or temporarily registered.
S. 27 prescribes the persons entitled to be registered in the register, and the material provisions for the purpose of this appeal are subs. (1) and (2) which are in the following terms:
27
(1) Subject to the provisions of this Act, every person whose name, at the date of the establishment of the register, is entered in the Register of Medical Practitioners maintained by the Medical Registration Council pursuant to the Medical Practitioners Acts 1927 to 1961, shall be registered in the register.
(2) Any person who:
immediately before the establishment of the register was entitled to be registered in accordance with the Medical Practitioners Acts 1927 to 1961, and was not so registered, or
(b) following the establishment of the register, is awarded any of the primary qualifications specified in the Fourth Schedule to this Act, or
(c) is a national of a member state and has been awarded a qualification in medicine by a competent body or authority designated for that purpose by a member state, pursuant to any directive adopted by the Council of the European Communities, or
(d) satisfies the council that he has undergone such courses of training and passed such examinations as are specified for the purposes of this section in rules made by the council, or
(e) any person entitled to be registered pursuant to an order made under s. 26 of the Medical Practitioners Act 1927,
shall, on making application in the form and manner determined by the council and on payment of the appropriate fee, be registered in the register.
Subs. (2)(d) is the crucial one for the purpose of this appeal.
S. 28 provides for provisional registration. The effect of that section is that the holder of a primary qualification ( ie a bachalor of medicine and surgery of the National University of Ireland or of Trinity College, or a licentiate of the Royal College of Physicians in Ireland or of the Royal College of Surgeons in Ireland) can be registered only by way of provisional registration until and unless he or she has been granted a certificate of experience. This certificate can only be obtained after a successful competition of employment in a residential medical capacity in one or more hospitals approved by the council for the period or periods prescribed by the council.
S. 29 provides for temporary registration and is in the following terms:
29
(1) Where the council is satisfied:
(a) that a person, who is not otherwise entitled to registration, is or intends to be in the State temporarily for the purpose of employment in the practice of medicine in a hospital approved of by the council for the purpose of this section, and
(b) that such person holds a degree, diploma or other qualification which in the opinion of the council, affords sufficient guarantee that he has the requisite knowledge and skill for the efficient practice of medicine, has passed an examination appropriate for obtaining such degree, diploma or other qualification and possesses a certificate of experience considered by the council to be equivalent to that required for formal qualification, the council may, subject to subs. (2) of this section, and upon such person making application in the form and manner determined by the council and on payment of the appropriate fee, temporarily register such person in the register for such period as the council may determine.
(2) The council may extend a period determined under subs. (1) of this section for such further period or periods as the council may determine, provided that the aggregate of such periods shall not exceed five years.
Upon the termination of his first period of temporary registration, the applicant remained in this country, and between 1978 and 1984 worked in a number of hospitals in pursuance of certificates of temporary registration granted to him by the council under s. 29. During that period he also attended a number of post-graduate courses and was awarded (inter alia) a diploma in tropical medicine and hygiene by the School of Tropical Medicine of the University of Liverpool, a diploma in child health by the National University of Ireland, and a licentiate in midwifery by the Rotunda Maternity Hospital in Dublin. He also became an Irish citizen on 13 February 1984.
The certificate of temporary registration which he received in respect of the period from 1 January 1984 to 30 June 1984 exhausted the maximum period of five years prescribed by s. 29(2). On 7 February 1984 the applicant wrote to the council requesting a certificate of unlimited temporary registration. No such certificate could be granted to him, but his letter was treated by the council as referring to full registration under the Act of 1978. On 20 February 1984 the registrar to the council wrote to the applicant stating the requirements for full registration and stating that his medical qualification did not entitle him to apply for it. The applicant again wrote to the registrar referring to the courses he had successfully completed and giving details of his medical record in the previous five years, and applied to the council, in his special circumstances, to allow him registration under s. 27(2)(d). A reply was sent to the hospital at which the applicant worked, but in the meantime he had left the country and taken up employment at a hospital in Saudi Arabia in or about the end of March 1984.
The applicant returned to Ireland in June 1987 and renewed correspondence with the council. On 8 June 1987 he wrote to the registrar renewing his application for registration and stating that he was prepared to undergo or sit any examination required by the council to satisfy itself that he was an appropriate person to be registered under s. 27. The registrar sent to him a copy of rules which had been made under s. 27(2)(d) in August 1980, but these were designed for the purpose of granting registration to ‘distinguished’ foreigners, and had no application to his case. At the same time, the registrar sought further documentation from the applicant to enable him to put the application before the council. The applicant had by then consulted a firm of solicitors. On 21 September 1977 the registrar wrote to the solicitors stating that the application of the applicant was ‘under active consideration’ by the council. This was repeated in letters of 29 October 1987 and 19 November 1987. The applicant has been unable to practise medicine in this country since 29 January 1988.
The council had, in October 1987, established a committee for the purpose of drafting rules in pursuance of s. 27(2) d). At the meeting of the council on 11 December 1987 rules as drafted by this committee were presented to the council, and the rules as drafted, subject to some alterations, were adopted by the council. Some amendments to these draft rules were subsequently proposed. On 19 January 1988 the registrar wrote to the applicant’s solicitors stating that the council had made rules pursuant to s. 27(2)(d) and that a copy of the rules together with an application form would be sent to them ‘early in February’. This information was erroneous, as the draft rules had at that time not been formally adopted and brought into force. Not surprisingly, however, in the case of rules drafted by a committee of lay persons, having regard to both the statutory requirements and the European Community directives, difficulties were foreseen and a copy of the draft rules was not sent to the solicitors. On 2 March 1988 the council decided that the opinion of senior counsel on the draft rules should be obtained. Counsel advised that some of the arrangements provided for in the draft rules were such as to be outside the powers of the council. The matter then took a somewhat unusual turn, as at the quarterly meeting of the council on 1 June 1988, when the item entitled ‘proposed rules pursuant to s. 27(2)(d) for adoption by the council’ arose for discussion, it was agreed that ‘the provision [of s. 27(2)(d)] was in the nature of a reserve power, whereby the council could make rules for considering application for full registration. The council agreed that there was no obligation on it to make such rules’. This was communicated to the applicant’s solicitor.
On 27 June 1988 the applicant applied ex parte to the High Court for leave to apply by way of application for judicial review for:
(1) an order of mandamus directing the council to register the applicant pursuant to s. 27(2)(d) of the Act of 1978;
(2) as order of mandamus directing the council to make and issue rules pursuant to s. 27(2)(d) specifying the courses of training and examinations required for the purpose of satisfying the council for the purposes of that subsection;
(3) compensation for the loss of the applicant’s livelihood by reason of the failure of the council to register the applicant or alternatively by reason of its failure to make and issue rules under subs. (2)(d).
Leave was granted by the High Court on that date, and on 7 July 1988 a notice of motion of the intention of the applicant to apply for judicial review was issued on behalf of the applicant and was served on the council.
A change of policy on the part of the council seems to have taken place again, as in the beginning of September 1988 a sub-committee consisting of the president, chairman and Professor MacGowan was appointed to undertake the task of determining whether or not the council should make rules under s. 27(2)(d); that sub-committee recommended that the council should invoke its reserve power to prepare such rules, and drafted rules. These were later amended, revised and approved of by the council’s legal advisers, and were adopted by the council on 20 March 1989 although they were not in force at the date of the hearing of these proceedings in the High Court, they have been in force since October 1989.
These rules are expressed to be made by the council pursuant to s. 27(2)(d) of the Act of 1978 for the purpose of specifying the training and examination and the procedures of application leading to registration under that subsection. They provide (inter alia) for the criteria which must be satisfied by an applicant for registration in respect of his undergraduate medical training leading to his primary medical qualification, and for the necessary post-graduate experience in the practice of medicine. They also provide that each applicant will be required to achieve a satisfactory standard in an examination conducted for or on behalf of the council. Arrangements have been made by the council for the holding of such an examination, and the first such examination was held in the autumn of 1989. The applicant did not sit for that examination.
The application for judicial review was heard by Gannon J who, at the conclusion of the hearing, made an order declaring:
(1) that the council is in default in failing to inform the applicant of its requirements for his becoming registered on the permanent register and that the applicant has been prejudiced by that default; and
(2) that the council should take up Dr Bakht’s application to be registered without regard to the rules which the council then proposed to bring in.
Counsel for the council had submitted in the High Court, as they did in this Court, that the true construction of the provisions of the subsection in question was that the council had a discretion as to whether or not to make rules for the purpose of the section, and that it was not therefore in default in failing to make any rules. Counsel for the applicant submitted that the provisions of the subsection were mandatory and that when the applicant applied to it for registration in the summer of 1987, the council should then have set about preparing and making rules which would apply to all applicants under that subsection and not just to the applicant. This was the substantial issue in this case, both in the High Court and in this Court.
In the course of his judgment, which was ex tempore , the learned trial judge said that the council, for whatever reason, had not addressed its obligations under the subsection. Although he does not appear to have made an express finding (at least according to the note of his judgment) that the provisions of the subsection are mandatory, he stated that he believed that it did not confer what he described as a ‘double discretion’ on the council, and that the council, in making rules and deciding on the content thereof, had discretion to cope with different situations which would arise. In relation to the appropriateness of the applicant’s application for an order of mandamus, the learned trial judge stated, that in the light of the absence of a decision from the council as to its requirements to enable the applicant to achieve full registration, he had to have regard to the fact that the absence of a decision had put the applicant in a difficult position and had caused him considerable hardship. He was satisfied that the matter of the proper operation of the subsection had not been ‘fixed properly’ (sic). There was no reason why a special meeting of the council could not be convened for the purpose of considering the applicant’s application as an individual application, a ‘special case’. He was satisfied that there had been default on the part of the council in not granting ‘this applicant’ appropriate consideration promptly. He further believed that during the period of consideration of the application, he, the applicant, should have been granted a further extension of his period of temporary registration. Having regard to all the foregoing matters he was prepared to grant the declaration first set out in the order.
With regard to the future, the learned trial judge stated that the case of the applicant should be given individual attention and that it would be a tragedy if he had to wait for rules. He would accordingly grant a declaration that the council should take up the application of the applicant for full registration without waiting to make rules, and in considering the application should do so in whatever manner was most practical and fairest both to the applicant and the council, and should have regard to the applicant’s experience and practice in this country. He was satisfied that the applicant had suffered loss as a result of the unfair treatment meted out to him by the council, and was entitled to be compensated for this loss, which should be measured by the Master of the High Court in default of agreement.
The council appealed to this Court against the order and findings made by the learned trial judge. The grounds argued on the appeal were:
1. that the learned trial judge erred in failing to hold that the provisions of s. 27(2)(d) were discretionary and not mandatory;
2. that he erred in holding that the council could determine an application for full registration without regard to the rules made by it under the subsection or in the absence of any such rules;
3. that he erred in holding that the council could deal with the application of the applicant on an individual or ad hoc basis as if it were an application for temporary registration under s. 29;
4. that he erred in holding that the applicant had been unfairly treated by the council in the manner in which his application had been dealt with.
In the Long Title to the Act of 1978, the council is charged with the duty of providing for the registration and control of persons engaged in the practice of medicine in the State. As such, it has a very important role to play in protecting the standards of medical practice in the State in the interests of the general public. Its functions as provided for in Chapter 1 of Part IV of the Act have both a national and a European Community dimension. It has the duty of overseeing and satisfying itself as to the suitability of the medical education and training provided by the medical schools in the State; as to the standards of theoretical and practical knowledge required for primary qualifications, and as to the clinical training and experience required for granting a certificate of experience under s. 28. It is required by s. 36 to ensure that the requirements relating to education and training for a general qualification shall satisfy the minimum standards specified in any directive of the European Community. By reason of the objectives of the Treaty of Rome in the freedom to provide services and to exercise a profession within the European Community, it has a duty towards the other member states of the community to ensure that the criteria required by it for registration are comparable with those required in the other member states. The council, and it alone, has the responsibility for ensuring that only fully qualified and experienced doctors are registered in the register so as to enable them to engage in medical practice in the State.
S. 27, the provisions of which have been set out hereinbefore, provides for what may be called full registration. The persons provided for in subs. 1, and subs. 2(a)(b)(c) and (e) are, for all practical purposes, automatically entitled to be registered on making the necessary application and paying the appropriate fee. Subs. (1) provides for those who were registered in the appropriate register at the time of the establishment of the register under s. 26. Subs. 2(a) gives a right to be registered to those who were entitled to be registered under the Acts of 1927–1961, but who had not in fact been registered; Subs. 2(b) provides for the registration of the graduates of the National University of Ireland, Trinity College, the Royal College of Physicians, and the Royal College of Surgeons; subs. (2)(c) makes provision for the registration of the nationals of member states of the European Community who obtained the appropriate qualification in that member state; and subs. (2)(e) provides for those who trained and qualified in specified countries and who were entitled as of right to be registered in the previous register under s. 26 of the Act of 1927.
All other doctors who sought to practise medicine in this country (unless temporarily under s. 29) could do so only in pursuance of subs. (2)(d). These would include Irish nationals who trained, studied and qualified abroad, other than in a member state of the European Community; non-nationals of a member state who qualified in any of the other eleven member states; and all other foreign doctors who graduated anywhere except in the specified Irish universities and colleges. Unless and until rules made by the council under subs. (2)(d), specifying the requisite criteria, were in place, the council had no power to register any such doctor in the register.
Subs. (2)(d) is included in a subsection in which all other categories therein set out are entitled to be registered in the register. It was submitted on behalf of the council that the subsection should be construed as giving a discretion to the council to decide whether rules should be made or not — in other words, as if the words ‘which may be’ were inserted between ‘rules’ and ‘made’. I am satisfied that, having regard to the scheme of the subsection, and to the words used in subs. (2)(d), the provisions contained in (d) were intended to require, and require, rules to be made by the council, and that to construe the words ‘as are specified for the purpose of this section in rules made by the council’ as other than mandatory would be an impermissible construction. The council was, therefore, in my opinion required to make rules specifying the courses of training which must have been undergone, and the examinations which an applicant was required to pass, before any such applicant could qualify for registration.
With regard to the second ground of appeal argued, I am quite satisfied that, having regard to the provisions of s. 27, the council had no power to determine an application for full registration without regard to or in the absence of rules made by it under the subsection.
With regard to the third ground of appeal, in my opinion the council was required to make rules of general application which would apply to all applicants, and it has no power under the subsection to consider the application of the applicant on an individual basis in the absence of rules or to consider his application as if it was an application for temporary registration under s.29.
Further, as s. 29(2) provides that the aggregate of the periods of temporary registration shall not exceed five years, the council was powerless to grant to the applicant a further period of temporary registration once the statutory period of five years was exhausted. Although the council was required to make rules under the subsection, it was not, in my opinion, in default in not preparing and adopting rules prior to 1987. On the evidence, there was no call for such rules before that time, although different considerations might have arisen if the applicant had not left this country in 1984. In September 1987 the applicant’s solicitor was informed that his application was under active consideration by the council. Notwithstanding the difficulties that may arise in the preparation of rules of this type, in particular in view of the requirements of s. 36 of the Act and the directives of the European Community, I would consider that one year would be a reasonable maximum time within which to prepare and adopt the necessary rules. It appears to me that if the council had not, in June 1988, adopted the erroneous stand that it was not required to make rules under the subsection but instead proceeded with all reasonable expedition to make rules, the necessary rules would in all probability have been in place by the autumn of 1988, ie one year before they came into force.
In the result, the council was in my view in default of its statutory obligation for that year, during which time the applicant undoubtedly suffered hardship in that he was neither able to practise medicine nor to have the opportunity of satisfying the council that he had undergone the courses of training and passed the examinations now specified in the council’s rules. Although this appeal was pending, he could have made an application for registration under the rules and sat for the examination which took place last autumn, but he did not do so. The damage he suffered by reason of the default of the council should, therefore, in my opinion be limited to one year.
In his evidence in the High Court the applicant stated that his take-home pay would have been in the region of £1,000 per month if he had been engaged in the practice of medicine in a hospital. This evidence was not challenged. Although it is unusual for this Court to assess damages where no assessment has taken place in the High Court, damages have in fact, to my knowledge been assessed by this Court in the first instance where finality is desirable and where the cost of referring the case back to the High Court would be out of all proportion to the amount of damages likely to be awarded. In my opinion this is such a case, and in the circumstances the damages should be assessed by this Court. Having regard to my findings as to the period during which he suffered damage, and his evidence as to his probable loss per month, I would assess his damages at £12,500.
I would therefore dismiss this appeal in so far as it was against the declaration of default by the council and in so far as it was against the finding of the entitlement of the applicant to damages.
I would allow the appeal in so far as the order of the High Court declared that the council should take up the applicant’s application to be registered on the permanent register of medical practitioners without regard to the rules which the Medical Council, at the time when the order was made, proposed to bring in. I would vary the order with regard to damages by awarding to the plaintiff an order, in lieu of the sum to be assessed by the Master of the High Court, the sum of £12,500.
Murphy v Minister for Defence and Ors
[1991] 2 IR 161
[1991]
2 I.R. Murphy v. Minister for Defence
Finlay C.J. 163
S.C.
Finlay C.J.
19th April 1991
This is a motion brought pursuant to the provisions of O. 58, r. 8, of the Superior Court Rules for liberty to adduce further evidence before this Court in a pending appeal brought by the appellant against the dismissal in the High Court of his action for damages for personal injuries arising from alleged negligence and breach of duty. The appellant, who was at the material dates a serving member of the defence forces, claimed damages against the respondents in the High Court as a result of personal injuries alleged by him to have been sustained whilst serving in the army in two separate incidents.
