Dismissal for Delay

Table of Contents

Cases

Irish Family Planning Association v Youth Defence

[2004] 1 I.R. 374

Judgment delivered on the 4th day of February, 2004 by Denham J.

1. Appeal

This is an appeal by Maurice Colgan and Niamh Nic Mhathuna, the second and third named defendants, hereinafter referred to as the defendants, from the judgment and order of the High Court (Smyth J.) delivered on 25th June, 2001 and perfected on 3rd July, 2002 which enlarged the time for the delivery of the statement of claim on the defendants and set aside the order made by the Deputy Master of the High Court on the 3rd May, 2001. The Irish Family Planning Association is the plaintiff and is hereinafter referred to as the plaintiff.
2. Procedural Issue

The appeal raises an issue on procedure. Benedict Ó Floinn, B.L., who appeared on behalf of the defendants, submitted that there was no issue of fact in the appeal, that at issue was a question of law. Counsel submitted that when an applicant in a motion such as this comes before any court there is an onus on that applicant to place on affidavit an explanation of why the jurisdiction sought to be invoked had not been exercised, i.e. in this case why the statement of claim had not been delivered within time, and that the applicant must put before the court sufficient material to justify the invocation of the jurisdiction. On that legal issue he informed the court that he had searched in the Rules, Courts Acts and cases but that he could not find any explicit statement of the law, other than Hughes v. Hughes [1990] N.I. 295 which was the closest precedent.
On the other hand, Colman Fitzgerald, S.C., counsel for the plaintiff, submitted that the High Court judgment was correct, that the test to be applied is as set out in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and if not then O’Domhnaill v. Merrick [1984] I.R. 151, applies, as does Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561.
3. Facts

Thus the facts of the case are not in issue and are as follows. On the 8th March, 1999, the plaintiff obtained an interim injunction against the defendants (amongst others). On the 9th March, 1999, the plenary summons was issued, the parties being those named in the title of this case. The claim in the plenary summons is that:
“The Plaintiff’s Claim is as against the defendants and each of them, their servants or agents and in particular as against the second and third named defendants as one of and as representing the first named defendants and is for:
(a) Damages for trespass,
(b) An injunction,”
On the 11th March, 1999 the plaintiff obtained an interlocutory injunction against the defendants restraining them from, pending the trial of the action, trespassing on the plaintiff’s property, watching or besetting or carrying on any demonstration or manifestation near or adjacent to the named premises, obstructing or attempting to obstruct or harass persons going into and leaving such clinics, and intimidating or molesting or otherwise interfering with Tony O’Brien and/or any other member of the association. No further step was taken until a motion for attachment and committal was brought by the plaintiff before the High Court on the 11th August, 1999. A Memorandum of Appearance was entered on the 18th August, 1999, by a solicitor for the defendants. The form of the appearance was amended so that it purported to be an appearance to the notice of motion (the words ‘Originating Summons’ having a line placed through them). On the 18th August, 1999, the High Court made an order, the defendants undertaking to abide by the terms of the order of the 11th March, 1999. Maurice Colgan appealed the order of the 18th August to the Supreme Court. He appeared in the Supreme Court in person. His solicitor had not come off record. Apparently his solicitor took the view that she represented him only on the motion. However, no formal order was sought discharging her. Mr. Colgan succeeded in his appeal to the Supreme Court on the 16th October, 2000. He then sought to discharge the order of attachment of the High Court. The matter of the solicitor being on record then arose. In November, 2000 a notice of discharge of solicitor was filed. Mr. Colgan then brought a motion in the High Court to have the injunction discharged. On the 29th January, 2001, the solicitor was reappointed as solicitor for Mr. Colgan. On the 12th February, 2001, the High Court ordered that the injunction of the 11th March, 1999 as against Mr. Colgan be discharged, which order was not appealed.
By notice of motion dated the 19th February, 2001, the plaintiff sought an order pursuant to O. 63, r. 1 (5) of the Rules of the Superior Courts enlarging the time for the delivery of the statement of claim on the defendants. On the 3rd May, 2001, the Deputy Master of the High Court refused the application. The plaintiff appealed to the High Court. On the 25th June, 2001, the High Court determined that the order of the Deputy Master be set aside and time was extended for the service of the statement of claim by one week. Against that order the defendants filed an appeal on the 20th July, 2001.
4. High Court

There was no written judgment of the High Court. Counsel for the plaintiff and defendants drafted separate notes of the judgment. There was delay in doing this. On the 7th May, 2003, on the drafts being before Smyth J., he noted:
“It is now almost 2 years since the motion was signed and so long since the matter was before me that I must rely on counsel’s note. There being no dispute on what I decided I have signed each and it must rest at that.”
It was agreed by counsel that the learned High Court judge held that there had been enough procedural shadow-boxing in this case, and that it was a matter that should be brought to trial as soon as possible. The learned trial judge said that he did not want to get into the merits of the case. He stated that it sufficed to say that the plaintiff’s claim in the statement of claim sought damages and an injunction, which was granted; that then the injunction was discharged; that that is distinguishable; that the defendants were sometimes represented and sometimes not; and that they were playing ducks and drakes. The learned trial judge was satisfied as per paragraph 16 of the grounding affidavit. He held that the plaintiff could have served the statement of claim personally but that then the solicitor would have complained. He stated that the parties should get on with the business of the case. He said that the Supreme Court has laid out the test in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. He made an order extending the time for the delivery of a statement of claim, and three weeks thereafter for the filing of the defence. He stated that the case should get on.
The explanation in paragraph 16 of the affidavit of Michael Farrell of the 19th February, 2001, is as follows:
“I say that the Plaintiff is anxious and desirous of prosecuting the within proceedings and that a Statement of Claim has been prepared on behalf of the Plaintiff herein. I say that it was unclear how the said Statement of Claim should be delivered given the confusion over the representation of the Second and Third named Defendants or even whether the said Defendants required delivery of a Statement.”
The reason for the significant delay between the order of the High Court and this appeal was not explained.
5. Grounds of Appeal

The grounds of appeal set out in the notice of appeal of the defendants are as follows:
“(1) That the learned trial judge misdirected himself in law in applying the case of Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 146 to an application to extend the time for the delivery of a statement of claim by the Plaintiff/Respondent herein.
(2) The learned trial judge misdirected himself in law in that he failed to have any or any proper regard to the fact that the onus was on the Plaintiff/Respondent to establish that it was right and proper for the time limited for the delivery of the statement of claim to be extended.
(3) The learned trial judge misdirected himself in law in that he failed to have any or any proper regard to the Rules of the Superior Courts.
(4) The learned trial judge failed to have any or any due regard for the fact that the Plaintiff/Respondent had withheld the delivery of a statement of claim for an improper purpose and/or had been guilty of inexcusable and inordinate delay and an abuse of the process of this High Court by failing to deliver the said statement of claim.
(5) The learned trial judge misdirected himself in law/or in fact in that he failed to accord any or any proper weight to the fact that the issue of whether the Plaintiff had been guilty of inexcusable and inordinate delay in or about the delivery of the said statement of claim was res judicata by reason of the judgment of Mr. Justice Lavan delivered on the 12th February, 2001 which judgment discharged an interlocutory injunction against the Second Named Defendant/Appellant on the grounds that the Plaintiff/Respondent was guilty of inordinate and abuse of process of the court in failing to bring the substantive proceedings to trial.
(6) The learned trial judge erred in fact and acted contrary to the balance of the evidence of finding that the Plaintiff/Respondent put before the Court any or any proper reason for the failure to deliver a statement of claim within the period provided for in the Rules of the Superior Courts.
…”
6. Order 63 Rule 1 (5)

This is an application under O. 63 r. 1 (5) of the Rules of the Superior Courts for an extension of time within which to file the statement of claim. The said rules states:
“In addition to any orders which the Master may make under any other of these Rules the Master may make any of the following orders:-
…
(5) An order for enlargement of the time for doing any act or taking any step in any action or matter.”
7. Submissions

Counsel for the defendants submitted that the learned High Court judge erred. He submitted that (a) when an applicant comes before a court there is an onus on that applicant; (b) that the applicant must place before the court sufficient material to justify the invocation of the jurisdiction, and (c) that thereafter the court weighs the explanation. He submitted that the High Court erred in casting the onus on the defendants, and that many issues may arise on the explanation. However, in this case (c) did not arise as the plaintiff did not accept where the onus lay and did not advance an explanation.
Opposing the appeal, counsel for the plaintiff submitted that the High Court had not erred. He submitted that the test was whether there had been inordinate and inexcusable delay and that the onus was on the person opposing the motion. If there was inordinate and inexcusable delay then it was for the court to weigh the relevant matters.
8. Difficulties

However, during the submissions, responding to queries from the court, it became clear that there were further difficulties. The relevant portion of the plenary summons was the claim for “damages for trespass.” The statement of claim (which was served within a week of the High Court order) contains no allegation against the second and third named defendants. It sets out that the first named defendant is an unincorporated body, that the second named defendant is a member of the first named defendant, that the third named defendant is also a member, that on the 6th March, 1999, a group of about twelve members of the first named defendant unlawfully entered without authority and occupied a clinic premises of the plaintiff. There is no allegation that the defendants were in this group. There are other allegations but they do not relate to the defendants. Counsel for the plaintiff accepted that there were no allegations against the defendants in the statement of claim, and that on the face of the document it did not allege that the defendants had breached the law. Counsel for the plaintiff submitted that this was merely an application for an extension of time within which to serve the statement of claim and referred to powers under the rules of court by which a statement of claim could be amended.
9. Decision

This is an application for an extension of time within which to serve a statement of claim on the defendants. There is no statement alleging a wrongful act of the defendants in the statement of claim before the court. The fact that there are powers in the rules to enable applications to amend a statement of claim is not sufficient to cure this difficulty. This is so even though it could be submitted that there was no appearance and that pursuant to O. 28 r. 2 such amendment might be made without motion. The fact is that the plaintiff has brought this motion and continues to pursue its objective. It is notable that it is a situation also where the defendants could consider applying to the court to disallow the amendment under O. 28 r. 4.
The statement of claim does not disclose any actionable case against the defendants. It is not sufficient to allege guilt by association, to allege that Youth Defence committed the actions and that the defendants are members of Youth Defence. There are no facts alleged against the defendants which give rise to a cause of action. Indeed, counsel for the plaintiff stated that it would not be the case against the defendants that they entered the premises.

The case relates to past events. The pleadings allege wrongful acts in 1999. The injunction against the second named defendant has been discharged. The third named defendant gave an undertaking. The remaining issue on the summons is trespass. It is now clear that there are no allegations that the defendants entered the premises of the plaintiff. The fact that they were members of Youth Defence is not sufficient to base such a claim. There is no claim of conspiracy. While counsel for the plaintiff accepted that the statement of claim was defective, he submitted that that was not the issue that it could be amended. I do not accept this submission. The issue is whether the High Court erred in extending time to the plaintiff within which to serve the statement of claim before the court.

The circumstances of this case are such that because of the actions of the defendants it could be argued that there has been no appearance. In such a situation the plaintiff would not be out of time within which to serve the statement of claim. Consequently, there would be no need to seek to extend time – or seek a court order to extend time. However, counsel for the plaintiff has continued to seek the extension of time within which to serve the statement of claim.

I am satisfied that on an application before a court to extend time for the service of a statement of claim the court has an inherent jurisdiction to control the procedure and to dismiss an application when the justice of the case so requires. There is an onus on an applicant to present a statement of claim in an appropriate form. A moving party has such a basic onus in all applications. In some situations an onus may then shift to the defence or respondents. However, there is a fundamental onus on an applicant to present an application in appropriate form and with the relevant facts and documents. When the application relates to an application for an extension of time within which to serve a statement of claim, a draft statement of claim should be exhibited. A court in considering the application may also consider the draft statement of claim. The statement of claim should contain the material facts upon which the plaintiff relies to establish a cause of action. If the statement of claim discloses no cause of action against the defendants then the court has and should exercise an inherent jurisdiction to regulate its proceedings. In so exercising its jurisdiction a court may not order the extension of time for the service of a document which is defective on its face. It would be contrary to common sense and to reason for a court knowingly to order that time be extended to enable the service of a statement of claim which on its face shows no cause of action.

The lack of a cause of action on the statement of claim was not drawn to the attention of the High Court when dealing with this matter on a busy Monday list. It is the jurisprudence of this court that it is a court of appeal and that issues should first be the subject of legal argument and decision in a court of trial. However, in this case, it is accepted that the statement of claim is defective. I am satisfied that the submission of counsel for the plaintiff that it may be amended in the future is not a ground which saves this application. In view of the fact that the statement of claim is defective, in that it does not contain a cause of action against the defendants, I would allow the appeal and refuse the application to extend time within which to serve the statement of claim.

In addition, I am of the opinion that when a plaintiff has obtained an interlocutory injunction on foot of a plenary summons it is wholly inappropriate that having achieved the benefit of the equitable jurisdiction of the court the plaintiff should be dilatory in serving the statement of claim. In Hytrac Conveyors v. Conveyors International [1982] 3 All E.R. 415 at p. 417 Lawton L.J. held

“In this case, as a result of the attempt to get an interlocutory injunction before the delivery of the statement of claim, weeks passed and by the middle of July still no statement of claim had been delivered. This was particularly unfortunate from the point of view of the fourth, fifth, sixth and seventh, defendants, who said that they were on the fringes of the case and did not know what allegations were being made against them at all. As a result of pressure put on the plaintiffs by the defendants, the plaintiffs asked at long last for extension of time in which to deliver a statement of claim. By this time the first seven defendants had applied under Ord. 19, r. 1 for the action to be dismissed on the ground of inordinate delay. Whitford J. granted that application.
… he said:
‘It is not right that the plaintiff should start this action without knowing what form his statement of claim will take until after the interlocutory proceedings are completed. It is very important in a case concerning copyright and breach of confidence that the exact ambit of the plaintiffs’ claim be made known and if charges of conspiracy are to be raised it is wholly inappropriate that it be brought in at a later stage if it could properly be pleaded in the first instance.’
For my part, I agree with that approach. It has to be remembered by all concerned that we do not have in this country an inquisitorial procedure for civil litigation. Our procedure is accusatorial. Those who make charges must state right at the beginning what they are and what facts they are based on. They must not use Anton Piller orders as a means of finding out what sort of charges they can make. They must deliver their statement of claim within the time specified in the rules, unless the court orders otherwise.
I would refuse the application.”
I also agree with that approach. Those who make charges must state at an early stage what they are and on what facts they are based. And while Hytrac was a case relating to Anton Piller orders, the principles apply equally to situations where an injunction has been granted. As a general principle the rules of court should not be utilised, or facilitated by court orders, to ambush parties. Nor should extensive delay be condoned. And, of course, the court should not facilitate the service of defective documents.
That decision is sufficient to resolve the appeal. The issues raised by counsel and the references to Rainsford v. Corporation of Limerick [1995] 2 I.L.R.M. 561, O’Domhnaill v. Merrick [1984] I.R. 151, Daly v. Limerick Corporation, unreported judgment of the Supreme Court, Keane C.J. of 7th March, 2000, Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and Hughes v. Hughes [1990] N.I. 295 while of great interest do not now arise for decision. It has long been the jurisprudence of this court that it will not decide a moot.

10. Conclusion

For the reasons given I would allow the appeal and refuse the application to extend time within which to serve the statement of claim.

THE SUPREME COURT
Record No: 201/01

Denham J

Hardiman J

McCracken J

Between:

Irish Family Planning Association
Plaintiff/ Respondent

AND
Youth Defence, Maurice Colgan, Niamh Nic Mahutna
and Patrick Mahony
Defendants/ Appellants

Judgment of Mr Justice McCracken delivered the 4th day of February 2004.

_____________________________________________________

On 8th March 1999 the Plaintiff obtained an interim injunction against the Defendants restraining them from trespassing on certain property of the Plaintiff. On the following day, 9th March 1999, a plenary summons and a notice of motion returnable for 11th March 1999 claiming interlocutory injunctions were issued. The general endorsement of claim on the plenary summons read as follows:-

“The plaintiff’s claim is as against the defendants and each of them their servants or agents and in particular as against the second and third named defendants as one of and as representing the first named defendant and is for:-
(a) Damages for trespass,
(b) an injunction.”
The notice of motion came on for hearing on 11th March 1999 in the absence of the Defendants, and in its order of that date the Court deemed good and sufficient the service on the second, third and fourth named Defendants and granted an interlocutory injunction in the following terms:-

“That the defendants and each of them their servants or agents any member or associate of Youth Defence or any person with notice of the making of this order be restrained pending the trial of this action from
(A) Trespassing on the plaintiff’s property and in particular on any of the clinics operated by the plaintiff at Cathal Brugha Street, Dublin 1 and/or Synge Street, Dublin 2, and/or The Square Tallaght and/or Head Office 16-17 Lower O’Connell Street, Dublin 1.
(B) Watching, besetting or carrying on any demonstration or manifestation near or adjacent to those premises.
(C) Obstructing or attempting in any way to obstruct or harass persons going into and leaving such clinics in particular members of the plaintiff’s staff and those who seek to avail of the services provided thereon by the plaintiff.
(D) Intimidating, molesting or otherwise interfering with Tony O’Brien and/or any other member of the Association and/or any other member of staff of the Association by using crude and obnoxious language or otherwise.”
No appearance was entered on behalf of any of the Defendants and on 30th July 1999 the Plaintiff issued a notice of motion seeking an order for attachment and committal against a number of persons including the second, third and fourth named Defendants for alleged breach of the injunction. On 11th August 1999 the matter came before a Vacation sitting of the High Court. Although no appearance had been entered on behalf of the Defendants, Counsel appeared, inter alia, on behalf of the second and third named Defendants and the motion was adjourned for one week.

On 18th August 1999 a memorandum of appearance was entered at the Central Office by Ms Anne Greene, solicitor on behalf of the second and third named Defendants, although it was never served on the Plaintiff or its solicitor. That memorandum purported to enter an appearance “to the notice of motion dated 30th July 1999”, and Counsel instructed by Ms Greene appeared in Court on behalf of, inter alia, the second and third named Defendants. In subsequent correspondence Ms Greene maintained that she did not act for and had no instructions from the second and third named Defendants since 18th August 1999. On that date, the attachment and committal proceedings as against the second and third named Defendants were adjourned generally with liberty to re-enter.

The second named Defendant, acting in person, appealed to the Supreme Court against the order of 18th August 1999 insofar as it affected him, and on 16th October 2000 the Supreme Court ordered that the notice of motion against the second named Defendant be dismissed and that he recover the costs of the High Court when taxed and ascertained.

On 17th November 2000 the second named Defendant, again acting in person, issued a notice of motion seeking to set aside a portion of the order for the interlocutory injunction dated 11th March 1999. On 29th January 2001 Ms Greene filed a document which purported to be a “notice of appointment of solicitor” in the Central Office in which she stated she had been appointed solicitor for the second named Defendant. This notice was not served on the Plaintiff. The second named Defendant’s motion came before the High Court on 12th February 2001 on which occasion the second named Defendant was represented by Counsel and it was ordered that the order of 11th March 1999 as against the second named Defendant be discharged.

On 14th February 2001 the Plaintiff’s solicitors wrote to Ms Greene seeking consent to late delivery of a statement of claim, which consent was refused, and on 8th May 2001 a motion seeking an order for extension of time was brought by the Defendants before the Deputy Master. The Deputy Master refused to extend the time, and the Plaintiff appealed this refusal to the High Court, which Court on 25th June 2001 set aside the order of the Deputy Master and extended the time for delivery of a statement of claim for a period of one week. The second and third named Defendants have appealed that decision to this Court.

The Plaintiff has sought to justify its failure to serve a statement of claim on the basis as set out at paragraph 16 of the affidavit of Michael Farrell that:-

“I say that it was unclear how the said statement of claim should be delivered given the confusion over the representation of the second and third named defendants or even whether the said defendants required delivery of a statement.”
In his ex tempore judgment in the High Court Smyth J severely criticised the actions of the second and third named Defendants in relation to their appearances and commented that “they were playing ducks and drakes”. He clearly took the view that the behaviour of the Defendants sufficiently excused the failure to file a statement of claim. While it is of course the privilege of a litigant to conduct some or all of his case personally, and to instruct and withdraw instructions to a solicitor as he thinks fit, nevertheless the actions of the Defendants and their solicitor, and the Defendants’ solicitor’s complete failure to comply with the rules of Court and failure to serve any of the purported notices, which were filed by her appear to me to have been calculated to confuse. Indeed, on a strict reading of the Rules, neither solicitor nor Counsel on behalf of the second and third named Defendants are properly before the Court, and certainly there appears to have been no appearance ever entered on behalf of the third named Defendant. In my view, the criticisms of the second and third named Defendants by Smyth J were fully justified.

It has been urged on the Court on behalf of the Defendants that, as the Plaintiff is seeking relief from the Court, there is an onus on the Plaintiff to place on affidavit an explanation of the failure to deliver a statement of claim, and that the Plaintiff must put before the Court sufficient material to justify the exercise of the Court’s jurisdiction. On the other hand, the Plaintiff argues that the authorities in fact support the proposition that the onus is on the party opposing the extension of time. They point to the well known case of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 499 where the principles were set out in the judgment of Hamilton CJ at page 475 where he said:-

“The principles of law relevant to the consideration of the issues raised in 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 requires them to do so;
B It must, in the first instance, be established by the party seeking a 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 judgment on whether, in its discretion, on the facts the balance of justice is in favour or against the proceeding of the case.”
Similarly in Rainsford v The Mayor Alderman and Burgesses of the City of Limerick [1995] 2 ILRM 561 Finlay P said at page 567:-

“Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.”
The present case differs from both of these cases, however, in that what is before the Court is purely a motion seeking an extension of time to serve the statement of claim. While such a motion was also before the Court in Rainsford, there was also a cross-appeal in that case seeking an order striking out the proceedings for want of prosecution. In the Primor case the situation was wholly different, in that that pleadings had in fact been closed, and there was no question of extending time. It was purely an application on behalf of the defendants to strike out the proceedings for want of prosecution. In such circumstances, the defendant is actively seeking the termination of the proceedings, and insofar as there may be an onus of proof, it is logical that that onus should be on the defendant. In the present case the Defendants are not seeking any relief from the Court, but are simply opposing an application by the Plaintiff for a discretionary remedy which it is open to the Court to grant.

I think that perhaps the phrase “onus of proof” is an unfortunate one where a discretionary remedy is being sought. This motion is not one in which a plaintiff has to prove facts which, if successfully proved, will ensure a verdict in its favour. There are no facts in dispute in this motion. This is a case in which a plaintiff puts such facts as it thinks fit before the Court, and the Court then considers, not whether the plaintiff has proved its case, but whether as a matter of discretion the order sought by the plaintiff should be granted. I prefer the reasoning of the Northern Ireland High Court in Hughes v Hughes [1990] NI 295 where Carswell J said at page 498:-

“In Smith v Secretary of State for the Environment an appeal against a planning enforcement notice was filed 27 days after the expiry of the time of 28 days prescribed by the rules for an appeal to the High Court. Some months later the applicant’s solicitors made an application to extend the time. The grounding affidavit sworn by the applicant’s solicitor gave a recital of the passage of time divided into a series of periods which elapsed between the taking of various preparatory steps by the applicant’s solicitors and counsel. No explanation at all was given in the affidavit for allowing the matter to run out of time, and the court was left unaware whether the solicitor knew that there was a time limit, or if so what it was, or whether his clients did not give him firm instructions to proceed until too late, or what the reason was for the delay. Glidewell LJ said in the course of his judgment:
‘Accordingly in my view the first and essential criterion for the exercise of discretion to extend time is not satisfied in this case. There is no explanation and therefore there is no material upon which the learned Judge could have exercised his discretion to extend the time.’
The Court of Appeal therefore held that it was not necessary to go into the other arguments about the weighing of the several factors or the balancing of prejudice.
If Glidewell LJ intended to say in this passage that where no reason or excuse is given for the delay the Court cannot exercise its discretion in his favour, then I should have some difficulty in accepting the proposition in such a bald form. It may be noted that in Ratnam v Cumarasamy no material of any kind upon which the court could weigh any factors for and against the application was placed before the court. I doubt therefore whether it would be right to rely upon Lord Guest’s remarks in that case as authority for the proposition that an application is ruled out in limine if no explanation for the delay is given, even though there is other material from which the court may draw conclusions about other factors.”
In fact in this case an explanation of sorts was given by the Plaintiff in paragraph sixteen of the Plaintiff’s solicitors affidavit, which is quoted above. It is, in effect, seeking to blame the delay on the actions of the Defendants themselves, and clearly the behaviour of the Defendants is relevant to the exercise of the Court’s discretion. Whether it is sufficient to show that the delay has been excusable must be open to question, particularly in the light of the fact that this motion was not brought until the interlocutory injunction had been discharged by order of the Court. However, in my view that is not the basic issue in this case. The approach which the Court should take was set out in a judgment of Henchy J in O’Domhnaill v Merrick [1984] IR 151 at page 157 where he said:-

“Whether the delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her delayed claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not reasonably be expected to defend.”
In all the authorities which have been cited the Court has examined the nature of the claim which the Plaintiff has sought to put forward as a part of the particular circumstances of each case. In the Primor case O’Flaherty J at page 521 referred to the fact that the plaintiff had little hope of success in making out any plausible case in negligence. In the Rainsford case Finlay P at page 570 said:-

“What the defendants there seek to have dismissed is no mere trivial or ordinary action but one which is probably vital to the future material prospects of the plaintiff. No action brought by a litigant to the courts should be considered unimportant or trivial if a bona fide cause of action exists. In relation, however, to the exercise of a discretion as to where the balance of justice may lie it seems to me that a material consideration must be the gravity of the claim concerned and the consequences of its dismissal upon the injured claimants.”
In Daly v Limerick Corporation (Supreme Court unreported 7th March 2002) Keane CJ said at page 3 of the unreported judgment:-

“It seems to me and I think all the authorities bear this out that in exercising a judgment in that regard, the court has to consider what sort of case they are dealing with and look at the case as a whole and in that context one inevitably has to ask oneself what exactly the plaintiff’s case is in these proceedings. Although it was clothed at one stage as a claim for personal injuries, we are not dealing with a case such as arose in O’Domhnaill v Merrick or Rainsford v Limerick Corporation or Toal v Duignan, in which, unarguably, the plaintiff had suffered serious personal injuries in circumstances where one might perceive possible liability on the part of the defendants. That is clearly a factor which weighs with the court before it ultimately shuts out somebody from their constitional right of access to the courts. In saying that, I am not saying, of course, that this is confined to personal injury cases, although as it happens some of the leading cases have been personal injuries cases. When one looks at this case as pleaded, it appears to be a case in which the plaintiff is essentially claiming that the defendants, Limerick Corporation, failed to exercise in his favour the statutory power, which they undoubtedly enjoy or enjoyed at all events at the relevant times for the purpose of these proceedings, to make a grant of compensation to him, having regard to the fact that he had had to leave this premises as a result of their dangerous and dilapidated state.”
He then went on to examine the strength of that claim, and also whether the claim by its nature ought to have been taken by way of judicial review.

It is quite clear, therefore, from the authorities that in applications to extend the time for service of a statement of claim, the Court ought to examine the nature of the claim being made by the plaintiff. In the present case, the plenary summons merely claims damages for trespass and an injunction. In fact, pursuant to the order of the High Court, the Plaintiff filed a statement of claim before the notice of appeal was lodged, and that statement of claim is now before the Court. The statement of claim sets out certain events which it is alleged took place on 6th March 1999 whereby certain persons who are members and/or associates of the first named Defendant are alleged to have committed acts of trespass. While it is alleged that the fourth named Defendant was one of those persons, there is no allegation that either the second named Defendant or the third named Defendant were present on this occasion or committed any of the acts complained of. Counsel for the Respondent has now conceded that the second and third named Defendants were not present on the occasion complained of, and did not trespass on the Plaintiff’s property. In the light of this, it is not surprising that the interlocutory injunction against the second named Defendant was lifted, and one must wonder whether, if the second and third named Defendants had been represented at the interlocutory hearing, the injunction would ever have been granted. It now transpires that the real case sought to be made against the second and third named Defendants is that, as officers of the first named Defendant, in some way they directed the events of 6th March 1999, and conspired with others to have the trespass take place. It is now over four years since the plenary summons was issued in these proceedings, and this case has never been made on paper by the Plaintiff. Neither the plenary summons nor the statement of claim makes any claim for damages for conspiracy, nor does the grounding affidavit of the Plaintiff’s solicitor in this motion.

The Plaintiff argues that this could be remedied by an amendment to the statement of claim under Order 28 Rule 2, and that in fact it would be entitled as of right to make such an amendment, as the Defendants have not entered any valid appearance. This may well be so, but it is to ignore Order 28 Rule 4, which allows the opposing party in such circumstances to apply to the Court to disallow the amendments. I think it is most unlikely that any Court would allow such amendments in the present case after this length of time.

Be that at it may, what is now before this Court is an application to extend time to serve a statement of claim which on the face of it does not disclose any cause of action against the Defendants. Even if the delay in serving the statement of claim is excusable in that it is due to the actions of the Defendants, quite clearly the Court could not allow an extension of time to serve a statement of claim which does not disclose a cause of action, and in my view, even if there is a right to amend the statement of claim under Order 28 Rule 2, the Court in its discretion ought not to extend the time so as to allow the Plaintiff to serve the statement of claim that is now proposed on the basis that it may be allowed to mend its hand later.

I should comment on one of the findings of Finlay P in the Rainsford case where he said at page 567:-

“Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings.”
While that maybe a comment which is valid in the context of an application to dismiss proceedings, in my view it has no application whatever to an application such as the present to extend the time for service of a statement of claim.

Accordingly, I would allow this appeal and refuse the application to extend time.

Stephens v Paul Flynn Ltd

[2005] I.E.H.C. 148

JUDGMENT of Mr. Justice Clarke delivered the 28th April, 2005.

In this case the Plaintiff appeals against an order of the Master of the High Court of 14th October, 2004. That order directed that the Plaintiff’s claim “do stand dismissed for want of prosecution on the grounds of the inordinate and inexcusable delay on the part of the plaintiff in the commencement and prosecution of the proceedings”. There was a previous order made by the court (O’Neill J.) on 19th March, 2002. That order refused certain relief sought by the Defendant (who was the moving party) and reserved costs. Nothing now turns on that order. However, certain matters remain in controversy as to what actually happened in this court on that date which I will address in the course of reviewing the history of the case.

The Case

It is common case that the Plaintiff employed the Defendant to construct a substantial house at Thornhill Manor, Hollymount in County Mayo. Disputes appear to have arisen between the parties in the course of the project. The Defendant complained that the Plaintiff failed to make payments in accordance with the contract entered into between the parties while the Plaintiff complained about delay in the construction process and the quality of certain of the works carried out. Matters appear to have come to a head on 5th December, 1995 when, it is common case, the Defendant boarded up the front door of the dwelling house then under construction. On the Defendant’s case this was done in order to protect his position given the entitlement which he asserts he had under the contract to cease work when payment was in significant arrears. A hotly disputed altercation then arose during which the Plaintiff alleges and the Defendant denies that the Plaintiff was assaulted by the principal of the Defendant company.

On the above basis the Plaintiff claims that he was entitled to, and did in fact, treat the actions of the Defendant as a repudiation of the contract which repudiation he accepted. In those circumstances he sues, in substance, for damages for wrongful repudiation which he measures as the cost of completing the building (including the cost of remedying the alleged defects) less the balance which remained unpaid as of the date of the alleged repudiation of the original contract price.

It would appear, therefore, that if this action were to go to trial the principal issues would be the following:-

(a) the factual circumstances surrounding the events leading to and on 5th December, 1995 insofar as they are material to the question of whether the Plaintiff was entitled to treat the Defendant as having repudiated the contract. Apart from the hotly contested events which occurred on the site on that day the other facts which seem, at this stage, to be likely to be relevant concern the progress of the contract, the extent to which there had been significant defects in the workmanship, and the payment record of the Plaintiff.
(b) Secondly in the event that the Plaintiff were to succeed in persuading the court that the contract had come to an end by virtue of his acceptance of a repudiation thereof by the Defendant the question of the quantum of his claim would arise which would necessitate a consideration of the work done up to the point of the termination of activity on site by the Defendant, the reasonable costs of completing the works contracted for including the remedying of any defective workmanship and, perhaps, the extent to which it would be necessary in any such calculation as is contended for by the Plaintiff to take into account the possibility that the true value of the contracted works may have been varied by virtue of alterations in the requirements of the Plaintiff or other factors not attributable to the Defendant and recoverable under the contractual terms agreed between the Plaintiff and the Defendant.
The Proceedings

The first striking matter which needs to be noted is that the proceedings herein were not commenced until 29th November, 2002. I am mindful of the fact that in the course of the hearing counsel for the Defendant made clear that it would be the Defendant’s intention, if the Plaintiff is permitted to proceed with the action, to plead the Statute of Limitations. Given that the matter of the applicability of the Statute was not argued before me I would wish to be careful not to express any view on the merits or otherwise of such a defence. However it should be noted that even on the basis of the Plaintiff’s Contentions the cause of action arose on 5th December, 1995 by virtue of the wrongful repudiation of the contract by the Defendant and thus the proceedings were, at best, issued just a few days short of the expiry of the limitation period of six years. A memorandum of appearance was entered on behalf of the Defendant dated 30th January, 2002 requesting the delivery of a Statement of Claim. No statement of claim was delivered within the time prescribed for so doing in the Rules of the Superior Courts. By letter dated 14th February, 2002 the Defendant’s solicitors wrote a reminder to the Plaintiff’s solicitors in respect of the statement of claim. A reply was received on 20th February which drew attention to the fact that junior counsel had withdrawn from the case. In the course of the hearing it became clear that the withdrawal of junior counsel was as a result of an objection on the part of the Defendant by reason of a previous professional involvement on the part of junior counsel.

At or around that time the Defendant brought an application in respect of a contention relating to the receipt of abusive phone calls which ultimately was determined by O’Neill J. on 19th March, 2002. The following day the Defendant’s solicitors again wrote to the Plaintiff’s solicitors requesting the outstanding Statement of Claim. That letter further threatened a motion to compel delivery. In a reply of 26th March, 2002 the Plaintiff’s solicitors indicated that they were currently preparing a Statement of Claim and arranging a consultation to facilitate same. An intervening phone call would appear to have occurred followed by a letter of 10th July, 2002 again seeking a Statement of Claim. There was no reply to that letter.

The Statement of Claim was finally delivered on 27th November, 2003 after a period in excess of a year and four months during which there appears to have been no contact between the parties’ respective solicitors. It is accepted that the Statement of Claim was not, in a technical sense, validly delivered by virtue of the fact that no notice of intention to proceed had been served by the Plaintiff and that a period of one year had elapsed since the last step in the action.

It is contended that the reason for the delay in the preparation of the Statement of Claim was the difficulty encountered in obtaining necessary reports from expert witnesses instructed on behalf of the Plaintiff which reports were necessary to enable the proper particularisation of the claim as required by the rules for inclusion in the statement of claim.

The Law

In Rainsford v. Limerick Corporation [1995] 2 ILRM 561 which, despite the volume of reports in which it appears, was decided by Finlay P. (as he then was) in 1979 the following general principles were enunciated:-

1. In deciding whether to dismiss proceedings for want of prosecution, the court should enquire as to whether the delay on the part of the person seeking to proceed has been first inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that the delay has been both inordinate and inexcusable lies upon the party who was seeking a dismissal and opposing a continuance of the proceedings.
2. Where a delay has not been inordinate and inexcusable there are no real grounds for dismissing the proceedings.
3. Even where the delay has been both inordinate and inexcusable, the court must further proceed to exercise a discretion, as to whether on the facts, the balance of justice is in favour of, or against the proceeding of the case. Delay on the part of a defendant seeking a dismissal of the action and, to some extent, a failure on his part to exercise his right to apply at any given time for the dismissal of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion.
4. While a party acting through a solicitor must, to an extent, be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant’s personal blameworthiness for delay is material to the exercise of the courts discretion.
In Hogan v. Jones [1994] 1 ILRM 512 Murphy J. having referred to Rainsfort further approved and applied a principle stated by Lord Diplock in Birkett v. James (1977) 2 All ER 801 at p. 808 to the following effect:-

“It follows a fortiori from what I have already said in relation to the effects of statutes of limitation on the power of the court to dismiss actions for want of prosecution that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced by the consequent lack of early notice of the claim against him, the fading recollections of his potential witnesses, their death or their untraceability. To justify dismissal of an action for want of prosecution the delay relied on must relate to the time which the Plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent on the Plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued”.
Having regard to the above it is clear that inordinate and inexcusable delay in the commencement of proceedings is not, in itself, a factor though it may colour what happens later. To that extent the order of the Master is incorrect.

Counsel for the Defendant drew attention to the recent decision of the Supreme Court in Gilroy v. Flynn (Unreported judgment of Hardiman J. delivered 3rd December, 2004). As is pointed out in that judgment there have been significant developments in the area of delay since the above decision in Rainsford and also the judgment in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. Those developments include the amendment of the relevant provisions of the Rules of the Superior Courts (Order 27) to include a provision to the effect that the court “shall” dismiss an action on a second application to dismiss “unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure”.

Hardiman J. also drew attention to the developing jurisprudence of the institutions established under the European Convention on Human Rights and the applicability of that Convention to Irish domestic law by virtue of the enactment of the European Convention on Human Rights Act 2003. This country’s obligations were made clear in cases such as McMullen v. Ireland (ECHR 442 97/98. 29th July, 2004). It is also clear from that jurisprudence that the courts have an obligation independent (and indeed in certain cases despite) of the parties, to ensure the speedy resolution of matters brought before them.

Notwithstanding the fact that the Supreme Court in that case permitted the continuance of the action, it seems clear, that the court was of the view that there may be a need to reconsider the previously established principles in the light of those recent developments.

Having considered the matter I am satisfied that the two central tests remain the same. The court should therefore:-

1. Ascertain whether the delay in question is inordinate and inexcusable; and
2. If it is so established the court must decide where the balance of justice lies.
However it seems to me that for the reasons set out by the Supreme Court in Gilroy the calibration of the weight to be attached to various factors in the assessment of the balance of justice and, indeed, the length of time which might be considered to give rise to an inordinate delay or the matters which might go to excuse such delay are issues which may need to be significantly re-assessed and adjusted in the light of the conditions now prevailing. Delay which would have been tolerated may now be regarded as inordinate. Excuses which sufficed may no longer be accepted. The balance of justice may be tilted in favour of imposing greater obligation of expedition and against requiring the same level of prejudice as heretofore.

Application to this case

Based on Hogan it is clear that there was a very heavy onus upon the Plaintiff to proceed with extra diligence in progressing these proceedings having regard to the fact that a delay of just a few days short of six years had been allowed to occur prior to the issuance of the proceedings in the first place. In the light of that fact I would have been satisfied that a delay of over 20 months in the filing of a statement of claim was inordinate even on the basis of what I might call the traditional jurisprudence. It is clear that in the light of the factors identified by the Supreme Court in Gilroy that view must be taken with even greater strength.

As to whether the delay is excusable it would appear that the only real reason put forward was the difficulty encountered in obtaining reports from the Plaintiff’s experts necessary to enable counsel to draft the appropriate particulars required for inclusion in the statement of claim. To this may be coupled the fact that it would appear that the relevant expert was ill for at least a portion of the relevant time. However it does not seem to me that having regard to:-

(a) the undoubted need to move with extra expedition in the light of the extraordinary delay in the commencement of proceedings;
(b) the lack of any realistic explanation as to why it should have taken the expert concerned as long as it apparently did to produce a report;
(c) the statement in Gilroy to the effect that, in particular, delay attributable to a professional advisor may be less excusable than might once have been the case; and
(d) in the light of the need, by virtue of the developments identified by the Supreme Court in Gilroy, to exercise a significant degree of additional scrutiny on excuses put forward,
I am satisfied that the delay is inexcusable.

Having reached that conclusion it is necessary for me to consider where the balance of justice lies. However prior to dealing with same it is necessary to deal with a number of what I might call side issues which arose in the course of argument.

Side Issues

(a) Arbitration

The Defendant makes complaint about the fact that just before these proceedings were issued the Plaintiff had commenced arbitration proceedings arising out of the same matter. However it was made clear by counsel for the Plaintiff, and I accept, that those proceedings were commenced by virtue of the impending expiry of the limitation period for the purposes of covering an eventuality where the court found that court proceedings should be stayed pending arbitration and the relevant arbitration proceedings not having been commenced, the Plaintiff might have found himself statute barred in respect of the only means of pursuing his claim. Having regard to that explanation and to the undertaking given by the Plaintiff that in the event of these proceedings continuing the arbitration proceedings will be discontinued I do not believe that the arbitration issue is of any relevance to my consideration.

(b) The litigious nature of the Plaintiff

There is exhibited in the Defendant’s grounding affidavit a significant volume of reportage of various proceedings in which the Plaintiff has, apparently, been involved in recent times. Those facts are of limited relevance to the issues which I have to decide. They are, as was pointed out by counsel for the Defendant, relevant to show that the Plaintiff had at all material times ready access to a sufficient number of professional advisors to enable him to pursue and defend a variety of forms of litigation with apparent vigour. Insofar as it might be contended from comments that are attributed to various judges who have had to consider such litigation that the Plaintiff may have been considered to be an untrustworthy witness I should indicate that I do not consider that that matter is of any relevance at this stage. The fact that judges who have had occasion to assess the credibility of the Plaintiff in the past do not appear, so far as the reportage is concerned, to have been greatly impressed by the Plaintiff’s evidence, is not a matter to which I should pay any regard in an application such as this. The fact that the Plaintiff has also being engaged, apparently, in a large amount of litigation is not a factor either. The Plaintiff is entitled to the same consideration as any other plaintiff in the mounting of these proceedings.

Therefore save to the extent that I am satisfied that it has been established that the Plaintiff had ready access to sufficient professional advisors at a roughly contemporaneous period to the delays experienced in these proceedings so as to enable him to bring and defend other proceedings with vigour I do not consider that any of the above materials are relevant.

Reference was, in particular, made to the fact that, at the instigation of the Director of Public Prosecutions, a charge of assault was brought against the principal of the defendant company arising out of the same incident on 5th December, 1995 which is a central feature of these proceedings. That charge was dismissed after a summary trial in the District Court. This again does not seem to me to be of any relevance. The only issue which the learned District judge had to consider on the occasion in question was as to whether it had been established beyond reasonable doubt that an assault occurred. Clearly the learned District judge was not so satisfied. That does not, in any way, preclude the Plaintiff from seeking to persuade any other court in any other appropriate civil proceedings that the same facts can be established to the satisfaction of the court on the balance of probabilities.

(d) The Undertaking

It is contended that the Plaintiff is in breach of an undertaking given to the court on the 19th March, 2002 to the effect that a statement of claim would be lodged within 3 weeks from that date. In view of the fact that there is no mention either in the court order or the letter written the next day by the Defendant’s solicitors, to such an undertaking, I am not satisfied that any formal undertaking was given. There may well, however, have been an indication that a statement of claim would be furnished within that timescale.

It is however, relevant that the Defendant had, in his application to the court, sought an early delivery of the statement of claim and had made clear the necessity for urgency. Against that background the further delay of 20 months in delivery the Statement of Claim has to be seen as particularly blameworthy.

The relevant factors

Having discounted much of the above as side issues I now turn to the factors which are relevant to a consideration of the balance of justice. For the reasons indicated above it does seem to me that there needs to be a re-calibration of the weight to be attached to many of those factors in favour of imposing a significantly greater obligation on parties to move with expedition. The factors, and my assessment of them, are as follows:-

(a) The degree of delay

For the reasons indicated above I am satisfied that there was a very significant delay indeed particularly having regard to the principle set out in Birkett to the effect that a particular obligation to move with expedition lies upon a party who has waited to the last moment to commence proceedings within the limitation period. I am satisfied that a delay which goes beyond the minimum which may be considered inordinate can be an additional factor to be weighed in the balance. I am satisfied that such a delay occurred here.

(b) The excuse tendered

I am also satisfied that the Plaintiff has not only failed to render that delay excusable but has failed to do so by a significant margin and this must also be a factor to be taken into account.

The Defendant contends for prejudice based upon the fact that the evidence which will require to be tendered to the court will be impaired by the lapse of a minimum of ten years between the events and any likely trial date. He has not, however, been able to point to any specific witness who is no longer available. It must also be taken into account that there are, apparently, statements of the relevant witnesses to the events of the 5th December, 1995 taken by the Gardaí on the occasion in question. That being said an issue as to the credibility of witnesses (which will almost certainly arise) will be all the more difficult of resolution where those witnesses are being asked to recollect matters that occurred so long ago. While the prejudice may not be quite as great as the Defendant contends for I am satisfied that it will nonetheless be of some significance. In relation to the evidence which will need to be tendered in respect of quantum I am not so sure that the same level of prejudice has been established. It would appear on the evidence that the Defendant was afforded, at the relevant time, an opportunity to have the premises concerned inspected by an engineer. It has not been contended that the engineer concerned is not available or that his records have become unavailable by the passage of time so as to render his evidence less clear. As the onus will lie upon the Plaintiff to establish his case it will be necessary for the Plaintiff to call all necessary witnesses concerning the quality of the works carried out by the Defendant, the extent of the works which remained to be done as of the date of the departure of the Defendant, and the costs of all additional and remedial works that were required. There will be some additional difficulty placed upon the Defendant at being asked to attempt to evaluate that evidence in respect of events that occurred a very considerable period of time ago. However on the basis of the evidence before me I could not place that prejudice at a higher degree than moderate.

(d) Inaction of the Defendant

It is clear from both Rainsfort and Hogan that “delay on the part of a Defendant seeking a dismissal of the action and, to some extent, a failure on his part to exercise a right to apply at any given time for the dismissal of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion”. In this case there was no significant delay on the part of the Defendant. It might be said that there was some inaction between July 2002 and November 2003. However it is clear that even on the basis of the traditional test inaction is of less weight than delay. It is described as applying “to some extent”. While remaining a factor it is one which, in the current context, should be given an even lower weighting.

I am therefore satisfied that the Defendant has suffered prejudice by virtue of the delay, but that same cannot be placed at too high a level. Finally in that regard I have considered the prejudice on the basis of the delay from the time of the incidents giving rise to the proceedings rather than solely in respect of the period from the commencement of the proceedings to date. While I agree that the court is confined, in determining whether a delay has been inordinate, to the period subsequent to the commencement of proceedings I am of the view that in assessing the balance of justice the court has a wider discretion and can take into account prejudice which may be cumulatively attributable to a delay both prior to and subsequent to the commencement of proceedings.

In all of the above circumstances I am satisfied that the weight to be attributed to both the delay and its excusability coupled with the moderate degree of prejudice and the minor weighting attributable to the limited inaction on the part of the Defendant is such that the balance of justice favours the dismissal of the proceedings. I will therefore affirm the order of the Master but vary same by deleting the reference to “commencement”.

Approved: Clarke J.

Crowley v Roche Products (Ireland) Ltd

, High Court, January 20, 2006

DECISION of the Master of the High Court 20th January, 2006
Failure to meet the procedural deadlines set by Rules of Court will necessitate an application to Court for leave to proceed notwithstanding the infringement. The decision is at the discretion of the court. Not unsurprisingly, the court often proceeds to examine the causes of the delay, the respective responsibilities of either party’s lawyers, even whether the delay was the fault of the party in default rather than that party’s legal team. If it is a culpable delay, there is the inevitable “blame game”. But although the Court may seem often tempted to penalise the culpable party by refusing the application, the final decision always appears to turn on the interests of justice. The Court’s patience may have been sorely tried but in the interests of justice it appears to be inexhaustible. Culpable though the applicant’s dilatory conduct of the proceedings may have been, unless the respondent can establish difficulties which imperil a fair trial – which “put justice to the hazard” – the Court will accede to the applicant’s plea for forbearance. It is a truism to say that to halt a plaintiff’s case is prima facie unjust. It is also unarguable that a defendant who has a good defence will not lose the case no matter when the trial occurs. Taken together, more injustice will occur if a culpable defendant is let “off the hook”.

The formula set out in Primor Plc. v. Stokes Kennedy Crowley & Ors 1996 2 IR 459 (“Primor”) acts as a filter. If the delay (albeit in breach of the Rules) is not “inordinate” or even if inordinate is “excusable”, the opposing party should be realistic and simply consent to the deadline extension requested. But even if it is both “inordinate” and “inexcusable” the Court may still permit the action to proceed if the balance of justice so requires.

It hardly seems necessary to point out that the Rules of Court are determinative of nothing. A Court of full original jurisdiction, such as the Irish High Court, may settle rules for the efficient disposition of its resources and to try to impose some practical disciplines on the litigants who come before it but, “when push comes to shove” and justice demands it, breach of no mere Rule of Court should be fatal to a meritorious cause of action or a bona fide defence.

In case this matter falls ultimately to be decided or considered outside of the immediate Irish courts’ structure it is perhaps useful to note here for the information of such other authorities that the Plenary Summons (served in this case on this defendant in August, 2001) contains no more than a signalling of the plaintiff’s intention to seek damages for negligence. No factual details are set out. There is nothing in the “General Indorsement of Claim” which would enable a defendant (who up ’til that point knew nothing about the plaintiff’s history or circumstances) to begin his enquiries or preparations with a view to dealing with the claim in the fullness of time. A defendant must respond to the service on him of the Summons by filing an “Appearance” in the Central Office of the High Court, copying same to the plaintiff and indicating (if such be the case) that he, the defendant, required delivery of a “Statement of Claim”.

The Rules stipulate that a Statement of Claim be delivered within 21 days of receipt of the Appearance, if the defendant requests. It is open to the defendant to move the Court for an Order dismissing the plaintiff’s claim for failure to deliver the Statement of Claim at any time after the expiry of that period. (In the instant case, the seventh named defendant did not do so, but I will return to this feature later.) A defendant’s such application and a plaintiff’s application to extend the deadline are two sides of the same coin! Precisely the same legal principles govern the outcome.

The Rules of Court provide, at Order 122, r. 7 thereof, that “The Court shall have power to enlarge or abridge the time appointed by these Rules … upon such terms (if any) as the Court may direct”. Applications for such an extension are by Motion (on notice to the other party).

This application arises precisely in such circumstances. Having issued his Plenary Summons on 31st August, 2001, the plaintiff missed the deadline set out in the Rules of Court for the delivery of his Statement of Claim. The seventh named defendant declined consent to the late filing of the Statement of Claim when requested to consent on 26th October, 2004. The plaintiff now applies to court for an extension of time for delivery of the Statement of Claim.

A draft Statement of Claim is exhibited but is not itself evidence of the facts alleged. The plaintiff’s history is deposed to on affidavit. He says that a tablet marketed by the seventh named defendant was prescribed for him in 1992, when he was aged 16, for the treatment of severe acne. He says that “whilst on the Roaccutane treatment, I noticed that I …became increasingly obsessive, compulsive, anxious and irritable”. His “condition deteriorated” and he “decided I could no longer continue at school”. He lists seven medical practitioners consulted by him in the period 1993 to 1998 but says that “notwithstanding treatment I continued to suffer deterioration in mood, anxiety levels and obsessive compulsive behaviour”.

He says that “I only become aware of the possibility of a link between my illness and the drug Roaccutane when I attended Dr. Caroline Murphy in September 1998 and … she recommended me to obtain legal advice”.

The rule above cited is silent as to the considerations which will influence the outcome of the application, but the reported case law in regard to procedural delays and other like infringements of the Rules fall to be considered as guidance. Particularly in point are the cases in which the court dealt with applications by defendants for dismissal of a plaintiff’s claim on the grounds of “want of prosecution” including, in particular, the failure to deliver a Statement of Claim.

As with all discretionary powers, a variety of approach, and unpredictability, may be inimical to a perception of justice (and may also generate more heat than light!). Perhaps to avoid such an undesirable pattern, the Supreme Court Primor formula set out the factors which ought to be considered by the judge deciding an application dealing with litigation which had been delayed in breach of the rules.

In 1979 Finlay P. offered a formulation of the methodology appropriate for adjudicating dismiss applications in Rainsford v. Corporation of Limerick 1995 ILRM 561, and he added the adjectives “inordinate” and “inexcusable” to the word “delay”. “Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings”. By this, I think he intended to warn off trigger happy defendants: no point in bringing an application, he was saying, unless the delay was gross. The test has been “enshrined” by frequent use into a set of preconditions subjected to excessively legalistic analysis. Curiously, we spend our time considering whether the delay is inexcusable, and (in the later analysis of the balance of justice) we re-examine the excuse previously found to be unacceptable!

The Primor “formula” rapidly became the focus of argument, often to the point of exasperation. What were to be the extremes of delay that would not be considered “inordinate” even though clearly in breach of the period stipulated in the rules? Was it only delay from the date of the summons that was in issue? What if the delay was contributed to by the conduct of the other party? What sort of excuse would be acceptable? Which party had the burden of proving that the delay was inexcusable? And so on and so forth. And in the final analysis, what was the yardstick to be employed in judging the “justice” of the contemplated outcome? In time case law, even obiter dicta, may come to be treated with excessive reverence and interpreted to death in a forensic process not unlike the interpretation of Statute. “Delay” as a concept is relative: it involves measuring progress (or lack thereof) against some norm. The notion of “inordinate” delay is almost a chicken and egg concept: the longer the delays which parties can get away with, the longer the delay which perforce becomes “ordinate”.

The addition of the adjective “inexcusable” to describe the delay has caused problems. It appears to this commentator that it was probably merely intended to clarify precisely what was meant by “inordinate”, and just to underline by what margin the delay would have to exceed what was normal. Inexcusable does not mean that the excuse offered is unacceptable, or discloses actionably unprofessional standards: taken literally it means that no excuse is acceptable. One can readily imagine the sort of delay for which no excuse would be acceptable.

But instead of treating “inexcusable” as a further simple measure of extraordinary delay, the Courts have usually embarked on an examination of the circumstances disclosed – what (or who) was to blame for the delay – in order to inform a decision as to whether the plaintiff could continue with the litigation or whether the Court should treat the delay as having, in effect, caused the forfeit of his right of access to the Courts.

In Anglo Irish Beef Processors v. Montgomery [2003] 3 I.R. 510 the judgment of the Supreme Court (Fennelly J) included the following passage:

“There may, of course, be cases where the unpredictable hazards of life afflict the course of litigation. Individuals may be handicapped by poverty, illness, ignorance or absence from the jurisdiction. Documents may be mislaid, lost or destroyed. Poor or inadequate legal advice or service may, through no fault of the litigant, impede the progress of a claim. No comparable misfortune has been advanced in the present case. The stark failure to proffer even the vestige of an explanation for the delay is a circumstance which should not be overlooked. It looks like mute, not to say insolent, indifference, when a litigant, positioned as the plaintiffs are in this case, evince no consciousness of the need to explain their long and egregious periods of silence. The Courts are entitled to expect something more from parties who crave its indulgence.”
Frankly, the blame game is unedifying and in uncharted territory: it involves examining, amongst other things, duties owed by one party to another, by one lawyer to another, by a lawyer to his client and vice versa and issues such as misrepresentation, estoppel etc. etc. all of which must be summarily decided. The consequences of adverse findings are usually so far reaching that the Court will prefer to reluctantly permit the case to proceed: summary justice is not an attractive option.

In recent years, the Primor formula has reached breaking point. It has not stood the test of time. It has attracted further analysis and refinement by which it has mutated. And, unexpectedly perhaps, the mutation has been not in the direction of clarity or precision or measurability of factors. Rather, it has been a growing realisation that a “formula” is not the way to process these cases: both parties are seeking justice, and justice is not amenable to scientific forecasting.

Surely the only question to be determined is not whether the excuse offered is good or bad, but whether the delay prejudices a fair trial. A decision on due process what is likely to be the effect of the delay ? – does not need any apportionment of blame. The behaviour of the parties (for whatever reason) or their lawyers to date has created a problem and the Court must decide if it can fairly proceed. It will not make that decision as a punishment, or to sanction a party whose behaviour is offensive to the Court.

There is no mention of “excuses” in this summary of the Supreme Court’s approach in Dowd v. Kerry County Council [1970] I.R. 27 at 42 (judgment of Ó Dálaigh C.J.) :-

“It is of course, desirable that the timetable as laid down in the rules should be adhered to, but the question remains whether the delay and consequent prejudice, in the special facts of the case, are 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.”
In Whearty and Others v. ACC and Others (Unreported, McCracken J., 1st October, 1997) McCracken J. said:-

“Whichever way one looks at it, the Court undoubtedly has to carry out a balancing exercise. It has to balance the right of a litigant who has suffered loss to have access to the courts, and to obtain the appropriate remedy, against the equally important right of a litigant who is being sued to present its defence fully and comprehensively.”
And in J. O’C v. D.P.P. 2000 3 IR 478, 500, Hardiman J. in The Supreme Court noted that in England, Civil cases

“It has consistently been held that, having regard to the above matters the court may dismiss a claim against a defendant by reason of the delay in bringing it ‘whether culpable or not’, because a long lapse of time will ‘necessarily’ create ‘inequity or injustice’, amount to ‘an absolute and obvious injustice’ or even ‘a parody of justice’.”
This new realism may be what Clarke J. is mindful of when he proposes (in Stephens v. Paul Flynn Limited, Unreported 28th April, 2005) a new rigour:

“The weight to be attached to various factors in the assessment of the balance of justice may need to be significantly re-assessed and adjusted in the light of the conditions now prevailing. Delay which would have been tolerated may now be regarded as inordinate. Excuses which sufficed may no longer be accepted. The balance of justice may be tilted in favour of imposing greater obligation of expedition and against requiring the same level of prejudice as heretofore.”
This reads well. But it is only on reflection that it occurs to the reader that there is some new factor at play here: else, why would what was excusable now be inexcusable or what was not prejudicial, prejudicial. The tightening up of the standards which the Court will accept signals that the Court has an “agenda”. The Court is no longer concerned only with the interests of the parties in the instant case, it has set out to reform and improve litigation standards generally. The balance of justice, more broadly viewed, involves achieving speedy dispute resolution and, unpleasant though it may be, it is necessary to impose effective sanctions in some cases if overall standards of litigation efficiency are to improve. The Court has it appears too often pulled its punch. And modern litigation often has a commercial or insurance reality. Litigation is not just about justice. It is about risk allocation, “laying off” and indemnities. It is about rolling the dice on weight of evidence, on discovery, on judicial discretion. Litigation is a business. Businessmen understand rules and parameters. They prefer certainty to gambling on the odds. There is nothing unjust in business about a clear cut off point if it’s known in advance. What’s no longer a claim against one insurance company becomes a claim against another. Time limits will be respected or hard choices will be made. There is a perceived need to root out practices which proliferated because the Court hesitated in the past to impose the ultimate sanction.