It was alleged that the appellant in December, 1983, whilst serving in Lebanon, in accordance with an order, was manhandling a steel construction consisting of a tank trap, and suffered an injury to his back as the result of that incident. The complaint of the appellant in respect of that incident was that the size and shape of the construction concerned was unduly heavy for one man to try to move on his own, and that the order for him to do so was an order negligently given, without reasonable care for his safety. The second incident of which complaint is made is alleged to have occurred in May, 1986, when the appellant was required, amongst other members of his company, to undergo a fitness test. It was alleged that during the course of this test, in one of the exercises required, he aggravated the condition of his back which previously occurred in the incident in 1983 in Lebanon. The complaint with regard to this test was that having regard to the nature of his previous injury and to his medical record in the army between 1983 and 1986, that it was negligent to require him to undergo a fitness test and was a breach of the duty of his commanding officer to take reasonable care for his safety.
The learned trial judge (Costello J.) held that there was no breach of duty to the appellant in requiring him to move the tank trap in Lebanon on his own, in December, 1983, and that there was no breach of a duty to take reasonable care in requiring him to undergo the fitness test in 1986. Against those decisions the appellant appealed.
The fresh evidence which it is sought by this motion to introduce for the purpose of the hearing of the appeal consists of a copy of a training circular entitled “1-1980 ‘Physical Fitness in the Defence Forces’, issued by the training section of army headquarters on the 31st January, 1980, together with a medical directive entitled “DMC-65590”, dated the 1st November, 1979, annexed to and referred to in the said circular.
The relevant contents of the training and medical circulars concerned are as follows.
“Training Circular, paragraph 6:
Medical Examination
Before beginning any exercise programme it is advisable to have a medical examination. Medical directive DMC-65590, dated the 1st November, 1979, at annex A, will be the guideline in this respect.”The material portion of the medical circular of the 1st November, 1979, is as follows:
“An adequate period for training will be allowed before any testing commences, in order to avoid exposing any personnel to undue risk arising from a previously unknown or poorly appreciated disability or physical defect, the testing may NOT be carried out unless an individual has had a medical examination within a specified period.”
The principles governing the admission of fresh evidence on an appeal to this Court have been set out in the decision of this Court in Lynagh v. Mackin [1970] I.R. 180. Neither counsel for the appellant nor the respondents on this motion has suggested to the Court that any other principles apply, although the Court should review that decision.
I am accordingly satisfied that the principles applicable are as follows:
1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;
2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;
3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.
With regard to these three issues, the appellant’s case on the hearing of this motion was as follows:
The appellant has sworn an affidavit, which is not being contradicted before us, asserting that he was, at the time of the trial, unaware of the existence either of the training circular or of the annexed medical circular. He has asserted that these were army documents, the circulation of which was restricted and which would not have been available to him as a private soldier. That evidence has been corroborated by the evidence of a retired company sergeant major who did have access to and knowledge of these documents. It is not contested by the respondents on the hearing of this motion. Secondly, it has been deposed to by the solicitor for the appellant that he was unaware of the existence of any such circulars. He did request a record of the appellant’s medical history, kept by the army and known by the title of an “LA30” record and was given it without the necessity for formal discovery. The submission is made that having received the records, there was nothing in the facts of the case and the knowledge of the appellant’s advisers which would have justified an application for discovery of all documents connected with the case.
With regard to the second condition the submission made on behalf of the appellant is as follows; firstly, it was submitted that the existence of these two circulars, if known to the learned trial judge, would have carried to his mind the conviction that it was the view of the army authorities that there could be very definite risks attached to asking soliders to undergo the fitness test referred to in the circular of 1980. That fact, if known to the learned trial judge, would, it is said, surely have influenced his view as to whether there was a breach or failure to take reasonable care in requiring the appellant to undergo this test, which included various exercises affecting the back when he had a significant record of back trouble on the “LA30”. Secondly, it was contended that had the existence of these circulars been known to the appellant and his advisers at the time of the trial, the whole course of the trial and, in particular, the cross-examination of the officers responsible for the decision to require the appellant to undergo the fitness test, would have been different. At the actual trial the cross-examination was confined to a suggestion that a perusal of his medical record made it necessary to require him to stand down from the test, whereas, if the existence of the circular had been known cross-examination could, in addition, have been strongly directed towards the officer’s failure to comply with the requirements of his own authorities.
With regard to the question of credibility, it was submitted that this did not arise in this case where what is being sought to be adduced are documents circulated by, and admitted to be genuine, from the respondents themselves.
On behalf of the respondents the submissions made on the hearing of this motion may be summarised as follows. If the appellant had sought discovery of documents in this action it would have been incumbent on the respondents to discover these two circulars and they would unhesitatingly have done so. It must follow from that, it is said, that in an action of this description, and in particular, with regard to decisions made in the defence forces where regulations and directives are commonly known to exist, there was a want of due diligence in not seeking a general order for discovery, notwithstanding the voluntary provision of the “LA30” form, and therefore the provisions of O. 58, r. 8, cannot be availed of.
Secondly, it was submitted that having regard to the fact that the learned trial judge in the course of his judgment held
(1) that the condition which he was satisfied the appellant suffered as a result of the Lebanon incident, namely, a prolapsed disc, could not have been ascertained or diagnosed without very detailed and sophisticated examination;
(2) that any less examination would have yielded properly the diagnosis that the appellant was suffering from muscular or ligament strain only, and
(3) accordingly that there was no evidence which would establish a want of reasonable care on the part of the officer requiring him to undergo a fitness test, that the existence of the directives and the circular could not have had an important influence on the result of the trial.
The respondents did not, of course, contest that the evidence sought to be adduced was entirely credible.
I have carefully considered these submissions and I am satisfied that the appellant is entitled to an order pursuant to O. 58, rule 8. I see no reason to reject the truth of the evidence adduced on this motion to the effect that neither the appellant nor any of his legal advisers were aware of the existence of this particular training circular nor of the medical directive associated with it. This was, it seems to me, an action arising from what were alleged orders given by superior officers to the appellant on two occasions, and the physical consequences of those orders upon him.
Vital to the allegation with regard to the second occasion at least, was the medical record kept by the army of the appellant’s condition after the Lebanon incident in 1983. With that exception, however, it does not seem to me that there were any prima facie grounds for assuming that any other documentary evidence would be relevant to issues which must largely depend on oral evidence of what occurred, and on expert medical evidence of the consequences of what occurred. In these circumstances, I am satisfied that there was not any want of due diligence in failing to obtain an order for discovery. In the absence of actual knowledge of this particular circular or a circular with these provisions in it, which I am satisfied did not exist in either the appellant or his advisers, I am not satisfied that there was any want of due diligence in failing to ask for this circular informally as was done in relation to the “LA30” form of the appellant’s medical records.
With regard to the second condition which must be satisfied in order for the appellant to be entitled to adduce this fresh evidence, I have come to the following conclusion. It seems to me that the existence of these two documents, having issued from the authorities of the officer concerned in the decision to require the appellant to undergo the fitness test in 1986, would be likely to have an important effect on the view of a trial judge as to whether it would have been a proper exercise of a duty to take reasonable care for the safety of the appellant for the officer concerned to require him to undergo this fitness test without getting an intervening medical examination and intervening medical advice. Secondly, I am satisfied that if the existence of these two documents had been known to the appellant’s advisers at the time of the trial that the course of the trial, particularly relating to the cross-examination of the officers concerned in the decision, would have been substantially different to an extent which, again, would probably have an important effect on the result of the trial.
In reaching these two conclusions I, of course, do not express any opinion as to whether the existence of this evidence would or should have been decisive in altering the result of the trial.
Since no issue has arisen or could conceivably arise as to the credibility of this evidence, I conclude that this motion should be allowed and that the appellant should be allowed a consequential amendment of the notice of appeal to set out an appropriate ground dealing with this evidence. Once this amendment has been properly served and filed the appeal proper should be listed as soon as possible.
Hederman J.
I agree.
O’Flaherty J.
I agree with the judgment of the Chief Justice and with the form of order that he proposes.That the evidence sought to be admitted is credible there is no doubt; that it would probably have had an important influence on the result of the case was all but conceded by counsel on behalf of the respondents; so the only question is: has there been a failure to apply reasonable diligence in seeking to obtain this evidence for the trial?
It is clear that if a motion for discovery had been brought prior to the trial these documents would have been discovered. It is submitted on behalf of the respondents that the failure to bring such a motion meant that sufficient diligence had not been brought to bear on the matter. The answer to this is that the respondents had on request but without formal discovery made available the appellant’s medical record (LA30). If the perception that all parties now appear to share on the relevance of the training and medical circulars of November, 1979, was present to the minds of the respondents’ advisers at the time that they made the record LA30 available, then I have no doubt that these documents too would have been freely proffered. So, if there was a lack of reasonable diligence it was a shared delict. But I do not believe that there was; there was a mutual inadvertence to potentially important evidence.
Failure of a procedural requirement must not be used to bring about or acquiesce in a possible injustice. As judges we are required always to keep firmly in perspective what the justice of the particular case requires.
In a decision of the full former Supreme Court in Daems v. van Landeghem (Unreported, Supreme Court, 15th November, 1954) – a failure to produce a relevant certificate at the appropriate time was the point at issue – Maguire C.J. said:
“A citation which is . . . apposite was that referred to by Lavery J. in the course of the argument, namely the passage from the judgment of Bowen L.J. in Cropper v. Smith 26 Ch. 700 at p. 710, as follows:
‘There is no kind of error or mistake, which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.’
Although dealing with an application for liberty to amend pleadings, these words are apt in the present case. If the necessary proofs are available they ought to be received at any time up to judgment. The function of the courts is to decide the issue between parties.”
To accede to the respondents’ submission in this case would be to give sustenance to the notion that there should be a slavish application for discovery in every case. While there will be many cases where, of course, discovery is an essential requirement to make sure that justice is done there will be many simple, straightforward cases where a motion for discovery would be needless. It is important to point out that in this case there was no breach of any procedural requirement: there was, at most, a failure to avail of a particular procedure. It would have been appropriate to have had discovery in this case; why there was not is understandable and excusable in the circumstances.
Hay v O’Grady
[1992] ILRM 689
McCarthy J
The plaintiff is a nurse employed at the relevant time as a community facilitator at St Mary’s Hospital, Drumcarr, Co. Louth; for the purpose of these proceedings, the hospital is represented by the defendant. It is part of the work of the hospital to bring patients into the ordinary life of the community. They are severe mentally handicapped patients. The role of the plaintiff, who had no formal qualifications, was to facilitate patients to fit into the community by helping them to fend for themselves, to keep their person clean and the house clean. Patients are from time to time selected for such help and progress by a board with a psychologist, social workers, staff nurses and co-ordinators with the house parent sometimes involved. It is a management decision. The role of the facilitator is to act as a house parent. It is dedicated and sometimes difficult work.
About Easter 1988, the plaintiff was transferred to work at a house in Oaklawns, Drogheda where there were four patients, including Margaret who was mentally handicapped and a diabetic. Her behaviour was changeable in that she was lethargic and at times given to throwing things or catching a person’s hair or trying to bite somebody. She had moods. She is small in stature and of light weight, aged 31.
On a series of dates in May and June 1988 there had been some disturbances noted in respect of Margaret’s conduct; in particular, on 8 June there had been an incident involving one of the brothers of St John of God. Management felt that a six week period in the main house (the hospital) was required. During that period she was on five or six nights permitted to stay at the community home at Oaklawns. At the expiry of the six week period, Margaret went back to Oaklawns on 29 July after a further review which took place on the fourth of the six weeks. The decision was made to phase her back into the home. This was decided at a meeting on 27 July attended by the psychologist, the social worker, two nurses and two co-ordinators. On 10 August, Margaret was with others at a hotel in Malahide, Co. Dublin. This was on a day’s outing with three facilitators and fifteen patients. Margaret misbehaved; she snatched some food and had to be restrained. She took the chair from under a gentleman patron of the hotel when he stood up to lift something off the table; the man was very annoyed. The plaintiff’s reaction was to restrain Margaret and subsequently to arrange for a letter to be sent to the gentleman concerned apologising for the incident. Margaret was brought back to Oaklawns and it was there on 18 August 1988 that the incident giving rise to this claim took place when Margaret assaulted the plaintiff. It would appear that a management meeting was held to discuss the Malahide incident; the evidence in this regard is somewhat incomplete. The psychologist, Mr Joly, was at the time on holiday and the social worker, Mr Hanrahan, was not informed of the Malahide incident. Mr Hanrahan did express the view that the incident as described would not have warranted taking Margaret away from Oaklawns and back to the hospital. The co-ordinators, Ms Doyle and Ms Price were both aware of the Malahide incident upon which a report had been made.
The plaintiff’s case was summarised by the learned trial judge as follows:
For the plaintiff, this case has been submitted on the basis that Margaret had proved herself to be unsuitable to return to home environment and she was returned on 29 July 1988, and that, having regard to Margaret’s previous history, that is to say, her history of aggression, prior to that date, it was negligent on the part of the defendant to return her. Alternatively it was submitted that it was negligence in not being aware of this particular incident or, being aware of it, did not, at once, cancel Margaret’s position as a member of the family home or, alternatively, it was suggested that if they were going to keep her in the family home there should also have been two house mothers who can control her.
At the hearing of this appeal, this summary has been accepted as accurate. Lynch J went on:
For the defendant, it is submitted that the decision to refer Margaret to the benefit of their scheme, that it was taken after great care, on each occasion, and, again, very great care had been taken on her return to the home on 29 July 1988. They say there is no negligence in assigning her to the family home, in the first instance, or any negligence in assigning her again on 29 July or in not recalling her on 10 August, when the Malahide incident took place. They submit that there was no negligence in expecting that the plaintiff would have been competent to deal with Margaret on her own, along with the other members of that house. They further submit that there was no fault or blame whatever attaching to them and that there was no negligence. They submit that it would be unreasonable to have two persons in charge of that home. I have reached the following conclusions, but I do wish to say that this has been a very difficult case and I am satisfied that there was no fault or blame whatsoever so far as the plaintiff is concerned. And, of course, the defendants obviously had this scheme of rehabilitation for unfortunate mentally handicapped people and it is a most laudable work. I have to decide the case on its merits. This scheme, as I said, is obviously a very good scheme and, I think, it accords with state policy that those fit for community living should not, as far as is possible, be locked away in large institutions for the rest of their lives. It is inevitable that there would be some failure with these clients who are referred to these homes. This does not mean that they should abandon the scheme, because it is a good scheme, nor does it mean that if an individual falls from grace, so to speak, because of some tantrum or other and that he or she must immediately be treated as forfeiting the benefit which has been offered to him, without giving him the opportunity to be retrained.
The learned trial judge found that there was no negligence on the part of the defendant or those for whom he was legally responsible, and dismissed the claim.
Appeal from a judge alone
Before the coming into force of the Courts Act 1988, an action of this kind would, ordinarily, have been tried by a judge and jury. It was at that time and remains the established jurisprudence of this Court that a verdict of a jury as to issues of fact and the inferences to be drawn from the facts as found will not be disturbed by this Court if there is evidence to support such findings and inferences. This is so even if this Court would, itself, draw inferences different from those drawn by the jury. See the judgment of Finlay CJ in Dunne v National Maternity Hospital [1989] ILRM 735 at 743, where the Chief Justice cited from the judgments of O’Higgins CJ and Henchy J in Northern Bank Finance Corporation v Charlton [1979] IR 149, that case, itself, being in the High Court a trial by a judge alone.
The question raised by this Court at the commencement of the hearing of this appeal was whether or not the function of this Court in reviewing a verdict of a judge alone in cases which would have prior to 1988 been tried by a judge and jury is any different from that identified in the Northern Bank case and further stated in Moore v Fullerton [1991] ILRM 29 at 33 and Coleman v Clarke [1991] ILRM 841. The court has had the benefit of a comprehensive survey of the case law see Gairloch, The SS [1899] 2 IR 1, 18; Northern Bank Finance Corporation v Charlton [1979] IR 149; Holohan v Donoghue [1986] ILRM 250; J.M. and G.M. v An Bord Uchtála [1988] ILRM 203; Hanrahan v Merck Sharp and Dohme [1988] ILRM 629; Mullen v Quinnsworth (No. 2) [1991] ILRM 439; Moore v Fullerton [1991] ILRM 29; Phillips v Durgan [1991] 1 IR 94; Hughes v O’Rourke [1986] ILRM 538; Banco Ambrosiano v Ansbacher [1987] ILRM 669; Coghlan v Cumberland [1898] 1 Ch 704; Benmax v Austin Motor Co. [1955] 1 All ER 326; Riekmann v Thierry (1892) 14 RPC 105; Mersey Docks and Harbour Board v Procter [1923] AC 253 at 258; Quilter v Mapleson (1881–82) 9 QBD 672, 675; Swettlaman v Russelcombe [1935] AC; Powell v Streatham Manor Nursing Home [1935] AC 243; People (DPP) v O’Shea [1982] IR 384, whilst pointing to Article 34 of the Constitution as the essential origin of the jurisdiction of this Court. If there is any difference of approach between the parties to this appeal it is one of emphasis rather than of substance.
Article 34.4.3° provides:
The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
No express exceptions have been made but the appellate jurisdiction has, by statute, been made subject to regulations. This, in particular, has been effected by the Courts (Supplemental Provisions) Act 1961 and the Rules of the Superior Courts (SI No. 15 of 1986) made, inter alia, pursuant to s. 48 of the 1961 Act. O. 58 of the Rules of 1986 provides:
1. All appeals to the Supreme Court shall be by way of re-hearing and (save from the refusal of an ex parte application) shall be brought by notice of motion (in this order called ‘the notice of appeal’). The appellant may appeal from the whole or any part of any judgment or order and the notice of appeal shall state whether the whole or part only of such judgment or order is complained of and, in the latter case, shall specify such part.
This does not mean that the Supreme Court re-hears oral evidence but, rather, the arguments based upon the findings of fact, including arguments that the findings are unsupported by evidence, itself a question of law. Although the jurisdiction conferred by Article 34.4.3° is, save as there expressed and already instanced, unlimited, the court has, in effect, limited its jurisdiction in the manner detailed in the succession of cases cited in the course of argument. The role of this Court, in my view, may be stated as follows:
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes LJ in Gairloch, The SS [1899] 2 IR 1, 18, cited by O’Higgins CJ in People (DPP) v Madden [1977] IR 336 at 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence of recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference — in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.
The instant appeal
Although there was some confusion as to some of the facts concerning the background of Margaret’s treatment and behaviour, on the essential facts there was, really, no dispute. Lynch J concluded that the management of Margaret by those concerned did not fall short of the appropriate standard of care; in particular, he concluded that those concerned with management had not failed to give due consideration to all relevant incidents; that there was not an obvious need to transfer Margaret back to the hospital after the incident of 10 August. In my view such a conclusion was wholly supported by the evidence; if I were to deal with the matter at first instance, I would have come to the same conclusion. I would accordingly dismiss the appeal.
It is not a strict analogy, but, in my view, as in cases of alleged medical malpractice, a court should, ordinarily, refrain from substituting its own view of an appropriate decision for that of those charged with making such decision and apparently qualified to do so. That is not to say that, where appropriate, a court might not conclude that the decision-maker had failed adequately to inform himself or to apply appropriate standards. In the present case, for what one may assume to be lack of such evidence, there was no evidence whatever from any expert source to the effect that the management of Margaret fell short of any reasonable standard of care.
Pat O’Donnell & Co Ltd v. Truck & Machinery Sales Ltd
[1997] 1 I.L.R.M. 466 Moriarty J
For the purpose of convenience in the judgment I will refer, because it is confusing when a plaintiff is effectively a respondent, to Pat O’Donnell & Co. Ltd either by name or as defendant to the counterclaim and to Truck & Machinery Sales Ltd either as counterclaimant or by its corporate name.
The primarily factual issues to be determined upon the hearing of this counterclaim relate to an agreement between both parties of 12 February 1992, for the sale and exchange of a substantial quantity of mechanical shovels; as further set forth in a signed written consent of 23 March 1992, which also detailed the related basis of compromise of pending proceedings involving the counterclaimant and German vendors of like equipment who may be referred to as Zettlemeyer.
The agreement was concluded between the respective managing directors of both companies, Mr James Mansfield and Mr Pat O’Donnell, each of whom had traded in the business of earth moving equipment for in excess of 25 years and who were the most crucial witnesses in the hearing.
On both the liability and potential measure of damage issues there transpired to be a particularity of detail to such an extent that the trial’s projected duration was more than trebled. But the particular circumstances giving rise to the agreement may be summarised as follows.
As Mr Mansfield’s business of leasing earth moving equipment in Ireland, primarily to those working quarries and gravel pits, and selling on such equipment both in Ireland and internationally, increased he came to have need of a substantial consignment of four-wheeled mechanical shovels. He had dealings with Mr O’Donnell’s company who had held the franchise in such equipment for the Volvo Group since 1970 back in 1988 when a substantial and mutually satisfactory agreement for the purchase of several Volvo dump trucks was concluded between them.
The range of mechanical shovels available for purchase in Ireland at the time comprised of the American Caterpillar, the then market leader; the Japanese Konatsu; Volvo; and Zettlemeyer.
Of these, Mr Mansfield bought 11 Zettlemeyers of two different types for approximately £900,000, in late 1989 and 1990 and had cause to regret the decision, for they proved unreliable.
Upon getting no satisfaction from Zettlemeyer personnel Mr Mansfield commenced High Court proceedings in May 1991. His problems in this regard were compounded when Mr O’Donnell informed him in 1991 that Volvo were in the course of taking over Zettlemeyer and this acquisition duly took place.
Mr Mansfield’s need to address a situation in which shovels that were unsatisfactory might also acquire built-in obsolescence provided a heaven-sent sales opportunity for Mr O’Donnell, for in 1991 Volvo were in the course of launching on the market a new model, the L150, with a view to competing much more effectively with the highly regarded mid-range Caterpillar 966 model than had its predecessor the L160.
Knowing Mr Mansfield to be the largest potential purchaser in Ireland, Mr O’Donnell made intense efforts in the latter portion of 1991 to interest Mr Mansfield in purchasing L150s, emphasising excellent performance in demonstrations held in a range of Irish locations subsequent to the launch. It became clear to Mr O’Donnell that if an agreement was to be finalised it would have to be on the basis that included returning the 11 Zettlemeyers or otherwise resolving the ongoing litigation in regard to them.
Matters came to a head at a meeting between the two men at Mr Mansfield’s Rathcoole office on 29 January 1992. Following discussion of various permutations, mutual interest favoured a basis of dealing whereby the 11 Zettlemeyers would be returned to Mr O’Donnell for shipping on a basis of a one-for-one exchange with new L150 Volvo models accompanied by a further cash purchase of other L150s.
One immediate problem arose, however. The L150s were specified as being supplied with 23½ by 25 inch tyres, (‘the smaller tyres’) whereas Mr Mansfield was adamant that to comply with the requirements of his rental customers and merit appropriately enhanced rates of rental he would only be prepared to enter into an agreement if all the L150s could be provided with 26½ inch by 25 inch tyres, (‘the large tyres’). Mr O’Donnell stated that he would check whether this alteration was feasible with Volvo personnel in Sweden. He did so and upon again meeting with Mr Mansfield on 12 February 1992 stated that it would be feasible to supply the shovels with the larger wheels. What was said or unsaid between the two in the context of it being a less than desirable option to take the shovels with the larger wheels for work in quarries and gravel pits is one of the principal matters of controversy on the evidence.
It was common case and must in any event have been apparent to two experienced professionals that the revision of specification would inevitably to some degree impact upon performance, but a significant gap exists in the recollection of the witnesses.
However, in the course of the latter meeting an agreement was speedily concluded whereby 11 Zettlemeyers would be replaced by eleven L150s with a further nine such models to be purchased at a price of £900,000. Whilst an order form recording essential details was then signed by both Mr Mansfield and Mr O’Donnell, it was agreed that the formal terms of the agreement, in particular, having regard to the basis of settlement of the Zettlemeyer litigation, would be subsequently drawn up in conjunction with legal advisers. A written consent was accordingly prepared by Messrs Goodbodys, solicitors to Volvo in Ireland and executed by all relevant parties on 23 March 1992.
Pursuant to the agreement, the 11 Zettlemeyer shovels were returned and a schedule of delivery of L150s was embarked upon. Payment was duly made by the counterclaimant to the defendant in respect of those models requiring payment, save that by consensual variation of the agreement Mr Mansfield sought that two of the latter models should be changed to the larger and more expensive L180 model. It is in respect of non-payment for those two shovels that the present proceedings were instituted by Pat O’Donnell & Co. Ltd.
However, the first sign of overt controversy between the parties related to events far beyond Ireland.
Mr Mansfield caused eight of the new L150s to be shipped to the Middle East as part of a large consignment of varying types of equipment intended for resale. The consignment came to be stored in Dubai and currency and other problems arose which greatly hampered the Middle East venture and have given rise to further and unrelated proceedings instituted by Truck & Machinery Sales Ltd.
What is primarily relevant for present purposes is that efforts to sell L150s to the Pakistan Army appear to have antagonised local Volvo sales personnel with like intentions. It was in this context that what came to be known in the proceedings as ‘the Volvo letter’ was written. This was a document of 24 September 1992 written by Mr Liljan-Crantz of local Volvo personnel to the representative retained by the Pakistan Army decrying, inter alia, the absence of oil bath filters in the exported L150s, the fitting of the larger and unrecommended tyres as tending to make the shovel become ‘sluggish’ and the fitting of ‘old’ axles in contrast to a new and preferable version locally available.
Although there is again conflict in the evidence as to whether or not Mr Mansfield had exclusively committed the L150s acquired in the agreement to the Irish rental market and a term to that effect has been pleaded in the defence and counterclaim, it seems to me that on the evidence, as a whole, the probabilities fall appreciatively short of Mr Mansfield having furnished any such binding undertaking on behalf of the counterclaimant.
However, from a Volvo standpoint, it is not difficult to conceive of the reaction when what was thought of as a discounted Irish purchaser for a home market re-emerged as a competitor to local Volvo agents in the Middle East. A copy of the letter quickly reached Mr Mansfield who faxed an initially incredulous Mr O’Donnell with it, and he in turn ascertained on contacting Volvo in Sweden that the letter was genuine.
Being in possession of the two new L180 shovels which had not yet been paid for, Mr Mansfield resolved to withhold payment until he received some realistic satisfaction for what had transpired in relation to the L150s sent to the Middle East, although he acknowledged in evidence that he had initially purported in dealings with Mr O’Donnell to ascribe payment delay to more critical cash flow problems than he was in fact experiencing.
Mr Mansfield demanded that a Volvo representative of appropriate standing should come to Ireland to deal with the position. In response to this, Mr Paul Kallmin, marketing director of Volvo International Sales Division, came to Dublin and met with Mr Mansfield and Mr O’Donnell on two occasions at the end of October 1992.
Upon Mr Mansfield forcefully stating his grievances in regard to the repercussions of the letter upon his Middle East venture, Mr Kallmin undertook to enquire into what redress, including compensation, might be forthcoming. At the later meeting, he stated no compensation would be paid and Volvo would not go beyond providing a letter shown in draft form, which would seek to reassure intending purchasers; a course utterly unacceptable to Mr Mansfield.
The parties were now plainly on a collision course. Solicitors’ letters were exchanged and proceedings were instituted by the issue of a summary summons by Pat O’Donnell & Co. Ltd for the unpaid purchase price of the two L180 shovels and accrued interest thereon.
In response to the grounding affidavit of Mr O’Donnell seeking leave to enter final judgment before the Master, Mr Mansfield filed a detailed replying affidavit. Whilst it would not be correct to state that this omitted to make complaint in relation to the L150s consigned to the domestic hire market, undoubtedly, the primary thrust of Mr Mansfield’s complaint in that affidavit, and in the subsequent initial defence and counterclaim of 21 June 1993, centred upon what had transpired in the Middle East. Both Volvo and Zettlemeyer in their appropriate corporate forms were joined to the counterclaim. A notice for particulars in relation to the defence and counterclaim was issued but not apparently replied to and cross discovery proceedings duly took their course. Beyond some correspondence by the solicitors to Truck & Machinery Sales Ltd to the solicitors who had acted for Volvo in relation to the earlier consent no steps were taken by the said counterclaimant’s solicitors to serve Volvo and Zettlemeyer.
Following unsuccessful applications by the said counterclaimant’s solicitors to adjourn, the matter came before Costello P, and by his order of 21 November 1995, judgment was granted in favour of Pat O’Donnell & Co. Ltd for the purchase price of the two L180s as claimed together with accrued interest. A stay upon the said judgment was also thereby ordered pending the due determination of the present counterclaim.
Leave was granted to Truck & Machinery Sales Ltd to amend its defence and counterclaim, the resultant amended pleading being delivered on 22 December 1995 and notice of discontinuance of proceedings against Volvo and Zettlemeyer was served. Just prior to the commencement of the counterclaim hearing, on 15 April 1996, the counterclaimant sought to amend the commencement date of matters complained of so as to be operative from the time of the agreement between the parties rather than in or about the time of the Volvo letter.
Save in respect of one aspect to which I shall shortly return, the legal principles applicable to the various alleged causes of action and entitlement to damages are well settled. I am obliged to counsel and solicitors on both sides for speedily and fully setting forth submissions on both law and fact in oral and written form.
The headings of claim that have caused me least difficulty are the alleged breaches of s. 14(2) and (4), of the Sale of Goods Act 1893 and 1980, respectively, the implied provisions in contracts for the sale of goods that items purchased shall be of merchantable quality and shall be reasonably fit for the purpose for which purchased. It does not appear necessary to set forth the respective subsections verbatim or consider the applicability of any particular subclauses. In the light of the authorities opened to me in the submissions by the parties, in addition to relevant portions cited from Benjamin on the Sale of Goods , allied to the findings of fact that I feel are appropriate to the evidence in its entirety, I am satisfied that on no realistic appraisal of appropriately proven defects in the L150s supplied can it be said that they were not of merchantable quality or reasonably fit for the purpose for which required.
Even on a breach of warranty, ex post basis, it seems to me construing the evidence in its totality, as best I can, that given such factors as the relative prices obtained in resale in varying circumstances, the overall hire records, durability and income generated in favour of the counterclaimant by those shovels which became part of the hire fleet, the relative incidence of repairs required and the apparent evaluation of the L150s in Ireland and other market-places by other purchasers and users that neither term has been shown to be infringed.
For some piecemeal items in respect of which defects were either admitted or not seriously contested, a contractual basis of redress might still remain arguable but on the view that I have taken in regard to the counterclaim as a whole, I believe those items may properly be deferred for consideration under alternative headings.
The remaining causes of action relied upon in the counterclaim are those of negligent misrepresentation and statutory misrepresentation pursuant to s. 45(1) of the Sale of Goods and Supply of Services Act 1980.
Following upon the decision of the House of Lords in Hedley Byrne & Co. Ltd v. Heller & Partners Ltd [1964] AC 465, it was accepted by Davitt P in Securities Trust Ltd v. Hugh Moore & Alexander Ltd [1964] IR 417 that an action for negligent misrepresentation could succeed in this jurisdiction where a relationship between two parties was of such a nature that upon one seeking information from the other damage resulted from a breach of a duty to take reasonable care that the information furnished was correct. In Doolan v. Murray, High Court 1990 No. 7753P, 21 December 1993, Keane J approved the dictum of Lord Denning MR in Esso Petroleum Co. v. Mardon [1976] 2 All ER 5, to the effect that:
If a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another — be it advice, information or opinion — with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable.
In setting forth a statutory entitlement to damages for non-fraudulent misrepresentation in 1980, the Oireachtas did not require that a duty of care should exist between representor and representee. By s. 45(1) of the Sale of Goods and Supply of Services Act 1980, it is provided that:
Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable for damages in respect thereof, had the misrepresentation been made fraudulently, *hat pterson shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.
Having appraised the evidence on both sides, I am of the opinion that the counterclaimant is entitled to succeed in respect of misrepresentation both on a basis of negligent misrepresentation and statutory misrepresentation, but primarily in respect of the former.
Patently, Mr O’Donnell was under a duty of care in relation to the representations he made to Mr Mansfield with a view to inducing sales. He was a specialised and experienced dealer and up to 90% of his business was Volvo-produced, and he knew from previous dealings over dump trucks that Mr Mansfield was not a person who would exhaustively study vehicle specifications and he had, on his own evidence, assiduously canvassed Mr Mansfield as a large potential purchaser of L150s whilst further knowing of his difficulties regarding Zettlemeyer over whom Volvo had attained control.
Equally clearly, the recommendations made by Mr O’Donnell in relation to the L150 were instrumental in persuading him to enter into the agreement. The actual elements of conflict in accounts given by both principal witnesses are in fact appreciatively less than in many other areas of controversy in the counterclaim. Although there are conflicts it seems to me to be established as a relatively clear probability that in circumstances where he was made aware that Mr Mansfield required shovels that were at least the equal of the Caterpillar 966 for arduous quarrying work, Mr O’Donnell conveyed emphatically to Mr Mansfield that the L150 was a new and entirely up-to-date model of the highest standard that would be equal to, and in some ways superior to, the Caterpillar 966.
Mr O’Donnell was furnished with and was familiar with a significant amount of promotional and technical literature which conveyed to him that in such matters as speed in low gears, and in breakout force, a particularly significant attribute in a quarrying concept, the L150 was not equal to the Caterpillar 966.
He did not convey to Mr Kallmin that he was selling L150s to Mr Mansfield on a basis of being equal to or superior to the Caterpillar 966 nor did he tell him that quarrying was the main projected use by Mr Mansfield’s hirers.
Whilst I accept Mr O’Donnell’s evidence that he was surprised and dismayed at the content of the Volvo letter, and likewise accept the evidence of the Volvo witnesses that design modifications are part and parcel of the business of marketing an evolving product, it remains the fact of matters that on such significant aspects as the type of axle and the standard wheel fittings, significant preparations were in train and at an advanced state of development to adapt a product more suitable to Mr Mansfield’s needs. In the context of the allegedly extensive dealings between Mr O’Donnell and Volvo and the latter’s detailed consideration of whether or not to proceed with the proposed agreement at all on a basis of larger tyre fittings, it would seem that these aspects ought to have been elicited and conveyed to Mr Mansfield.
It would be an unwarranted finding to hold that the L150s supplied were no more than an experimental prototype, yet it remains noteworthy in the light of the representations made, that L150s supplied to Mr Mansfield constituted a significantly high percentage of, approximately, 200 shovels manufactured under the older format. It is difficult not to be inclined to a view that this may have reflected some differences between the design and marketing arms of Volvo. All this must be assessed in conjunction with the conflict of evidence in regard to what passed between the parties with regard to the provision of the larger wheels. Mr Mansfield accepted that he insisted on larger wheels and acknowledged that some limited loss of traction and breakout force would result, but he denied the basis of repeated efforts to dissuade him and warnings and caveats advanced by Mr O’Donnell.
On balance, and I have regard to a degree of difference in relevant testimony between Mr O’Donnell and Mr Kallmin, and to the complete absence of any contemporaneous written reference whatsoever, I am inclined to the view that no serious or adequate warning was given by or on behalf of the vendors with regard to the unsuitability of larger tyres for the existing specification.
Indeed, as neither principal witness conveyed to me any impression of seeking to give wilfully misleading or unworthy evidence, it is worth remembering that the inherent complexity of the proposed agreement may well have distracted attention from a fully reasoned appraisal of the likely repercussions of fitting larger tyres or indeed the place of use projected for the L150s sold.
The contract was indeed a large and crucial one for both parties but the Zettlemeyer and other attendant complications may have diverted a degree of attention from aspects that would otherwise have been explored more fully. There remains an issue as to whether or not in law or in fact, in so far as the supply of L150s with larger wheels undoubtedly very significantly contributed to the losses complained of, Mr Mansfield should be held to have contributed towards any resultant misfortune that accrued. By s. 34(1) of the Civil Liability Act 1961, it is provided that:
Where, in any action brought by one party in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence), and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant.