So it appears that the Court may now dismiss proceedings not only when due process prejudice is anticipated, but also where, even without such prejudice, the delay is unacceptable. In O’Connor v. Player & Sons 2004 IEHC 99 Quirke J. said:

“A defendant, faced with a claim, is entitled to be provided with full details of the wrong alleged and the full nature and extent of the injury and loss allegedly sustained, so that the validity of the claim and the extent of the damages sought can be assessed. This must be done within a reasonable time. Thereafter a defendant is entitled to the trial with reasonable expedition.”
And in Gilroy v. Flynn 2004 IESC 98 Hardiman J. said in the Supreme Court:

“The courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued. Thirdly, following such cases as McMullen v. Ireland [ECHR 422 97/98. 29 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.
These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. In particular, the assumption that even grave delay will not lead to the dismissal of an action if it is not on the part of the plaintiff personally, but of a professional adviser, may prove an unreliable one”.
The European Convention on Human Rights is now part of domestic Irish Law. The case law from the European Court illustrates Article 6(1) in practice. Interestingly, the Article 6 concern is with expedition and not specifically with prejudice. The case law in the European Court of Human Rights includes four (at least) cases regarding delays in civil litigation and the provision of Article 6(1) that “In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by (a) … tribunal …”

In Bucholz v. Federal Republic of Germany 3 E.H.R.R. 597 (1981) the period was from July, 1974 to April, 1979. The Court said:

“Although proceedings are governed by the principle of the conduct of the litigation by the parties … they do not dispense the judicial authorities from ensuring the trial of the action expeditiously.”
In this case the delays attributable to the competent courts did not exceed a reasonable time within the meaning of Article 6(1).

In Zimmerman and Steiner v. Switzerland 6 E.H.R.R. 17 (1983) the Court noted that “only delays attributable to the State may justify a finding of a failure to comply with the ‘reasonable time requirement'”. The proceedings took from April, 1977 to October, 1980. The headnote says that “The Convention places a duty on States to organise their legal systems so as to allow the courts to comply with Article 6(1)”. The Court found the lapse of time excessive and ruled that there had been a violation.

In Guincho v. Portugal 7 E.H.R.R. 223 (1984) the length of proceedings up to judgment of three years, ten months was held to be prima facie unreasonable. The plaintiff had been injured in a road accident in 1976 and commenced proceedings in December, 1978. He did not obtain judgment until October, 1982. “Two periods of almost total inactivity related to procedural acts of a purely routine character”. Portugal contended that the judicial workload had increased enormously following the restoration of democracy in April, 1979. “The Court would once again draw attention to the extreme importance of the ‘reasonable time’ requirement for the proper administration of justice”. A violation of Article 6(1) was found and damages were awarded.

In Scopelliti v. Italy 17 EHRR 493 (1993) the Court faulted Italy for the delay in proceedings which commenced in December, 1980 and terminated in March, 1989, holding that the judge had responsibility during the investigation stage (including a 16 month wait for an expert’s report), and also during the following three years, two months which involved “consent” adjournments (the real reason being the changes in the composition of the chamber). Signora Scopelliti had been awarded 212 million lire by the Italian Court for, in effect, land compulsorily “purchased” for road widening. The Court found a violation of Article 6(1) but did not award damages.

The Irish Court considers all these applications, ultimately, having regard to the “balance of justice”. Actual due process prejudice will usually be enough to persuade the Court to halt the proceedings. The Convention is not, per se, a due process factor. Clearly, it must now be placed on the scales. Other factors unrelated to due process have featured in the “Balance of Justice” analysis, such as

(a) The nature of the claims (per Finlay Geoghegan J., in Manning v. Benson & Hedges 2004 IEHC 316, also O’Flaherty J. in Primor, and in Daly v.Limerick Corporation (Supreme Court, Unreported, 7th March, 2002) Keane C.J. said “It seems to me and I think all the authorities bear this out that in exercising a judgment in that regard, the Court has to consider what sort of case they are dealing with.” (I am not unsympathetic to the plaintiff in this case, but feel he almost certainly cannot succeed: see my decision in Grant v. Roche Products (Ireland) Ltd & Ors., (Unreported, 25/06/03).
(b) The “prejudice” to a defendant arising simply from the fact that it is a defendant: Primor, O’Connor v. John Player, Southern Mineral Oil Ltd (in Liquidation) v. Cooney, [1997] 3 I.R. 549 “Prejudice suffered by particular defendants in having the action hanging indefinitely over their heads”. (per Keane J. at p. 564)
(c) That the delay has caused the defendant to lose an opportunity to seek an indemnity or contribution, Silverdale v. Italiatour Ltd., [2001] 1 ILRM 464 , and
(d) Whether the fault was that of the lawyer rather than the client. Note that Clarke J. (in Rogers v. Michelin, Unreported, 28th June, 2005) arrives at an important conclusion, namely that:
“In a case where the entire responsibility for delay rests upon a professional advisor the court can and should take into account the fact that the plaintiff may give an alternative means of enforcing his or her rights”.
In the same case, Clarke J. observed that:

“it does not seem to me that is proper for the court to include in the balance in the exercise of its discretion a test which amounts to a consideration of the deepness of the pockets of the respective parties”,
And in Keogh v. Wyeth Laboratories Inc & Anor (Unreported, 12/7/05, McCracken J.) the Supreme Court said:

“The fact that the appellants may be large multi-national pharmaceutical companies does not mean that they are not entitled to a consideration of fairness by the Court, nor that any prejudice suffered by them should be ignored”.
The Court cannot lightly adopt a position which would bring Ireland into possible conflict with the Convention. Ireland has legislated to incorporate the provisions of the Convention into domestic Irish law. Ireland itself (and its Court) must comply with the law or face the consequences. The plaintiff has urged the Court to consider that even if allowing the case to proceed was unambiguously in breach of the Convention, this is not a matter to be taken “on board” at this stage but could be left for another day, and another forum. The plaintiff, in other words, should be allowed to prosecute the case and recover damages if successful, even though Ireland might have to pay damages to the defendant at some future date. One can readily appreciate why the plaintiff might so submit, but the submission really hardly merits any serious consideration. The law is the law.

The Court is of the view that the present application cannot be ruled on without considering whether allowing the proceedings to continue would involve an infringement of Article 6 because the incorporation of the European Convention on Human Rights in 2003 involved giving litigants on both sides of the litigation, an entitlement to a hearing “within a reasonable time”. To copperfasten that right the Court can either set up multifaceted enquiries in each case as to what was reasonable (the behaviour of the parties being disregarded for this purpose) or it can set a “reasonable” time frame and stick to it. The time frame could be fixed by reference to a deadline beyond which due process would be ipso facto impossible, or it could be a (tighter?) time frame set by the Court to ensure expedition, irrespective of the likelihood of “prejudice”. Article 6 of the European Convention seems to demand the latter.

Cases should simply fall out of the system at a certain point, and parties can then dispute the causes and consequences of this in other proceedings if they feel it worthwhile to do so.

But is the adoption of a rule of thumb cut off point consistent with the oft expressed principle that the decision on an (inordinate and inexcusable) delay should be determined on the balance of justice? Doesn’t the balance have to be assessed in each case? Certainly each case has its own mix of evidential difficulties which impact on due process. But actual prejudice in that sense is no longer the only factor to be considered by the Court. Prejudice in the sense in which that word describes all the pressures, costs and uncertainties associated with being a defendant, is a factor which becomes unacceptable (per the Human Rights Convention) when the case is “unreasonably delayed”. It is this form of prejudice which can be predicted with reasonable accuracy. The Irish Courts have acknowledged it at all times since Primor. Now the Convention requires us to decide cases on the basis of such prejudice even in the absence of actual due process prejudice.

For personal injuries, the Civil Liability and Courts Act 2004 now provides that the Limitations Period is two years but, more importantly for this analysis, it also provides that the initiating summons must contain all of the materials descriptive of the claim as hitherto had been set out in a Statement of Claim. This fixed yardstick for fatal delay is also novel in that it measures the permissible time frame for Statement of Claim type specification of the claim from the date of accrual. We have been used to dealing with dismiss motions focussing on delay from the date of issue of the Summons (indeed, sometimes from date of service!). Clearly, the legislature’s concern for the defendant’s position is to achieve a cut off point – a certainty – no more than two years from an accident.

I see no reason for the Court to have time frames which do not echo the legislation. It would difficult to argue that “delay” for the purposes of Article 6 of the Convention ought to be measured by some entirely different yardstick. In short, updating Rainsford/Primor to twenty-first century litigation conditions, I propose to regard a delay of three years from the accrual of the cause of action as a prima facie breach of the defendant’s rights under the Convention, no matter what the excuse is.

The plaintiff’s cause of action in this case accrued in 1998 (or perhaps a little later). Consequently, as more than three years has elapsed I am refusing the request for an extension of time for the delivery of the Statement of Claim.

By way of postscript I have to record that the defendants have pointed out that they might have applied sooner for a dismiss for want of prosecution except that the rule now requires, as a preliminary step to such an application, that the plaintiff be written to and afforded an opportunity to deliver a (belated) Statement of Claim with the consent of the defendant. They did not wish to open such a window of opportunity for the plaintiff, and cannot be faulted for that. It follows that their failure to apply for a dismiss should not be weighed against them or as some sort of basis for estoppel or what has come to be referred to as “countervailing circumstances” in the balance of justice, to be balanced against the plaintiff’s inordinate and inexcusable delay. Perhaps the rule needs to be looked at again.

Approved: Master of the High Court

McGrath v Irish Ispat (in voluntary liquidation), formerly known as Irish Steel Ltd [2006] IESC 43

Judgment delivered on the 10th day of July by Denham J.

1. Two motions were before the court. On behalf of Michael McGrath, the plaintiff/appellant, hereinafter referred to as the plaintiff, there was a motion to admit further evidence pursuant to O.58, r.8 of the Rules of the Superior Courts, 1986. On behalf of Irish Ispat Limited (In voluntary liquidation), formerly known as Irish Steel Limited, the defendant/respondent, hereinafter referred to as the defendant, there was a motion to dismiss the appeal for want of prosecution. I shall consider this latter motion first, but in that analysis the plaintiff’s motion is also relevant. Thereafter I shall address the motion of the plaintiff for liberty to adduce further evidence.
2. The plaintiff was involved in an accident on 29th July, 1989. He brought a personal injuries action against the defendant. A civil bill was issued on 4th September, 1991 and it was transferred to the High Court on 25th April, 1993. Notice of Trial was served on 13th January, 1994. On 14th October 1996 the High Court dismissed the claim of the plaintiff, together with costs against the plaintiff in the event of an appeal being lodged. That order was perfected on 21st October, 1996.
3. Thus the initial time sequence is that the appeal of the plaintiff is against a judgment of the High Court of 14th October, 1996 (McCracken J.) dismissing the plaintiff’s claim, which arose out of an industrial accident on 29th July, 1989. The circumstances were found to be as follows. On the day of the accident the plaintiff was holding steady a metal rope. The rope had been pulled over a pulley which was about sixty feet off the ground. Sixty feet of steel rope was hanging from each side of the pulley. The learned trial judge stated:
“There was at the time this work was being carried out a pulley with two equal lengths of wire, one falling down on each side so that they were equal in weight. Therefore they should have been in equilibrium and it is accepted really that they could not move unless there was some outside influence to make them move.”

The learned trial judge referred to those lengths of rope as ‘Leg A’ and ‘Leg B’. The learned trial judge drew some inferences of a technical nature from the evidence given at the trial. On behalf of the plaintiff it was submitted that these inferences were incorrect and that the conclusion they led to is an injustice to the plaintiff.
It was submitted that the essence of the High Court judgment was:
“The plaintiff’s case is effectively that the pressure must come on its loose end, that is the end Mr. Barry was working, jerked up in the air and as he was holding he jerked up in the air with it but I can find no evidence that that could have happened. As I have said nobody has given any evidence that anybody was holding the other end of the wire and therefore that anybody could have put pressure on it and pulled it.”

Counsel submitted that on an appeal it would be submitted that the learned trial judge drew an inference that the plaintiff was holding the rope at Leg B. It was submitted on behalf of the plaintiff that that inference was incorrect, that the plaintiff was holding Leg A. However, the appeal is not now before the court. What is before the court are the two motions mentioned initially in this judgment.
4. Notice of Appeal
In December 1996 the plaintiff sought leave to extend the time within which to file an appeal to this Court. This was granted and a notice of appeal was filed on the 17th December, 1996. Books of appeal were lodged by a former solicitor for the plaintiff in December, 1996 but without the transcript and they were returned. Nothing further was lodged.
5. Motion to dismiss for want of prosecution.
5.(i) The defendant seeks an order dismissing the appeal for want of prosecution. The first motion to strike out the appeal for want of prosecution was issued on the 23rd April, 1999. This first motion was struck out on consent. Shortly before the hearing of that motion a notice of change of solicitor was served. It was agreed between the parties that the motion would be struck out and the costs would be reserved.
5. (ii) The second motion seeking to dismiss the plaintiff’s appeal for want of prosecution was issued on the 25th February, 2003 and it was listed before this Court on 7th March, 2003. An agreement was reached between the parties whereby the plaintiff undertook to lodge all documents necessary for the prosecution of his appeal not later than 31st July, 2003. Upon such undertaking the defendant consented to adjourn the matter generally with liberty to re-enter. The documentation was not lodged in accordance with the undertaking.
This motion of 2003 is now once again before the Court.
6. Law
The Court has a duty to protect the reasonable expedition of litigation and has a duty to convey to litigants and their lawyers the necessity to bring cases to hearing with due expedition. This is well settled law: see Sweeney v. Horans (Tralee) Ltd. [1987] I.L.R.M. 240 at p. 243. The legal principles were summarised by Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at p. 475 – 476:
(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 a 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 judgment 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 are 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 weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a 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 a defendant’s reputation and business.
7. Duty of the court
While there is a developing jurisprudence on the issue of delay in litigation it is grounded on well established Irish principles. Thus in O’Domhnaill v. Merrick [1984] I.R. 151 Henchy J. stated:
“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case proceed to trial.”

Together with our constitutional jurisprudence there is a developing European jurisprudence. Thus in Kobler v. Austria (Case C-224/01) the European Court of Justice pointed out that a State of the European Union is liable for damages to individuals for breaches of the Treaty, irrespective of whether the breach which gave rise to the damages was by the legislature, executive or judiciary. It expressly identified duties and responsibilities of judges in the European Union, which included a responsibility for the time taken in court proceedings.
The European Court of Human Rights has also addressed the issue of delays in Courts. In Price and Lowe v. The United Kingdom 43185/98 it held that the United Kingdom breached Article 6 of the European Convention on Human Rights, and referred to the requirement of the State to deal with cases within a reasonable time. If a State lets proceedings continue beyond the ‘reasonable time’ prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay. The Court held that the proceedings in issue were not dealt with within a ‘reasonable time’ as required by Article 6 of the European Convention on Human Rights and that it followed that there had been a breach of Article 6 by the United Kingdom. The Court ordered that State to pay each applicant €1000.
Bearing in mind the national and European jurisprudence, it is now necessary to consider the delay in this case and to determine: (i) if it was inordinate, (ii) if it was inexcusable, and, (iii) if the court should exercise a discretion in the interests of justice to permit the appeal to proceed.
8. Inordinate delay
The first issue is whether there was inordinate delay. No matter from what point one calculates the relevant time frame – the accident in 1989, the issuing of the civil bill in 1991, the High Court decision of 1996, the filing of the appeal in December 1996, there has been an inordinate delay in these proceedings. I would approach the matter from the issuing of the proceedings in 1991, and I am quite satisfied that there has been inordinate delay. In fact this was conceded, Michael McGrath, S.C., counsel for the plaintiff, quite correctly accepted that there had been inordinate delay.
9. Inexcusable
Counsel on behalf of the plaintiff submitted that the delay was, however, excusable. Counsel referred to the plaintiff’s medical difficulties and other matters. I have read all the papers and am aware of the plaintiff’s health problems. Specifically, counsel for the plaintiff advanced the excuse that since 1999 they had been investigating the relationship (if any) between the plaintiff’s alleged heart condition and the accident the subject of the appeal. However, this is not a relevant factor or an excuse as the issue in this case is one of liability, not damages, and the decision of the High Court was on liability alone. The High Court never advanced to any issue of damages, having dismissed the plaintiff’s claim on liability. Consequently any appeal to this Court could only be on the issue of liability. Therefore matters relating to injuries, such as the alleged condition of the plaintiff’s heart, are not relevant to the processing of an appeal on liability.
Counsel also referred to the number of changes of solicitor and counsel in 1996 – 1999. However, in all the circumstances this does not provide an excuse now, as the 2003 motion is under consideration.
Counsel also referred the Court to the motion on behalf of the plaintiff pursuant to O.58, r.8 of the Superior Court Rules seeking leave for the admission of additional evidence. It appears that considerable effort and time has been taken up with this approach. In his motion the plaintiff seeks leave to have admitted the evidence on affidavit of: (i) Michael Keating, (ii) Martin Hallahan, (iii) Noel Griffin, and (iv) Noel Murphy.
The defendant disputes this motion for fresh evidence on a number of grounds. (i) In relation to the additional evidence by affidavit of Noel Murphy, it was submitted that he had been in contact with the plaintiff’s solicitor prior to the trial in 1996 and gave the information then but that he was not called as a witness. (ii) Noel Griffin confirmed that he was not called as a witness, although he was available to give evidence at the trial in 1996. (iii) Michael Keating was present in court on the 10th October, 1996 and available to give evidence, he was in court for every day of the hearing but was not called to give evidence. (iv) There is no affidavit from Martin Hallahan. It appears that the issue he would cover is that he was not present at the time of the accident.
The proposed evidence of Mr. Keating and Mr. Hallahan would be adduced on the basis that both would apparently contend that they were not present at the time of the accident. On behalf of the plaintiff it was submitted that this “casts great doubt over the reliability of the evidence of Mr. Mullane as in his sworn testimony he was of the view that both these men were present”. This evidence would, therefore, be offered to the Court to be taken into account when considering the accuracy and value of the evidence tendered by Mr. Mullane.
However, I am satisfied that the issue as to whether or not Mr. Keating or Mr. Hallahan were present is not relevant in any material sense. Also, it should be noted that, when Mr. Mullane was asked whether Mr. Keating or Mr. Hallahan were present, he replied “as far as I know they were”. This evidence is not such that it could influence a decision on the trial.
In his affidavit Noel Griffin stated that he is a qualified rigger. He did not witness the accident and was not working with Irish Steel at the time. He commenced working with Irish Steel in 1993. He claims that the system in use in 1993 was open to criticism, and he believes that this was the same system that was in place in 1989 when the plaintiff allegedly had his accident. The basis of this belief appears to be that he consulted with the plaintiff on a number of occasions. He confirms that he was at all times available to give evidence but was not asked to do so. However, the real issue in this case was not whether the system was a safe system of work in terms of safety of employees, but rather whether the accident could have happened in the manner described by the plaintiff. In that regard, the trial judge was in no doubt that the plaintiff’s version of events was incredible and the claim was dismissed on that basis. Consequently, this proposed evidence is of little relevance to the issue before the court.
Insofar as Noel Murphy is concerned, he stated in his affidavit that he apparently saw the plaintiff being pulled up into the air by the rope for approximately fifteen feet. He stated that he was in contact with the James Sheridan, the plaintiff’s solicitor, prior to the trial in 1996 and gave all of this information to his solicitor but that he was never called as a witness to court. This proposed evidence does not meet the first leg of the test to be applied: see Murphy v. The Minister for Defence [1991] 2 I.R. 161 at p. 164. Also it is significant that Mr. Murphy stated:-
“I witnessed the rope pulling him up in the air approximately fifteen feet. It was a steel rope and would have burnt his hands and arms. I witnessed him letting go the rope and falling to the ground”.
There was no evidence at any stage in the proceedings that the plaintiff suffered any such burns to his hands and arms.
I am satisfied that the delay is not excusable.
First, an appeal from a judgment on liability simply requires documents relating to that appeal to be filed. This has not been done.
Secondly, the appeal, on the issue of liability, relates to a finding of fact by the High Court. This Court has limited jurisdiction in relation to findings of fact by the trial court: see Hay v. O’Grady [1992] 1 I.R. 210. Consequently, the plaintiff would be undertaking a heavy burden on any such appeal and the delay does not relate to that burden.
Thirdly, the additional evidence sought to be admitted by the plaintiff, does not appear to assist the plaintiff. The proposed evidence of two witnesses is that they were not present at the accident. This evidence is sought to be admitted for the purpose of undermining another witness’s evidence, who had said that they were present, but who qualified it with the words ‘as far as I know they were’. This is not significant in relation to the core issue of liability. The evidence proposed as to the system of work is also not on point. Noel Griffin’s evidence is of little help as he was not at the accident, only joined the defendant years later, and he addresses the issue of a system of work and not the issue upon which the decision was based.
In ease of the plaintiff I have considered the affidavits at this stage, so that if there were an important relevant factor it could influence this decision, however, I am satisfied that these affidavits would not assist the Court. They are not of such relevance that they signal a requirement for court intervention.
Fourthly, even if the evidence in the affidavits was an excuse for delaying the appeal (which I am satisfied they were not), the affidavits do not support such delay. Most of the deponents were not only in contact with the plaintiff’s solicitor prior to the action, but were in fact in the High Court during the case.
For all these reasons I am satisfied that the delay was not excusable.
10. Discretion
The court has a discretion to consider all the circumstances and to balance the factors and to decide whether it is in the interests of justice that the appeal be dismissed for want of prosecution, or whether the appeal may proceed. This discretion requires to be exercised in accordance with well settled constitutional principles and in light of the developing European jurisprudence on reasonable time as set out previously.
Part of the circumstances of this case is that it is seventeen years since the event in issue, a fact which prima facia raises issues of fairness of procedures. It is fifteen years since the issue of proceedings. The defendant is in voluntary liquidation, the plant has been shut down, and the entire work force laid off. However, even without considering the lengthy delays since the accident, or since the High Court hearing, or since the filing of a notice of appeal, the lengthy delay since this motion was first before the Court and the undertaken then given, is sufficient to ground a decision. This motion was before the Court in 2003 and determined on consent, on an undertaking that the plaintiff would lodge the papers by the end of July 2003. That has not been done.
I am satisfied that, in all the circumstances of this case, the motion of the defendant to dismiss the appeal of the plaintiff for want of prosecution should be allowed.
11. Motion seeking to file further evidence
In light of the above decision there is no need to proceed to determine the plaintiff’s motion. However, in view of the plaintiff’s approach to the case I will address the issue.
The issue of fresh evidence is governed by O.58, r.8 of the Rules of the Superior Courts which states:
“The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefore by motion on notice setting forth such special grounds). The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme court, notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.”

While the Court has a discretion to receive further evidence on questions of fact this is so only in special circumstances. These were described by Finlay C.J. in Murphy v. The Minister for Defence [1991] 2 I.R. 161, at p. 164:
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.

I am satisfied that the fresh evidence proposed in this case fails this test. In general the evidence sought to be adduced was in existence at the time of the trial and it could have been obtained with reasonable diligence. However, even if it had been produced, or would be produced, in light of all the circumstances, I am not satisfied that “it would probably have an importance influence on the result of the case.” Consequently, for these reasons, and the reasons set out previously in this judgment, if this motion were required to be determined, I would not have considered that the fresh evidence was relevant to the appeal, or that it would assist the Court, or that it would have an important influence on the result of the case.
12. Conclusion
For the reasons given, I am satisfied that the motion of the defendant, seeking an order dismissing the appeal of the plaintiff for want of prosecuting, should be allowed.
As to the motion of the plaintiff seeking to admit further evidence, if it were required to be determined, it does not appear to meet the required test and I am not satisfied that it would assist the court in all the circumstances of the case, or that it would have an important influence on the result of the case, and consequently I would refuse such motion.
I have learnt with concern of the plaintiff’s general health and his intricate entanglement with these proceedings. The High Court, while accepting the plaintiff’s bona fides, made findings of fact against his claim. Findings of fact by the High Court are the subject of a special jurisprudence, as described in Hay v. Grady [1992] 1 I.R. 210. In my view the affidavits proposed by the plaintiff as additional evidence would not have assisted his case, despite the evident hard work carried out on his behalf by his legal advisors. The law is that findings of fact are made in the court of trial, which in this case was the High Court. Such law would govern this case.
In conclusion, I would order that the appeal of the plaintiff be dismissed for want of prosecution and I would dismiss the motion of the plaintiff seeking to admit further evidence.

Kearney v McQuillan and the North Eastern Health Board

, High Court, Dunne J., May 31, 2006

judgment of Ms. Justice Dunne delivered on the 31st May 2006

The first named defendant herein seeks an order directing the trial of a preliminary issue namely whether the plaintiff is estopped from proceeding further with her claim herein by reason of the inordinate and inexcusable delay on the part of the plaintiff in instituting proceedings herein against the first named defendant as a consequence whereof it is alleged that the first named defendant has been severely prejudiced in the presentation of its defence to the claim herein.
By the same notice of motion, the first named defendant raised an issue as to whether the plaintiff’s claim herein against the first named defendant was statute barred. However that application was not pursued before me and it was accepted for the purpose of the application before me, that the claim was not statute barred.
It should be noted that the first named defendant is sued as the nominee of the Medical Missionaries of Mary which was the owner/occupier of Our Lady of Lourdes Hospital, Drogheda, Co. Louth, at the relevant time.
Judgment in default of defence has been obtained against the second named defendant.
It is common case that the plaintiff entered Our Lady of Lourdes Hospital (the Hospital) on 16th October, 1969, and on 19th October, 1969, Dr. Gerard Connolly performed an emergency caesarean section upon the plaintiff and thereafter carried out a further procedure on her known as a symphysiotomy. These proceedings are concerned with the circumstances surrounding the latter procedure, whether it was done with the consent or knowledge of the plaintiff and whether it was necessary or appropriate to carry out such a procedure on the plaintiff. It is alleged that as result of that procedure, she suffered personal injuries which, it is alleged still have to this date an adverse affect on the plaintiff.
It would be useful to note at this point the history of the proceedings to date. I gratefully adopt the history of the proceedings to date set out in the legal submissions of the first named defendant herein.
“On 4th February, 2004, the plaintiff’s solicitors wrote to the Hospital indicating that legal action would be commenced on behalf of the plaintiff. (The plaintiff had first written to the Hospital seeking copies of her medical records in May, 2002.) A plenary summons duly issued on 11th May, 2004 and the statement of claim was delivered on 14th May, 2004, thirty four and a half years after the carrying out of the procedure which is the subject matter of the complaint. Particulars were raised on behalf of the first defendant on 19th May, 2004, to which replies were received on 12th July, 2004. A full defence was delivered on 13th December, 2004. The motion presently before the court which the first defendant has limited to seeking to have the plaintiff’s claim dismissed by reason of the lapse of time since the events complained of and the probable date of trial, was filed on 23rd June, 2005.”
A number of affidavits have been exchanged by the parties to this motion. I will refer to those insofar as may be necessary for the purpose of this application. An affidavit was sworn by Aisling Gannon on 22nd June, 2005, on behalf of the first named defendant. She deposed to the fact that Dr. Gerard Connolly had worked as an obstetrician/gynaecologist in the Hospital in 1969. He retired from practice in 1982 and died in the year 2000. She pointed out that there had been prejudice due to inordinate and inexcusable delay by virtue of the death of Dr. Connolly and due to the fact that the hospital records are incomplete and there are difficulties in establishing thirty five years later who made the relevant entries in the extant records and the whereabouts of those who made the relevant entries.
In reply the plaintiff swore an affidavit on 12th January, 2006. She described therein the nature of a symphysiotomy, namely the cutting through cartilage that binds the two pubic bones, thus permanently enlarging the pelvis. She had attended Dr. Gerard Connolly. After her child was delivered by caesarean section a symphysiotomy was performed upon her. She averred that that was an unnecessary procedure performed on her without her consent. She added that she had never been told by Dr. Connolly that he had performed such a procedure on her. She outlined the consequences of that procedure having been performed – while it is not necessary to set these out in detail, it would be no exaggeration to say that she has been left with a legacy of problems including pain, which could not but have had a significant adverse affect on many aspects of her life. She emphasised that neither Dr. Connolly nor any other GP or doctor that she had attended informed her that such a procedure had been carried out upon her.
The plaintiff takes issue with the complaint made by Ms. Gannon that records are “incomplete since the entries in the extant records were made over thirty five years ago.” She pointed out that her solicitors made enquiries from the Hospital solicitors as to the records that they had and as to the records that are said to be missing. No reply was received. She disagreed with the suggestion that records made thirty five years ago are necessarily less reliable than records made in more recent times.
An affidavit was also sworn on behalf of the first named defendant by
Roisin Maguire, the General Manager of the Hospital, on 14th February, 2006. She dealt with a number of matters she alleged were to the prejudice of the Hospital, namely, the death of Dr. Connolly on 17th March, 2000, the death of the senior house officer at the relevant time, Dr. Maureen McDermott, on 25th August, 1992, the death of the consultant anaesthetist who attended the Plaintiff, who died on 19th April, 1999, and the death of the consultant radiologist who reviewed the plaintiff’s x-rays around the relevant time. On that basis she averred that the hospital is deprived of the oral evidence of these medical specialists who would be essential to the hospital’s defence. She pointed out that part of the plaintiff’s case was that the symphysiotomy was an unnecessary procedure carried out without her consent, that she was never informed that it had been carried out and that she was not informed of the likelihood that such a procedure would be carried out. Roisin Maguire emphasised the importance of the evidence that could have been given by Dr. Connolly as to the discussions he would or could have had with the plaintiff which evidence is not now available. No other oral or documentary evidence can overcome this prejudice.
In addition to the medical staff who are deceased, she also pointed out that a number of the nursing staff who were involved in the plaintiff’s care are also deceased. A number are out of the jurisdiction and the whereabouts of others are unknown despite efforts to trace them.
She pointed out that certain medical records are missing and those which are available are wholly insufficient to overcome the prejudice suffered by the absence of the medical staff referred to above. The birth registers, theatre registers and blood books have been destroyed and discharge records appear to be incomplete. The plaintiff’s chart lacks detail and given the passage of time and the death of many of the personnel involved in the care of the plaintiff there is likely to be difficulty in interpreting and explaining all of the entries on the plaintiff’s chart.
She added that as the first named defendant denies that the injuries allegedly suffered by the plaintiff were caused by the symphysiotomy it would be necessary for its medical experts to examine all of the plaintiff’s medical records from October 1969 to date.
Having referred to these matters, she averred that the prejudice which will be suffered by the first named defendant in the presentation of its defence by reason of those matters has arisen because of the inordinate delay on the part of the plaintiff in instituting her claim for which no adequate explanation has been offered. She pointed out that the plaintiff has not specified when she became aware of the information to the effect that a symphysiotomy had been carried out. On that basis she argued that as the first named defendant has been severely prejudiced the balance of justice requires that the claim be dismissed.
A supplemental affidavit was sworn herein by Roisin Maguire dated 9th March, 2006. In that affidavit Roisin Maguire sets out detailed information in relation to the efforts made to trace members of the medical and nursing staff who were named on the delivery chart in relation to the plaintiff and others believed to have been involved in the plaintiff’s care. As a result of inquiries by the Hospital in relation to the 19 people who have been identified as having been involved in the care of the plaintiff at the relevant time, 7 are deceased, the whereabouts of 7 remains unknown, 2 are in Africa and 3 have been located in this country. On that basis she repeated the view that the first named defendant is seriously prejudiced in seeking to defend the action by virtue of the lapse of time. Finally she added that because of the death of Dr. Gerard Connolly the first named defendant is not in a position to explain the clinical determinations made by him in respect of his treatment of the plaintiff.
An affidavit was also sworn by Brigid Flanagan on behalf of the plaintiff. She was the plaintiff’s General Practitioner in 1969. After the birth of her child on 19th October, 1969, she was referred back to her GP by Dr. Connolly. In the referral back, no disclosure was made to her GP that the plaintiff had undergone a symphysiotomy following the birth. Dr. Flanagan did not become aware of that fact until informed that it had taken place following the receipt of medical records from Our Lady of Lourdes Hospital on 27th May, 2002. Dr. Flanagan deposed to the fact that she believed that the plaintiff was not aware that she had undergone a symphysiotomy until she received the medical notes.
Finally a further affidavit was sworn by the plaintiff herein on 13th March, 2006. In that affidavit she explained that she requested her hospital notes as a result of hearing a radio programme in which the procedure known as symphysiotomy was discussed. It was only on receipt of the hospital notes and on reading same that she had an indication for the first time that a symphysiotomy had been carried out on her. She confirmed that on 15th November, 2004, she attended Mr. Roger Clements in his consulting rooms for the purpose of examination and medical and legal report. That report was exhibited in the said affidavit.
A reference to the report of Mr. Clements may be of assistance. In his summary on page 17 of his report he concluded:
“At the caesarean section, the consultant Dr. Connolly performed a gratuitous, improper operation without Mrs. Kearney’s consent. Neither Dr. Connolly nor anyone else ever explained to Mrs. Kearney that this second operation had been done. As a result of it, Mrs. Kearney has suffered 35 years of pain, discomfort, loss of sexual amenity and loss of opportunity for further children.
The operation was wholly improper and unjustifiable. That it was done without consent or explanation, in clear contravention of the hospital’s own ethical guidelines, adds to Mrs. Kearney’s grief and anger.”
At p. 5 of his report Mr. Clements noted as follows:
“The only form of consent signed by Mrs. Kearney was for anaesthesia. She was told that she was to have a caesarean section and signed the foot of the labour chart. The foot of the page is again obscured by careless photocopying but in as far as I can read it, it has ‘permission for anaesthetic
I hereby consent and give permission for a general anaesthetic…’”
In fact it transpired that Mr. Clements comments about careless photocopying are more than apposite in that it transpired that the entire of the relevant consent was not in fact photocopied. The full consent in fact read as follows:
“Permission for anaesthetic
I hereby consent and give permission for a general anaesthetic and any operation the surgeon considers advisable.”
That consent was signed by the plaintiff on 16th October, 1969. To that extent therefore, the report of Mr. Clements proceeds on a misapprehension. Having said that, Mr. Clements in the course of his report goes on to discuss the medical literature in relation to symphysiotomy and its use. He concludes at p. 15 of his report as follows:
“I can find no justification in the literature of the time for the operation performed by Dr. Connolly on Mrs. Kearney. There is no support in the literature for symphysiotomy as an elective procedure. There is outright condemnation of symphysiotomy in a patient who has already had a caesarean section. In the circumstances of Mrs. Kearney’s delivery it would not therefore be possible to justify the operation of symphysiotomy, in any event.”
In his submissions Mr. Meenan SC on behalf of the Hospital made the point that the statement of the plaintiff to Mr. Clements is central to his report. However he pointed out that there is not and cannot ever be a statement from the doctor. Mr. Clements in his report had referred to a statement from the plaintiff to the effect that she was told that she was going to have a caesarean section and that she was not told that any other procedure was contemplated. Mr. Meenan said that he is simply not in a position to deal with that allegation. He cannot refute it with any evidence from any party who was present. He pointed out that if there is no support in the literature for a symphysiotomy as contended by Mr. Clements then it would be necessary for Dr. Connolly to give evidence as to the course he took. Clearly in the absence of Dr. Connolly the Hospital is at a significant disadvantage. He referred to the principles applicable to allegations of medical negligence as summarised in the case of Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91. He noted that one of the criticisms made by Mr. Clements was based on his view that to perform a symphysiotomy was a departure from the general and approved routine practice and having referred to that, Mr. Meenan highlighted paras. 1 and 2 of the principles applicable to medical negligence actions summarised in the Dunne case referred to above at p. 109, namely:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.”
In the light of those principles, Mr. Meenan argued that the evidence of the doctor who performed the operation is crucial. If as contended for by Mr. Clements there is no support in the literature for symphysiotomy to be performed in the circumstances herein, Dr. Connolly is the only one in a position to give evidence as to the course he took. Mr. Meenan referred to the paragraph I have quoted above
from the summary of Mr. Clements report, and stated that in the face of such criticism that Dr. Connolly performed a gratuitous improper operation without explaining to Mrs. Kearney that the operation had been done that it would be entirely wrong to allow the action to proceed in the absence of the relevant witness.
Mr. Meenan then referred to a number of authorities dealing with the issue of prejudice by reason of delay. He referred firstly to the judgment of the Supreme Court in the case of Toal v. Duignan and Ors. (No. 1) [1991] I.L.R.M. 135 at p. 138 of the judgment where it was stated by Finlay C.J.:
“I am prepared to deal with this appeal on an assumption that the plaintiff has not got a personal responsibility for any delay in the prosecution of these proceedings since they were instituted in October, 1984.”
Mr. Meenan conceded that in this case the plaintiff does not have a personal responsibility for the delay and he also made the point that it was clear that the first named defendant had not contributed to the delay. However notwithstanding the fact that neither the plaintiff nor the first named defendant could be said to have contributed to the delay that of itself does not overcome the prejudice occasioned to the first named defendant by the delay .
Finlay C.J. in Toal v. Duignan and Ors. (No. 1) went on to say having set out about the background to that particular case as follows:
“It is wholly impossible, the death having occurred of both the gynaecologist and paediatrician concerned either for the hospital or for the widow sued as a personal representative of the paediatrician to defend themselves in any way against the allegations which are being made against them.
Even though, therefore, the plaintiff may be blameless in regard to the date at which these proceedings have been instituted and with regard to the period of twenty five to twenty six years since the events out which they arose, as far as these defendants are concerned there would be an absolute and obvious injustice in permitting the case to continue against them. One cannot but be moved with sympathy for the plaintiff who obviously feels deeply the medical condition which he is advised he presently suffers from, but that sympathy could not be permitted to justify what would be unjust proceedings against these defendants. In the High Court it was held by Keane J. that the case was governed by the decision of this court in O’Domhnaill v. Merrick [1984] I.R. 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this court in that case, that they may be summarised in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action.”
Mr. Meenan then referred to Toal and Duignan and Ors. (No. 2) [1991] I.L.R.M. 140 at p. 145 in relation to a motion by the sixth and seventh named defendants seeking orders dismissing the plaintiffs proceedings on the grounds that such a length of time had elapsed between the events on which the proceedings were based at the present time that it would be unjust for the defendants to be called upon to defend themselves and in which it was stated by Finlay C.J. as follows:
“Lynch J. reached a different conclusion and I am satisfied that he was right. The vital difference between the position of the Coombe
Hospital who was sued as being responsible in particular for the actions of the gynaecologist and the paediatrician who attended the mother of the plaintiff at the time of his birth, as well as for other junior staff, either medical of nursing, who might have been involved at that time,
is that in the case of the Coombe Hospital both the gynaecologist and
the paediatrician involved were dead, the records which they might
have maintained were wholly incomplete and wholly inadequate. In
the case of the present defendant, however, the doctor involved is alive; has apparently personal records as well as some personal recollection;
he has not made any affidavit indicating any particular difficulty or disadvantage in giving evidence although the affidavit filed on behalf
of the hospital itself indicates the general disadvantage of a long lapse
of time. There is no real evidence of a concrete kind with regard to the nature of the records which are available nor to any attempt by this hospital to ascertain the whereabouts or availability of other persons who were involved at the treatment of the plaintiff at the relevant time. A rather comprehensive note of his treatment written by Dr. Rees to the eight and fifth named defendants after his treatment in hospital is an immediate source capable of being used by him (Dr. Rees) to revive his memory. In all these circumstances I am satisfied that these defendants have not made out a case for probable injustice which would entitle them to be dismissed out of the action.”
It is clear that one of the important features of that case was that the plaintiff in that case as the plaintiff in the present case did not have a personal responsibility for the delay. It is also clear that the defendant had not contributed to the delay in that case either. However the crucial issue was the extent to which there was prejudice as a result of the delay and in the Toal case so far as a number of the defendants were concerned the court was satisfied that there was no prejudice given that a number of the relevant doctors were alive and there were comprehensive notes available to assist in dealing with the issues in that case. Comment was made on the fact that there had been no concrete evidence before the court to indicate what steps had been taken to ascertain the whereabouts or availability of others involved in the treatment of the plaintiff in that case at the relevant time. That case clearly contrasts with the facts of the present case in which full details have been put before the court as to the efforts made to trace witnesses who may be of assistance details have been given as to the lack of availability of relevant witnesses and difficulties in relation to the extent of the notes available.
Mr. Meenan also referred to the decision in the case of Manning v. Benson and Hedges Limited [2004] 3 IR 556 a decision of Finlay Geoghegan J. dealing with the issue of lapse of time. In the course of the judgment in that case Finlay Geoghegan J. considered a number of authorities commencing at p. 564 to 569 of her judgment and having done, so enumerated a list of factors to be considered when the court is asked to dismiss an action upon the inherent jurisdiction to do so either on the basis that a fair trial cannot be conducted by the court or that it would be in breach of a defendant’s right to fair procedures to require him to defend the claim. The factors identified are as follows:
“1. Has the defendant contributed to the lapse of time;
2. The nature of the claims;
3. The probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues;
4. The nature of the principal evidence; in particular whether there will be oral evidence;
5. The availability of relevant witnesses;
6. The length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and probable trial date.”
She added:
“Further, on the second question [whether it would be in breach of the defendant’s right to fair procedures to require him to defend the claim] it will be relevant to consider any actual prejudice to the defendant in attempting to defend the claim by reason of the lapse of time.”
Having considered the principles set out by Finlay Geoghegan J. in the case referred to above, Mr. Meenan pointed out that this is a case in which there would have to be oral testimony, there are factual issues, for example, the issue of consent, the issue as to whether or not the plaintiff was told that a symphysiotomy had been performed on her, thirdly the issue as to whether or not that procedure was an appropriate procedure and that there has been a lapse of time of thirty six and a half years to date.
Finally Mr. Meenan referred to a number of authorities in which the dismissal of a case has occurred by reason of lapse of time where the death of an
important witness has been considered to be a specific prejudice such as to warrant the dismissal of the case.
Turlough O’Donnell SC appeared on behalf the plaintiff herein. He agreed with the principles of law referred to by Mr. Meenan on behalf of the first named defendant herein. He also accepted that much of the factual matters set out were common case. He argued that insofar as the court is considering issues such as this that each case must be determined on its own facts.
Mr. O’Donnell’s principal argument in relation to this particular matter was that if the plaintiff was in a position to produce evidence from someone such as Mr. Clements then there is no inhibition on the part of the first named defendant in producing like expert evidence. He argued that experts could engage on the issues in the case and that in that way a just result could be obtained. Mr. Clements in his report considered the state of medical knowledge at the time of the procedure carried out on the plaintiff, in coming to conclusions as to whether it was appropriate to have such a procedure. He argued that the first named defendant could do likewise as to the state of knowledge at the relevant time.
Mr. O’Donnell pointed out that one of the issues in the case relates not just to the performance of a symphysiotomy on a general basis, but that there is a specific issue as to whether or not that it is appropriate to perform a symphysiotomy after a caesarean section and he quoted from the report of Mr. Clements to the effect that:
“There is outright condemnation of this operation in a patient who has already had caesarean section.”
Accordingly Mr. O’Donnell argued that that is a specific allegation that may be dealt with by way of expert evidence. He stated that it was open to the first named defendant to deny that strong assertion, an assertion that goes to the heart of the case, namely an allegation that no medical practitioner of that time would perform a symphysiotomy on a person who had already had a caesarean section. In this context Mr. O’Donnell referred at length to the report furnished by Mr. Clements.
Mr. O’Donnell then turned to the issue of consent. He submitted that having regard to the onus of proof in this case, the onus of proving every material fact rests on the plaintiff. If she fails to do so she fails in the case as a whole and he argued that that onus on the plaintiff was a sufficient protection for the defence. I cannot agree with that argument. Mr. O’Donnell correctly identifies where the burden of proof
lies but it is a burden easily discharged in the absence of any available evidence by way of rebuttal. Thus, I find it difficult to accept the contention that as the burden of proof lies on the plaintiff that is a sufficient protection for the defence.
One of the issues that had been raised on behalf of the first named defendant was the adequacy or otherwise of the medical records available to the first named defendant. Mr. O’Donnell made the point that in considering that issue one had to examine the context in which these proceedings are taking place. Even though there has been a long lapse of time unlike many cases, this is a case in which there had been a system of record keeping available and thus he argued one must bear that in mind in considering the question of prejudice. There may be some merit in the argument but the problem highlighted by the defence is that while there is reference in the medical records to a symphysiotomy having been carried out, there is no explanation given as to the circumstances in which the procedure was carried out.
He argued that this case raises systemic and conceptual points namely whether a symphysiotomy should be carried out after a caesarean section in the light of medical knowledge. On that basis, he could not see any reason why a defendant could not embark on an investigation of this point in the same way as the plaintiff had it done. He emphasised that a significant part of the plaintiff’s case related to the fact that the carrying out of the operation was concealed from her and that her GP was not informed either.
He referred to the decision in the case of Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where it was stated by Hamilton C.J. at p. 494 as follows:
“I am satisfied, from a consideration of all the authorities, that the prejudice caused to a defendant by inordinate and inexcusable delay on the part of the plaintiff is a fundamental ingredient which may and should be taken into account on an application to dismiss proceedings for want of prosecution and that if the prejudice is such that a fair trial between the parties cannot now be held, then the proceedings should be dismissed and the defendant should not be further prejudiced by the delay that would inevitably be caused by a long and difficult hearing of the action and the possibility of an appeal from the decision of the High Court therein.”
He referred also to the decision of the High Court in Kelly v. O’Leary [2001] 2 I.R. 526 which was referred to by Finlay Geoghegan J. in her judgment in the case of Manning v. Benson and Hedges Limited referred to above. In commenting on the Kelly v. O’Leary case, Finlay Geoghegan J. at p. 568 stated as follows:
“The decision of Kelly J. in Kelly v. O’Leary [2001] 2 I.R. 526 is also of assistance in attempting to analyse the principles according to which the court should exercise such inherent jurisdiction. That was an application to dismiss for want of prosecution. There was a very long delay between the accrual of the cause of action and commencement of the proceedings which Kelly J. found to be inordinate and inexcusable. He referred to the possibility of there being two different tests in a claim to dismiss for want of prosecution and a claim to dismiss in the interests of justice by reason of significant lapse of time but left that question open. He determined the application by applying the principles in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 in relation to dismiss for want of prosecution referred to above. However in considering the balance of justice question as proposed by the Supreme Court, he ultimately reached his conclusion by answering the same two fundamental questions which appear to be raised by the judgements of the Supreme Court in Toal v. Duignan (No 1) [1991] I.L.R.M. 135, Toal v. Duignan (No 2) [1991] I.L.R.M. 140 and O’Domhnaill v. Merrick [1984] I.R. 151. These are:
1. Is there, by reason of the lapse of time (or delay) a real and serious risk of an unfair trial;
2. Is there by reason of the lapse of time (or delay) a clear and patent unfairness in asking the defendant to defend the action.
Having referred to those authorities Mr. O’Donnell made the point that at the heart of the issue in this case is the fact that the defendant concealed the cause of action. Although it was contended for by Mr Meenan on behalf of the first named defendant that they did not cause or contribute to the delay in bringing proceedings the whole point of the delay was the failure on the part of the first named defendant to tell the plaintiff that she had had a symphysiotomy. That was what caused the delay in this case.
Insofar as the defendant has a difficulty in locating witnesses he argued that the first named defendant had failed to pursue certain avenues of enquiry open to it. They had failed to engage someone like Mr. Clements, or a similar expert for an opinion in relation to the procedure that had been carried out. He argued that a defendant seeking to stop a trial should first see if it can defend that trial. Could an expert give a view? Not doing so is, according to Mr. O’Donnell trying to have it both ways. He argued that those witnesses who are available could be asked for their evidence on specific aspects of the case. For example, one could ask one of the nurses who are available was a symphysiotomy ever performed in the Hospital and they could also be asked whether a symphysiotomy had ever been performed at the hospital after a caesarean section.
In conclusion Mr. O’Donnell argued that whilst there were difficulties from the point of view of the first named defendant in relation to certain aspects of the case there were avenues open to the first named defendant to deal with those difficulties.
Mr. Meenan in reply distinguished the cases of Primor and Kelly v. O’Leary. The Primor decision was concerned with an application to dismiss for want of prosecution. In the Manning v. Benson and Hedges Limited case, Finlay Geoghegan J. was dealing with two separate applications, namely an action to dismiss for want of prosecution and thereafter a consideration of the exercise of the courts inherent jurisdiction to dismiss for reason of delay even in the absence of any culpable delay by the plaintiff. Mr. Meenan also dealt with the argument that the first named defendant could deal with the points raised by engaging its own experts and he agreed that an expert could indeed give views as to what occurred but he argued that that was not sufficient. He referred to the second principle summarised in the case of Dunne (an infant) v. National Maternity Hospital set out above and argued that in the absence of a statement of evidence from Dr. Connolly as to what occurred it was not possible to say that what was done by him was inappropriate. In other words that is precisely the type of prejudice that the first named defendant will suffer in the absence of a critical witness. He made the point that this is an action based upon oral testimony and is not a matter of exchanging medical reports between the parties. He, Mr. Meenan, cannot put to Mr. Clements the reasons why the operation was required. That being so the purpose of a trial during which evidence is tested is completely negated. He also dealt with the point made by Mr. O’Donnell that the nurses who are available may be able to assist but he disagreed with that point of view. The information that they might be in a position to give does not answer the crucial question “was the operation justifiable in the circumstances.”
Conclusions:
This is a case in which a full defence has been delivered on behalf of the first named defendant. Although a full defence has been delivered denying that a symphysiotomy took place it is clear from the medical records and from the affidavit of Roisin Maguire sworn herein on 14th February, 2006, that such a procedure was carried out on the plaintiff. I have referred in passing to the effect that this procedure has had on the plaintiff as described in the pleadings herein. Her present condition is more fully described in the report of Mr. Clements at p. 8 and 9. I have already referred in general terms to the manner in which the plaintiff contends that she was affected as a result of the procedure carried out upon her. I am clearly not in a position to comment on whether all of the complaints contended for by the plaintiff can be attributed to the symphysiotomy but I can say that I have the utmost sympathy for the plight in which she now finds herself.
At the heart of this case is the issue of the courts inherent jurisdiction to dismiss an action because of the lapse of time. I am satisfied that this issue falls to be determined by the principles enumerated in the cases of Toal v. Duignan (No 1 and No. 2) which are reported in [1991] I.L.R.M. at pps. 135 and 140 respectively as recently followed in the decision of the High Court in Manning v. Benson and Hedges Limited referred to above.
In this case there is undoubtedly a significant lapse of time such that it clearly raises a question as to the fairness of any trial. In the Manning v. Benson and Hedges Limited case it was held that in assessing the affect of the lapse of time on the fairness of a trial, the court should consider whether the defendant contributed to the delay, the nature of the claim, whether the issues were factual or legal, whether oral evidence would be required, the availability of witnesses and the length of time between the acts or omissions and the probable trial date. In considering the issues outlined above there is an obvious difficulty in ascertaining whether the defendant contributed to the delay. The plaintiff in this case stated on affidavit that she first considered the possibility that a symphysiotomy had been carried out on her after hearing a radio discussion in respect of such operations. Thereafter she sought her medical records and having received those discovered that such a procedure had been carried out. It is a part of her case that she was never told that such a procedure had been carried out. It is clearly the case that her GP was not informed that such a procedure had been carried out. However whether or not the plaintiff was so informed is an issue in the case and could only be determined by oral evidence and it is equally clear that such oral evidence is not available due to the death of Dr. Connolly. To that extent it seems to me to be impossible to conclude that the defendant contributed to the delay.
So far as the nature of the claim is concerned and whether the issues are factual or legal, it is clearly the case that there are a number of issues between the parties which are factual and could only be determined after the hearing of oral testimony. In relation to the question of whether or not the plaintiff consented to the procedure, one could only determine that issue having heard not just the plaintiff’s evidence but also the evidence of those who were present at the time the plaintiff gave the written consent.
I have no doubt but that in an action such as this it would of necessity
follow that there would have to be expert evidence available on both sides to debate the appropriateness of the procedure carried out on the plaintiff. Such oral testimony could not and would not be carried out in a vacuum. It seems to me that such evidence could only be considered in the light of the actual testimony from the person who carried out the procedure explaining the circumstances and the necessity for such a procedure arising out of that individual patient’s care. The discussion of the merits or otherwise of such procedures in academic terms would not in my view help to decide the principal issue in this case as to whether or not there had been negligence on the part of the first named defendant through its consultant in carrying out the procedure. In other words to refer to the principle in relation to medical negligence actions identified by Finlay C.J. in the case of Dunne and referred to above:
“If the allegations of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.”
This is a case in which all of the central participants on the side of the first named defendant are no longer available. They are dead. There are a number of nurses available who had some involvement in the care of the plaintiff but, in my view I cannot see how in practical terms they could assist the first named defendant to deal with the principal issues which must be considered in this case. I have no doubt whatsoever that the first named defendant is severely prejudiced by the delay in this case. There is a real and serious risk of an unfair trial. I have come to the conclusion that the length of delay is so great in the circumstances of this case that it would be unjust to require the first named defendant to defend these proceedings. Accordingly I feel I have no option but to grant the relief sought herein.

Padraic Keane v Western Health Board and Mrs Ann Meehan

, High Court, Quirke, J., October 2, 2006

JUDGMENT of the Hon. Mr. Justice Quirke delivered the 2nd day of October 2006.
The plaintiff’s substantive claim in these proceedings is brought pursuant to the provisions of Part IV of the Civil Liability Act, 1961 of his own behalf and on behalf of all of the statutory dependents of the late Agnes Keane, deceased, who was the plaintiff’s wife and who died on the 9th July 2002.
The late Mrs. Keane was admitted to the Regional Hospital in Galway on 29th June, 1983, at the request of Dr. F.B. Meehan who was a consultant obstetrician at the Hospital. The plaintiff claims that his wife’s death was caused by reason of his negligence and breach of duty on the part of the Regional Hospital and on the part of Dr. Meehan.
The first defendant (hereafter “the Board”) is sued as the Body responsible for the Regional Hospital. The second defendant is the widow and the personal representative of the late Dr. Meehan who died on 25th February, 1991.

ISSUES
The following issues are before this court for determination:
1. A preliminary issue pursuant to an Order of the High Court (Johnson J.) dated 5th December, 2005, requiring this court to determine questions in the following terms:
(i) Whether these proceedings are maintainable against the second named defendant as the personal representative of the late Dr. Fergus Meehan having regard to s. 9(2) of the Civil Liability Act, 1961 as pleaded in paragraph 1 of the Defence of the second named defendant delivered on the 11th day of October, 2005 and
(ii) Whether the court, pursuant to its inherent jurisdiction, should dismiss these proceedings against the second-named defendant, having regard to the matters identified in paragraph 2 of the Defence of the second named defendant delivered on the 11th day of October, 2005 and
2. An application on foot of a notice of motion dated 6th February, 2006 on behalf of the Board for an order dismissing the plaintiff’s claim against the Board on the grounds of alleged inordinate and inexcusable delay on the part of the plaintiff in commencing and prosecuting his claim against the Board and
3. Consequent upon the delivery by the Board of a notice claiming contribution and indemnity from the second named defendant in respect of the plaintiff’s claim against the Board this court has, on the application of the parties, agreed to determine the issue whether the Board’s claim for indemnity and contribution against the second named defendant is maintainable having regard to the provisions of s. 9(2)(b) of the Civil Liability Act, 1961.