‘Wrong’ is defined in s. 2 as:
Tort, breach of contract or breach of trust whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional.
These provisions expressly including breaches of contract as wrongs are more widely drafted than equivalent English legislation and appear to reflect the view of Professor Glanville Williams that contributory negligence should be extended to contract law and that, as argued by him at p. 215, of his work on Joint Torts and Contributory Negligence (1951), ‘Contributory negligence is appropriate even where the contractual duty broken is a strict one’.
As recently as in Lyons v. Thomas [1986] IR 666, Murphy J noted and applied the wide definition of wrong as aforesaid. Further in Gran Gelato Ltd v. Richcliff (Group) Ltd [1992] Ch 560, it was held that in principle the concept of contributory negligence applied to statutory misrepresentation under the Misrepresentation Act 1967, Nicholls VC holding that such a defence should be applicable in the context of statutory misrepresentation, no less than in respect of negligent misrepresentation founded upon the same representation.
In the light of the foregoing, I am of the view that contributory negligence is in principle applicable to a case such as the present counterclaim, although I would readily accept that in many commercial cases involving representations or contractual terms it may be deemed inappropriate. Should it be applied in this present instance? Mr Mansfield was an accomplished and experienced businessman who was able to recall in evidence that he had purchased £10 million worth of equipment in the Falkland Islands. He was well versed in the practicalities of mechanical shovels. He insisted on a relatively radical departure from the then standard specification for his own commercial reasons, in the knowledge that it must to some degree impact negatively upon performance, albeit not to the extent of a general sluggishness. It accordingly seems to me that when dealing with redress, some appropriate discounting on a basis of contributory negligence will require to be ordered.
With regard to the contentions belatedly advanced on behalf of the defendant to the counterclaim, that the counterclaimant should be (a) precluded from recovering consequential losses pursuant to the standard conditions of sale set forth on the reverse of the signed order form and (b) precluded from recovering any losses that would seem to accrue to HSS Ltd, the associate leasing arm of Mr Mansfield’s group of companies, I have decided that the entire substantive merits of losses flowing from the relevant misrepresentation should be adjudicated upon in the proceedings as presently constituted.
Apart from the issues now being more generically akin to negligence, than to a basis of contractual privity, the concurrent designation of the relevant companies in the Mansfield Group in the consent of 23 March 1992 and some possible argument as to whether all such standard terms were duly incorporated into the agreement for the purposes of the counterclaim; these aspects have not been pleaded in the amended reply and defence to counterclaim at the conclusion of the extensive and protracted pleadings. If I felt, nonetheless, in law constrained to uphold either argument I would of course do so. But it is difficult to see how the interest of either party could be advanced by leaving undetermined a small portion of the merits exhaustively canvassed at hearing.
I turn in conclusion to the issue of damages and whilst differences in the measure of damages appropriate to negligent misrepresentation and statutory misrepresentation may arise, it seems clear that what is applicable is such a sum of money as should suffice to place the counterclaimant into the position it would have been in had the relevant misrepresentations been true.
The respective headings of claim alleged comprise:
(a) losses on the sale of eight L150s to the Pakistan Army in the sum of £216,789.11;
(b) losses on the sale of five further L150s between the months of November 1992 and April 1993 in the sum of £132,617.71;
(c) repair costs and associated loss of use in the sum of £53,817.79;
(d) loss of projected rental income in the sum of £250,274.41; and
(e) a claim for loss of future hire in respect of the four L150s remaining in the hire fleet in the context of the belated emergence in the evidence that provision of replacement axles would not be economically feasible, quantified on a three year basis at £109,368.
I have to say that a purported claim exceeding three quarters of a million pounds, bears little reality to the substantive merits of the case as heard over 11 days of evidence.
Given that the critical focus of the counterclaimant’s grievances until an advanced state of proceedings was on the general mishaps that had befallen the Middle East venture, an aspect expressly abandoned for the purposes of these proceedings at the outset of the hearing, and that minimal if any dissatisfaction with the L150s had been expressed until after the Volvo letter, it is difficult to repress a view that the entire basis of claim has been belatedly and implausibly recast.
This has entailed Mr Richard Mahon and Mr Brendan Gibbons, respectively, financial controller and maintenance fitter foreman to the counterclaimant, advancing documents and figures that appear predominately to me to import a high degree of artificiality, and in a process akin to the workings of revisionist historians, to Mr Jim Corkery, financial controller to Pat O’Donnell & Co. Ltd, and Mr Leander of Volvo, furnishing detailed rebuttals. Whilst the gulf between competing figures on such aspects as projected sales losses, hiring, downtime, repair costs and realistic expectations is absurdly large, I find the evidence on behalf of the defendant to the counterclaim more cogent and impressive in this regard.
The evidence of purportedly disgruntled hirers and users of L150s adduced on behalf of the counterclaimant had a mantra-like predictability, and whilst accepting that the contrary evidence of Mr Tom Cleary of Roadstone did not reflect the most arduous of applications, I find it more in keeping with the general proposition that clearly emerged that the L150 model has been generally successful in this country and many others and has very significantly improved the Volvo market share in the comparatively low-volume, but important, market of mid-range shovels.
Similarly, the evidence and report of the motor engineer, Mr Kenneth Robinson, was based upon one comparatively limited early examination of one L150 model, and thereafter was limited to an evaluation on paper between documentation applicable to both the L150 and the Caterpillar 966.
In assessing the totality of the evidence, documentation and submissions, as carefully as I can, I have had regard to what seems to me a veritable myriad of infirmities in the quantum of the counterclaim as alleged. Despite a general evidential picture of machines that resold, relatively competitively, required, or were provided with relatively few repairs in the context of industry norms, and which worked and have continued to work long hours in a demanding market thereby producing valuable economic returns for their hirers, it appears to me that unacceptable evidence has been advanced in an endeavour to support a counterclaim that has been spuriously inflated to a high degree.
Taking the important issue of the realistic actual price paid by the counter-claimant for the L150s, there has been considerable divergence as to the respective sums advanced. Undoubtedly, the whole basis of the sale and exchange agreement imported a wide measure of comparative imponderables for the counterclaimant, who was both being forgiven a sizeable remaining payment in respect of the Zettlemeyers, and waiving any contingent entitlement in the action that was settled.
But it is axiomatic that what Mr Mansfield generally obtained was a unit price significantly more favourable than the £100,000 ascribed to the nine shovels he agreed to pay for in case. The gulf between that figure and the suggestion of a sum in the vicinity of £65,000 from Mr Kallmin is vast.
I have considered the relevant evidence on both sides in relation to actual new and second hand L150s sales, the uncontrovertible fact that a purchaser buying an extraordinarily large number of shovels for the Irish market on a partly cash-funded basis will seek and obtain a significant discount, and the degree of highly effective agreed bargaining and haggling that enabled Mr Mansfield to prevail with a £900,000 ultimatum appreciatively below the asking sum contemplated by Mr O’Donnell and Mr Kallmin.
It seems to me that in all the circumstances a sum of not more than £84,000 represents the realistic unit cost expended in the agreement, which, given aspects such as depreciation and the circumstances of some of the sales subsequently made by Mr Mansfield, has obvious repercussions on this heading of claim.
Whilst I have not exhaustively traversed several of the aspects that have caused me misgivings, I have to say with regret that I find the basis of quantification of losses advanced by the counterclaimant so excessive, unreliable, and punctured by cross-examination and opposing testimony that I find only very limited reliance can be placed on it in quantifying loss.
It is difficult not to incline at least in part towards the opposing argument that faced with an indebtedness in excess of £600,000 on the judgment of Costello P, no stone has been left unturned to set forth a belatedly recast counterclaim that unreliably seeks to exceed that sum. Faced with these conflicts, how are losses to be quantified?
Plainly a sum very significantly less then what is sought only is warranted; and whilst a court may not be enamoured of inflated or untenable versions advanced in sworn testimony, it is clear from McGregor on Damages and from the judgments of the Supreme Court in Callinan v. Voluntary Health Insurance Board Supreme Court 1993 No. 230 & 245, 28 July 1994, that it must do the best it can to quantify a sum that is fair and appropriate.
I have contemplated a number of alternative modes of formulating a proper sum, either by awarding very heavily reduced figures under such of the heads of claim as remain applicable or by assessing an appropriate proportion of what I have found to be the actual unit prices paid by the counterclaimant. The computation I have arrived at using the latter method broadly equates with that obtained from the former.
Whilst the submissions made on behalf of Pat O’Donnell & Co. Ltd urge only nominal damages, if any, it still must be borne in mind that, given the overall structure of the agreement, some 18 L150 shovels were involved and the aggregate sums thereby were very substantial.
I award, in the first instance, a sum based on a one eighth or 12½% discounting of the £84,000 I have found to have been paid in respect of each of the 18 units. Because of the finding as to contributory negligence, already dealt with, whilst bearing in mind that some limited aspects of the claim were not affected by that factor, I further discount that entitlement to 10%, thereby entitling the counterclaimant to judgment in the amount of £151,200, being £8,400 multiplied by 18.
There remains some aspects such as set-off, interest and the like, and indeed the matter of costs, that I have been asked by the parties to hold over until further argument and perhaps to enable the parties to evaluate the present position, the case should be listed for mention speedily, approximately, a week or so from now, when the persons involved have had an opportunity to consider what has been stated today.
McCann v JM
[2015] IECA 281
EX TEMPORE JUDGMENT of Mr. Justice Kelly delivered on the 15th day of June 2015
1. This is an application which is made to the court on behalf of Mr. Mooney for an extension of time within which to appeal against an order made by the President of the High Court.
2. The order of the President was made on the 19th January, 2015 and the order was perfected on the 4th February, 2015.
3. As it is a final order of the High Court there is a period of 28 days from the date of its perfection within which to appeal. That time was not met, hence this application. But that is not the entire of the story by any means.
4. The order which was made by the President on the 19th January, 2015, was in respect of an application which was made by Mr. Mooney for an extension of time within which to appeal against an order of the Master of the High Court dated the 5th June, 2014. That order of the Master of the High Court was one which refused Mr. Mooney an extension of time within which to appeal against a decision of the Circuit Court of the 25th March, 2014.
5. Mr. Mooney failed to appeal the Circuit Court order within time. He then brought an application for an enlargement of time which itself was out of time. He failed to appear before the Master, either on the first or second calling on the return date of his motion and then desiring, apparently, to appeal that order of refusal he failed to appeal that order in time before the President.
6. Therefore, on the 19th January, 2015, when the President ultimately came to deal with the matter, he had a twofold application before him. He had an application seeking to extend the time for appealing from the Master’s order of refusal and, if granted, an appeal from the Master’s order of the 5th June, 2014. The order which was made by the President was one whereby he refused the application.
7. Today, an application is made seeking an extension of time within which to appeal that order of the President.
8. The first question that arises is whether or not this Court has any jurisdiction to deal with such an appeal. The matter, in my view, is governed by s. 39 of the Courts of Justice Act 1936 which states:-
“The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.”
9. The order which was made by the President on the 19th January, 2015, was an order which was made in the context of an appeal being taken or sought to be taken by Mr. Mooney from a decision of the Circuit Court.
10. Consequently in my view this application is governed by the provisions of s. 39, which does not distinguish between interlocutory applications or applications of a final nature. It speaks of the decision of the High Court to be final and conclusive when it is dealing with an appeal from a decision of the Circuit Court.
11. That is what the President was dealing with. The order which he made, in my view, is the final order and is not capable of being appealed to this Court. It follows, therefore, that there can be no question of an extension of time within which to appeal.
12. Even if that view or jurisdiction is not correct, I am quite satisfied on the factual material that is put before the court that none of the conditions which normally have to met (vide Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170) before the discretionary jurisdiction of this type is capable of being exercised have been met. Consequently, I would dismiss this application.
Ms. Justice Irvine: Yes I would also refuse the relief sought on precisely the same grounds that have been outlined by Mr. Justice Kelly.
Mr. Justice Hogan: I also agree with the ruling of Mr. Justice Kelly.
Bank of Ireland v Daly
[2015] IECA 103
JUDGMENT of Ms. Justice Irvine delivered on the 15th day of May 2015
1. By notice of motion dated 29th August, 2014, the defendant/appellant applied to the Supreme Court for an order extending the time within which she might appeal two decisions made in the High Court in 2012. That application was heard by this Court on the 13th April, 2015, having been previously transferred to this Court by order of the Supreme Court made on 28th October 2014 in accordance with Article 64 of the Constitution following the establishment of this Court on that day,
2. The first order which the appellant sought to appeal was that made by the Master of the High Court on 15th March, 2012, whereby he granted Bank of Ireland (“the bank”), in proceedings The Governor and Company of Bank of Ireland v. Patrick J. Daly, James B. McDonnell and Malachy Stephens, [High Court Record 2011 No. 4178S], liberty to enter final judgment against Mr. Patrick Daly, the appellant’s husband; Mr. James B McDonnell; and Mr. Malachy Stephens in the sum of €4,182,471.37. The second order which she sought to appeal was that which was made by the High Court (Kelly J.) on 30th July, 2012, in proceedings The Governor and Company of Bank of Ireland v. Patrick J. Daly and Anne Daly, [High Court Record 2012 No. 235S] whereby he granted judgment against the appellant and Mr. Patrick Daly for the sum of €4,435,278.61, on consent,
3. The appellant’s application was grounded upon an affidavit sworn by her on 26th August, 2014. The bank’s position in respect of the application was as advised by Ms. Eimear Deegan in her affidavit of 28th October, 2014, and to which affidavit the appellant responded by way of replying affidavit sworn on 5th November, 2014.
The High Court Proceedings. [Record number: High Court 2011 No. 4178S]
4. As appears from the documents exhibited in the appellant’s grounding affidavit, the order of the Master of the High Court whereby the bank obtained judgment against Mr. Patrick J. Daly, Mr. James E. McDonnell and Mr. Malachy Stephens was entered against those defendants on 3rd July, 2012, for the sum of €4,182,471.37. While the Court sympathises with the appellant’s evidence that the entry of this judgment adversely affected her ability to deal with the bank and to negotiate a settlement of the liability that became the subject matter of the High Court order of the 30th July, 2012, bearing the record number The Governor and Company of Bank of Ireland v. Patrick J. Daly and Anne Daly, [High Court Record 2012 No. 235S], it is clear that the appellant was not a party to those proceedings; hence, she has no locus standi to seek to appeal the order underlying that judgment. In this regard her application for an extension of time to appeal that particular order is misconceived.
5. Accordingly, all references in the appellant’s affidavit, in so far as they relate to those proceedings, i.e. The Govenor and Company of Bank of Ireland v. Patrick J. Daly, James B. McDonnell and Malachy Stephens, [High Court Record 2011 No. 4178S], are not material to the only application which she may validly pursue before this Court, namely that which seeks an extension of time to appeal the order of the High Court of 30th July, 2012. Thus, insofar as she complains that undue influence was brought to bear on her for the purpose of getting her to provide a guarantee to secure the loan facility of €3,500,000.00 granted to Mr. Patrick Daly, Mr. James B. McDonnell and Mr. Malachy Stephens, neither that issue nor the extent of any liability that she may have on foot of that guarantee are material to the present application as her liability under the guarantee never formed any part of the bank’s claim in either set of proceedings. For similar reasons, her knowledge as to the extent of the indebtedness of those parties at the time she signed that guarantee is also irrelevant.
6. While the Court is, of course, sensitive to the complaints made by the appellant as to the possibility that those with whom she was dealing at the time she executed that guarantee may not have guided her in a manner which she now feels, with the benefit of hindsight, would have been appropriate, this Court is not in a position to express a valid view on those complaints which are, in any event, not material to the application.
7. The Court will accordingly move to consider the merits of the appellant’s application to extend the time to appeal the order of the High Court made with her consent on the 30th July, 2012. This application is strenuously resisted by the bank.
Legal principles
8. At the time of the making of the order on 30th July 2012, Ord. 58 r. 3(1) of the Rules of the Superior Courts required that a notice of appeal be served within twenty one days from the passing and perfecting of the judgment or order which was to be appealed against.
9. While the Court enjoys a discretion to enlarge the time for the service of a notice of appeal, the Court’s jurisdiction in this regard is one which must be exercised in a judicial manner and in accordance with the prevailing jurisprudence. In this regard the principles to which the Court is required to have regard are those which were laid down some 63 years ago in the oft recited judgment of the Supreme Court in Eire Continental Trading Company v. Clonmel Food Limited [1955] I.R. 170 (decided in 1952). In his judgment, Lavery J. gave guidance ([1955] I.R. 170,173) as to the matters which should properly be considered by the court in determining whether or not the time should be extended. He was satisfied that the court should seek to ascertain if the appellant could meet the following conditions, namely:-
1. Could the appellant demonstrate that he or she had formed a bona fide intention to appeal within the permitted time?
2. Could the appellant show the existence of something like a mistake to account for the fact that the appeal had not been lodged within the permitted time? In this regard, he stated that a mistake as to procedure and, in particular, the mistake of counsel or solicitor as to the meaning of the relevant rule, was not sufficient;
3. Could the appellant establish that he or she had an arguable ground of appeal?
Decision
10. Apart from its consideration of the papers filed by the parties on the present application, the Court has taken into account the helpful and thorough written submissions delivered by the appellant. It has also had regard to her comprehensive oral submissions and those made on behalf of the bank in the course of the present hearing.
11. While the Court has great sympathy for the position in which Ms. Daly finds herself as a result of certain borrowings made available by the bank to herself and her husband, which they have been unable to repay, the Court must nonetheless direct its attention to the matters material to this application, namely whether or not the plaintiff can bring herself within the conditions prescribed by Lavery J. in Eire Continental. While these conditions are not binding prerequisites, they are matters which are of the greatest significance in the context of the exercise by the Court of its discretion to extend time
12. In so far as the applicant’s intention to appeal within the permitted time is concerned, it is perfectly clear that she did not form an intention to appeal within the permitted time frame. Indeed, she does not so contend in either of the affidavits which she has sworn in support of the present application. This is hardly surprising in circumstances where, having engaged in negotiations with the bank, which ultimately proved unsuccessful despite what the appellant referred to as “good and valid offers” to settle their outstanding liabilities, the appellant and her husband both consented to judgment being entered against them, as advised by them in an email to that effect directed to the bank’s solicitors on the 28th July, 2012.