RELEVANT FACTS
1. The late Mrs. Agnes Keane, who was then pregnant and expecting twins, was admitted to the Galway Regional Hospital on 29th June, 1983, on the instructions of the hospital’s Consultant Obstetrician and Gynaecologist Dr. Fergus B. Meehan. She was believed to be suffering from pre-eclampsia. Pre-eclampsia is a serious condition associated with pregnancy which, if untreated, can lead to the development of convulsions and fits.
She was detained in hospital on admission. On 9th July, she developed fits and a convulsion and lapsed into a coma. Her twins were successfully delivered by Caesarean section. They were healthy and well on birth and are now in their early 20’s.
Tragically Mrs. Keane remained in a coma for 19 years. She died on 9th July, 2002 without having regained consciousness.
2. On 25th February, 1991, whilst the late Mrs. Agnes Keane was still comatose and in a vegetative condition Dr. Fergus Meehan died.
A Grant of Probate to the estate of the late Dr. Meehan was extracted by his widow Ann Meehan on the 9th day of April, 1992.
3. During the 19 year period between 1983 and the date of Mrs Keane’s death in 2002 the plaintiff retained the hope and belief that his wife would recover from her condition and regain consciousness. He was in constant attendance upon her during that time. Concurrently he discharged his parental responsibility towards the twin children of the marriage conscientiously and reared them in a careful and devoted manner. He is a storeman by occupation.
4. In late 1995 or early 1996 the plaintiff’s solicitors corresponded with the Board and with the second named defendant seeking to investigate the circumstances surrounding the late Mrs. Keane’s admission to and treatment in the Regional Hospital in 1983 and the circumstances surrounding her subsequent catastrophic deterioration and eventual death.
A detailed and careful investigation by the plaintiff’s solicitors into those matters continued for a number of years. The evidence adduced in these proceedings has established that the investigation was conducted as expeditiously as was reasonably possible in the circumstances.
5. On 14th July, 2000, a Plenary Summons was issued on behalf of the late Mrs. Keane seeking damages for personal injuries sustained by the late Mrs. Keane arising out of alleged negligence on the part of the Board and of Dr. Meehan.
The proceedings were served upon the Board and upon the second named defendant as personal representative of the late Dr. Keane.
On the 10th December, 2001, a Statement of Claim was delivered on behalf of the late Mrs. Keane.
On the 8th July, 2002, the late Mrs. Keane died.
No Plenary Summons was issued on behalf of the plaintiff by way of initiation of his claim pursuant to provisions of part IV of the Act of 1961.
However, by Order of Master of the High Court dated the 7th July, 2005, made on the application of the plaintiff, it was ordered that “…pursuant to Order 17 rule 4 of the Rules of the Superior Courts that Patrick Keane as the Personal Representative of the late Agnes Keane be made a party to the proceedings herein.”
In subsequent correspondence, the solicitors on behalf of the Board and the solicitors on behalf of the second named defendant agreed and expressly or implicitly acknowledged that the personal injuries proceedings which had been commenced on behalf of the late Mrs. Keane have been validly converted into a claim by the plaintiff pursuant to the provisions of part IV of the Civil Liability Act, 1961 on behalf of the plaintiff and on behalf of the statutory dependents of the late Agnes Keane for damages for her wrongful death.
Although this issue was raised and not abandoned by Mr McGrath S.C on behalf of the second named defendant it was not pressed. For the avoidance of doubt I should say that I am satisfied, on the evidence, that the defendants are estopped by their conduct from contending that the plaintiff’s claim pursuant to the provisions of part IV of the Act of 1961 was not commenced on the 7th July, 2005. The conversion by agreement is deemed to have been completed on the 7th July, 2005 by the Order of the Master of the High Court of that date.
On the 5th October 2005, an amended Statement of Claim was delivered on behalf of the plaintiff.
MOTIONS TO DISMISS
At the conclusion of the evidence adduced in these proceedings 22nd June, 2006, I declined to dismiss the plaintiff’s claim against the Board on the ground of inordinate and inexcusable delay by the plaintiff in prosecuting his claim and consequent prejudice to the Board in its capacity to defend the claim. I gave my reasons for that ruling at that time.
I decline also to dismiss the plaintiff’s claim against the second named defendant on the grounds of inordinate and inexcusable delay on the part of the plaintiff commencing in prosecuting his claim against the second named defendant.
My reasons are the same of those given in relation to the application made on behalf of the Board. I find that whilst the delay in prosecuting the plaintiffs claim was prima facie inordinate it was and remains clearly explicable having regard to the extraordinary circumstances in which the plaintiff found himself immediately after this tragic occurrence. It was perfectly understandable that he should spend the greater part of 19 years during which his wife remained comatose attending his wife’s bedside and caring for their twin children.
As I have indicated I do not believe that the absence through decease of Dr. Meehan is alone sufficient to sustain the contention that the claim should be dismissed. Although it will make it more difficult to deal with the claim his death, by itself is not a bar to the claim. There is significant documentation still available in relation to this occurrence including medical, nursing and possibly other notes and records. No evidence has been adduced in support of the contention that there will be significant prejudice resulting from the absence of other relevant witnesses who may have participated in the care and treatment of the late Mrs. Keane at the material time.
In the circumstances, as I have indicated, the court declines to dismiss the plaintiff’s claim against the second named defendant on the grounds of delay.

SECTIONS 8 AND 9 OF THE CIVIL LIABILITY ACT 1961
Section 8 of the Civil Liability Act, 1961, provides as follows:
“8.-(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.
(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.”
Section 9 of the Act of the Civil Liability Act, 1961, provides as follows:
“9.-(1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either-
(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.”

DECISION
The constitutional validity of s. 9(2) of the Civil Liability Act, 1961, has been expressly upheld by the Supreme Court in Moynihan v. Greensmyth [1977] I.R. 55.
In that case the plaintiff claimed damages from the estate of the defendant for personal injuries sustained on 6th August, 1966 when she was aged 16 years. She was a passenger in a motor vehicle then being driven by the defendant which collided with a bridge.
She claimed that her injuries resulted from the negligent driving of the defendant who was killed in the accident. Proceedings were instituted on her behalf on 5th August, 1969 (within the period of three years permitted by the provisions of s. 2(b) of s. 11 of the Statute of Limitations, 1957 which enables a plaintiff to commence proceedings for damages for personal injuries at any time before the expiration of three years after the plaintiff reaches the age of 21 years (see O’Brien v. Keogh [1972] I.R. 144).
However the proceedings were commenced outside the period of two years permitted, (by the provisions of s. 9(2) of the Act of 1961), for the commencement of the proceedings against the estate of a deceased person.
Upholding the defendant’s plea that the plaintiffs claim was barred by s. 9 of the Act of 1961 the Supreme Court, (O’Higgins C.J.), having outlined the historical background in relation to actions alleging torts against the estate of deceased persons and the statutory provisions applicable thereto referred to the earlier decisions of the courts in Foley v. Irish land Commission [1952] I.R. 118 and Attorney General v. Southern Industrial Trust Limited [1960] 94 I.L.T.R. 161 and declared that:
“In these cases it was held, in effect, that the property rights guaranteed by Article 40 s. 3 sub-s. 2 of the Constitution are not rights over particular items of property but are the property rights guaranteed by Article 43 namely, “the natural right to the private ownership of external goods and the general right to transfer bequeath and inherit property”.
Without conceding that the plaintiff’s right to sue was or is a property right which is guaranteed by Article 40 s. 3 sub-s. 2 of the Constitution the court indicated that circumstances could exist in which:
“…the State may have to balance its protection of the right as against other obligations arising from regard for the common good.”
O’Higgins. C.J. continued:
“As the law stood, prior to the passing of s. 9 of the Civil Liability Act 1961 an
infant could wait up to three years after attaining majority before suing the personal representative of a deceased motorist in respect of his negligent driving. This could mean that the administration of an estate might be greatly delayed or, alternatively, that after many years those entitled on a death might be subjected to a claim for damages of which there had been no prior notice. Obviously in such circumstances, severe hardship might be caused and injustice done to innocent people………….
When it was decided to provide generally for the survival of causes of action, a general limitation period of two years was provided in the impugned provisions of s. 9 sub-s. 2(b) of the Civil Liability Act 1961. It was conceded in argument that this could not be regarded as an unjust attack on those not suffering from incapacity and in such circumstances, the period was reasonable and fair.
In relation to those (that is the plaintiff) who at the time of the accrual of the cause of action was under 21 years of age, is a two year period from the death of the wrongdoer so unreasonably short as to constitute an unjust attack on their right?
Bearing in mind the State’s duty to others – in particular those who represent the estate of the deceased and beneficiaries – some reasonable limitations on actions against the estate was obviously required. If the period of infancy were to form part of the period of limitation, as was formally the case, then the danger of stale claims being brought would be very real and could constitute a serious threat to the rights of beneficiaries of the estate of a deceased. The alternative was to apply a period of limitation which would have general application. It had to be either one or the other and it does not appear that any compromise was possible.”
Declaring that the subsection “cannot be regarded as constituting an unjust attack nor can its enactment be a failure to vindicate the alleged property rights of inference” the court upheld the validity of the section.
In this case it is claimed on behalf of the plaintiff that her death resulted from the negligent action, or inaction of the Board and of Dr. Meehan in June of 1983.
On 25th February 1991, Dr. Fergus Meehan died. On the date of his death
no proceedings had been commenced on behalf of the late Mrs Keane against the estate of the late Dr. Meehan, within the period of two years after this death.
It has been, (correctly and properly), acknowledged by the parties that, pursuant to the provisions of sub s. (2) of s 8 of the Act of 1961, the plaintiff’s “cause of action” against the late Dr Meehan, (pursuant to the provisions of part IV of the Act of 1961), is deemed to have been subsisting against Dr. Meehan before his death.
However, no proceedings had been “commenced within the relevant period” by the plaintiff (or the late Mrs Keane), against Dr Meehan and were “…pending at the date of his death” for the purpose of s9 of the Act of 1961.
Since the constitutional validity of the limitation period imposed by s. 9 of the Act of 1961, has been established and confirmed, it follows that the claim for personal injuries commenced on behalf of the late Mrs. Keane by the issue of a Plenary Summons on 14th July, 2000, was and is not maintainable and was and remains barred by the provisions of s. 9 of the Act of 1961.
It follows further that when those proceedings were converted by agreement into a claim on behalf of the plaintiff pursuant to the provisions of part 1V of the Act of 1961 they were not maintainable and were and remain barred by the provisions of s. 9 of the Act of 1961.
The plaintiff’s claim against the second named defendant must, therefore, be dismissed.
INDEMNITY AND CONTRIBUTION
By notice dated the 9th February, 2006, the first named defendant claimed contribution and indemnity from the second named defendant in respect of any damages awarded to the plaintiff in these proceedings on the ground that any personal injuries, loss or damage suffered by the plaintiff were solely caused or alternatively contributed to by the negligence, breach of duty and breach of statutory duty of the second defendant.
Mr. McGrath SC on behalf of the second named defendant contends that this claim is also barred by the provisions of s. 9 of the Act of 1961 since the claim comprises “proceedings” which have not been commenced “within the period of two years after” the death of Dr. Meehan.
Mr. Keane SC on behalf of the first named defendant in a submission provided to the court contends that his clients claim against the estate of Dr. Meehan “…was made within the relevant period or within two years of when it could have been made… the claim for contribution arises, not from the death, but from the claim being made.”
It would appear prima facie that the provisions of s. 31 of the Act of 1961 may be relevant to this issue. S 31 provides as follows:
“An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the injured persons damages are paid, whichever is the greater.”
Since this section was not referred to in argument in the course of these proceedings I think it is appropriate that I should provide Counsel with the opportunity to assist the court before making a final determination on this issue.

McGarry v Minister for Defence

[2016] IESC 5

Judgment of Mr. Justice John MacMenamin dated the 17th day of February, 2016
1. On the 16th July, 2010, the High Court, (Hedigan J.) dismissed the appellant’s negligence claim against the respondent Minister for want of prosecution. The judge concluded that the Minister, as a defendant in such an action, had a constitutional right to have the decision heard within a reasonable time, and that the balance of justice required the dismissal of the case. The appellant, who pleads he suffered nervous shock, and post-traumatic stress disorder, arising from events some 35 years ago, now appeals the dismissal order to this Court.

2. The trial judge made no order as to costs. The Minister’s cross-appeal on the question of costs is briefly addressed at the conclusion of this judgment.
Circumstances
3. The appellant is now aged 62 years. At a most relevant time to the case, the year 1981, he had been a member of the Defence Forces for 6 years. His case is that while on emergency “stand-to” duty in Cathal Brugha Barracks in Dublin, he was detailed to assist with the retrieval of bodies from the tragic Stardust Fire Disaster, which occurred on the 14th February, 1981. The appellant claims he sustained post-traumatic stress disorder, having witnessed the disfigured remains of the young victims as he assisted in placing them in a make-shift morgue. An army tent had been erected at the City Morgue for this purpose. The appellant states that, in the immediate aftermath to this event, he had difficulty sleeping, suffered flashbacks, and presented to an Army Medical Corps doctor for help. It is said that he was given valium tablets, excused duty for 1 week, and referred to an Army Psychiatrist, who diagnosed “reactive depression”, as set out in a Defence Forces’ medical report prepared at that time. It is pleaded that the appellant was not offered any counselling then, and that, subsequently, whilst medically fit for overseas service with the United Nations, he was not called up for such service. The psychiatrist who examined Mr. McGarry at St. Bricin’s Hospital was a Dr. Nolan. He died in 1989.

4. The appellant joined the Army in 1976. On the basis of the Statement of Claim and particulars he had been a good and loyal soldier. However, some illustration of the difficulties now arising in this case can be gleaned from the reports of Dr. Brian McCaffrey, Consultant Psychiatrist, retained by the appellant. These psychiatric reports are exhibited by the appellant in affidavits sworn on his side for the motion to dismiss for want of prosecution. They are particularly relevant in setting out the narrative.

5. As part of his medical history, he told Dr. McCaffrey that he had been at one point in his army career assigned for border duty in County Cavan. The exhibited psychiatric reports describe the appellant as having become involved in a fracas while on that assignment. The incident, as described, was quite a serious one. It involved a fight in Cootehill, County Cavan. This, apparently, involved a number of army recruits, and also, perhaps, civilians. According to Dr. McCaffrey, the appellant thought that this had occurred in March, 1981. But, from Army records made available to Dr. McCaffrey, the incident appears to have occurred on the 4th September, 1979. This was not something that would normally be forgotten, especially as the appellant described the event as being one where, by the time the military police had arrived, he was extremely agitated standing in the middle of the road, screaming and shouting, and where there were bodies unconscious on the side and in the middle of the road. The appellant told Dr. McCaffrey about having been found guilty at a preliminary disciplinary hearing by his superior officers, but that thereafter, having gone for formal court-martial, the charges were apparently subsequently dropped.

6. Clearly, Dr. McCaffrey inferred from the appellant’s own narrative that the described incident occurred, not in 1979, but in 1981, two years later, and, therefore, after the Stardust fire; yet the Army records showed otherwise.

7. The appellant told Dr. McCaffrey he applied for a discharge from the Army in 1980, and that, at that stage, he felt a sense of persecution. Dr. McCaffrey describes the appellant as accepting that sometimes his memory was very fallible. One might observe here that the precipitating factor of the plaintiff’s symptoms might be a highly relevant consideration in any trial. Contemporaneous medical reports would, therefore, have a significant bearing on the case.

8. Having left the Defence Forces in July, 1981, the appellant described his mother setting him up in the taxi business, and buying him a taxi plate. He continued thus for a few years. Subsequently, he sold the taxi plate and, unfortunately, spent the money on drink and drugs. He was, by then, married, with two children, but the marriage broke up.

9. It is now necessary to deal in more detail with the period between 1981 and 1995, insofar as the events can be ascertained. During that period, the appellant say that his life was in turmoil. He described an attempt to commit suicide in 1991. He was placed in St. Patrick’s Ward in Beaumont Hospital, where he came under the care of Dr. Carroll. He was subsequently sent for counselling. He again attempted suicide in 1995, and was sent for counselling with Fr. Godfrey O’Donnell. The appellant says that it was in 1995, by then 14 years after the Stardust tragedy, that he was diagnosed with post-traumatic stress disorder, which, he was told, related back to the disaster.

10. The appellant states that he received a 3 year prison sentence, which he served between 1996 and 1999. He received a number of other criminal convictions. He describes one incident where he hijacked a taxi with a knife, and assaulted a member of An Garda Siochana.
Instructions
11. The appellant states that while he was in prison in 1996, he instructed his solicitor and counsel to initiate proceedings against the defendants. Subsequently, when he was released from prison in 1999, he had no job. He resumed working as a hackney driver. He engaged in this work for a number of years.
Other Incidents
12. A report from Professor Lionel Fry, Consultant Dermatologist, addresses the appellant’s complaints that he had deafness caused by exposure to gunfire, and also mentions that he was involved in accidents in January, 1997 and September, 2000. No other information is available on these events.
The Years 2000 to 2010
13. There is an almost complete absence of information on what was going on in the appellant’s life between the years 2000 and 2010. What is clear is that his medical and psychiatric condition had stabilised by 2003. Thus, whatever about the earlier period, it is difficult to see how his condition can account for the delays that occurred thereafter. From 2007 onwards, he is described as living in Liverpool with his new partner. By then his situation had further stabilised. Little other information is available as to what occurred in the appellant’s life between 2007 and 2010. Nor is there information available as to what occurred in the appellant’s life between the year 2010 (when the High Court motion herein was heard), onwards up to today.
The Appellant’s Situation
14. The appellant is now unemployed, in receipt of a disability allowance, and quite reliant on his partner to ensure that he takes his medication. He suffers from other medical conditions, which are not relevant to these proceedings. It must be said that there are a number of factors surrounding the appellant’s life which would evoke sympathy, including his psychological condition, and the problems which he encountered with drugs and alcohol. The question is, however, whether this action, against the respondents, can now lawfully proceed? This can only be viewed from the standpoint of the elapses of time, and any explanations, which have undoubtedly occurred.
The Principles Applicable
15. The primary tests in applications of this type are whether the delay was inordinate, inexcusable, and where the balance of justice lies. There is, too, a further line of authority, discussed later, which posits an overarching test as to whether a claim is “beyond the reach of fair litigation”. This latter question is by no means irrelevant in the present instance.
Chronology and the Pre and Post-Commencement Delay Periods

Plenary Summons
16. The Stardust tragedy remains in everyone’s memory, as having occurred on the 14th February, 1981. The plaintiff states he was diagnosed with post-traumatic stress disorder in May, 1995. But, the proceedings were not initiated until seventeen months later, when the plenary summons was issued only on the 9th October, 1996. By then, over 15 years and 7 months had elapsed after the trigger-events said to give rise to the cause of action. The plenary summons was then not served until the 3rd October, 1997, just within the period of 12 months permitted by the then Rules of the Superior Courts for such service. By then, 16 years and 7 months had elapsed since the alleged negligent acts.
Statement of Claim
17. The Statement of Claim was not delivered until the 28th October, 1998. This was two years after the plenary summons was issued. By then, 17 years had elapsed after the events complained of. One year and four months later, a notice of intention to proceed was served by the appellant’s solicitors. This was on the 16th February, 1999.
Particulars
18. A notice of particulars was delivered by the respondents on the 7th April, 1999.
Defence
19. A full defence was filed to this on the 23rd April, 1999. It is noteworthy that the defence filed includes pleas that the claim is statute barred, and that the plaintiff has been guilty of inordinate and inexcusable delay in commencing and prosecuting the proceedings, such that the claim should be dismissed for want of prosecution. However, the respondents did not bring any motion to dismiss the claim at the time, or for long afterwards.
Reply to Particulars
20. The notice for particulars, which was served on the 7th April, 1999, was replied to, over six years later, on the 19th December, 2005.
An Error
21. I mention here that the first grounding affidavit for this motion to dismiss was sworn by an executive officer in the Litigation Branch of the defendants, on the 27th November, 2009. That affidavit incorrectly states that the notice for particulars remained unanswered at the date of swearing. This was incorrect, as a reply to particulars, albeit succinct, was actually been furnished 4 years before.
Subsequent Steps
22. A further notice of intention to proceed was served dated the 13th December, 2005. This was 24 years and 10 months after the events complained of. Thereafter, it appears that the appellant did not take any further concrete steps to bring the matter on for trial, until a notice of a trial was served, after a further three and a half years, in May, 2009.
The Motion to Dismiss
23. The motion to dismiss this claim for want of prosecution was brought on the 21st December, 2009. By this time, a hearing date of the 18th February, 2010 had been allocated to the case. Assuming, for a moment, that the action had come on for hearing on the date assigned to it, almost 29 years would have elapsed between the alleged precipitating events, and any trial.

24. As to post-commencement delay, therefore, the situation is very problematic. No explanation is furnished for any of the delays which then occurred.
Inordinate and Inexcusable
25. By any standard, it must be said that all the delay which had occurred pre-commencement was inordinate. The appellant has not been in a position to set out in any detail, any reasonable excuse for the delays which occurred post commencement of these proceedings either. This too was inordinate. This post-commencement delay is, of course, particularly acute in light of the fact that the proceedings themselves had been issued so very long after the events said to have precipitated the appellant’s complaint. It is, undoubtedly, true that the appellant had many difficulties in his life. However, it is difficult on the evidence available to associate those difficulties with the serious delays which occurred in this case. The delays here are, therefore, both inordinate and inexcusable.
Balance of Justice/Prejudice
26. As to the context of balance of justice and prejudice, the State draws attention to the fact that there was no notification of the plaintiff’s claim before a letter dated the 30th October, 1996. This was some 15 years and 8½ months after the events complained of. There was, apparently, little documentation compiled in the Unit to which the appellant was attached. Enquiries which were carried out promptly in the months following the service of the plenary summons. These did not identify any records relating to Defence Forces personnel who had assisted in the aftermath of the Stardust fire. The search took place in a number of locations, each of which were identified in the grounding affidavits.

27. The unavailability of Dr. Nolan as a witness has been referred to earlier. Counsel for the respondent correctly lays particular weight on this issue, as indicative of real prejudice. In fact, there is no admissible contemporaneous medical evidence available, in circumstances where such evidence would be of prime importance as to the cause of the appellant’s psychological complaints.
Search for Records
28. Additionally, one of the State deponents in the motion indicates that, notwithstanding the absence of records, enquiries did, in fact, establish the identity of a soldier from the battalion who drove a truck on the night in question. He, in turn, identified a Corporal Dermot Byrne, as a non-commissioned officer who supervised the tentage party, that is the tent which was erected as a temporary morgue. The Defence Force detachment was, apparently, made up of personnel from various units around the Cathal Brugha barracks. It has been possible to identify the barrack orderly sergeant who ordered the call-out. However, no one can identify the names of other personnel involved.
Other Potential Witnesses
29. Corporal Dermot Byrne, who supervised the tentage party, is now deceased. This again must be categorised as prejudice. Searches carried out on the personnel files of the barrack orderly sergeant, have not disclosed any other information or references to the night of the Stardust tragedy. A search of the personnel file of one member of the Army Medical Corps, who was an ambulance driver dispatched on the night in question, has not indicated any information or references either.

30. The respondents assert, therefore, that notwithstanding enquiries, they have not identified anyone with an actual recollection of the nature or extent of the appellant’s involvement in the events of the aftermath of the Stardust fire. They state they are not now in a position to state what did, or did not, in fact, happen at the times alleged by the appellant. Counsel for the respondent submits that his clients are not in a position to clarify, still less dispute, the extent of the appellant’s involvement in the aftermath of the tragedy.
The Consequence
31. It is said that, consequently, the defence of any trial would be deprived of the opportunity to adduce evidence, based on actual recollection of witnesses, and further denied the right to cross-examine the appellant, or his witnesses, in any meaningful way in the absence of reliable information. Counsel submits the consequence of this is that the proceedings would be inherently unfair and, effectively, reliant upon assertion, without even the possibility of counter-assertion, clarification, or factual checking of any issue regarding the event itself. As a consequence, it is said, to allow the trial to proceed at this stage would be inherently unfair and a denial of the rights of the defendant.
The High Court Judgment
32. An agreed note of Hedigan J.’s ex tempore judgment is available. He held, correctly, that there had been considerable pre and post-proceeding delay. He noted the appellant contended that this delay arose from a failure to identify the medical and psychological problems from which he was suffering. The judge pointed out that, while it might be possible to attribute some of the pre-commencement delay to difficulties in diagnosis, the same could not be said of the post-commencement delay, where, as he pointed out, the authorities indicate that every effort must be made to bring proceedings on as fast as possible. As to the latter, the judge commented, in his judgment delivered on the 16th July, 2010, that “13 years can, by no stretch of the imagination, be considered to bring the proceedings on as quickly as possible.” The judge adverted to the fact that the plaintiff’s delay was said to derive from a range of illnesses from which he suffered, as set out in the medical and psychiatric reports. However, the judge noted that, as and from July, 2003, reports indicated the appellant was considered be “a new man” again. The judge held that there was a public interest in proceedings coming on for trial within a reasonable time; that the defendants had a constitutional right to have the case heard within such time, and that such right required vindication, in that courts must intervene in some circumstances, to prevent a long delayed trial from proceeding, as a matter of justice. He held that the balance of justice required the dismissal of the case. The judge made no order as to costs in the circumstances. This last issue is the subject matter of a cross-appeal.
Discussion
33. On behalf of the appellant, counsel laid considerable emphasis on the authorities which relate to post-traumatic stress disorder. Undoubtedly, there is material upon which a trial court might conclude that the appellant suffered significant symptoms. However, inter alia, issues would surely arise in relation to the question of causation, and sequence of events, bearing in mind that the appellant, on his own account, has a fallible recollection of events that one might think should stick in the mind. The other subsequent incidents in the appellant’s life cannot be set to one side either.

34. When there has been inordinate and inexcusable delay, the question arises as to where the balance of justice lies? If all these threshold tests are crossed, then the law provides that the proceedings should be dismissed (see the judgment of this Court in Primor Plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459).

35. There can be no doubt but that the pre and post-commencement delay has been inordinate. There is no question that the delay is inexcusable. The considerable time elapses have already been outlined. So, too, has the lack of explanation for these. What is particularly noteworthy is that the appellant has not been in a position to indicate any excuse, or reason, for the very significant delays which occurred after 2003, when his position stabilised, according to available medical records. Even assuming that the appellant might have been able to overcome the defence plea made under the statute of limitations, the fact remains that by the time this case would have come on for hearing in 2010, some 29 years would have elapsed since the events said to have triggered the plaintiff’s symptoms. Given that elapse of time, prior to the issuing of proceedings, the law provides that there was a particular duty on the appellant to expedite the progress of the proceedings thereafter (see the observations of Geoghegan J. in McBrearty v North Western Health Board [2010] IESC 27, and Henchy J. in Sheehan v. Amond [1982] I.R. 235).

36. This is, moreover, a case where, on undisputed evidence, the State has made genuine efforts to try and obtain testimony from eye witnesses of the events, or documentary evidence, but to no avail. One cannot envisage any circumstance by which these various deficiencies could be overcome by limiting the parameters of a trial. This could not be characterised as being a “documents case”, by any stretch of the imagination. Unfortunately, a number of potential key eye-witnesses are either deceased or untraceable. There is no documentation, other than that identified. This is, clearly, irretrievable prejudice. The balance of justice must rule against a trial proceeding at this stage.
The Legal Authorities
37. It is clear from the case law which has been cited to the Court, that two overlapping strands can be found in the jurisprudence. First, there are the authorities derived from the judgments of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151. This lays emphasis on the inherent duty of the courts, arising from the Constitution itself, to put an end to what are termed “stale claims” in order to ensure the effective administration of justice, and basic fairness of procedures.

38. The second strand of authority derives from the judgment of this Court in Primor, to which reference has already been made.
Application
39. To my mind, the situation in this case satisfies the criteria in both strands of authority, no matter how analysed or characterised. Applying the Primor principles, there is inordinate and inexcusable delay, and demonstrable and irretrievable prejudice to the respondents in the balance of justice test. In itself, this would be sufficient to warrant the dismissal of the claim.

40. Moreover, it seems to me that the circumstances here are such where now, or at any relevant time, even 2010, simply too long a period has elapsed between the claimed precipitating factor, and the date of the trial.
Delay in the Appeal
41. One cannot ignore, either, the fact that the High Court hearing of this motion occurred in 2010. A motion to strike out this appeal was brought by the respondent before this Court in May, 2012. On foot of an “unless” order, the Books of Appeal were lodged. This appeal came before this Court some 6 years, after the High Court motion. No application was made to this Court for priority, rather the appeal came for hearing, having been listed in this Court’s backlog list, designed to eliminate old appeals remaining in the list. This case is now one where any hypothetical future hearing would be “beyond the reach of fair litigation” (per Henchy J. in Sheehan v. Amond). Indeed, the same considerations might have applied, even at the time that the plenary summons was issued. The situation is irretrievable.

42. It is true, however, that no motion to dismiss the claim was brought until 2010. One might criticise the State for having raised the delay pleas which it did in 1999, and then doing nothing further to dismiss the claim for eleven years. But, ultimately, the question is, on whom did the primary duty lie of bringing on the claim? That primary duty lay on the appellant, particularly having regard to the inordinate delay in issuing proceedings in the first place. The delays which occurred thereafter are insufficiently explained, or not explained at all. Doubtless, had there been a full explanation available, these would have been put on affidavit by the appellant’s solicitor. But, it cannot be said that the State’s inaction counter-balances the appellant’s position.