13. In these circumstances the appellant has not been able to demonstrate that she can meet the first limb of the decision in Eire Continental.
14. Neither has the appellant established that her failure to appeal was as a result of some type of mistake or like event. She does not dispute that she was validly served with all of the legal documents in support of the bank’s claim or that, by email dated 28th July, 2012, she consented to the judgment which she now wishes to appeal. She ascribes her delay in pursuing her appeal to the fact that she was not present when the judgment was granted and to the fact that, given the appointment of a receiver over her assets, she did not have the funds to obtain legal advice. Further, she states that she was not aware of court process and was not aware of her right to appeal.
15. The fact that the appellant may not have been present in court when the judgment was granted is of no particular assistance to her argument, given that she knew judgment was to be awarded against her on the 30th July, 2012. While the Court does not wish to cause further distress to the appellant in these difficult times, it nonetheless does not accept as credible her statement that she was not aware of the court’s process, was not aware of her right to appeal, and was not aware of the extent of her liabilities; or her statement that her financial circumstances were the reason why she delayed for some 20 months before seeking to pursuing her appeal. The evidence would suggest to the contrary. Indeed, it appears highly likely that the defendant only first became really concerned about the judgment to which she had consented when the bank moved, in fresh proceedings entitled Governor and Company of the Bank of Ireland v. Patrick and Anne Daly, [High Court Record 2013 No. 407SP], to seek a well charging order and an order for sale of certain lands later identified in the course of this judgement. Indeed, it is almost inconceivable that any right minded person, faced with the prospect of losing their family home after what they would doubtless consider to have been a lifetime of hard work, would not feel both aggrieved and distressed at such a prospect.
16. However, that said, if the appellant was not aware of the court’s process, or the extent of the judgment to which she consented or as to her rights stemming from that order – a scenario which the Court candidly views as unlikely – she cannot be excused by her lack of knowledge in this regard.
17. The evidence before the Court, on its face, suggests that the appellant was well and truly engaged with the bank and its solicitors in relation to both her outstanding liabilities as well as those of her husband, P.J. Daly, in the months preceding and subsequent to the date upon which the judgment was obtained, regardless of the fact that her finances may well have been as tight as was advised by her in her affidavits.
18. In terms of her access to legal advice, her knowledge of court process and her knowledge as to the extent of her liabilities, the following factors are significant:
(i) The correspondence exchanged between Carl O’Mahony, a solicitor who represented himself as acting on behalf of the appellant and her husband, and the bank in the months preceding the judgment would suggest that the plaintiff had access to, and did as a matter of fact obtain, legal advice as to her liabilities over the relevant period.
(ii) Several emails written by the appellant personally to Judith Riordan, a solicitor with Mason Hayes and Curran acting on behalf of the bank, refer to Carl O’Mahony and make it clear that he was indeed acting as her solicitor in the weeks and months leading up to the judgment, regardless of her financial circumstances.
(iii) On the 26th June, 2012, the appellant, her husband and Carl O’Mahony met with the bank and its solicitors for the purpose of trying to find a solution to their outstanding liabilities. The appellant in her own affidavit refers to offers made to the bank at this time to resolve the outstanding liabilities. In the Court’s view, she could not but have been aware of the amounts then outstanding to the bank.
(iv) The appellant in para. 5 of her affidavit refers to the judgment previously obtained against her husband and his two business associates, Mr. McDonnell and Mr. Stephens, which she said coloured the banks view in respect of the liabilities of herself and her husband. She also refers to the fact that the “good and valid offers” were made to resolve the outstanding liabilities in advance of the judgment of the 30th July, 2012, thus demonstrating an intimate knowledge of the overall ongoing situation in relation to the bank’s claims at a time prior to her agreement to consent to the judgement which she now wishes to appeal.
(v) In a letter dated 18th September, 2012, Mr. Tom Casey, another solicitor, wrote on behalf of the appellant and her husband, to Deloitte and Touche. The contents of the letter concerned the Receiver and the upshot of the proceedings in which judgment had been granted. This, again, demonstrates that the appellant had, in the immediate aftermath of the judgment, access to legal advice.
(vi) In an email written by the appellant to Ms. Deegan on 6th August, 2013, she referred to having spoken with her solicitor, Mr. Patrick O’Sullivan of O’Sullivan O’Dowd solicitors, with a view to meeting with the bank that month; once again, this demonstrates that at all relevant times the appellant had access to legal advice and was fully engaged with the bank and its solicitors.
(vii) The appellant did not seek to apply for Legal Aid until January 2014, from which it may reasonably be inferred that up until that point in time she had received the benefit of legal advice.
(viii) The appellant, according to her own affidavit, worked full time for 20 years as a “working director” in Star Alliance Ltd, the family business, which she states was a “successful manufacturing company which funded our asset base”; this fact lends further support to her likely knowledge of liabilities outstanding to the bank at any given time.
19. Having regard to all of these factors, the Court is satisfied that the appellant cannot bring herself within the second of the three conditions outlined by Lavery J. in Eire Continental.
20. The Court is also satisfied that the appellant has failed to demonstrate that she has any bona fide ground upon which she could appeal the order of the High Court of 30th July, 2012. That order was made with her written consent; and, in such circumstances, it is difficult to see how she could ever seek to go behind that order on an appeal.
21. While the appellant now wishes to question “the duty of care or due diligence” of those who made available such sizeable loans to herself and her husband, she did not seek to deny the bank’s entitlement to recover the sums claimed at the time on the grounds of an alleged breach on the part of the bank of any such duty; instead, she consented to judgement in the sum claimed. Further, while she now says that the loan documentation concerning the borrowings, the subject matter of the present proceedings, were signed by her without separate legal advice, she did not seek to defend the proceedings on the basis that she was entitled to obtain such advice and on the basis that, in default, the bank had no legal right to recover the monies outstanding.
22. Likewise, while the appellant claims now that she entered into these agreements under “undue influence”, she does not state whose influence was brought to bear upon her; and, once again, she did not seek to defend the proceedings in reliance upon any such conduct. In this regard, it must be remembered that in the weeks and months leading up to the judgement, the subject matter of the present application, the appellant herself had separate dealings with the bank and its solicitors, and she was also represented in respect of the overall liabilities of herself and her husband by Carl O’Mahony, solicitor.
23. Most applications seeking an extension of time to lodge an appeal from an order of the High Court are made in circumstances where the moving party has missed the appeal deadline by a short period of time. These delays are usually measured in days and perhaps even weeks, but far less rarely months and years.
24. In the present case, however, the periods in respect of which the extension of time is sought – over two years in both cases – are, in the experience of this Court, unparalleled. Further, acting on foot of the judgement which it had obtained with the appellant’s consent, the bank registered that judgement as a mortgage against certain lands in which the appellant and her husband have an interest. Then, having received no response to letters written on 29th April, 2013, calling upon them to discharge the amount due on foot of the judgement, other than a telephone call from a solicitor acting on the appellant’s behalf which was never followed up, the bank commenced further proceedings Governor and Company of the Bank of Ireland v. Patrick and Anne Daly [High Court 2013 No. 407SP] for the purposes of seeking to have to have the judgement declared well charged on their in the lands contained in folios 21625F, 17490F and 7232F Co Westmeath. It was for the first time, in the context of these proceedings, that the appellant has sought to challenge the validity of the order made on 30th July, 2012.
25. Prior to the institution of those proceedings, the appellant had never sought to contend that the monies claimed in the within proceedings, The Governor and Company of Bank of Ireland v. Patrick J. Daly and Anne Daly, [High Court Record 2012 No. 235S], were not validly owing or that the judgement had been obtained in a manner such that it could be impugned either in the course of an appeal or by seeking to set it aside, notwithstanding her significant ongoing dealings with the bank and its solicitors. This is particularly relevant in circumstances where it has been established on the evidence before this Court that, since the commencement of the High Court proceedings which led to the judgement of 30th July, 2012, the appellant has had professional dealings with three different solicitors.
26. Not only did the appellant not seek to defend the proceedings instituted by the bank on foot of the relevant loan facilities on any of the grounds which she has put forward to this Court, but she formally consented to judgement in the sums claimed. Further, she has not moved to seek to set aside that judgement on the basis that it was entered into without her lawful and valid consent or due to some other type of mistake. In such circumstances it is difficult to see how, on appeal, the order of the High Court judge could be displaced, given that an appellate court has no jurisdiction to engage upon issues or arguments not advanced in a court of first instance. No evidence was led before the High Court which could be considered by this court on appeal if the relief sought was to be granted. The order made in the High Court was of a final, as opposed to of an interlocutory, nature.
27. For all of the aforementioned reasons, I would refuse the relief sought.
Bank of Ireland v O’Donnell
[2015] IESC 89
Judgment delivered on the 8th day of December, 2015, by Denham C.J.
1. Brian O’Donnell and Mary Patricia O’Donnell, the defendants/appellants, referred to as “the appellants”, have brought a motion against the Governor and Company of the Bank of Ireland, the plaintiff/respondent, referred to as “the respondent”.
2. The appellants have brought the motion seeking:-
(i) To apply to the Court for leave to extend time to appeal the order of Kelly J. dated the 12th December, 2011, which was perfected on the 14th December, 2011;
(ii) Such further or other relief as the Court may seem just; and
(iii) An order for the costs of the application.
3. In essence this is an application for leave to extend time to appeal the order of Kelly J. perfected on the 14th December, 2011.
Background facts
4. The application is grounded on an affidavit of Brian O’Donnell, who made the affidavit on behalf of the appellants, and referred to certain facts. He stated that he wished to apply to the Supreme Court to ask for the summary judgment order made on the 12th December, 2011, perfected on the 14th December, 2011, in the High Court, be voided or set aside. He stated that the proceedings were issued by the respondent on the 23rd December, 2010, with a return date of 5th January, 2011, to hear the application of the respondent to enter the application for summary judgment into the Commercial List.
Submissions of Appellants
5. The appellants state that the learned High Court judge did not make known any conflicts of interest or existing relationship with the respondent.
6. The appellants refer to the fact that there were a number of motions before Kelly J. and that on every occasion he decided in favour of the respondent.
7. At that time Kelly J. was running the Commercial List.
8. The appellants submitted that Kelly J. had an ownership stake in and a business relationship with Bank of Ireland.
9. The appellants allege objective bias on the part of Kelly J. arising out of his comments, the email correspondence between the respondent and the registrar of Kelly J. on the 13th September, 2011.
10. The appellants submitted that the judgment of 12th December, 2011, should not stand.
11. Reference was made to the decision of this Court in Goode Concrete [2013] IESC 39 and it was submitted that it should be applied.
12. The appellants seek an order extending time within which to appeal the order of the 12th December, 2011, on the grounds of lack of disclosure and objective bias.
Submissions of Respondent
13. The respondent has submitted that the relief sought by the appellants should not be granted, essentially for three reasons:-
(a) The appellants having been adjudicated bankrupt by order of the High Court on 3rd September 2013, have no locus standi to seek to appeal the judgment or to apply to extend time to bring such an appeal, any such standing vesting solely in the Official Assignee; and the application should accordingly be dismissed in limine.
(b) That, in any event, the appellants fail to satisfy any of the Éire Continental principles; in particular, where the appellants consented to the judgment and did not seek to raise any objection to the High Court entering judgment when they had ample opportunity to do so, they have no bona fide defence to the judgment, and accordingly no bona fide ground for appeal of the judgment; the identity of the High Court judge who entered the judgment is immaterial in the circumstances.
(c) It would, in any event, be wholly inequitable to permit the appellants to appeal at this juncture in circumstances where the judgment has formed the basis of the bankruptcy proceedings against the appellants (commenced in mid-2012) and of separate proceedings (commenced in July 2012) alleging a fraudulent scheme to frustrate enforcement of the judgment and where the validity of the judgment has never been challenged by the appellants in those proceedings.
Submissions of Official Assignee
14. The Official Assignee submitted that the appellants had not sought to have the Official Assignee bring the application to extend time to appeal, that he had not been served with the application, and that he had not received the papers until after the 10th October, 2014, when they were furnished by the respondent.
15. As to the question of whether he wishes to continue litigation commenced before the adjudication of bankruptcy, for the benefit of this estate, the Official Assignee has submitted that he has considered the litigation and in this case he does not wish to pursue it.
16. The Official Assignee submitted that the appellants could have brought an application to the High Court in bankruptcy requiring the Official Assignee to apply for the extension of time to appeal.
17. However, the Official Assignee accepted that the Supreme Court could consider an extension of time application, by its nature.
18. The Official Assignee submitted that the appellants did not have locus standi to bring this application. The Official Assignee submitted that all property of the bankrupts vests in the Official Assignee on the date of the adjudication of bankruptcy pursuant to s. 44 of the Bankruptcy Act, 1988, ‘the Act of 1988’. That property includes “things in action”, as provided for in s. 3 of the Act of 1988, which includes the right to litigate.
19. The Official Assignee submitted that it is clear from s. 44 of the Act of 1988, Quinn v. IBRC [2012] IEHC 261 and Heath v. Tang [1993] 4 All ER 694 that the right to appeal these proceedings vests in the Official Assignee.
20. The Official Assignee submitted that, having regard to Heath v. Tang [1993] 4 All ER 694 at 700, the fact that the judgment in question is the judgment upon which the petition of bankruptcy is based, is not relevant. The issue is one that affects the estate in bankruptcy, which is vested in the Official Assignee.
21. In this case the Official Assignee, while maintaining that the correct forum was elsewhere, submitted that if the parties and the Court believed that the matter could be determined more quickly and less expensively by the Court determining the motion for an extension of time he would not interfere.
Decision
22. This application relates to summary judgment proceedings commenced by the respondent on the 23rd December, 2010. The proceedings came on for hearing in the High Court on the 3rd March, 2011. The proceedings were settled by an agreement dated the 4th March, 2011. At that time the appellants were legally represented by solicitor and counsel.
23. Inter alia, the agreement acknowledged that the appellants had “no defence to the proceedings”, see Clause 3.3(a), and it provided for the making of payments. Also, in the Agreement, the appellants acknowledged that they had received legal advice prior to entering into the Agreement, see Clause 4.1.
24. At Clause 3.1 of the Agreement it is provided that the proceedings were to be:-
“adjourned generally with liberty to re-enter on 2 business days notice for the purpose of enforcing these Terms of Settlement”.
25. The matter was re-entered and orders made on the 12th December, 2011, by Kelly J. The appellants were not present, although a legal representative did attend but indicated that he had no instructions.
26. The matter in issue came before the High Court (Kelly J.) pursuant to the respondent’s notice of re-entry of proceedings dated the 7th December, 2011, for the following reliefs:-
“1. An Order re-entering these proceedings.
2. An Order by way of enforcement of clause 3.2 of the Settlement Agreement of the 4th day of March 2011 between the [respondent in this motion] and each of [the appellants], Avoca Properties Limited, Grey stoke Societé Anonyme and Vico Swiss Holdings AG (the ‘Settlement Agreement’) giving the [respondent] judgment against the [appellants] in the sum of €71,575,991.29 made up of the principal sum of €63,700,000 together with interest of €7,875,991.29.
3. An Order for the costs of the proceedings, including the costs of this application.”
27. On the 12th December, 2011, the learned trial judge ordered as follows:-
“And on reading said Notice the Affidavits of Service thereof the Affidavit of Des Hanrahan filed on the 7th day of December 2011 and the exhibits referred to in said Affidavit including the Settlement Agreement of the 4th day of March 2011.
And on hearing said Counsel
And a Solicitor from Whitney Moore Solicitors (the Solicitors on record for the
[appellants] ) attending in Court and intimating to the Court that his firm has received no instructions from the [appellants].
And the Court being satisfied that the [appellants] are fully on notice of this application both by reference to the service on Whitney Moore Solicitors (in accordance with the terms of the Settlement Agreement) and by reference to the service on Brian O’Donnell Solicitors and have chosen not to appear here today.
And the Court being satisfied that the Settlement Agreement has been breached and the [appellants] having consented to Judgment herein pursuant to the Settlement Agreement upon breach of same.
IT IS ORDERED AND ADJUDGED that the [respondent] do recover as against the [appellants] the sum of €71,575,991.29 together with the costs of these proceedings when taxed and ascertained to include the costs of this Re-Entry application.
This Judgment is CERTIFIED as a European Enforcement Order in accordance with Regulation EC) 805/2004.”
28. The appellants were adjudicated bankrupt by the High Court (Charleton J.) on the 23rd August, 2013. The appellants sought a stay, but this was refused on the 2nd September, 2013.
29. Once a person is declared a bankrupt their property rights in the estate vest in the Official Assignee.
30. Section 44 of the Bankruptcy Act, 1988, provides:-
“(1) Where a person is adjudicated bankrupt, then, subject to the provisions of this Act, all property belonging to that person shall on the date of adjudication vest in the Official Assignee for the benefit of the creditors of the bankrupt.
(2) Subject to the provisions of this Act, the title of the Official Assignee to any property which vests in him by virtue of subsection (1) shall not commence at any date earlier than the date of adjudication.
(3) The property to which subsection (1) applies includes—
(a) all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication;
(b) all property which was the subject of any conveyance or transfer which sections 57 , 58 and 59 declare void as against the Official Assignee, subject to the rights of any persons which are preserved by those sections.
(4) The property to which subsection (1) applies does not include—
(a) property held by the bankrupt in trust for any other person, or
(b) any sum which vests in the Official Assignee under section 7 (1) (a) of the Auctioneers and House Agents Act, 1967 , or section 30 (i) of the Central Bank Act, 1971 .