43. There is no doubt that this claim is one of considerable importance to the appellant. Against that, however, one must have regard to the interests of justice, and the considerable time elapses which have occurred. Ultimately, the Court can ask itself one simple question, would it be fair that this case should go on, now, some 35 years after what were said to be the precipitating events, where there is inordinate and inexcusable delay, where the balance of justice tilts in favour of the respondent, where, despite efforts, the respondents have been unable to obtain any relevant evidence or witnesses? The answer can only be no. This is also a case where simply too long a time has elapsed between the relevant events, and any potential trial, thus, justice simply cannot be done were a trial to proceed.

44. I would hold that this claim must be dismissed, and would uphold the decision of the learned High Court judge. I would propose the Court hears counsel in relation to the cross-appeal, which is confined to the motion judge’s decision not to award costs.

Farrell v Arborlane

2016] IECA 224
Judgment of Mr. Justice Sheehan delivered on the 26th day of July 2016
1. This is an appeal by the seventh named defendant (Anthony Lawton, practicing as Lawton and Associates) from the judgment and order of the High Court (Barrett J.) dated respectively the 9th July, 2015, [2015] IEHC 535, and the 28th July, 2015, whereby the High Court refused the appellant’s motion of the 11th February, 2015, in which he sought an order striking out the proceedings against him on grounds of culpable delay by the plaintiff.

2. The plaintiff purchased an apartment from Arborlane in 2002 in a new development known as the Ramparts in Co. Dublin. Soon after taking possession of this apartment, significant defects began to emerge including cracked walls and water leakage. The plaintiff entered into negotiations with the developer and remedial work was attempted, but ultimately proved unsuccessful and these defects led to the institution of the proceedings before us, which were commenced on the 20th December, 2007. The proceedings were served on the appellant on the 15th October, 2008. In those proceedings the plaintiff placed reliance on a certificate of compliance issued by the seventh named defendant in 2000.

3. The statement of claim was delivered to the appellant on the 23rd May, 2014.

4. On the 29th May, 2014, the appellant’s solicitors wrote making certain complaints about that statement of claim and pointing out certain matters which they believed to be of relevance to the alleged liability of their client.

5. On the 11th February, 2015, the appellant issued the present motion and the following day delivered his defence without prejudice to the motion.

6. The issues that arise in this appeal are the same ones as those faced by the trial judge namely:-

1. Is the plaintiff guilty of inordinate delay?
2. If she is so guilty is this delay excusable?

3. If the delay is inordinate and inexcusable does the balance of justice favour the plaintiff or the appellant?

7. The trial judge found that there was inordinate delay which was not entirely excusable and went on to hold that the balance of justice favoured the plaintiff and in so doing dismissed the appellant’s motion. I agree with the trial judge’s finding that the plaintiff was guilty of inordinate delay and I also hold that that delay was inexcusable. However I hold that the balance of justice favours the appellant for the reasons set out hereunder and accordingly I allow the appeal and direct that the proceedings against the appellant be struck out.
8. Evidence on the motion was given solely on affidavit. The appellant provided two affidavits and exhibited documents and the plaintiff’s solicitor provided the replying affidavit which also exhibited relevant documentation.

9. The plaintiff is the owner of a single story apartment within a development known as the Ramparts, Loughlinstown, Co. Dublin. The first named defendant is the developer. The second named defendant was the main contractor. The fourth, fifth and sixth named defendants acted as architects and lead consultants on the project. The seventh named defendant (the appellant herein) was retained by the developer to act as structural and civil engineer on the project.

10. Sometime in 2002, the plaintiff purchased an apartment in this development and shortly thereafter observed leakage of water through the windows of her apartment. Over time there was evidence of significant water ingress and internal cracking of block work. The following dates are of significance when considering the positions of the plaintiff and the appellant.

2000: On the 14th November, 2000 the appellant issued Arborlane with a certificate of compliance of the structural design with the requirements of Part A of the Building Regulations 1997.
2002: The plaintiff purchases her apartment. Defects emerged shortly thereafter.

2007: The plaintiff’s solicitor puts the appellant on notice of proceedings in October and sends him an “O’Byrne” letter on the 17th December, 2007. On the 20th December, 2007, the plaintiff issues proceeding.

2008: On the 15th October, 2008, the proceedings were served on the appellant who filed a notice of appearance on the 4th November, 2008, and called for a statement of claim.

2010: In May 2010, a notice of intention to proceed was filed but not served on the appellant’s solicitor.

2011: On the 24th June, 2011, the plaintiff’s solicitors wrote to the appellant’s solicitors threatening a motion for judgment in default of defence which was issued on the 11th August, 2011, but subsequently struck out when the appellant’s solicitors pointed out that no statement of claim had yet been delivered.

2012: On the 10th February, 2012, the plaintiff’s solicitors notified the appellant’s solicitors that they were in the process of finalising the statement of claim which they said then would be delivered shortly. On the 25th May, 2012, the appellant’s solicitors called on the plaintiff to discontinue the proceedings. This letter asserted that none of the expert reports furnished supported any claim against the appellant. There was no reply to this letter.

2013: On the 17th June, 2013, the appellant’s solicitor requested the plaintiff to discontinue the proceedings against the appellant noting that a statement of claim had not yet been served and threatening a motion to strike out for want of prosecution. On the 2nd July, 2013, the plaintiff’s solicitors replied that they were in the process of preparing a detailed statement of claim and that they would not discontinue the proceedings.

2014: The statement of claim was delivered on the 23rd May, 2014.

On the 29th May, 2014, the appellant’s solicitors wrote making certain complaints about the statement of claim and pointing out certain matters that they believed to be relevant to the appellant’s involvement.

2015: On the 11th February, 2015, the appellant issued the present motion and on the 12th February, 2015, delivered his defence expressly without prejudice to the motion.

The judgment of the High Court
11. In the course of his judgment Barrett J. identified the following three periods of impugned delay in the case. The first period of delay relates to the period of time between the date of purchase of the apartment by the plaintiff and the issuing of a summons by her on the 20th December, 2007. The second period of delay relates to a period of ten months between the issuing of the summons on the 20th December, 2007 and its service on the appellant on the 15th October, 2008. The third period of delay relates to the length of time between the service of the plenary summons on the appellant on the 15th October, 2008 and the delivery of the statement of claim on the 23rd May, 2014. While the trial judge determined that the third period of delay namely the period of five and a half years between the service of the plenary summons on the appellant and the delivery of the statement of claim to him was inordinate and inexcusable he nevertheless went on at para. 33 to say:-
“During all periods of delay continuing and understandable efforts were, it seems, made by the plaintiff to get one or more of the defendants to do the remediation works that she needs to have done to her apartment and which, if done correctly, would presumably reduce, if not obviate, any need for her to come to court.”
12. The trial judge then went on to consider the degree of prejudice allegedly suffered by the appellant and concluded as follows at para. 35 of his judgment:-
“The court considers that the level of prejudice purportedly arising for Mr Lawton, the apparent nonchalance that he has manifested as to whether or not he does in fact have the papers necessary to defend these proceedings, and the slow pace with which he himself came to court with the within application, do not suggest him to be an individual whom the balance of justice favours when weighed against the wrongs that are alleged to have been done to Ms. Farrell. Having bought a brand-new apartment, Ms. Farrell has spent years ‘running from Billy to Jack’, trying to have all kinds of problems with her apartment fixed. She commenced litigation, continued trying to have matters fixed, yet continues today to find herself be-set with various serious difficulties of a kind that seem likely to affect the price of her apartment should she seek to sell it, and to be an ongoing source of stress and cost to her if she does not. That Ms. Farrell should get to continue the within proceedings against Mr Lawton is something that the court considers the balance of justice to require.”

Submissions
13. The appellant filed lengthy submissions and in particular sought to argue that since the plaintiff was unlikely to succeed against him the court could take comfort from that fact. The appellant also submitted that the High Court judge had wrongly interpreted the opinion of 2000 as a general attestation of compliance with the building regulations. The appellant submitted that his opinion was far more limited than that and certified simply that the structural design was in compliance with Part A of the 1997 Building Regulations and that there was no evidence to suggest that the defects suffered by the plaintiff were as a result of any structural fault. The appellant also submitted that the trial judge in addressing the question of the balance of justice had asked himself the wrong question and had attached insufficient weight to the prejudice actually suffered by the appellant. The appellant further submitted that the trial judge had not dealt adequately with the court’s need to control its own process namely to ensure that cases proceed promptly.
14. The plaintiff submitted that the court could not at this stage find that the appellant was not liable and that this was essentially a matter to be resolved at a full hearing. Counsel on behalf of the plaintiff submitted that the complex nature of the plaintiff’s case necessitated a process of engagement with all the parties and stated that the plaintiff was involved in a drawn out process of engagement which effectively had amounted to a process of informal mediation prior to the issue of the legal proceedings.

15. In the course of written submissions counsel for the plaintiff stated that from on or about 2003 discussions had taken place between the parties regarding evidence of problems with the development and that arising from those discussions the first named defendant Arborlane Limited had agreed to carry out remedial works to the development and to the plaintiff’s apartment. The plaintiff was assured by the response of Arborlane Limited to the emerging problems with the development and relied on the prospect of remedial works and anticipated that such works would resolve all issues with the development. Counsel for the plaintiff further submitted that as evidence of defects continued to emerge it became apparent that the issues were complex. Counsel noted that further discussions then took place between the parties and that by their very nature these discussions were convoluted and involved written correspondence, on site meetings, compilation or reports and ultimately the preparation of a schedule of works. These discussions continued up to October 2009. By way of further explanation of the plaintiff’s ongoing engagement with the developer counsel for the plaintiff relied on the following matters:-

1. The Ramparts Residents Association retained Frank V. Murray Engineer and Tony Mullen Architect to inspect the development and to advise on its condition.
2. Mr. Murray carried out inspections on the 11th February, 2004 and on the 24th May, 2007. The later visit was also attended by Mr. Tony Mullen. Mr. Murray concluded that the quality of work failed to provide a building that was in compliance with Building Regulations. He recommended that major remedial works be carried out and he proposed an outline proposal of extensive work.

3. In July 2007, Mr. Tony Mullen also prepared a report on the water ingress, cracking and associated issues. He noted that numerous attempts had been made to address the issues of water ingress and movement cracking. He found that all remedial works up to the date of his report had not been successful. Mr. Mullen concluded that there was evidence of deficiencies in design at the construction stage which resulted in defects in the development.

4. A meeting took place on the development on the 2nd October, 2008, as a result of which a course of action was agreed. This was confirmed by letter dated the 16th October, 2008. It was further agreed that the first named defendant and his engineer would furnish details regarding the proposed insertion of a structural movement joint.

5. Remedial works were carried out between late 2008 and early 2009. In August and September 2009, further inspections were carried out on a number of apartments in the development, including the plaintiff’s apartment on foot of which Mr. Mullen prepared a further report dated the 2nd October, 2009, in which he noted the details regarding the proposed insertion of a structural movement joint had not been furnished.

6. Mr. Mullen concluded that fundamental construction problems still existed in the development and that remedial works were unsuccessful and would not provide a long term solution to the defects and that more radical measures would be required.

16. The plaintiff maintains that the leaned High Court judge had exercised his discretion in accordance with established principles of law and submitted that the learned judge was correct to refuse the appellant’s motion to dismiss the claim against him having regard to the particular facts of the case. The plaintiff further submitted that the trial judge was entitled to draw the inferences from the facts and hold that the balance of justice favoured the plaintiff.
Jurisdiction of the Court of Appeal
17. The proper approach to an appeal such as the present one has been the subject of a number of recent decisions of this Court.

18. In Collins v. Minister for Justice Equality and Law Reform [2015] IECA 27, the judgment of the court was delivered on the 19th February, 2015, by Irvine J. (Peart and Hogan JJ. concurring). The court in this judgment resolved conclusively the question of whether in the context of an appeal such as this, the appeal may be allowed only if the judgment of the High Court judge discloses an error of principle. The Court of Appeal held that this is not the law. Irvine J. stated at para. 78 of that judgment:-

“. . . 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 reconsidered 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 (Decision) should remain invulnerable to appeal simply because no error of principle was disclosed.”
19. The court went on to state at para. 79:-
“For all of these reasons, therefore, we consider that the true position is that set out by MacMenamin J. in Lismore Builders, namely, that while the Court of Appeal (or, as the case may be, the Supreme Court) will give 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.”

Legal principles
20. The leading case governing the type of delay that arises in this case is Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, which is authority for the proposition that in order to dismiss a case on grounds of culpable delay, the applicant must establish that (i) the delay was inordinate and (ii) the delay was inexcusable and (iii) the balance of justice favours the dismissal of the claim. These principles were fleshed out by the appellant in the course of his original submissions to the High Court. The learned trial judge enunciated fifteen propositions, the first thirteen of which are set our here on the basis that there seems to be no dispute between the parties in respect of these propositions. These propositions are as follows:-
“(i) The court has an inherent jurisdiction to dismiss a claim on grounds of culpable delay when the interests of justice require it to do so: Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561; (“Rainsford”) Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, (“Primor”); Collins v. Minister for Justice, Equality and Law Reform [2015] IECA 27, para.32.
(ii) The rationale behind the jurisdiction to dismiss a claim on the grounds of inordinate and inexcusable delay is that the ability of the court to find out what really happened is progressively reduced as time goes on, putting justice to the hazard: Allen v. Sir Alfred McAlpine& Sons Limited [1968] 2 Q.B. 229 at 254; Collins para.35.

(iii) 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: Primor, Collins para.32.

(iv) In considering whether or not the delay has been inordinate or inexcusable the court may have regard to any significant delay prior to the issue of the proceedings. A plaintiff who waits until relatively close to the end of the limitation period prior to issuing proceedings is then under a special obligation to proceed with expedition once the proceedings have commenced: Cahalane v. Revenue Commissioners [2010] IEHC 95; McBrearty v. North Western Health Board [2010] IESC 27; Collins para.33.

(v) Even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the case proceeding: Primor, Collins para.32.

(vi) Relevant to that decision is the conduct of the defendant and the extent to which it might be considered to have been guilty of delay, to have acquiesced in the plaintiff’s delay or implicitly encouraged the plaintiff to incur further expense in pursuing the claim. Delay in this context must be culpable delay: Primor, Collins para. 32; Anglo Irish Beef Processors Limited v. Montgomery [2002] 3 IR 510; Granahan v. Mercury Engineering [2015] IECCA 58 (“Granahan”) para.24.

(vii) The jurisdiction to dismiss proceedings on grounds that, due to the passage of time but without culpable delay on the part of the plaintiff, a fair trial is no longer possible, is a distinct jurisdiction in which there is a more onerous requirement to show prejudice on the part of the defendant, amounting to a real risk of an unfair trial or an unjust result: Collins para.37; Cassidy v. Provincialate [2015] IECA 74 (“Cassidy”) para.35-36.

(viii) In culpable delay cases the defendant does not have to establish prejudice to the point that it faces a significant risk of an unfair trial. Once a defendant establishes inordinate and inexcusable delay, it can urge the court to dismiss the proceedings having regard to a whole range of factors, including relatively modest prejudice arising from that delay: Stephens v. Flynn [2008] 4 IR 31; Cassidy para.36; Gorman v. Minister for Justice, Equality and Law Reform [2015] IECA 41 (“Gorman”) para.59.

(ix) Prejudice to the defendant may arise in many ways and be other than that merely caused by the delay, including damage to defendant’s reputation and business: Primor (point (d)(vii)); Collins para.32.

(x) Persons against whom serious allegations are made that affect their professional standing should not have to wait 12 or 13 years before being afforded opportunity to clear their good name: Gorman para.73.

(xi) The courts are obliged under Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to ensure that all proceedings, including civil proceedings, are concluded within a reasonable time. Any court dealing with an application to dismiss a claim on the grounds of delay must be vigilant and factor into its consideration, not only its own constitutional obligations but the State’s Convention obligations: Granahan para.11.

(xii) The courts must make it clear that there will not be an excessive indulgence of delay, because if they do not do so they encourage delay, leading to breach by the State of Convention obligations: Stephens v. Paul Flynn Limited [2005] IEHC 148; Rodenhuis & Verloop B.V. v. HDS Energy Limited [2011] 1.I.R. 611; Collins para.43.

(xiii) There is a constitutional imperative to bring to an end a culture of delay in litigation so as to ensure the effective administration of justice and basic fairness of procedures. There should be no culture of endless indulgence: Quinn v. Faulkner t/a Faulkner’s Garage [2011] IEHC 103; Collins para.39; Gorman para.30.

21. Two further propositions were identified by the trial judge as emerging from the authorities, as follows:
(xiv) The courts can bring to their assessment of any (if any) culpability in delay the fact that the cost of litigation can act as a disincentive to prompt action: O’Donnell p. 318; Forum Connemara Ltd. V Galway County Local Community Development Committee 15 June 2015
(xv) As in every case, the courts must bring to their considerations a necessary sensitivity to the personal and social background of persons who present before them: Comcast; Forum Connemara Para 6; Harington v EPA 2014 IEHC 207, para 7.

Conclusion
22. The trial judge identifies legal costs as a possible disincentive to prompt action. In so doing he raises the question as to whether a litigant in financially straightened circumstances can get some protection from the court. In Maximilian Schrems v. Data Protection Commissioner (2013/765 J.R.) Hogan J. made a protected costs order on the 16th July, 2014, in favour of the applicant limiting his liability to costs to a maximum of €10,000. That was a judicial review application of exceptional public importance. It seems to me that the plaintiff in these proceedings does not fall into that category and therefore would almost certainly fail if she brought a motion such as that brought by Mr. Schrems seeking a protected costs order. If the plaintiff fails in her action, then she will be liable to a costs order pursuant to O. 99 of the Rules of the Superior Courts. Absent a successful constitutional challenge to O. 99 or legislative reform there is little a court can do to assist a litigant of modest means. In view of this I do not consider that the issue of costs can be factored into the situation when considering the issues that arise in this case.
23. While I accept that the courts must bring a sensitivity to the personal and social background of those who present before them, no particular matters were advanced on behalf of the plaintiff in this regard and I consider that proposition 15, outlined above, is not relevant to my consideration of where the balance of justice lies.

24. I consider that the approach of the High Court judge was erroneous with regard to these two propositions and that the key question asked by him at the commencement of his judgment does not fully identify the applicable test. While the court may take the personal circumstances of a litigant into account in its assessment of where the balance of justice lies it does not simply engage the process by testing the personal circumstances of the litigants, one against the other. Insofar as the trial judge appears to consider that the plaintiff’s personal circumstances as a private citizen and the inconvenience that she suffered were to be given greater weight than that suffered by a professional person in the course of his employment, he incorrectly applied the principles established in the authorities. The balance of justice is to be arrived at following consideration of all relevant factors including the length of the delay and the degree of actual prejudice shown to have been suffered by the parties. It is not to be confined to the weighing of personal circumstances, and prejudice suffered by one or other party is not to be considered as a stand alone factor, but as one that informs the court in the exercise it engages.

25. Further, the trial judge did not have before him evidence of the personal or financial circumstances of the plaintiff.

26. I note the jurisdiction of this Court as set out in Collins and I further note the principles to be applied by me in considering whether or not the appellant is entitled to have the proceedings against him dismissed.

27. In considering the question of delay, I agree with the trial judge that the five and a half year period between the service of the plenary summons on the appellant and the delivery of the statement of claim was both inordinate and inexcusable. However, that delay must also be looked at in the overall context of the case. While there was a six and a half year delay between the issuing of the plenary summons (as distinct from its service on the appellant) and the delivery of the statement of claim, there was also a substantial delay in issuing proceedings in the first place. The fact that the plaintiff was in negotiations with the developer who had agreed to undertake remedial works may provide the plaintiff with some explanation or justifying reason for part of the delay. However, it remains the fact that if this case were now to proceed in the normal way then there would be an eighteen year gap between the completion by the appellant of his certificate of compliance with the Building Regulations of 1997 and the actual hearing of this case. It goes without saying that memories fade, recollections become blurred and the older a case becomes, the more difficult it is to ensure a fair trial. I agree with the trial judge that the delay in this case is significant and even if the delay prior to the issuing of the plenary summons is excusable any delay thereafter is not. The developer went into liquidation in 2009 and up to that point it appears had engaged with the plaintiff and agreed to implement the necessary repairs. At that point it must have been clear to the plaintiff and her advisors that the claim against the other defendants required to be formulated and identified with expedition, as any award against the first defendant would not be satisfied.

28. It is relevant that on the 14th October, 2010, the plaintiff’s solicitors wrote to solicitors for the developer and the contractor and said that the residents’ experts were satisfied that the reports of 2004, 2007 and 2009 as already furnished outlined what then needed to be done. The appellant very properly notes that the 14th October, 2010, to the 23rd May, 2014, is a period of over three and a half years in which that delay remains completely unexplained.

29. In considering whether the balance of justice favours the appellant I hold that the question to be addressed is a wider one than that asked by the trial judge. In this regard the ultimate test was identified by McKechnie J. in the course of his judgment in Comcast International Holdings Incorporate and Others v. Minister for Public Enterprise and Others [2010] IESC 50, in which he stated as follows:-

“What does justice, between the particular parties and in the particular circumstances, demand? Such is the end line of this type of analysis. The Supreme Court has made it clear that a decision will be made in the context of not merely the principles of justice inter partes, but the administration of justice in general. Thus the courts jealously guard their own procedures and to avoid the development or the perceived development of what Clarke J. called in Comcast a culture of delay.”
30. The courts do not operate in a vacuum and while a court must consider the question before it in light of the facts before it, it must also have regard to the likely impact not merely of a decision of the court in an individual case, but also of the general approach that the court should take. Clarke J. made the observation, with which I agree, in Comcast that an unduly lax or indulgent approach by the court:-
“. . . has the potential to create injustice by delay across a whole range of cases whose facts may never come to be considered by a judge, but whose progress is adversely affected by a culture of delay.”
31. In the course of his oral submissions the appellant sought to make the case that in any event the plaintiff was highly unlikely to succeed against the appellant because the defects that were complained about were not structural and his certificate was confined to structural matters. That was the bones of his submission. While there may be cases where such a submission is appropriate, I do not consider it necessary in this case to address this submission, as there are sufficient other factors which balance the interests of justice.
32. One matter however, that is of relevance relates to the statement of claim itself. Despite the length of time that these proceedings have been ongoing, no attempt is made in the statement of claim to distinguish the liability of any of the defendant s from each other. The statement of claim delivered on the 23rd May, 2014 pleads generic particulars of the alleged negligence, breaches of duty and breach of contract concerning the failure of the defendants to exercise any or any reasonable care in an about the design and construction of the development and as has been noted ascribed to each of the defendant the same level of culpability and on the same pleaded grounds. I agree with the appellant’s submission that this is a factor which can be taken into account when considering the balance of justice and that it weighs in favour of the appellant.

33. Another matter that arises is the level of prejudice suffered by the appellant. Like the trial judge I do not attach any weight to the suggestion by the appellant that he may suffer prejudice as a result of being unable to obtain the necessary documentation to defend these proceedings. With regard to prejudice I hold however, that prejudice is suffered by the appellant by having an allegation of professional negligence hanging over him for this length of time. I further hold that he has established additional prejudice as a result of the fact that he has encountered difficulties with his insurance company when renewing his professional indemnity insurance. I am satisfied that these two matters of themselves are sufficient in a case of this length of delay to establish the required prejudice. Accordingly I find the following:-

1. The overall delay in this case is significant.
2. The delay following the institution of proceedings is inexcusable.

3. There is undoubted prejudice resulting to the appellant arising from his having a professional negligence case hanging over him for so long and because the appellant has encountered difficulty with his insurance company concerning the renewal of his professional indemnity insurance.

4. The need to ensure the absence of a culture of delay means that the moving party in any case must proceed promptly or run the risk of losing his or her right to proceed.

5. The statement of claim served some nine years after the purchase by the plaintiff of her apartment is pleaded in general terms and fails to attribute to the appellant any particular failure that would distinguish his liability from that of any of the other defendants. This was done after the plaintiff had the benefit of at least three expert reports on the structural issues, and the generic nature of the pleas will inevitably lead to further delay in the particularisation of the claim and the seventh defendant is entitled to seek specificity with regard to the breaches alleged against him. I consider that it would fail to do justice to the seventh defendant were I to ignore this factor and that the pleadings of the plaintiff appear to be still some way off being complete.

34. In light of the above matters I conclude that the balance of justice in this case favours the appellant. Accordingly I allow the appeal and direct that the proceedings against the seventh named defendant be discontinued.

Millerick v Minister for Finance

[2016] IECA 206

Judgment of Ms. Justice Irvine

elivered on the 11th day of July 2016
1. This is an appeal against the order and judgment of the High Court (Binchy J.) made on 15th June, 2015, and perfected on the following day whereby he dismissed the plaintiff’s claim by reason of inordinate and inexcusable delay. On this appeal the plaintiff (“Mr. Millerick”) seeks an order setting aside that order on the grounds that the trial judge misdirected himself and erred in law in granting such an order.
Background
2. The following is a brief summary of the facts and dates relevant to the defendant’s (“Minister’s”) application to dismiss Mr. Millerick’s proceedings as being an abuse of process and for inordinate and inexcusable delay.

3. Mr. Millerick maintains that he sustained serious injuries to his right leg and left knee as a result of a road traffic accident on 28th March, 2007. Those injuries were sustained, according to the personal injury summons, when an unmarked garda vehicle, a silver Ford Mondeo, swerved in front of his motorcycle causing him to lose control and fall to the ground.

4. The following is a chronology of the relevant dates:

28th January, 2009: Mr. Millerick makes an application to the Personal Injuries Assessment Board indicating that he intends to issue proceedings against the Minister for Finance and also the Motor Insurers’ Bureau of Ireland.

29th January, 2009: Originating letters sent to the Minister and the MIBI.

23rd September, 2009: Mr. Millerick issues a separate personal injuries summons against the Minister and the MIBI.

2nd February, 2010: The Minister enters an appearance and serves a notice for particulars.

6th May, 2010: Replies to particulars.

10th August, 2010: The Minister seeks further and better particulars.

26th August, 2010: Defence delivered.

18th January, 2011: Replies to the Minister’s notice for further and better particulars.

4th March, 2015: The Minister issues motion to dismiss claim for abuse of process and delay.

12th June, 2015: Replying affidavit of Sinead Farrelly.

15th June, 2015: Hearing date.

5. As appears from the above chronology, Mr. Millerick instituted separate proceedings in respect of the same road traffic accident against the MIBI on 23rd September, 2009, wherein he claims that he was injured by the negligent driving of an unidentified driver of a silver Ford Mondeo motor vehicle.

6. The grounding affidavit supporting the Minister’s application to dismiss the proceedings was sworn by Ms. Gillian Walsh on 4th March, 2015, in which she complained that since 18th January, 2011, the plaintiff had taken no steps to advance his claim. She maintained that more than eight years had elapsed since the date of the alleged accident and that the delay that had occurred would likely have a prejudicial effect on the defendant’s ability to defend the claim. She also asserted that the balance of justice favoured dismissing the claim in circumstances where the defendant had not contributed to that delay. Finally, Ms. Walsh maintained that the within proceedings were an abuse of process insofar as Mr. Millerick claims that the offending vehicle was owned by the defendant and was driven by a member of an Garda Siochana, whereas in his claim against the MIBI he asserts that the identity of the driver and the owner of the vehicle are unknown.

7. In her replying affidavit sworn on 12th June, 2015, Ms. Farrelly, Mr. Millerick’s solicitor, justified the issue of separate proceedings against the MIBI based upon the defence that had been filed by the Minister in the present claim which denies that the incident was caused by the driving of another vehicle and that if there was such another vehicle it was not an unmarked Garda car. It is to be inferred from her affidavit that should Mr. Millerick fail in the within proceedings that he might then pursue a claim for the same injuries against the MIBI.

8. As to the Minister’s complaint that the proceedings ought to be dismissed by reason of inordinate and inexcusable delay, Ms. Farrelly advised that she considered that both actions should be listed to be heard together. Unfortunately, the MIBI had not delivered its defence and this was the reason why the within proceedings had not been advanced even though the pleadings were closed. As to when Mr. Millerick might be in a position to advance his claim, she stated that the solicitors on record for the MIBI had advised that they were waiting on counsel to prepare its defence. It should be noted that during the High Court hearing counsel for Mr. Millerick advised that a motion for judgment in default of defence was about to issue.