(5) Without prejudice to any existing principle or rule of law or equity, established practice or procedure in relation to damages or compensation recovered or recoverable by a bankrupt for personal injury or loss suffered by him, property which is acquired by or devolves on a bankrupt before the discharge or annulment of the adjudication order (in this Act called “after-acquired property”) shall vest in the Official Assignee if and when he claims it.”
31. The term “property” is defined in s. 3 of the Act of 1988, as amended by the European Communities (Personal Insolvency) Regulations 2002, as follows:-
“ ‘property’—
(a) includes money, goods, things in action, land and every description of property, whether real or personal,
(b) includes obligations, easements and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property,
(c) in relation to proceedings opened in the State under Article 3(1) of the Insolvency Regulation, includes property situated outside the State, and
(d) in relation to proceedings so opened under Article 3(2) of the Regulation, does not include property so situated;”
Clearly this includes “things in action”, and thus the right to litigate is part of the property.
32. Consequently, any decision as to property rights is vested in the Official Assignee, including the decision to litigate, whether to commence litigation or continue litigation.
33. However, a bankrupt retains rights of litigation in personal matters.
34. Certain personal actions do not vest in the Official Assignee. As Hoffman L. J. said in Heath v. Tang [1993] 4 All ER 694 at p.697:-
“these include cases in which –
‘the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property’. See Beckham v Drake (1849) 2 HL. Cas 579 at 604, 9 ER 1213 at 1222 per Erle J. See also Wilson v. United Counties Bank Ltd [1920] AC 102, [1918 – 1919] All ER Rep 1035).”
35. In general the appropriate forum in which to seek, and in which to have a decision made, as to whether a bankrupt may initiate or continue proceedings, is by an application to the Official Assignee.
36. If the Official Assignee does not approve of the commencement, or continuation, of litigation then the bankrupt may apply to the Bankruptcy Court.
37. As Hoffman L.J. said in Heath v. Tang at p. 701:-
“The consequences for the bankrupt’s right to litigate do not seem to us inconvenient or productive of justice. The bankruptcy court acts as a screen which both prevents the bankrupt’s substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims.”
38. In this case the extension of time application is in relation to the proposed appeal in a case about property claimed to be owned by the appellants who are bankrupts. It is not personal litigation. It is thus a matter for the Official Assignee.
39. In spite of the appropriate forum for an application regarding litigation by a bankrupt being an application to the Official Assignee, or thereafter an application to the Bankruptcy Court, in the special circumstances of this case, the Court exercises its discretion and determines the application for an extension of time for leave to appeal in this case.
40. However, it is emphasised that the appropriate route is to request the Official Assignee to commence or continue litigation. If the Official Assignee refuses then the bankrupt may apply to the Bankruptcy Court. The Bankruptcy Court may then assess the situation, with the benefit of submissions from the Official Assignee. All such applications should be made in that manner. Thus, if there are claims where the litigation may be hybrid, i.e. some of which relates to the estate and some of which may be personal claims, the Bankruptcy Court can hear and determine such applications. However, it was accepted that in the circumstances of this case that the Supreme Court should hear and determine an application seeking an extension of time.
However, for clarity, it is stressed that applications in relation to proceedings in an estate in bankruptcy, either commencing or continuing litigation, are firstly a matter for the Official Assignee, and thereafter the Bankruptcy Court.
41. The only issue for the Court to determine is whether the appellants have locus standi to move the application.
42. In the proceedings in issue, the order of the High Court of 12th December, 2011, relates to property in the estate of the appellants, who are bankrupts. Thus, the property is vested in the Official Assignee. Therefore, it is for the Official Assignee to determine whether these proceedings are to be continued or not.
43. The appellants do not have locus standi to bring this application, the property and the right to litigate being vested in the Official Assignee.
44. The appellants raised the issue that the order of the 12th December, 2011, founded the bankruptcy decision. I am satisfied that this is not relevant. I agree with, and would apply, the analysis in Heath v. Tang [1993] 4 All ER 694 where Hoffmann L.J. stated at p. 700:-
“Is there anything different about the judgment upon which the bankruptcy petition was founded? It is submitted that the difference is that in such a case the bankrupt does have an interest, because if he can get rid of the judgment he may be able to have the bankruptcy order annulled on the ground that it should never have been made. Whether it is set aside or not will depend upon whether apart from the judgment the bankrupt would have been solvent or whether an order would in any event have been made on the application of supporting creditors: see Re Noble (a bankrupt), ex p the bankrupt v Official Receiver [1964] 2 All ER 522, [1965] Ch 129. On the other hand, it may equally be said that if only the bankrupt could pursue a claim for a large sum which he claims to be owing to him he would be able to pay all his creditors and have the bankruptcy annulled on that ground. It is clear, however, that this is not a ground upon which he may bring proceedings. Furthermore, an exception for the petitioner’s judgment would give rise to anomalies in cases in which the defence was a claim of set-off, such as the applicant Mr. Heath asserts in this case.”
45. The appellants have made submissions raising issues of objective bias of the High Court judge, and fraud in relation to the parties. On these issues I agree with the analysis of Hoffman L.J. in Heath v Tang where he stated at p. 701.
“[The bankrupt] criticises the conduct of the trial and contends that the decision against him was obtained by false evidence and fraud. The trustee does not wish, or is not in a position, to pursue the appeal. In my judgment [the bankrupt] has no locus standi to do so and his application must be refused.”
The fundamental principle in law is that the right to litigate is vested in the Official Assignee and it is for him to decide whether to litigate or not.
46. Accordingly, in this case the right to seek an extension of time for leave to appeal vests in the Official Assignee. The appellants have no locus standi.
47. The Official Assignee has indicated that he does not intend to proceed with this appeal.
48. Consequently, I would dismiss the application of the appellants on the grounds that they do not have locus standi to bring the motion.
Gokul v Aer Lingus
[2013] IEHC 432
JUDGMENT of Mr. Justice Hogan delivered on the 9th day of September, 2013
1. The net question which is presented as a preliminary issue in the course of this statutory appeal from a decision of the Labour Court is whether this Court enjoys a jurisdiction to extend time for the delivery by the respondent of the appearance required by O. 12, r. 2A(a). While O. 12, r.2A(a) stipulates that any such appearance shall be entered within eight days of the service of the appropriate originating notice of motion commencing the statutory appeal, it is common case that the respondent has failed to do so. In essence, the issue is whether this omission is fatal to the respondent’s right to defend the proceedings and to be heard on the appeal.
2. The issue arises in this way: the appellants are all former employees of Aer Lingus who commenced employment with that company on fixed term contracts on various dates between 2004 and 2005. They were subsequently appointed with permanent contracts with effect from 2006 and 2007. In late 2008, Aer Lingus experienced severe trading difficulties and the appellants’ contracts were terminated by reason of voluntary redundancy. This was done as part of a scheme whereby employees could leave their employment and return on revised pay and conditions. Each of the appellants received a redundancy lump sum and it appears they also signed a document waiving all claims against Aer Lingus in respect of the termination of that employment.
3. Aer Lingus had earlier become a public limited company in 2006 as a result of its privatisation. At that time it introduced a share ownership scheme which was allocated to employees through an Employee Share Ownership Trust (“ESOT”). It appears that the distribution of the shares was predicated on each of the employees having spent one year in continuous employment. It was determined that the appellants were not eligible to participate in the scheme because they did not have the requisite service in 2006 as they were on fixed termed contracts of employment at that time. The appellants then contended that the failure to make such allocations amounted to discrimination within the meaning of Protection of Employees (Fixed Term Work) Act 2003 (“the 2003 Act”).
4. The matter was considered by the Labour Court which gave its decision on 4th April, 2013. The Court found that even if the appellants were in fact fixed term employees within the meaning of s. 2 of the 2003 Act, it was not necessary to rule on the merits of the dispute for the simple reason that the claim was statute barred for the purposes of s. 14(3) of the 2003 Act. The claim was accordingly dismissed. The appellants now appeal to this Court pursuant to s. 15 of the 2003 Act.
5. This is the general background against which this matter comes before the court. This appeal commenced by means of an originating notice of motion and grounding affidavit on 30th April, 2013. Aer Lingus contends that the appeal is misconceived because it is out of time.
6. As it happens, this question does not directly arise for consideration quite at this moment because I am first required to determine an antecedent issue, namely, the contention by the appellants that Aer Lingus are precluded from raising such an issue because they themselves have not complied with the requirements described by O. 12 r. 2A(a) in that no appearance to this appeal was filed by Aer Lingus within the eight days specified by this sub-rule. Order 12, rule 2A(a) provides:-
“A respondent in proceedings commenced by originating notice of motion pursuant to O. 81A, O. 84B or O. 84C, to whom such notice of motion has been given, shall enter an appearance to such notice of motion in the form No. 9 in Appendix A Part 2 within eight days of the service of the notice of motion. Where a respondent is given notice of such motion after the date first fixed for the time of the notice of motion, he shall enter an appearance within the time fixed for the court for that purpose. A respondent in such proceedings shall not, without the leave for the court be entitled to be heard in such proceedings unless he has entered an appearance.” (emphasis supplied)
7. It is common case the procedure of the present appeal is governed by O. 84C of the Rules. While it is true that neither O. 12(2A) or O. 84C makes specific provision for the extension of time in respect of the entry of an appearance – although O. 84C, r. 2(5)(c) allows the Court to extend time for the issue of a notice of motion -it should also be recalled that O. 122, r. 7 provides that:-
“Subject to any relevant provision of statute, the Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the Court may direct, and any such enlargement may be ordered although the application for same is not made until after the expiration of the time appointed or allowed.” (emphasis supplied)
8. Counsel for the appellants, Mr. Gokul, placed considerable emphasis on the undeniably mandatory nature of the language contained in O. 12, r. 2A(a). Yet two broader considerations, both bearing significantly on the proper interpretation of these words, must also be borne in mind.
9. First, it must be recalled that O. 12, r. 2A merely enjoys the status of a statutory instrument. Accordingly, it does not have the same normative status in our legal system as that of a statute enacted by the Oireachtas. The Oireachtas can, of course, in principle create jurisdictional bars to legal proceedings by requiring, for example, the litigation to be commenced within a particular time. Any such legislative restriction on the right of access to the courts would, of course, have to respect fundamental constitutional principles: see, e.g., White v. Dublin Corporation [2004] IESC 35, [2004] 1 IR 545 and Blehein v. Minister for Health and Children [2008] IESC 40, [2009] 1 IR 275.
10. The drafters of the Rules of the Superior Courts could not, however, validly change the law by prescribing a fixed and unalterable limitation period of this kind as if it were akin to the operation of the Statute of Limitations. This, of course, is not to say that the Rules of the Superior Courts cannot provide for effective time-limits or that litigants who do not comply with the time limits specified by rules of court are not at real risk of finding themselves non-suited by reason of default of pleading. It is rather to say that a strict jurisdictional bar – such as that contained, for example, in s. 5 of the Illegal Immigrants (Trafficking) Act 2000 which imposes a requirement that proceedings be commenced within two weeks subject to a right to extent time – could only be imposed by primary legislation enacted by the Oireachtas. The right of access to the court is a constitutional fundamental for both plaintiffs and defendants and if that right is to be abridged by means of a jurisdictional bar, this can only be done in accordance with a law duly enacted by the Oireachtas.
11. In any event, given that such a strict jurisdictional bar would involve a change in the ordinary law, Article 15.2.1 of the Constitution (which vests the exclusive legislative power in the Oireachtas) would also require that any such change could only be brought by primary legislation enacted by the Oireachtas and could not be done not simply by Rule of Court: see, e.g., by analogy the comments of O’Higgins C.J. in Cooke v. Walsh [1984] I.R. 710 and those of Keane C.J. in Mulcreevy v. Minister for Environment [2004] IESC 5, [2004] 1 IR 72.
12. All of this is of some importance in the context of the point so forcefully advanced by the appellants regarding what they maintain is the jurisdictional character of O. 12, r. 2A, so that – on this argument – the Court must treat the failure on the part of the defendants to file an appearance within time as dispositive of the matter as there is simply no power to extend time. The short answer to this contention is that it is itself predicated on the assumption that one may treat a statutory instrument or Rule of Court for this purpose as if it were the equivalent of a statute creating a jurisdictional bar for litigants who did not comply with a particular time-limit prior to proceeding with their proposed litigation. Yet it is clear from a consideration of Article 15.2.1 and key decisions such as Cooke v. Walsh and Mulcreevy that this approach is simply legally impermissible.
13. The second general consideration is that the Rules of Court must be read as being subject to a specific rule which is of general application, namely, O. 122, r. 7. It is clear from this provision that, subject only to any provisions of statute to the contrary, the Rules themselves confer a general power to extend the time stipulated elsewhere by the Rules, including, for example, O. 12, r. 2A(a), even if no power to extend time for the entry of an appearance is contained in that specific sub-rule. Here it may be significant that this general power to extend time is expressed to be subject to any relevant statutory provisions to the contrary. This means, for example, that this Court could not invoke O. 122, r. 7 for the purposes of extending time within which to bring an application for eave to apply for judicial review which was otherwise governed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, since the power to extend time in those cases is contained in the primary statute itself and must be exercised subject to those conditions. Of course, the clear implication here – which, in any event, is borne out by the express language of O. 122, r. 7 itself – is that this provision is broad enough to facilitate the extension of any time limit specified elsewhere by the Rules of the Superior Courts as distinct from the time-limits prescribed by statute. This is true even in those instances – such as O. 12, r. 2A(a) – where the Rules of the Superior Courts specify a time limit which is expressed to be in mandatory or imperative language.
14. It might also be observed that a construction of the Rules of the Superior Courts which insisted on perfect and undeviating compliance with the requirements of the Rules would be at odds with fundamental principles regarding the constitutional right of access to the courts. The contemporary case-law is clear that legislative provisions which regulate the right of access to the courts must be interpreted in a manner which respects these fundamental principles: see, e.g., Re MJBCH Ltd. (in liquidation) [2013] IEHC 256, Dunmanus Bay Mussels Ltd. v. Acquaculture Licence Appeals Board [2013] IEHC 214 and O’Higgins v. University College, Dublin [2013] IEHC 431.
15. I may venture to repeat here what I said in Dunmanus Bay Mussels with regard to the effects of non-compliance with even a jurisdictional requirement specified by statute:
“a conclusion that the non-compliance with these statutory requirements rendered the proceedings wholly irregular and thus beyond the capacity of the courts to rescue by means of an appropriate amendment would amount to a manifestly disproportionate interference with the applicant’s constitutional right of access to the courts…the consequences of the non-compliance with this statutory requirement fall to be evaluated by reference to the impact which such non-compliance might otherwise have on an applicant’s constitutional right of access to the courts.”
16. I then went on to observe that this was the approach which had been adopted by Finlay Geoghegan J. in Re MJBCH Ltd. (in liquidation). This was a case where the plaintiff claimed damages for personal injuries against the defendant company and had issued proceedings without realising that an order had been made by this Court some two months previously providing for the winding-up of the company. When the proceedings were then served on the company, the plaintiff’s solicitor received a letter from the official liquidator advising them of this development. The plaintiff’s solicitors then applied to this Court for an order pursuant to s. 222 of the Companies Act 1963 (“the 1963 Act”) seeking the retrospective leave of the court to the commencement of the proceedings, given that this provision stipulates no proceedings shall be brought against a company in liquidation without prior leave of the court.
17. Finlay Geoghegan J. concluded that s. 222 should not be construed as prohibiting the retrospective grant of leave:
“…having regard to the purpose of s.222..and the [relevant] constitutional principles, in the absence of express words which provide that that the commencement of proceedings without leave of the court in breach of s. 222 render proceedings a nullity or which preclude the court from granting leave for commencement after the event s. 222 should not be so construed.”
18. Finlay Geoghegan J. then went on to hold that this was an appropriate case in which to grant leave. The grant of leave would not compromise an essential objective of the section – namely, that all proceedings relating to the company being would up should be placed under court supervision – and nor would it prejudice the orderly wind-up of the defendant company. She noted that failure to grant leave might have serious consequences for the plaintiff, not least because if the plaintiff was required to issue fresh proceedings and then seek leave, it might then transpire to be statute-barred. The plaintiff, moreover, was not to know that the defendant had already been wound up when the first set of proceedings had been issued.
19. These principles can be applied with advantage to the present case. The eight day time limit for the filing of an appearance is designed to promote the early and orderly notification of the fact that a particular defendant intends to appear to defend the proceedings. While it is true that in time-honoured fashion the drafters of the Rules employed mandatory and imperative language (“….shall enter an appearance to such notice of motion in the form No. 9 in Appendix A Part 2 within eight days of the service of the notice of motion….”), yet it may nonetheless be supposed that they would have been as surprised as anyone else to learn that they had thereby erected a jurisdictional bar to the further defence to the proceedings where through some mischance or oversight a purely formal and essentially administrative step prescribed by the Rules had not been complied with within the prescribed time-period. Nor would one of the objectives of the Rules – namely, the orderly and effective administration of justice – be compromised if the Court enjoyed a power to extend time in respect of a routine matter such as the entry of an appearance.
Conclusions
20. It is clear, therefore, from the foregoing analysis that this Court does enjoy a wide power to extend time in respect of time limits prescribed by rules of court pursuant to O. 122, r.7 and that O. 12, r. 2A(a) cannot in any event be construed as if it had erected a jurisdictional bar precluding a defendant from defending the proceedings simply by reason of the fact that an appearance had not been filed within the eight day period prescribed by the Rules. Of course, the Court must and necessarily does have power to strike out the proceedings of all litigants for persistent or contumelious default or where the delays have been prejudicial, either to those of other litigants or to the public interest and this jurisdiction remains entirely unaffected by the present decision.
21. Nothing of the kind arises here. Both parties have endeavoured to join issue on the appeal and such (relatively) small delays as there have been have been harmless and non-prejudicial to the other party. It is for these reasons, therefore, that I will accordingly make an order pursuant to O. 122, r. 7 extending time for the entry of an appearance on condition that Aer Lingus file an appearance within seven days from today’s date.
Danske Bank v Kirwan [2016] IECA 99
Judgment of Ms. Justice Irvine delivered on the 18th day of February 2016
1. This is the defendant’s application to extend time to appeal a number of High Court orders. These may be summarised as follows:-
(i) The order of Mr. Justice Peart made on 23rd June 2014 whereby he granted the plaintiff an order for substituted service of a summary summons on Mr. Kirwan at “Glenville Road, Wexford, Co. Wexford”,
(ii) The order of Mr. Justice Cross dated 2nd March 2015 whereby he deemed service of the proceedings, allegedly effected by the plaintiff, pursuant to the Order of the 23rd June 2014, to be good and sufficient service, and
(iii) The order of Mr. Justice Cross dated 23rd March 2015 whereby he ruled that a conditional appearance entered by Mr. Kirwan on 3rd October 2013 be deemed to be an unconditional appearance for the purposes of the Rules of the Superior Courts.
2. By way of background, the plaintiff issued a summary summons on 15th November 2013 wherein it claims payment from the defendant of a sum of in excess of €430,000 in respect of various loan facilities which are detailed in an affidavit sworn by Mr. John Carron on 29th May 2015.
3. The plaintiff maintains that it effected good service of the proceedings on the defendant on 7th July 2014. This assertion is fully contested by Mr. Kirwan who entered a conditional appearance to the proceedings on 3rd October 2014 in order to contest the validity of the order for substituted service. Further, he maintains that he did not receive the documents which the plaintiff contends were posted to him on foot of the order for substituted service, but rather that a friend furnished him with a printout of the relevant documentation. Mr. Kirwan insists that it was the receipt of this documentation that led him to enter his conditional appearance.
4. Of further marginal relevance to the matters under consideration is the fact that by order of Cross J. dated 14th July 2015 he refused Mr Kirwan certain relief which he had sought in a notice of motion initially returnable before the court on 23rd March 2015. That order was perfected on 20th July 2015 and Mr. Kirwan has, within the permitted ten day time limit which applies to expedited appeals, filed a notice of appeal to this Court. This he did on 28th July 2015.
5. Accordingly, Mr Kirwan’s present application is confined to an application in respect of those orders referred to at par. 1 above.
6. The principles to be applied by the court on an application such as the present one were established over fifty years ago and are to be found in the oft recited judgment of the Supreme Court in Eire Continental Trading Company Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170 where Lavery J. observed that the following were “proper matters for the consideration of the Court when determining whether time should be extended”, namely:-
(i) The applicant must show that he had a bona fide intention to appeal formed within the permitted time.
(ii) He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.
(iii) He must establish that an arguable ground of appeal exists.
7. The aforementioned matters are, however, not essential pre-requisites for an applicant who seeks an extension of time to appeal and, of course, the judgment of Lavery J. should not be read as if it were a statute. While criteria outlined by Lavery J. have been consistently applied so far as appeals to the Supreme Court and, more recently, to this Court are concerned, this Court nonetheless retains a discretion, in an appropriate case, to extend the time regardless of a an applicant’s inability to bring their application within the Eire Continental parameters.
8. I have considered all of the documentation lodged by Mr. Kirwan in support of his application including the written and oral submissions of the both parties. I propose now to deal separately with Mr. Kirwan’s application for an extension of time in relation to each of the three orders. While I have paid special attention to the factors specifically identified by Lavery J. in Eire Continental, I have also considered whether Mr Kirwan has identified the existence of any other meritorious circumstances which might influence the court in favour of exercising its discretion in his favour.
Order of Peart J. dated 23rd June 2014
9. It is not at all clear as to when Mr. Kirwan first formed his intention to challenge or appeal this order for substituted service. What is apparent, however, is that he entered a conditional appearance to the proceedings on 3rd October 2014. The only reason for entering a conditional appearance is to allow a defendant challenge the validity of a prior order of the court. Thus, it must be assumed that Mr. Kirwan was at that stage aware of the order which had been made by Mr. Justice Peart on 23rd June 2014 and that he was intent on challenging its validity. Accordingly, once he became aware of that order he ought to have moved with immediate effect either to appeal it or to seek to have it set aside. For some reason he did not do so and, indeed, took no step to challenge that order until such time as he issued a motion to set it aside on 17th February 2015.
10. Not only did Mr. Kirwan not move to challenge the order of Peart J. within ten days of entering his conditional appearance of the 3rd October 2014, but he has furnished no reasonable explanation as to why it took him four months to issue a motion to seek to set aside that order. Nor has he explained why he waited until the 28th July 2015 to file a notice of appeal against it. His failure to move with expedition was all the more culpable in circumstances where he well knew that the order which he wished to challenge had been made against as far back as 23rd June 2014. For these reasons I am satisfied that Mr. Kirwan has failed to meet the second leg of the test in Eire Continental.
11. As to whether Mr. Kirwan has demonstrated any potential bona fide grounds of appeal in respect of the order of Peart J., it is clear that he wishes to argue that the order for substituted service is invalid, because it was obtained in fraudulent and malicious circumstances. He asserts that the plaintiff well knew that he had been residing at Evergreen Cottage, Newcastle, Crossabeg, Co. Wexford for many years and that there was no reason why he was not served in the normal way at that address. He maintains that the plaintiff misrepresented his circumstances to the court when it obtained the order for substituted service upon him at Glenville Road, Wexford. He further appears intent on arguing for the invalidity of the substituted service order based upon the fact that the affidavit of Tauna O’Connell of 3rd June 2014, upon which the order was obtained, was defective in a number of respects. He maintains that the order for substituted service was thereby defective and invalid. He complains that her affidavit did not give her home address as required by Ord. 40, r. 9 and that the commissioner who witnessed her signature did not insert the time upon which he did so as required by Ord. 40, r. 6.
12. For my part I am not satisfied that Mr. Kirwan has demonstrated any bona fide grounds of appeal in relation to the order for substituted service. Briefly stated, my reasons for this conclusion are as follows:-
(i) The affidavit of Mr. John Carron dated 29th May 2015 sworn for the purposes of grounding the application for summary judgment makes clear that the loan offers of December 2005 and February 2007, those being the loans at issue in the proceedings, were entered into by Mr. Kirwan whose address is recorded therein as being at Glenville Road, Wexford. The same address is on the letters of loan offer. Further, the agreements themselves provide that any notices to be served in relation thereto are to be sent to the borrower at the aforementioned address. Mr Carron also exhibits correspondence dated 1st October 2013 and bank statements dated 1st November 2013, addressed to Mr. Kirwan at Glenville Road, Wexford. In addition to these matters, Ms O’Connell in her affidavit of 3 June 2014, in support of the application for substituted service, deposed to the fact that the bank believed that Mr Kirwan resided at the aforementioned address, an averment that would appear entirely reasonable in the context of the aforementioned documentation. In addition, she referred to the fact that:-
(i) three attempts had been made to serve the summons on the defendant at that address, all of which had been unsuccessful
(ii) that a neighbour had confirmed to the summons server that Mr Kirwan resided at that address and
(iii) that the defendant had confirmed to a tracing agent that he was residing at that address.
Even accepting that Mr Kirwan was not, as he maintains, residing at the aforementioned address at the time the order was obtained, I am satisfied that any argument that he might wish to advance based upon the existence of a conspiracy or malicious intent on the part of the plaintiff when it obtained an order for substituted service is unstatable, irrespective of whether that argument were to be advanced on an appeal against the making of the order for substituted service or on an appeal against the refusal of the High Court judge on second of March 2015 to set aside the order providing for substituted service.
(ii) I do not read Ord. 40, r. 6 of the Rules of the Superior Courts as requiring a commissioner who witnesses the signature of a deponent to insert the time of day upon which they did so. Indeed, I find it hard to recollect any occasion upon which I have ever seen such information included in an affidavit. I am satisfied that the requirement of the rule has been properly met insofar as the commissioner has inserted in the affidavit the date upon which he witnessed the deponent’s signature. However, even if I am incorrect in this regard, the court has power under Ord. 40, r. 15 to receive an affidavit notwithstanding any irregularity in the form thereof. The failure to state the time on an affidavit is a defect of form only and can safely be regarded as a form of harmless error. I do not believe that any court would treat Ms. O’Connell’s affidavit as inadmissible by reason of the absence of this information as no prejudice is visited upon Mr. Kirwan as a result of its omission.
(iii) As to the fact that Ms. O’Connell has not identified her home address in her affidavit as required by O. 40, r. 9, it should be recalled that in Bank of Ireland Scotland v. Horkan [2015] IECA 32 Kelly J. concluded that an affidavit was not invalid by reason of the inclusion of the business address of the deponent rather than their own address. However, even if Mr. Kirwan’s argument could be sustained as a matter of law, it is difficult to see any judge failing to exercise their jurisdiction under Ord. 40, r. 15 to admit the affidavit regardless of any such defect. The purpose of requiring a deponent to include their address is, for example to ensure that a deponent can be easily located if they are required for any reason to give evidence at a later date. Mr. Kirwan has not alleged any prejudice arising from the inclusion by Ms. O’Connell of her business address.
13. For these reasons I am not satisfied that the defendant has met either the second or third legs of the test set out in Eire Continental. However, as already stated, the principles therein advised are no more than proper matters for the consideration of the court and the court ought to engage with any meritorious arguments that may be advanced by a party wishing to seek an extension of time. However, I regret to say I can find no circumstances which would justify this court extending the time to appeal the order of Peart J..
14. The application is out of time by a very long period indeed, even giving Mr. Kirwan the benefit of the doubt in respect of all of the period up to the date upon which he entered his conditional appearance. Further, this is not a case in which Mr. Kirwan, if he is not afforded an extension of time, will be deprived of advancing any ground of defence he may wish to make in the substantive proceedings. The orders which Mr Kirwan wishes to appeal are concerned solely with the manner whereby the bank has sought access to the court for the purpose of proving its claim against Mr Kirwan. Mr. Kirwan, regardless of the outcome of this application, will enjoy the same full panoply of rights as are available to any other defendant summonsed to court to meet a claim brought against them.
Order of Cross J. dated 2nd March 2015
15. The application before the court on 2nd March 2015 was Mr. Kirwan’s application to set aside the order of Mr. Justice Peart, relief that was refused on that date. The reasons that Mr. Kirwan sought to advance in support of his application were those which I have already identified in relation to his application to appeal the order for substituted service.
16. While Mr. Kirwan was obviously unhappy about the order made on 2nd March 2015, it is not clear that he necessarily intended to appeal it. Instead of lodging a Notice of Expedited Appeal he brought another application before the High Court on 23rd March 2015 seeking to re-agitate that order. While it may well be that he was under some misapprehension as to the procedure he should adopt, determined as he clearly was to challenge the order of 2nd March 2015, Mr. Kirwan has not disputed that on 23rd March 2015 he was advised by Cross J. that the proper procedure for him to adopt, if he wished to challenge any order made him, was to appeal that order. Accordingly, to my mind, time began to run against Mr. Kirwan in respect of his right to appeal the order of 2nd March 2015 at the latest as of 23rd March 2015 when he was so advised.
17. As to the second leg of the Eire Continental test, I am not satisfied that Mr. Kirwan has explained why he did not file a notice of expedited appeal against the order of 2nd March 2015 at latest within ten days of the hearing of 23rd March 2015. Why he waited until 28th July 2015 is simply not explained.
18. In any event, Mr Kirwan has not, for the reasons which I have already outlined when dealing with his application to extend time to appeal the order of 23rd June 2014, demonstrated any bona fide ground upon which he might appeal the order of Mr. Justice Cross deeming the service effected on him to be good service.
Order of 23rd March 2015
19. The order made on this date was confined to an order deeming the conditional appearance allegedly entered by Mr. Kirwan on 3rd October 2014 to be a valid appearance for the purposes of the proceedings.
20. In relation to this order Mr. Kirwan has not demonstrated that he formed an intention to appeal the order within the ten day time limit which governs expedited appeals. Further, he does not identify why he did not appeal until such time as he lodged his notice of appeal on 28th July 2015. Thus, he has not addressed the first two legs of the Eire Continental test. Further, he has not advanced any bona fide ground upon which he could seek to challenge that order, as the court by that time had already deemed service to have been validly effected on 2nd March 2015. Mr Kirwan’s entitlement to maintain a conditional appearance was based upon his right to challenge the order for substituted service. As of 23rd March 2015 he had not successfully challenged that order and neither had he filed a notice of appeal in respect of the order of 2nd March 2015. He had thus no entitlement to maintain a conditional appearance. Accordingly, he has not demonstrated any arguable ground upon which he might appeal this order.
21. For all of the aforementioned reasons I would dismiss the appeal.
Lawless v Aer Lingus Group plc
[2016] IECA 235
Judgment of Ms. Justice Irvine delivered on the 29th day of July 2016
1. This is the plaintiff’s appeal against the order of the High Court (Kennedy J.) dated 10th June 2015. The order under appeal relates to the plaintiff’s motion dated 11th June 2015 seeking discovery as against the defendant in what is commonly described as a personal injuries action.
Factual background
2. The plaintiff is an Aer Lingus cabin crew member who claims that she was injured on 11th February 2011 when the aircraft on which she was working at the time made a heavy landing at Dublin Airport. The particulars of the wrong alleged in the personal injuries summons plead as follows:-
“On or about 11th February 2011 the plaintiff, while in the course of her employment with the defendant as an air hostess, was seated in and using a “jump seat” provided for the defendants for the use of cabin crew particularly during take off and landing when the said aircraft made a heavy landing as a consequence of which the plaintiff sustained severe personal injuries, loss, damage and expense.”
3. Full particulars of negligence and breach of duty were outlined in the endorsement of claim. All of these refer to allegations against the plaintiff’s employer relating to the nature of the seat with which she was provided for the purposes of her work. No plea was made to the effect that there was anything irregular about the manner in which the plane was landed neither was there anything pleaded from which such a complaint could be inferred.
4. In their replies to the defendant’s notice for particulars dated 26th October 2012, the plaintiff’s solicitors stated the following concerning the “jump seat” the focus of the plaintiff’s claim, namely:-
“[It] was sufficiently dangerous and unsafe that while sitting thereon our client suffered a significant jarring type injury on heavy landing. A proper and safe seat would have ensured that the plaintiff was not injured. The plaintiff is not a qualified engineering expert, however an expert engineer would facilitate the court by explaining the technical deficiencies of the seat which resulted in the plaintiff’s injuries.”
5. In its defence delivered on 29th April 2013 Aer Lingus put the plaintiff on proof of the heavy landing for which she contends, as well as proof of each of the allegations of negligence and injuries asserted.
6. Somewhat unusually, in light of the fact the pleadings had not alleged any pilot error, the plaintiff, by letter of 14th February 2014, sought voluntary discovery from Aer Lingus of ten categories of documents several of which related to the training, supervision and licences of the pilots on board flight EI 433. By letter of 17th September 2014 the defendant’s solicitors indicated their willingness to make discovery in respect of certain categories of documents. However, they refused the discovery of categories 1, 2, 3 and 4. Further, they were only willing to comply with category 8 insofar as it might be confined to the moment of touchdown.
7. In a somewhat unusual turn of events having regard to the earlier pleadings, by letter dated 21st May 2014 the plaintiff for the first time delivered particulars of negligence which related to the piloting of the plane on the day the plaintiff’s sustained her injuries. The following eleven new particulars of negligence and breach of contract were advanced:-
(k) Exposed the plaintiff to a heavy and unsafe landing where the aircraft [flight no. EI433] in which the plaintiff was travelling was caused to hit the runway with considerable force;
(l) failed to properly train the pilot of / or to ensure that a sufficiently trained and / or qualified pilot was in charge of flight EI433 on the day in question in the conditions that prevailed;
(m) failed to apply adequate care and / or skill to ensure a smooth landing of flight EI433 in conditions that prevailed;
(n) failed to properly supervise the pilot in control of the landing;
(o) exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known;
(p) failed to control or manage the aircraft such as passengers and crew were safe therein;
(q) exposed the plaintiff to a danger of foreseeable risk of injury in and about the driving management and control of the airplane;
(r) or failed to take adequate care for the safety of the plaintiff;
(s) exposed the plaintiff to an unnecessary risk of injury;
(t) allowed a pilot without adequate qualifications and / or experience to be responsible for the landing;
(u) the doctrine of res ipsa loquitur is hereby raised and will be relied upon.
Discovery
8. By letter dated the 14th February 2014, the plaintiff sought discovery of 10 categories of documents and by letter dated 18th September 2014 the defendant solicitors, Messrs O’Rourke Reid agreed to make discovery in respect of five such categories of documents and agreed to make discovery in respect of a sixth category albeit in a manner which confined the discovery to a particular timeframe to which I will later refer. Accordingly, when the matter came before the High Court for hearing on 10 June 2015 the following categories of documents were in dispute namely:-
Category 1:
Any document in the power or possession of the defendant comprising and / or evidencing the licences held by the pilots on board flight EI433 from Milan Linate to Dublin on 11th February 2011.
Category 2:
Any documents(s) in the power or possession of the defendant recording or evidencing the total hours flown by the pilots on board flight EI433 on 11th February 2011 including details of hours flown on type and capacity.
Category 3:
Any document(s) recording or evidencing the date of the first and most recent line and periodic checks of the pilots on board flight EI433 on 11th February 2011.
Category 4:
All document(s) in the power or possession of the defendant recording, comprising and / or evidencing any restricted flying policy applicable to any of the pilots on board flight EI 433 on 11th February 2011.
Category 8:
All document(s) in the power or possession of the defendant comprising printouts of Systems Data for the period encompassing thirty seconds before touchdown and fifteen seconds after in the increments provided by the system recording tabular and / or graphic data of:-
(a) aircraft weight,
(b) radio altitude,
(c) barometric and radio rate of descent,
(d) heading, normal, horizontal and longitudinal accelerations,
(e) oleo compression status,
(f) wind direction and speed.