9. The only other excuse advanced by Ms. Farrelly for the delay in progressing the claim was that the MIBI had issued separate proceedings against Mr. Millerick in respect of a judgment which it had obtained against him for payments made on his behalf in yet another set of road traffic proceedings in which he was the offending driver. As a result she had been in negotiations with Messrs Mason Hayes and Curran, the solicitors on record for the MIBI, and had overlooked the fact that no defence had been delivered by the MIBI in those proceedings.
Judgment
10. From the transcript of the hearing before the High Court and what is recorded on the face of the order itself, it would appear that the High Court judge dismissed Mr. Millerick’s proceedings on the grounds of inordinate and inexcusable delay. He concluded that if the delay was due to the failure of the MIBI to deliver its defence in the second set of proceedings steps should have been taken “long ago” to remedy that situation. It was unacceptable that five years after the delivery of a personal injuries summons the plaintiff in those proceedings was only contemplating the issue of a motion for judgment in default of defence.
Submissions of the Appellant
11. Mr. McGovern S.C. does not seriously contend that the plaintiff’s delay in prosecuting this action is one which can be ignored. However, he maintains that the delay ought to have been excused by the trial judge having regard to the judgment which had been obtained against his client by the MIBI for approximately €348,000 in March, 2012. Knowledge of this judgment had taken his solicitor by surprise and on learning of its existence she had become embroiled in seeking to negotiate a settlement of that claim in the context of his claim against the MIBI.

12. Counsel further argues, based upon the decision of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, that even if the plaintiff’s delay might be considered inordinate and inexcusable, the balance of justice could not be said to have favoured the dismissal of the proceedings. The defendant had not demonstrated the existence of any actual prejudice arising from the delay. He had filed a defence which was only consistent with his having fully investigated the involvement, if any, of An Garda Siochana in Mr. Millerick’s accident. There was no suggestion that any witnesses that the defendant might wish to call to give evidence had become unavailable because of the passage of time or that their evidence might be unreliable by reason of the delay. Further, the Minister had given no notice of his displeasure concerning the delay or of his intention to bring the application to dismiss. Finally, he had taken no steps to ensure that the action was progressed with diligence and had not, as he might have done, himself served a notice of trial following the delivery of his defence.
Submissions of the Respondent
13. Ms. Gayer S.C. submits that the delay of almost five years following the delivery of the defence in August, 2010 was both inordinate and inexcusable. This was particularly so in circumstances where the plaintiff had issued his proceedings close to the limitation period provided for by statute for proceedings of this nature. As a matter of fact and as a matter of law the delay could not be excused by reference to any negotiations that may have been taking place in relation to Mr. Millerick’s claim against the MIBI and/or those proceedings in which the MIBI had obtained summary judgment against him.

14. As to whether the balance of justice favoured the dismissal of the proceedings, counsel submitted that for Mr. Millerick to have issued two separate sets of proceedings wherein conflicting claims were made arising from the same events was an abuse of process, and as such was a matter to be considered by the Court when dealing with this issue. It was not correct as a matter of law, that Mr. Millerick was obliged to issue proceedings against both the Minister and the MIBI. That was to misunderstand the MIBI agreement.

15. In considering the balance of justice issue, counsel urged the Court to place weight upon the fact that the Minister had delivered his defence promptly and while he had not positively intervened to ensure that the proceedings obtained a trial date, he ought not be faulted in that regard.

16. While Ms. Gayer was not in a position to point to any evidence on affidavit to demonstrate that the defendant would sustain actual prejudice if the action were allowed to proceed to trial, she submitted that the Court ought to assume some prejudice would likely result to the defendant by reason of delay on the particular facts of this case. In this regard she relied upon the uncertainty expressed by the plaintiff in his pleadings as to the identity of the driver and owner of the vehicle implicated in his accident of 2007. Such evidence as might be given by him ten years later concerning how the accident occurred and who was involved was bound to be unreliable and to allow him do so would be to put justice to the hazard.
Relevant legal principles
17. The principles which apply on an application brought to dismiss proceedings for inordinate and inexcusable delay are fully explored in the written submissions that have been delivered by the parties. The most oft cited decision is that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where guidance is given concerning the proper approach to be adopted by the court when met with such an application.

18. The Court is obliged to address its mind to three issues. The first is to decide whether, having regard to the nature of the proceedings and all of the relevant circumstances, the plaintiff’s delay is to be considered inordinate. If it is not so satisfied the application must fail. If, on the other hand the Court considers the delay inordinate it must then decide whether that delay can be excused. If the delay can be excused, once again the application must fail. Should the Court conclude that the delay is both inordinate and inexcusable it must not dismiss the proceedings, unless it is also satisfied that the balance of justice would favour such an approach.

19. In considering where the balance of justice lies the Court is entitled to have regard to all of the relevant circumstances pertaining to the proceedings including matters such as delay or acquiescence on part of the defendant and the potential prejudice resulting from the delay.
Decision
20. Having regard to the evidence that was before him, I am quite satisfied that the High Court judge was correct in concluding that the delay on the part of Mr. Millerick in advancing his claim against the Minister was inordinate. A claim in respect of a road traffic accident of the nature described in these proceedings is relatively straightforward and is one which, once placed in the hands of a solicitor, ought to be capable of being advanced in relatively short order. Ms. Farrelly, on the plaintiff’s behalf, does not seek to contend that there was anything troublesome from an evidential perspective in the present case that might reasonably justify any period of delay.

21. In assessing whether the High Court judge correctly classified the delay in the present case as inordinate it is relevant to note that the proceedings were issued very close to the expiry of the limitation period prescribed for claims of this nature. In such circumstances there is a special obligation of expedition on a plaintiff to move matters forward once proceedings are commenced. This proposition has been consistently endorsed in recent judgments of the superior courts. (see: Cahalane and Another v. Revenue Commissioners and Others [2010] IEHC 95 and Quinn v. Faulkner t/a Faulkner’s Garage and Another [2011] IEHC 103).

22. It is quite clear that Mr. Millerick failed in his obligations in this regard. Nothing was done to advance the proceedings once replies had been delivered to the defendant’s notice seeking further and better particulars. Those replies were delivered on 18th January, 2011. That being so I’m quite satisfied that the High Court judge was correct in concluding that the delay had to be classified as inordinate.

23. I am also satisfied that the High Court judge was correct when he concluded that the delay was inexcusable. Only two excuses were offered to explain the delay and neither was supported by any evidence. As to the first, namely the delay on the part of the MIBI in filing its defence in Mr. Millerick’s alternative proceedings, that delay simply cannot excuse his failure to progress the within proceedings even if it was hoped that the two actions might be tried together. In this regard it is also relevant to note that the personal injuries summons in Mr. Millerick’s claim against the MIBI, was not, as was maintained by Ms. Farrelly, issued in response to the defence delivered in the within proceedings. It was issued on the same date as the personal injuries summons in the present proceedings, namely 23rd September, 2009. Particulars were then sought by the MIBI on 19th January, 2010, and were replied to on 11th May, 2010. Over the following five year period, no step was taken to procure the delivery of a defence in those proceedings. As was advised by the High Court judge, that defence could have been procured by the issue of a motion for judgment in default of defence at any time.

24. Neither, in my view, can the delay be reasonably excused by the fact that Ms. Farrelly may have been negotiating with the MIBI in respect of a judgment which it had obtained against Mr. Millerick in yet another set of proceedings. First, whatever about those negotiations impacting upon Mr. Millerick’s claim against the MIBI, such negotiations could never have had any impact upon his claim against the Minister. The Minister was a stranger to those negotiations and stood to derive no benefit therefrom. Neither was he on notice of the existence of such negotiations and in such circumstances cannot be stated to have acquiesced in any resultant delay. Further, it is difficult to see how the existence of any such negotiations could legitimately excuse even a small portion of the four to five year delay in pursuing a claim which, to all intents and purposes, appears to have been ready for trial in January, 2011.

25. For the aforementioned reasons I am quite satisfied that the High Court judge was correct in concluding that Mr. Millerick had failed to excuse his delay.

26. It is not clear from the ex tempore judgment of the High Court judge as to the factors he took into account when considering the third leg of the test in Primor namely, whether in all of the circumstances the balance of justice favoured the dismissal of the proceedings.

27. It would appear from the transcript that no oral submissions were made concerning this issue even though it was briefly addressed in Ms. Walsh’s affidavit wherein she first asserted that the defendant had not been culpable in respect of the delay and secondly that the lapse of time would likely have a prejudicial effect on the availability of witnesses and the reliability of their testimony.

28. As was advised by Fennelly J. in Anglo Irish Beef Processors Limited v. Montgomery [2002] IESC 60, [2002] 3 IR 510, where delay has been found to be inordinate and inexcusable the author of that delay will not be absolved of fault unless they can point to some countervailing circumstances as may be considered sufficient to cancel out the effect of such behaviour. For my part, having considered the evidence before the High Court, I cannot find any countervailing factors sufficient to resolve the balance of justice issue in the plaintiff’s favour. This is particularly so in circumstances were Mr. Millerick has commenced separate proceedings against different defendants concerning the same road traffic accident and has done so based upon inconsistent claims concerning the ownership and driving of the offending vehicle. He was not, as was asserted on his behalf, obliged by the terms of the MIBI Agreement 2004 to issue two separate sets of proceedings. While the Bureau may require a claimant, subject to the provision of an indemnity, to pursue another party against whom they may have a remedy in respect of the same injury, there was no evidence that the MIBI had required him to issue these proceedings against the Minister. The relevant clause in the agreement i.e. clause 3.10 is one which is intended to cover, for example, a scenario in which a claimant may be injured while travelling in an uninsured motor vehicle and that collision may have been caused, in whole or in part, by the negligent driving of a second motor vehicle. The Bureau in such circumstances may demand that the claimant pursue the driver of that vehicle to ensure that its own liability will be reduced to reflect any responsibility on the part of that driver for the claimant’s injuries. The Agreement does not require or permit a claimant who believes they have been injured by the negligent driving of a Garda car to pursue that claim and if they fail to claim against the Bureau on the basis that the offending vehicle was not a Garda car.

29. Of additional relevance is the fact that, unlike in most other cases where a claim is dismissed, Mr. Millerick will remain entitled to pursue his claim in respect of his injuries against the MIBI. That is not to say that his claim in those proceedings might not be met with an application that they be dismissed for inordinate and inexcusable delay. However, without expressing any view on the likely outcome of such an application, it appears likely that Mr. Millerick would be on somewhat firmer ground if asked to meet such an application than he finds himself in the present case. It is to be noted that the fact that a plaintiff may have a potential alternative method of recovery available to them, should their proceedings be dismissed, is something that may be factored into the Court’s consideration as to where the balance of justice lies.

30. Based on the submissions made to this Court and the evidence that was before the High Court, I have no hesitation in concluding that the balance of justice indeed favoured the dismissal of the proceedings having regard to the guidance to be found in the decision of Hamilton C.J. in Primor.

31. First, the defendant was not responsible for any part of the delay. Second, the two excuses earlier referred to, neither of which was supported by any evidence, fail to provide any justification for even a modest portion of that delay. Third, the defendant did not, for reasons which I will later outline, acquiesce in the delay. The Minister was not, for example, advised that Mr. Millerick was anxious to have both actions heard together and having been so informed made no objection when told that the proceedings against him would be postponed to await a defence in his claim against the MIBI. Fourth, during the period of delay the defendant engaged in no conduct which might reasonably have led the plaintiff to conclude that he was unconcerned about and might not later complain of delay. Fifth, during the period of delay the defendant did not directly or implicitly encourage the plaintiff to incur further expense in pursuing his litigation, costs which he might otherwise have avoided had the application to dismiss been brought at an earlier point in time. For example, the defendant did not make an application for discovery or raise any further notice for particulars from which conduct it might have been inferred that the Minister had condoned or acquiesced in the delay.

32. In light of the submissions made by Mr. McGovern concerning the defendant’s failure to identify any specific prejudice arising from the delay, a further point needs to be made concerning the approach of the Court to the third leg of the Primor test. It is clear from the relevant authorities that in the presence of inordinate and inexcusable delay even marginal prejudice may justify the dismissal of the proceedings. (See Cassidy v. The Provincialate [2015] IECA 74). That is not to say, however, that in the absence of proof of prejudice the proceedings will not be dismissed. The Court is entitled to take into account all of the circumstances of the case including the list of factors outlined by Hamilton C.J. which are conveniently summarised in the head note of the Primor decision.

33. As to Mr McGovern’s reliance on the defendant’s inaction to support his contention that that the balance of justice would favour permitting the claim proceed, the decision of Fennelly J. in Anglo Irish Beef Processors Limited is of some relevance. In his judgment he draws a distinction between culpable delay on the part of a defendant, such as where they fail to comply with time limits for the delivery of pleadings, and mere inaction such as where a defendant simply does nothing to advance the claim or seek to have it dismissed. In distinguishing mere inactivity on the part of a defendant from actual delay or acquiescence he concludes that it is the plaintiff who bears the primary responsibility for prosecuting the action expeditiously and that lesser blame should be apportioned to a defendant where they have been guilty of mere inactivity as opposed to actual delay.

34. In the course of his judgement Fennelly J. referred to the decision of O’Dalaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27 at page 41 where he stated:-

“…in weighing the extent of one party’s delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution…. the adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances it is acted upon by a defendant in the hope that he will “get by” without having to face the peril of being decreed. Litigation is a two-party operation, and the conduct of both parties should be looked at.”
35. Having referred to this decision Fennelly J. went on to say as follows:-
“In my view, the defendant should not be lightly blamed for delay which is the fault of the plaintiff. In order to be weighed in the balance against him it would have to amount in the particular circumstances to something “akin to acquiescence.”
36. It is clear from the authorities that the conduct of both parties to proceedings has to be examined in considering an application of this kind. Having said that, the judgment of Fennelly J. in Anglo Irish Beef Processors Limited makes clear that it is the conduct of the litigation by the plaintiff, that is the primary focus of attention. A defendant does not have an obligation to bring the proceedings to hearing. Litigation involves one party bringing a claim against another and unless there is some behaviour on the part of the defendant that constitutes acquiescence in the delay, his silence or inactivity is not material. It is obviously not a consideration on the first question as to whether the delay is inordinate and inexcusable. The only way it can arise therefore is in the balance of justice. The question at that point is whether the defendant caused or contributed to the plaintiff’s delay or in some manner gave the plaintiff to understand or led him to believe that the defendant was acquiescing in the delay. Mere silence or inactivity in itself is insufficient because that does not communicate acceptance to the plaintiff. This understanding of the law is also consistent with the later authorities of the Supreme Court and the High Court.
37. In my view, the Minister in the present case cannot be deemed culpable for mere inactivity. After all, it is the plaintiff who commences legal proceedings and draws the defendant into the legal process. No defendant wants to be embroiled in litigation with all of its potential adverse consequences, be they financial, reputational or otherwise. In many cases the plaintiff has no valid claim and they may be no mark for any award of costs that a defendant may obtain following a successful defence of the proceedings. Often times, a defendant’s personal or professional reputation may be badly scarred regardless of having mounted a successful defence to a claim.

38. Why should a defendant who believes that there is some chance that the plaintiff, because of their tardy approach, may not further pursue litigation against them be blamed for failing to take positive steps to have the action progressed regardless of whether or not they consider the claim against them well founded? If they believe the claim is likely to be successful, should they be criticised for failing to stir the reluctant plaintiff into action in proceedings that may cause them personal, professional or financial ruin? Likewise, if they consider they have a good defence, why should they be damnified for failing to embrace the potential additional costs of ensuring that proceedings which might otherwise wither and die advance to a trial?

39. For these reasons I am satisfied that in order for a defendant’s conduct to be weighed against it when the court comes to consider where the balance of justice lies, a plaintiff must be in a position to demonstrate that the defendant’s conduct was culpable in causing part or all of the delay. In other words a simple failure on the part of the defendant to bring an application to strike out the proceedings will not suffice. Such inactivity must be accompanied by some conduct that might be considered to amount to positive acquiescence in the delay or be such as would give some reassurance to a plaintiff that they intend defending the claim, as might arise if, for example, they were to raise a notice for particulars or seek discovery during a lengthy period of delay.

40. Finally, recent decisions of the Superior Courts emphasise the constitutional imperative to bring to an end the all too long standing culture of delays in litigation so as to ensure the effective administration of justice and basic fairness of procedures. These decisions have emphasised the constitutional provisions contained in Article 34.1 which requires the courts to administer justice. This constitutional obligation presupposes that the court itself will strive to ensure that litigation is conducted in a timely fashion. In particular, in Quinn v. Faulkner t/a Faulkner’s Garage and Another [2011] IEHC 103 Hogan J., at para. 29, criticised the court’s 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 IIRM 290 and those of Clarke J. in Rodenhuis and Verloop BV v. HDS Energy Ltd [2010] IEHC 465.”
41. The proceedings before this Court are, in my view, of the type that Hogan J. had in mind when he authored the aforementioned passage criticising the judiciary for indulging delay in litigation when it was clear that delay had adverse consequences for the proper and efficient administration of justice.
Conclusion
42. I am satisfied that the High Court judge was correct when he concluded that the plaintiff’s delay in prosecuting his claim in these proceedings was both inordinate and inexcusable. Further, on the evidence before him, I have no doubt but that the balance of justice favoured the dismissal of the proceedings. For these and for the other reasons earlier set forth, I would dismiss the appeal.

Mannion v Brennan

[2016] IECA 163
Judgment delivered on 1st day of June 2016 by Mr. Justice Mahon
1. This is the plaintiff’s (Ms. Mannion) appeal against Orders of the High Court made on 22nd November 2010 (Hanna J) and 1st December 2010 (Kearns P.) dismissing her action as against the third named defendants (the Legal Aid Board), by reason of her inordinate and inexcusable delay. Similar orders were also made in favour of the first and second named defendants, but this appeal proceeds only in relation to the orders made in favour of the Legal Aid Board.

2. The order of Hanna J. provided for a stay on his order dismissing the proceedings “to 1st December 2010 and the trial judge assigned to the hearing of the action or further order of the Court”. In due course the matter came before Kearns P. on 1st December 2010, whereupon, on being informed by the plaintiff that she was not in a position to proceed with the hearing of the action on that date, he made an order dismissing the proceedings in accordance with the order of Hanna J. The plaintiff was also ordered to pay the defendants’ costs, including all or any reserved costs.

3. It is acknowledged that the purpose intention and practical effect of Hanna J.’s order of 22nd November 2010 was to provide a final opportunity to the plaintiff to proceed with the hearing of her case on 1st December 2010, and failing doing so, the proceedings would stand dismissed for want of prosecution, as in fact occurred on that date. The plaintiff confirmed that she was not in a position to proceed with the hearing of the action on 1st December 2010.
The background facts
4. These proceedings were aptly described by Hardiman J. in his judgment of 26th February 2010 in related judicial review proceedings as having “a long and tortuous history”.

5. The plaintiff purchased an apartment in Tralee, Co. Kerry in 1989. Subsequently, the plaintiff maintains that serious problems were identified in relation to the property and to its management company, and she instructed the first and second named defendants to represent her in proceedings against the vendor of the apartment and the solicitors engaged by her in relation to its purchase in August 1994. Those proceedings came on for hearing in the Circuit Court in Tralee in July 1998. The plaintiff was awarded damages of IR£8,750 as against the vendor, but the case against her solicitor was dismissed. These orders were appealed to the High Court, but that appeal was withdrawn by the plaintiff by letter dated 6th October 1999.

6. The plaintiff was unhappy with the outcome of Circuit Court proceedings, and on the 1st March 2001 she instituted proceedings in the High Court by way of Plenary Summons as against the first and second named defendants arising from their representation of her in the Circuit Court proceedings, and as against the third named defendant, the Legal Aid Board, arising from its involvement with her in relation to the said proceedings. In the prayer of her Statement of Claim, the plaintiff claims as against all defendants, damages for negligence of personal injuries in breach of contract and breach of duty.

7. While her proceedings as against the Legal Aid Board relate to its representation of the plaintiff in the Circuit Court proceedings, in 2005, she applied to the Legal Aid Board for legally aided representation in relation to her action against the Legal Aid Board.

8. Because the plaintiff had instituted proceedings against the Legal Aid Board, she objected to the decision of the Legal Aid Board to appoint one of its own solicitors to deal with her application for legal aid assistance. In this respect, the appellant was granted leave to seek judicial review by Peart J. on 23rd December 2006. Inter alia, the relief she sought in these proceedings was a declaration that in failing to assign an independent solicitor to process her application for free legal services, rather than a solicitor employed by the Legal Aid Board, the Legal Aid Board was acting contrary to the principles of constitutional justice and fair procedures, contrary to the provisions of the Legal Aid Act 1995, and contrary to the plaintiff’s constitutional rights and her rights pursuant to Article 13 and 14 of the European Convention on Human Rights, and was acting contrary to its statutory duty.

9. The judicial review proceedings duly came on for hearing in the High Court before McGovern J. and were dismissed by him on 7th December 2007. The plaintiff appealed against the judgment of McGovern J., and that appeal was dismissed by the Supreme Court on 26th February 2010.
The grounds of appeal in this court
10. The plaintiff’s grounds of appeal as per the amended notice of appeal dated 10th December 2010 are:-

(i) That the trial judge erred in law and/or in fact by prematurely dismissing the above entitled case before 1st December 2010, that being the date allocated by the High Court for its hearing.
(ii) That the trial judge erred in law and/or in fact by failing to take proper account of the circumstances which caused the delay in the processing of the applicant’s case in the above entitled matter. The respondents had ample time to put their case; (the plaintiff) had little time to offer a defence.

(iii) That the statement of claim in the above entitled matter was not submitted to the High Court for the hearing of the motion for dismissal. Many relevant “books of pleadings” documents were absent.

(iv) That the exhibit of Mr. Patrick McGonigal does show that there was discord between (himself and the plaintiff) but does not show the reason for that discord.

(v) The (plaintiff) refers to the exhibit of Mr. McGonigal dated 2nd June 1995 and says that although he states that he had set her case down for trial, he had not done so. At the time, I felt compelled to complain to Ms. Linda Kirwin of the Law Society and asked her to intervene. (The plaintiff) distinctly remembers weeping through a telephone conversation with her such was her frustration. Mr. McGonigal had had her file since April 1993 and had not always been truthful with her.

(vi) That (the plaintiff) had always been on extremely good terms with the clerical staff of Ferrys and found them to be consistently very courteous. Equally I always treated them with the same courtesy.

(vii) That (the plaintiff) had an excess of written evidence against Ferrys and the Legal Aid Board showing gross negligence and questionable behaviour causing great distress to the (plaintiff).

(viii) That regardless of anyone’s recollection of this matter, the fact and the law can be clearly demonstrated by reading the existing documentation relating to it.

(ix) That further to the ruling of a Supreme Court judicial review, I applied to the Legal Aid Board for assistance to bring my case to trial. As suggested by Judge Hardiman, I initially applied to the Tallaght Law Centre. They returned my application. I applied to North Brunswick Street in June 2010; they sent it to the County Mayo Law Centre, Castlebar. The managing solicitor at Castlebar manipulated my position into one of vulnerability and tried to leverage (the plaintiff) into a situation whereby her case would have been compromised. This man could have prevented her case being dismissed; he did not.

(x) That the Legal Aid Board and the High Court are largely responsible for the hearing of my case.

(xi) That the respondents, the Legal Aid Board and Ferrys Solicitors took full advantage of the very vulnerable legal position I was in at the time of dismissal.

(xii) (The plaintiff) was extremely unwell and had problems with her vision.

(xiii) That (the plaintiff) intends to exhibit documentation in support of her appeal.

The history of these proceedings
11. The history of the important events in these proceedings is as follows:-
1st March 2001: The plaintiff issues the plenary summons. Her solicitors are Brophys Solicitors.
3rd May 2001: An appearance is entered on behalf of the first and second named defendants (Ferrys Solicitors).

4th May, 2001: An appearance is entered by the Legal Aid Board.

28th June 2001: A notice of motion to dismiss for want of prosecution is served on behalf of the first and second named defendants.

19th July 2001: A motion to dismiss the proceedings for want of prosecution is struck out with costs awarded to the first and second named defendants. An order is made extending the time for the plaintiff to deliver a Statement of Claim.

16th October 2001: A Statement of Claim is delivered, some seven and a half months after the issue of the Plenary Summons.

7th January 2002: The plaintiff serves a Notice of Change of Solicitor. Her new solicitor is Dockrell Farrell.

24th January 2002: The plaintiff’s solicitor writes to the defendants indicating her intention to apply for an early hearing date.

4th June 2002: The plaintiff serves additional particulars of negligence.

18th July 2002 The plaintiff brings a motion for judgment in default against the defendants in default of defences.

11th September 2002: The Legal Aid Board delivers its defence, some eleven months after service of the Statement of Claim.

26th November 2002: Notice for Further Particulars is served on behalf of the first and second named defendants.

2nd December 2002: The plaintiff’s motion for judgment in default of defence as against the Legal Aid Board is struck out on consent.

10th January 2003: A defence is delivered on behalf of the first and second named defendants, some fifteen months after service of the Statement of Claim.

4th April 2003: The plaintiff replies to the Notice for Further Particulars served by the first and second named defendants.

30th September 2003: A Notice of Trial is served by the plaintiff.

9th October 2003: The plaintiff files a Certificate of Readiness. The listing of the case is adjourned from time to time before being listed for hearing on 18th November 2004.

17th October 2003: A Notice for Further and more detailed particulars is served on behalf of the Legal Aid Board, some twelve months after delivering its defence.

30th March 2004: The plaintiff replies to the request for further and more detailed particulars from the Legal Aid Board.

14th April 2004: An amended defence is delivered by the Legal Aid Board, some six months after its Notice for Further Particulars.

12th July 2004: Dockrell Farrell Solicitors are permitted to come off record, and on 4th October 2004, John L. Quinn Solicitor comes on record for the plaintiff.

4th November 2004: The plaintiff applies for legal aid to the Legal Aid Board and thereafter requests the appointment of an independent solicitor from the private sector to represent her in relation to her action against the Legal Aid Board.

12th November 2004: The plaintiff successfully applies to adjourn the hearing of the action scheduled for 18th November 2004.

15th November 2004: Paul Madden and Co. Solicitors come on record for the plaintiff in place of John L. Quinn Solicitor.

31st March 2005: The Legal Aid Board confirms that the plaintiff has been appointed a solicitor from within its organisation, and that there is no panel of independent solicitors available for use by her.

26th May 2005: The plaintiff is informed that the Legal Aid Appeal Committee has upheld the decision to grant her legal aid as of 19th May, with representation from within its own organisation.

10th August 2005: Madden and Co. Solicitors come off record for the plaintiff by order of the court.

18th August 2005: The plaintiff issues a Notice of Motion seeking to join the Minister for Justice and the State as parties to the action.

11th October 2005: The application to join the Minister for Justice and the State is refused by the Master of the High Court.

8th December 2005: The order of the Master of the High Court is appealed to the High Court, and the High Court upholds the decision of the Master of the High Court.

April 2005 to January 2006: The plaintiff engages in correspondence with the Legal Aid Board in relation to obtaining the services of an independent solicitor.

14th November 2005: The plaintiff is written to by the Legal Aid solicitor, Mr. Liam de Feu, in relation to her application for leave to issue judicial review proceedings against the Legal Aid Board.

December 2005: The plaintiff appoints Mr. Ken Smith, solicitor, to represent her in relation to her judicial review proceedings against the Legal Aid Board.

23rd January 2006: The plaintiff is granted leave to seek judicial review as against the Legal Aid Board. This occurs some fourteen months after the initial hearing date for her substantive action against the defendants.

27th October 2007: McGovern J. dismisses the plaintiff’s judicial review proceedings.

7th December 2007: McGovern J. delivers his reserved judgment.

May 2008: Mr. Ken Smith comes off record in relation to the judicial review proceedings.

26th February 2010: In a judgment delivered by Hardiman J., the Supreme Court affirms the decision of the High Court dismissing the plaintiff’s judicial review proceedings against the Legal Aid Board.

18th March 2010: The first and second named defendants threaten to bring a motion against the plaintiff to dismiss her proceedings for want of prosecution because of delay.

20th July 2010: The Legal Aid Board seeks a hearing date.

31st July 2010: The plaintiff submits an application for legal aid to the Brunswick Law Centre.

29th September 2010: The plaintiff is advised by the Legal Aid Board that her representation will be dealt with by the Mayo Law Centre. The plaintiff has her first consultation with the Mayo Law Centre solicitor, Mr. O’Mahony, on 14th October 2010.

21st October 2010: The first and second named defendants issue a Notice of Motion to Dismiss the proceedings for want of prosecution because of delay.

5th November 2010: The Mayo Law Centre solicitor, Mr. O’Mahoney, advises the plaintiff to seek an adjournment of the hearing of her case as she is awaiting the outcome of an application to the Legal Aid Board for representation.

10th November 2010: A Notice of Motion is issued by the Legal Aid Board seeking the dismissal of the plaintiff’s proceedings for want of prosecution because of delay.

22nd November 2010: Application to dismiss for want of prosecution is heard by Hanna J. The matter is, in effect, put back to 1st December 2010 when Kearns P. dismisses the proceedings for want of prosecution because of delay.

10th December 2010: The plaintiff lodges a Notice of Appeal to the Supreme Court in relation to the orders of Hanna J. and Kearns P..

26th February 2016: The plaintiff’s appeal is heard by the Court of Appeal and judgment is reserved.