9. In relation to categories 1 to 4 above the reason advanced for seeking such discovery was that the plaintiff’s aviation expert had advised that such documents needed to be obtained in order to prove that the pilots on board flight EI433 were inadequately qualified, trained and supervised with the result that the plane was landed heavily thus causing the plaintiff’s injuries. As to category 8 the reason advanced was that the documentation would provide incontrovertible evidence as to whether the aircraft made a heavy landing, whether it was landed with all due skill and diligence and whether the decision to allow the pilot in question land the plane given the conditions was appropriate.
10. It is to be noted that the use of the words “heavy landing” and “hard landing” are used interchangeably in aviation parlance and in these contexts tend to have a particular technical meaning. That this is so is clear from the affidavits sworn by the parties in the context of the application for discovery and also from the reasons advanced by the plaintiff to support her application for discovery. It is not in dispute that a heavy or hard landing is one which involves a G Force of 2.6 or more. It is also accepted that once a heavy or a hard landing is recorded this automatically results in the generation within the cockpit of what is described as a “load 15” printout and that in turn this document generates the requirement that the plane be subject to a technical inspection. That said, counsel for the plaintiff, Mr King B.L submits that when the plaintiff complains of a heavy landing she does not confine herself to the aviation definition of “heavy” or “hard” landing, but rather reefers to a “hard” or “heavy” landing in the ordinary, non-specialist sense of these words.
Ruling of the High Court judge
11. In her judgment delivered on 10th June 2015 the High Court judge set out the submissions advanced by the parties and also what she considered to be the appropriate principles to be applied by the court on an application for discovery. In doing so she made clear that the onus was on the applicant to demonstrate that the documents sought were necessary and relevant to the issues to be determined at the hearing of the action. In the course of her ruling the High Court judge noted that the pleadings as originally cast made no mention of any allegation of negligence on the part of the pilot. However, insofar as that claim was made in the additional particulars delivered on 21st May 2014, she expressed herself satisfied that the negligence alleged was dependent upon proof of what had occurred at the time of landing rather than anything which had occurred over the 30 seconds before or after 15 seconds after touchdown, that being the period proposed by the plaintiff to govern the documents set out in category eight.
12. In reaching her conclusions the High Court judge also took into account the discovery which the defendant had agreed to make. This included the captain’s aircraft technical log, any special report as may have been written by the captain and any incident investigation report for the relevant flight. She also referred to the fact that the defendant’s agreement to furnish the “load 15 print out”, to which I have already referred, if such a document had been generated and a copy of any work order detailing any inspection carried out following the landing of the flight. She noted that if a heavy landing had occurred that a “load 15 print out” would have been generated and that this in turn would give rise to a detailed inspection of the aircraft concerned.
13. In her ruling, the High Court judge concluded that the documents sought at categories 1 to 4 where not necessary or relevant to the issues between the parties and in the course of so doing commented upon the fact that a heavy landing could take place whether a pilot had a licence or not and that the converse was equally true.
14. As to whether the documents referred to in category 8 were necessary and relevant, beyond those which relate to the touchdown itself, she concluded they were not in circumstances where the plaintiff’s claim was based upon proof that she sustained an injury through a heavy landing which she maintained was negligent in all of the circumstances.
15. The High Court judge did not find it necessary to deal with the defendant’s submission that she should not direct the discovery sought by reason of an existing agreement between Aer Lingus and Impact / Irish Airline Pilots Association which was intended to regulate the use of data gathering systems. That was an agreement which provided that information such as that sought by the plaintiff at category 8 should not be disclosed unless so required by court order for the purposes of civil or criminal proceedings. She also deemed it unnecessary to deal with arguments raised by the defendant concerning EU Regulation 996/2010 relied upon by the defendant. That is a regulation that governs the manner in which flight data recordings should be maintained and which provides that information such as that sought in category 8 should not be made available save under the limited circumstances provided for in Art. 14(2) and (3) thereof.
The appeal
16. In her Notice of Expedited Appeal dated 27th June 2015 the plaintiff has set out twenty one separate grounds of complaint concerning the order made by the High Court judge. That in turn has spawned an equally detailed rebuttal of those grounds in the Respondent’s Notice dated 24th July 2015.
17. The plaintiff’s appeal came before this court for hearing on the 27th May 2016. At that stage the defendant had not furnished the discovery which it had agreed to make in September 2014. Neither of the plaintiff requested that the defendant would do so regardless of its appeal against the order of the High Court refusing discovery of the remaining categories of documents.
18. In circumstances where the submissions of the parties did not conclude on the 27th of May 2016 this Court directed the defendant, prior to the date of the resumed hearing, to furnish discovery in accordance with the agreement earlier reached. It further gave the plaintiff 14 days to make such submissions as might be deemed appropriate in light of the discovery received and gave the defendant 14 days to respond to any such submission.
19. The defendant’s affidavit of discovery was duly sworn by Mr O’Connor Nolan on 15th June 2016 and this affidavit together with the documents discovered therein were furnished to this court when it is resumed its hearing of the appeal on 22nd July. The plaintiff chose not to deliver any further submission in light of this discovery.
20. It, of course, must be acknowledged that the High Court judge when she made her decision did not have the benefit of sight of these documents. Further, notwithstanding significant affidavit evidence put before the court on the part of the defendant, the High Court judge was not advised of the fact that the documents – which they had agreed to discover would demonstrate – that the landing in aviation terms came nothing close to a heavy or hard landing in the specialist sense of that term as used in the aviation industry. The G Force exerted on touchdown was 1.6, thus coming well below what might be considered heavy or hard. Thus, no load 15 report was generated with the result that there was no post landing examination of the aircraft.
21. In reaching my conclusions which I now intend to set out in a relatively sparse manner, I have taken into account the extensive written submissions delivered by the parties and, of course, the oral submissions made in the course of the appeal by Mr. King B.L. on behalf of the plaintiff, and Mr. Sreenan S.C. on behalf of Aer Lingus.
Jurisdiction
22. The first matter to be briefly addressed in the course of this ruling is the court’s jurisdiction on this appeal. This is an appeal against an order made by the High Court judge in the exercise of her discretion in relation to an interlocutory matter. This is not a re-hearing of that application and that being so this court should afford significant deference to the decision in the High Court. It is nonetheless clear that if an appellate court can detect a clear error in the manner of the approach of the High Court judge it is of course free to interfere with that decision. Further, even if the appellant cannot identify such an error the appellate court may nonetheless allow an appeal if satisfied that the justice of the case can only be met by such an approach. The Court is able to do this because it has available to it all of the affidavit evidence that was before the High Court at the time the original interlocutory decision was made. The role of the appellate court in this regard is set out in the decision of this court in Collins v. Minister for Justice, Equality and Law Reform [2015] IECA 27 and by McMenamin J. in Lismore Homes Ltd. v. Bank of Ireland Finance Ltd. [2013] IESC 6.
23. However, it seems to me that all too often parties who are somewhat dissatisfied by interlocutory orders made in the High Court seek to use this Court as a venue to re-argue their application de novo in the hope of persuading this court to exercise its discretion in a somewhat different fashion from that which was adopted by the High Court judge at the original hearing. That is a practice which I believe is not to be encouraged. In order for this Court to displace the order of the High Court in a discovery matter the appellant should be in a position to establish that a real injustice will be done unless the High Court order is set aside. It should not be sufficient for an appellant simply to establish that there was a better or more suitable order that might have been made by the trial judge in the exercise of their discretion.
The principles to be applied
24. There is no disputing the fact that the High Court judge correctly identified the legal principles to be applied on an application for discovery. I will not labour these because they are well known to the parties and are as set out extensively in the written submissions of the parties. It suffices to quote from the judgment of Brett L.J. in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882) 11 QBD 55 which has been approved of and applied in almost every major case in this jurisdiction in relation to discovery. This is what he said at page 63 of his judgment:-
“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’, because, as it seems to me, a document can properly be said to contain information which may enable a party requiring the affidavit either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”
25. Counsel for the plaintiff, Mr King, accepts that he bears the onus of establishing that the documents sought by way of discovery are both relevant and necessary for disposing fairly of the matters in issue in the proceedings, as was emphasised by Fennelly J. in his frequently cited judgment in Ryanair plc v. Aer Rianta cpt [2003] IESC 62. Further, he maintains that he has discharged that burden.
26. Of some further assistance concerning the approach of the court on an application for discovery is the decision of McCracken J. in Hanna v. Commissioners of Public Works [2001] IEHC 59 where he emphasised that “relevance” must be determined in relation to the pleadings in the specific case and not by submissions as to alleged facts put forward in affidavits, unless such submissions relate back to the pleadings, or in the case of an application for further and better discovery, to previously discovered documents. He also stated that the court must decide as a matter of probability whether any particular document is relevant to the issue to be tried and that discovery cannot be ordered simply because there is a possibility that documents may be relevant.
Decision
27. Having considered the written and oral submissions made by the parties on this appeal I am fully satisfied with the approach and the conclusions reached by the High Court judge. I have no doubt but that she was correct when she concluded that the documents sought in categories 1 to 4 inclusive are neither necessary nor relevant to the issues to be determined by the court on the hearing of this action. I have reached a similar conclusion in relation to the documentation pertaining to the thirty seconds immediately prior to and the fifteen seconds post the landing of flight EI433 on the day in question and which are covered in category 8.
28. Because of the legal principles earlier referred to it is essential to review the decision of the trial judge concerning the disputed categories of discovery documentation having regard to the issues which arise from the pleadings as delivered.
29. There are principally two liability issues in this case. The first relates to the claim as initially made by the plaintiff in her personal injury summons to the effect that her employer was negligent in failing to provide her with a jump seat that would protect her from a heavy landing. It is pleaded that the defendant was aware, from complaints earlier made, of the inadequacy of these seats to protect crew members from injury in the course of their employment. The second is an issue is one which can be identified by combining paras. (k) and (m) of the plaintiff’s notice of updated particulars dated 21st May 2015. The allegation of negligence made is that the plaintiff was caused to sustain injury because the aeroplane in which she was travelling hit the runway with unacceptable force having regard to the prevailing conditions.
30. It has to be said that at the time the initial application for discovery came before the High Court the plaintiff must have believed that there was at least a possibility that the landing concerned was a heavy or hard landing within the aviation meaning of those words. That this is so is clear from the letter seeking voluntary discovery and, in particular, from the reasons provided to justify the documents specified in categories eight and nine. There reference is made to the fact that the documents sought would provide “highly technical incontrovertible evidence” as to whether the aircraft made a “heavy landing”. The “heavy landing” is referred to in the context of the request for discovery of any “load 15” printout which the plaintiff’s expert, Captain Ryan, who advised on the issue of discovery, would have known is only generated following what an aviation terms may be described as a heavy landing. However, these are not matters of any great import to what in reality is a rather straightforward issue.
31. In relation to categories 1-4 inclusive, insofar as they are directed to the second of the liability issues to which I have earlier referred, I am not satisfied that the plaintiff has established that these documents are either necessary or relevant. Not only has the plaintiff failed to convince me that these documents are probably relevant to that issue but she has also failed to convince me that they there is any possibility that they could be of relevance to the liability aspect of her claim. I fear that her application for discovery of these documents falls to be condemned as a fishing expedition.
32. In the plaintiff’s letter seeking voluntary discovery it was stated on her behalf that the documents described in categories 1 to 4 were required because her aviation expert considered them necessary to prove that the pilot was unqualified, inadequately trained or inadequately supervised. However, not only does the plaintiff not need to prove anything irregular concerning the licence held by the pilot or the extent of his or her experience, training or supervision on the day in question to succeed in her claim, such information as might be gleaned from these documents would be wholly immaterial to the court’s decision concerning her claim as cast.
33. The plaintiff’s complaint is that there were no conditions to justify the heavy impact that the plane made when it met the runway. It matters not in this regard whether she intends to rely upon the landing as being “heavy” as defined in aviation terms or just heavy but not so heavy as would meet the technical definition of that word. The court will have to decide as a matter of fact whether the force generated on landing was negligent or not in the prevailing circumstances. Either the landing was to a standard which was professional and acceptable having regard to the prevailing conditions or it was not. If the landing was heavy to the point which the court considers it negligent it does not matter who was flying the plane or what their qualifications were once they were an employee of Aer Lingus. Likewise, if the landing was unacceptably heavy having regard to the prevailing circumstances, proof that the pilot concerned took the annual pilots’ prize for excellence in the week previous to the plaintiff’s injury would not protect the defendant from a finding of liability. Hence, it cannot be said that the documentation sought in categories 1 to 4 inclusive are necessary or relevant.
34. In looking at whether it was necessary for the plaintiff to have these documents so as to advance the liability aspect of her claim it is relevant to note that prior to the hearing in the High Court the plaintiff had agreed to furnish documentation in relation to category eight, albeit limited to the moment of touchdown. That being so the plaintiff’s expert was always going to be in a position, without the need for any further documentation by way of discovery, to opine as to whether the landing was heavy to the point that it should be considered to be negligent in all of the prevailing circumstances.
35. For similar reasons I am satisfied that the High Court judge was correct in refusing the plaintiff’s application for discovery of the documentation set out in category eight insofar as it relates to the period spanning 30 seconds prior to the landing and 15 seconds thereafter. The plaintiff was not injured either before or after touchdown. If she was injured in the manner alleged, this occurred as a result of the impact of the aircraft meeting the runway. As to how the aeroplane was piloted either side of touchdown, is in my view, immaterial to any issue the court has to decide.
36. Perhaps the fact that the plaintiff’s injuries are alleged to have been sustained in the course of an adverse event involving an aeroplane rather than one involving a car has caused some confusion and that clarity can be brought to bear on the issue by considering a somewhat analogous road traffic accident case.
37. Let us assume for a moment that the plaintiff takes a lift home from the airport in a car owned by one of her colleagues. Her colleague slams on the brakes with the result that the plaintiff is badly jolted forwards and backwards while restrained by her seatbelt in the passenger seat. Let us further assume that, unfortunately, the plaintiff develops serious soft tissue injuries to her neck and back. Accordingly, she later sues her colleague for the injuries sustained complaining that the car was driven negligently in that it was brought to an unnecessarily abrupt stop. A full defence is delivered on behalf of the driver which denies of the severity of the manoeuvre complained and asserts that the driving was reasonable in all of the circumstances.
38. I venture to suggest that it is obvious that the plaintiff in such circumstances could not establish her entitlement to discovery of her colleague’s driver’s license or documents which might tend to establish whether or not she had ever taken driving lessons. Such documents could never be considered either necessary or relevant to the issues which the court would have to decide at the hearing of the action. The issues to be determined by the court in the circumstances just outlined would be as follows: –
1. As a matter of fact, how severe was the braking manoeuvre performed by the driver?
2. Was the severity of the manoeuvre as found by the trial judge reasonable in all of the prevailing circumstances? This issue might include a consideration of factors such as whether a child had run out in front of the car or whether the driver apprehended some other impending disaster. And,
3. if the manoeuvre was found to be unreasonable and negligent in the circumstances, the extent of the resulting injury to the plaintiff.
39. Applying similar considerations to the present case I am quite satisfied that the High Court judge was correct when she concluded that the documents sought were not necessary or relevant for the proper disposal of this action having regard to the discovery to which the defendant has consented.
40. Having reached this conclusion it is not necessary to proceed to consider any of the supplemental arguments advanced on behalf of Aer Lingus concerning the effect of the agreement between Aer Lingus and Impact / Irish Airline Pilots Association or EU Regulation 996/2010 on the plaintiff’s application for discovery. However, in relation to the defendant’s reliance upon the aforementioned Regulation, I have to say that I found Mr. King’s submission convincing insofar as he pointed to the inconsistent position that had been adopted by Aer Lingus concerning this regulation. While it objected to providing the disputed discovery documents in category eight based upon this regulation it nonetheless agreed to discover other documents within the same category which would appear to be covered by that very same regulation.
41. There is just one final matter to which I would wish to make a brief reference and it is this. Discovery is an expensive and time consuming process and, as such, can greatly increase the costs of litigation and delay the proper, effective and timely administration of justice. In a not insignificant number of cases, discovery is sought in relation to documentation which is not in truth required to advance the claim or defence of the party making such a request. Not only are the number of cases in which discovery is sought growing, but in very many cases once the decision has been made to seek discovery, the requesting party will seek to cast the discovery net way beyond what might reasonably be required for the proper resolution of the issues in the case. The result of this type of approach is to discourage voluntary engagement on the part of the recipient of such a request with the likely consequence that the dispute will only be capable of being resolved with the court’s assistance.
42. The overuse of the discovery procedure is to be discouraged for the reasons so clearly stated by Hogan J. in paras.10 – 15 of his judgment in IBB Internet Services Ltd. v. Imagine Communications Ltd. [2005] IECA 242. In the course of his judgment, albeit in the context of significant commercial litigation, he commented upon the struggle faced by the courts in recent years in terms of judicial resources by reason of the ever-increasing amount of time which the courts are being asked to afford to increasingly complex applications for discovery which oftentimes result in voluminous discovery which is simply not necessary for the proper disposal of the issues before the court.
43. I make these comments because I believe they are of some relevance in the context of the discovery dispute in the present proceedings. The discovery sought was overly extensive with the result that the parties were unable to resolve their differences without the intervention of the court and a protracted exchange of affidavits. This had greatly added to the costs of this litigation which, from the pleadings, appears to be a relatively modest claim for damages for personal injury. It is, perhaps, unfortunate that at the time the request for the discovery was made or at latest when the replying affidavits to the motion for discovery were filed that Aer Lingus did not make known to the plaintiff that the documentation relevant to touchdown would establish as a matter of fact that the G Force exerted was 1.6. Perhaps such an approach might have commended itself to the plaintiff and might possibly have brought about a situation where a less extensive and more focused discovery order was sought in the first instance.
Conclusions
44. For all of the aforementioned reasons I would dismiss the appeal.