The judgments of Hanna J. and Kearns P.
12. Unfortunately transcripts are unavailable in respect of either judgment. In relation to the hearing before Hanna J. on 22nd November 2010 there is a “Note” of what transpired in court on that day, and a “Draft Note of Judgment”. It does not appear to be an agreed note of the judgment, or the reasons therefore. The penultimate paragraph of the “Note” purports to indicate what Hanna J. intended when he made an order to dismiss the plaintiff’s proceedings for want of prosecution subject to the stay which he granted until 1st December 2010. It states:-
“The plaintiff is obsessed by her case, and the defendants had the right to have the case held expeditiously. A colleague of his, Mr. Justice O’Neill, had indicated that she was on her last chance. This was something he could not disregard. He said he was satisfied that the delay was inordinate and he has not heard an excuse. Mrs. Mannion is on her own. She has not had a good strike rate with solicitors. No doubt, she is completely convinced about her own position. However the court rooms are bulging with other people prepared to run their cases themselves. She was in the last chance saloon and he was prepared to make an order on the terms of the Notice of Motion but impose a stay, that if on 1st December she sought to prosecute these proceedings or if she convinced the judge that she was entitled to one further chance, then the judge on 1st December could extend the stay.”
13. In relation to the decision of Kearns J. on 1st December 2010, there is a sparse “Note of Judgment by Plaintiff”. Again, it does not appear to be an agreed note of the judgment. In any event it states, in part:-
“The applicant indicated to the court that she was not in a position to proceed with the hearing of the action on that day as she had no one to represent her… Kearns P. indicated that she would have to appeal to the Supreme Court.”
14. The central issue in this appeal is the undoubted delay, and the extent of that delay, in the processing of these proceedings since their commencement approximately fifteen years ago. For the purposes of examining the history of the proceedings in the context of the appeal it is suggested by the plaintiff that their duration should be considered by reference to three separate time periods, namely:
(i) March 2001 to March 2005
(ii) March 2005 to February 2010

(iii) March 2010 to December 2010

15. The exercise of closely examining specific time periods for the purposes of identifying activity within each in order to establish if there was undue delay, and if there was, the party or parties responsible for such delay, is useful. It is of course also appropriate to consider the overall delay in the processing of a claim from the date of the cause of action, having regard to its complexity, and indeed, pre-commencement delay.
16. However, ultimately, the court must, in accordance with the principles set out in Primor v. Stokes Kennedy Crowley [1996] 2I.R.459, decide whether the overall delay should be considered inordinate and inexcusable. It is only if the court’s answer to both of these questions is in the positive that it has to decide, in accordance with the third leg of the Primor test, whether the balance of justice warrants the dismissal of the proceedings in light of that delay. However, in deciding where the balance of justice lies the court is obliged to consider, inter alia, the conduct of the defendant, including its responsibility for any part of that delay. However, as it is convenient, I will at this juncture express my views as to the responsibility of the respective parties for the delay over these three periods.

17. Adopting the approach suggested by the plaintiff, the position is as follows. In general terms, there have been delays experienced in litigation in the High Court over the past fifteen years or so, and certainly during the period 2000 to 2010, through no fault of parties to that litigation. Litigation is, by its nature, slow moving and cumbersome, as it necessarily involves compliance with rules and regulations. The greater the complexity of an action, the longer will be those delays. It is nevertheless obligatory on every party to proceedings to participate in same with reasonable haste.
March 2001 to March 2005:-
18. Within this first four year period commencing with the issue of the Plenary Summons, there were undoubtedly significant periods of delay, including, in particular, the following:-

• The seven and a half months it took to deliver the Statement of Claim. This delay was entirely that of the plaintiff.
• The periods of eleven months and fifteen months it took for the Legal Aid Board and the first and second named defendants to deliver their defences. These delays were principally the responsibility of the defendants. The plaintiff could nonetheless have motioned the defendants to procure an earlier delivery of their respective defences.

• The service, some twelve months after the delivery of its defence, by the Legal Aid Board of a Notice for Further Particulars. It was served after the plaintiff had obtained a hearing date for the 18th November 2004. The responsibility for this period of delay rests primarily with the Legal Aid Bord.

• Six months later, on 12th April 2004, an amended Defence is delivered by the Legal Aid Board.

19. It is reasonable to conclude that responsibility for much of the delay in the prosecution of the proceedings prior to mid-2004 must rest with the Legal Aid Board. In any event, had the hearing of the action materialised on its scheduled hearing date of 18th November 2004, some three and a half years after the commencement of the proceedings, there would have been no basis for complaints of delay. It is also noteworthy that by the end of this three and a half / four year period the plaintiff was represented by her fourth solicitor.
20. I am satisfied that such delay as may be attributed to the plaintiff over this period was not inordinate.
March 2005 to February 2010
21. This second period is largely taken up by the plaintiff’s unsuccessful attempts to join the Minister for Justice and Equality, and the State as parties to the proceedings, and the unsuccessful judicial review application in both the High Court and the Supreme Court. The Legal Aid Board submit that this period of almost five years was a period of significant delay, and a delay in which they share no responsibility, and which was in all the circumstances inordinate. I agree with that submission.

22. Was this inordinate delay excusable? On 9th October 2003, the plaintiff filed a Certificate of Readiness. The listing of the case was then adjourned from time to time, before being listed for hearing on 18th November 2004. It was listed on the basis that the case was ready to be heard. However, approximately one week prior to the scheduled hearing date, the plaintiff applied to adjourn the case. Within the three to four month period prior to the plaintiff’s application to take the case out of the list for 18th November 2004, the plaintiff changed solicitors, with J.L. Quinn Solicitor coming on record on 4th October 2004. On 4th November 2004 the plaintiff applied to the Legal Aid Board for the appointment of an independent solicitor from the private sector to represent her in relation to her proceedings against the Legal Aid Board.

23. Over the next twelve months or so, up to the end of 2005, further changes of the plaintiff’s legal representation took place and two further solicitors were appointed, one to replace the other. During this period the plaintiff applied unsuccessfully to join the Minister for Justice as a party to the proceedings and she also engaged with the Legal Aid Board in relation to the issue of the appointment of a solicitor to represent her in relation to her action against the Legal Aid Board.

24. Other than being granted leave to seek judicial review as against the Legal Aid Board on 23rd January 2006, nothing else of significance occurred in relation to the proceedings in the year 2006. In 2007, the judicial review proceedings were dismissed. In 2008 the plaintiff’s then solicitor, Mr. Ken Smith, came off record. In 2010 the plaintiff’s appeal against the decision of the High Court dismissing her judicial review proceedings was itself dismissed by the Supreme Court. On 20th July 2010 the Legal Aid Board sought a hearing date for the case.

25. Towards the end of 2010 the Legal Aid Board brought a motion to dismiss the plaintiff’s proceedings for want of prosecution because of delay.

26. While undoubtedly during this approximately five year period more might have been done by the Legal Aid Board in order to bring these proceedings to a conclusion. It is evident that the greater responsibility for this five year delay must rest with the plaintiff. This five year delay has to be considered against a background of the four year delay between 2001 and 2005 and also the considerable pre commencement delay. In these circumstances the plaintiff was under a duty to prosecute her proceedings with due diligence at all times, but certainly during the period 2005 and 2010.

27. I am satisfied therefore that the period during this second approximate five year period up to February 2010 was both inordinate and inexcusable.
March 2010 to December 2010
28. Much of this third period appears to have been taken up with the plaintiff’s efforts to secure legal aided representation from the Legal Aid Board. Because of the efforts by the Legal Aid Board to create and maintain what was in effect a Chinese wall given its dual involvement in the proceedings, that is as a party to the proceedings, and as the statutory provider of legally aided representation to the plaintiff, in the same proceedings. During this period of eighteen months the plaintiff was required to deal with, initially Tallaght Law Centre, then Brunswick Law Centre and finally the Mayo Law Centre in Castlebar, a scenario which understandably presented some practical and logistical difficulties for her as a Dublin based plaintiff. Regardless of such difficulties, this period of delay cannot be blamed on the defendants.

29. The delay in this period was undoubtedly, also, inordinate and inexcusable. However, it is a relatively short period in the overall life of these proceedings and for the reasons explained below does not provide in itself a basis for the dismissal of the proceedings for want of prosecution.
The legal principles
30. The principles governing the exercise of the jurisdiction to strike out on the grounds of inordinate and inexcusable delay are well established. As already referred to, they were set out at length by the Supreme Court in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and in a number of other decisions of the Superior Courts. Primor set down a three pronged test, namely:-

(i) Was the delay inordinate?
(ii) If so, was the delay inexcusable?

and

(iii) Even if the answer to these two questions is in the affirmative, does the balance of justice require the proceedings to be dismissed.

31. In MC v. Provincialate [2015] IECA 74, Irvine J. observed:-
“It is clear from this decision that the third leg of the Primor test requires the court to carry out a balancing exercise in the course of which it will put the interests of each of the parties and their conduct into different sides of a scales for the purpose of deciding whether the balance of justice favours allowing the case to proceed to trial. In this regard it is to be noted that one of the factors that may go into that scales is whether the delay relied upon gives rise to a real risk that it is not possible to have a fair trial.”
32. As already stated in this judgment, yet another factor that must be considered by the court when seeking to ascertain where the balance of justice lies, is the extent to which the defendant was culpable in respect of any portion of the delay which the court determined to be inordinate and inexcusable.
33. Undue delay in concluding proceedings should be avoided if at all possible. Justice delayed is justice denied, not just for a plaintiff, but also for a defendant. In O’Domhnaill v. Merrick [1984] 1.R. 151, Henchy J. made the following remarks:-

“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial.”

Balance of justice
34. Having found that the plaintiff was guilty of inordinate and inexcusable delay it is necessary to consider the final leg of the Primor test; namely, whether the balance of justice favours dismissing the claim or allowing it to proceed to trial notwithstanding the delay so found.
35. One of the questions which a court is obliged to consider when dealing with the issue of the balance of justice is whether or not a defendant has been prejudiced as a consequence of the delay. Various reasons may give rise to prejudice for a defendant, including the non availability of important witnesses because of death or emigration, destruction of documentation, lack of or reduced recollection because of the passage of time or a belief that the proceedings have been long since abandoned. Even where witnesses are still available to give evidence, the quality of such evidence may have deteriorated because of the passage of time. In Manning v. Benson and Hedges [2005] 1 ILRM 180, 208, Finlay Geoghegan J. remarked that:-

“Delays of four to five years as a matter of probability will reduce the potential of such witnesses to give meaningful assistance or to act as a witness.”
36. Only moderate prejudice needs be established, as suggested by Kearns J., (as he then was), in Stephens v. Flynn Limited [2008] IESC4. In the course of his judgment, Kearns J., (as he then was), summarised the findings made by Clarke J. in that case in the court below as follows:-
“In considering where the balance of justice lay, he concluded that there had been a very significant delay. Not only had the plaintiff failed to render that delay excusable, he had failed to do so by a significant margin. He also concluded that the defendant, were he to be compelled to meet the case, would suffer prejudice, although he did not place that prejudice at a higher degree than moderate. He also held that there was no significant delay on the part of the defendant in exercising his right to apply for the dismissal of the action for want of prosecution.”
37. In a judgment in this court delivered on 3rd March 2015, in the case of Gorman v. The Minister for Justice, Equality and Law Reform and Others, Irvine J. commented as follows:-
“In terms of looking at where the balance of justice lies in this case it is important to recognise that in dismissing this plaintiff’s claim the decision of the High Court has the effect of ending his constitutional right of access to the courts. However that is not an unqualified right, and is one which must be balanced against the right of the defendants to protect their good name as is their entitlement under Article 40.3.2 of the Constitution. These constitutional obligations presuppose that litigation will be conducted in a timely fashion.”
38. In this case there is little evidence that the Legal Aid Board will suffer prejudice of any consequence in the event that the plaintiff’s action against it is permitted to continue. The case against the Board is in respect of professional negligence concerning the manner in which it represented the plaintiff’s interest in her earlier circuit court proceedings which were listed for hearing in the Circuit court in 1998. As a statutory board, they have access to all their own historical correspondence and records. There is no suggestion that the plaintiff’s file in respect of these proceedings is no longer available or that for any reason it is not in a position to retain an expert to give evidence to the court as to whether or not it complied with its obligations as the solicitor acting on behalf of the plaintiff at the relevant time. If it were so, such prejudice would undoubtedly have been set out by Mr Peter O’Reilly, solicitor, in his grounding affidavit of 19 November 2010. This is not a case that appears to be particularly witness dependant from the perspective of the Legal Aid Board.
39. Reference is made by the Legal Aid Board’s solicitor, Mr. O’Reilly, in his aforementioned affidavit to the fact that a Legal Aid Board solicitor, Mr. Griffin, who had represented the plaintiff in the Circuit Court action died in 2003. However, he does not aver that the late Mr. Griffin was an essential witness without whom a fair trial cannot be secured. Furthermore, Mr. Griffin died in 2003, just two years following the institution of the High Court proceedings, so that such prejudice as might result from his absence as a witness at this point in time was equally a factor at a very early stage in the proceedings, and at a time when a delay issue could not reasonably have been a factor.

40. It is also noteworthy that the process of applying to dismiss the proceedings because of delay was not instigated by the Legal Aid Board. As is apparent from Mr. O’Reilly’s affidavit, the Legal Aid Board in effect tagged on to the application to dismiss brought by the other defendants (who are no longer parties to this appeal), merely adopting the reasons articulated by those defendants.

41. I am satisfied that the balance of justice marginally favours the continuance of the proceedings notwithstanding that there has been inordinate and inexcusable delay on the plaintiff’s behalf.

42. I would therefore allow the appeal, but on the basis that a suitable undertaking will be given to the Court by or on behalf of the plaintiff that these proceedings will now be processed with considerable haste.

Primor plc v. Stokes Kennedy Crowley

[1996] 2 IR 465
Hamilton C.J. 465
S.C.

Hamilton C.J.
19th December 1995

Both the defendants in the above entitled proceedings have appealed against orders made in the High Court refusing to dismiss the plaintiff’s proceedings against each of them for want of prosecution pursuant to O. 63, r. 1, sub-r. 8 of the Rules of the Superior Courts, 1986.
The plaintiff had issued separate proceedings against each of the defendants.
The proceedings against both defendants were instituted by plenary summons issued on the 21st December, 1984, and the statements of claim were delivered on the 8th January, 1986.
On the 30th March, 1993, solicitors on behalf of Stokes Kennedy Crowley, the defendant in the first case in the title hereof (and hereinafter referred to as S.K.C.) caused to be issued a notice of motion seeking an order from the Master of the High Court dismissing the plaintiff’s claim against them for want of prosecution.
By order dated the 18th May, 1993, the Master of the High Court dismissed the plaintiff’s claim for want of prosecution pursuant to O. 63, r.1, sub-r. 8 of the Rules of the Superior Courts.
The plaintiff by notice dated the 19th May, 1993, brought an application to the High Court by way of appeal to the High Court from the said order of the Master of the High Court and sought an order dismissing the said defendants’ (S.K.C.) application and permitting the plaintiff to proceed with the action.
This application was heard by the High Court (O’Hanlon J.) and he delivered judgment thereon on the 11th February, 1994, and by order dated the same date, it was ordered that the plaintiff’s appeal be allowed and the order made by the Master be set aside.
From this judgment and order, S.K.C. have appealed to this Court.
On the 16th June, 1993, subsequent to the making of the order by the Master of the High Court on the application of Oliver Freaney & Co., the defendant in the second set of proceedings set forth in the title hereof (and hereinafter referred to as Freaneys), issued a notice of motion claiming similar relief, viz. dismissal for want of prosecution.
The motion was dealt with by the High Court (Johnson J.) and he delivered his judgment therein on the 9th February, 1995, and by order of that date directed that the application (viz. the application to dismiss for want of prosecution) be refused.
Freaneys have appealed to this Court against the said judgment and order of the High Court.

Though the proceedings herein are separate and though the applications brought by the defendants were heard by two different judges of the High Court, the appeals were heard together and this judgment will cover both appeals.
Before dealing with the relevant facts in respect of each defendant, S.K.C. and Freaneys, upon which their applications were based and the judgments of O’Hanlon J. and Johnson J. thereon and the appeals in respect thereof, it is, in my opinion, desirable to set forth the legal principles applicable to the consideration of an application to dismiss an action or proceedings for want of prosecution and the exercise by the Court of its inherent discretion in regard thereto.
Order 122, r. 11 of the Rules of the Superior Courts, 1986, provides that:
“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.”
In the course of his judgment in Dowd v. Kerry County Council [1970] I.R. 27 Ã“ DÃ¡laigh C.J. stated at p. 42 that:
“It is, of course, desirable that the timetable as laid down in the rules should be adhered to, but the question remains whether the delay and consequent prejudice, in the special facts of the case, are 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.”
From this short passage it is clear that the matters which are fundamental to the consideration of the issue are the concepts of fairness and justice, whether it is fair to the defendant to allow the action to proceed and whether it is just to the plaintiff to strike out the action.
Before these considerations can arise, it must be established that there was inordinate and inexcusable delay which would cause or be likely to cause prejudice to the defendant in the conduct of his defence to the proceedings and this undoubtedly depends on the particular circumstances of each case.

In considering the question of the extent of one party’s delay, the court should not leave out of account the inactivity of the other party.
As stated by Ã“ DÃ¡laigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27 at p. 41:
“I wish to add two further general observations. First, in weighing the extent of one party’s delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution . . . the adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances, it is acted upon by a defendant in the hope that he will ‘get by’ without having to face the peril of being decreed. Litigation is a two party operation and the conduct of both parties should be looked at.”
In the course of his judgment in Rainsford v. Limerick Corporation ,delivered in July, 1979, and now reported at [1995] 2 I.L.R.M. 561, which is quoted in the report of Ã“ DÃ³mhnaill v. Merrick [1984] I.R. 151 at p. 153, the then President of the High Court, Finlay P. stated:
“In the course of the arguments I was referred to the following cases, in particular Dowd v. Kerry County Council [1970] I.R. 27, O’Reilly v. C.I.E. [1973] I.R. 278 and Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229. With regard to the last mentioned case, particular reliance was placed by counsel for the plaintiff upon the judgment of Diplock J., having regard to the fact that it was expressly approved of, as a separate judgment, by Ã“ DÃ¡laigh C.J. in his judgment in Dowd v. Kerry County Council , and having regard to the fact that certain other expressions of opinion with regard to this problem, occurring in cases decided in England, would appear to be at variance with the Irish decisions.
From these decisions it is possible to elucidate certain broad principles which are material to the facts of this case and which would appear to constitute the legal principles applicable in this country at present to the problem of the dismissal of an action for want of prosecution or to its continuance by an extension of time for pleading.
1. Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.
2. Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings.
3. Even where the delay has been both inordinate and inexcusable the court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of, or against, the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion.
4. Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant’s personal blameworhtiness for delay is material to the exercise of the courts discretion.”
In the course of his judgment in Ã“ DÃ³mhnaill v. Merrick [1984] I.R. 151 Henchy J. stated at p. 157:
“We have been referred to the relevant judicial authorities on the effect of delay in the prosecution of claims e.g. Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229; Dowd v. Kerry County Council [1970] I.R. 27; O’Reilly v. C.I.E. [1973] I.R. 278; Rainsford v. Limerick Corporation . . .; Birkett v. James [1977] 2 W.L.R. 38 and Sheehan v. Almond [1982] I.R. 235. Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her delayed claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not reasonably be expected to defend.”
Henchy J. also at p. 159 of the report referred to “the implied constitutional principles of basic fairness of procedures, which may be invoked to justify the termination of a claim which places an inexcusable and unfair burden on the person sued.”
In Sheehan v. Almond [1982] I.R. 235 at p. 239 Henchy J. again referred to failure to provide a countervailing consideration which would offset the inordinate and inexcusable delay on the plaintiff’s side and the obvious unfairness of forcing a trial on a defendant.
In Birkett v. James [1978] A.C. 297 Diplock L.J. stated:
“A late start makes it the more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.”
In the course of his judgment in Department of Transport v. Chris Smaller (Transport) Ltd. [1989] A.C. 1197 Lord Griffiths stated at p. 1207:
“The principles in Allen v. Sir Alfred McAlpine & Sons Ltd. and Birkett v. James are now well understood and I have not been persuaded that a case has been made out to abandon the need to show that the post writ delay will either make a fair trial impossible or prejudice the defendant. Furthermore, it should not be forgotten that long delay before issue of the writ will have the effect of any post writ delay being looked at critically by the court and more readily being regarded as inordinate and inexcusable than would be the case if the action had been commenced soon after the accrual of the cause of action. And that if the defendant has suffered prejudice as a result of such delay before issue of the writ he will only have to show something more than minimal additional prejudice as a result of the post-writ delay to justify striking out the action.”
The nature of the prejudice regarded as necessary to be shown was discussed in the case of Biss v. Lambeth Health Authority [1978] 1 W.L.R. 382.
In the course of his judgment in this case Lord Denning M.R. quoted from his own judgment in Sweeney v. Sir Robert McAlpine & Sons Ltd. [1974] 1 W.L.R. 200: “. . . the court does not look merely at the delay since the writ . . . The court enquires whether the total delay has been such that a fair trial between the parties cannot now be had”, and referred to a passage from his judgment in Thorpe v. Alexander Fork Lift Trucks Ltd. [1975] 1 W.L.R. 1459 where he stated:
“. . . the plaintiff is not entitled to delay as of right for four years from the accident, three years before issuing the writ and another year for service. He has no such right. He is not entitled to delay at all. It is his duty once the writ is issued to serve it promptly and get on with it promptly.”
At p. 390 he stated:

“It is, I believe, accepted on all hands that if the plaintiff is guilty of inordinate and inexcusable delay before issuing the writ, then it is his duty to proceed with it with expedition after the issue of the writ. He must comply with all the Rules of Court and do everything that is reasonable to bring the case quickly for trial. Even a short delay after the writ may in many circumstances be regarded as inordinate and inexcusable: and give a basis for an application to dismiss for want of prosecution. So in the present case the delay of nine months was properly admitted to be inordinate and inexcusable. It is a serious prejudice to the hospital to have the action hanging over its head even for that time. On this simple ground I think this action should be dismissed for want of prosecution.”
At p. 392 Geoffrey Lane L.J. stated:
“As Lord Denning M.R. has already indicated, there are many ways in which defendants may be prejudiced by continued delay. A small business concern faced with a huge claim in damages may well suffer continuing financial stringency and loss each week that goes by through having to set aside funds against their contingent liabilities. In the present case the nurses whose competence and standards of care are in question are no doubt suffering at least some apprehension as to what may happen or be said at the trial. Why, one may ask, should they continue to have to suffer? That to my mind provides enough by way of prejudice to entitle one to say in accordance with Birkett v. James that extra prejudice beyond that caused by the prewrit delay has occurred to the defendants here, justifying us in dismissing the action.
There are, however, other considerations. It is the duty of the court to prevent its procedures being used to create injustice. A plaintiff who issues a writ outside the normal limitation period under the terms of either the Act of 1963 or the Act of 1975 has only a defeasible right to continue the action. That right will ultimately depend on the decision of the judge at the trial. Whatever the merits of his claim he may find himself defeated because he cannot bring himself within the terms of the particular Act. The defendant meanwhile must expend time and money on preparing for trial. In these circumstances it is incumbent on the plaintiff to prosecute the action with diligence. If he fails to conform with the rules of court as to the various steps in the action and is guilty of serious and inexcusable delay, the court should have and I believe has, the power in its discretion to dismiss the action for want of prosecution. It would not be necessary for the defendant to prove any additional post-writ prejudice. Such prejudice should in these circumstances be presumed.
Thus in cases where (1) the writ was issued after the normal period of limitation had expired, (2) the plaintiff has failed to comply with all the rules of court as to time, (3) the plaintiff has been guilty since the issue of the writ of serious and inexcusable delay, (4) the totality of the plaintiff’s delay either made it substantially impossible for there to be a fair trial of the issues or alternatively has prejudiced the defendant, the court should be entitled in its discretion to dismiss the action.”
In the course of his judgment in Celtic Ceramics Ltd. v. Industrial Development Authority [1993] I.L.R.M. 248, O’Hanlon J. at p. 256 quoted Lord Griffiths in Department of Transport v. Chris Smaller (Transport) Ltd. [1989] A.C. 1197 as stating that:
“The decisions of the Court of Appeal in President of India and Union of India v. John Shaw & Sons (Salford) Ltd. 25th October, 1977, and Bridgnorth DC v. Henry Willcock & Co. Ltd. 19th December, 1983, are further examples of the court taking business prejudice into account as a ground for striking out, and Haynes v. Atkins 11th October, 1983, is an example of delay hanging over a professional man being taken into account as a ground of prejudice. In the face of this powerful line of authority, I cannot accept the submission of counsel for the plaintiffs. These authorities clearly establish that prejudice may be of varying kinds and it is not confined to prejudice affecting the actual conduct of the trial. It would be foolish to attempt to define or categorise the type of prejudice justifying striking out an action, but there can be no doubt that if the defendants had been able to establish significant damage to their business interests, flowing directly from the culpable delay of 13 months after the issue of the writ, a judge would have been entitled to regard it as prejudice justifying striking out the action. I would, however, express a note of caution against allowing the mere fact of the anxiety that accompanies any litigation being regarded as of itself a sufficient prejudice to justify striking out an action.”
In the course of his earlier judgment in Eagil Trust Co. Ltd. v. Pigot-Brown [1985] 3 All E.R. 119 Griffiths L.J. stated at p. 124:
“Any action is bound to cause anxiety, but it would as a general rule be an exceptional case where that sort of anxiety alone would found a sufficient ground for striking out in the absence of evidence of any particular prejudice. Biss’s case is an example of such an exceptional case, the action hanging over for 11 years, with professional reputations at stake.”
Before attempting to summarise the effect of the foregoing dicta, I consider it desirable to refer, at this stage, to the case of County & District Properties Ltd. v. Lyell [1991] 1 W.L.R. 683 and the judgment of Roskill L.J. at p. 689 because of the crucial importance attached thereto by the learned trial judging S.K.C.’s case.
In the course of his judgment in this case the learned trial judge stated:
“The judgments already cited, in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, Ã“ DÃ³mhnaill v. Merrick [1984] I.R. 151 and Toal v. Duignan (No. 1) [1991] I.L.R.M. 135, all refer to delay on the part of the defendant himself as a factor that may defeat what might otherwise be a valid claim to have the action against him struck out for want of prosecution. In County and District Properties Ltd v. Lyell [1991] 1 W.L.R. 683 the judgment of Roskill L.J. contains the following passage at p. 689: ”
‘. . . if the defendant has taken positive action after the inordinate delay has arisen and the prejudice has been suffered, what has been the impact of that positive action upon the mind of the plaintiff or his advisers? What have they been led or induced to do as a result of that positive action? If that positive action so taken by him has had the effect of inducing in the mind of the plaintiff or his advisers the belief that the defendant was consenting to the action, however inordinately delayed, however inexcusably delayed in the past, being none the less allowed to proceed thenceforth to trial and that the defendant was not going go take any steps, whatever his rights might have been, to apply to have the action dismissed for want of prosecution, so that in that belief the plaintiff has (for example) incurred further costs, then I do not think the court has any right (or, I would add, power) to disregard the impact and effect of that positive action of the defendant upon the mind of the plaintiff and his advisers and insist upon the plaintiff’s action being dismissed and the plaintiff deprived of his right to have his case decided by the courts, even if the judge’s task at the trial of deciding issues of fact, after periods of delay running sometimes into almost a decade, may be exceedingly difficult. To my mind, where the impact and effect upon the mind of the plaintiff or his advisers has been such as I have already indicated, the defendant is thereafter estopped from seeking to have the plaintiff driven from the judgment seat, and the plaintiff has acquired, by estoppel or acquiescence, what one might call an unchangeable right to have his action tried in the courts.’
While the matter has not been stated as strongly in the judgments of our own courts, I am of opinion that that statement of the law by Roskill L.J. at least gives a very good guideline as to the manner in which the judicial discretion should be exercised in the circumstances referred to by him. I would accept that in such circumstances the balance of justice would in most, if not all, cases be seen to be tilted in favour of allowing the action to proceed rather than to be brought to a halt.
Applying this guideline to the facts of the present case, it appears to me that a very important and substantial step was taken by the defendants when they participated in the application for the order and cross-order of discovery, and that the plaintiff was thereby induced to embark upon the ‘mammoth task’ (which it undoubtedly was) of examining, collating and recording over 200,00 insurance files, together with thousands of other miscellaneous documents listed in the schedules to the affidavit of discovery, which itself is over 200 pages in length. The expenditure of time and money on this exercise must have been far in excess of what was involved in the other reported cases where a similar plea has been put forward in answer to an application to dismiss for want of prosecution.
I accept what is said by the plaintiff, that when the order for discovery and cross-order were made, the period of four months for making discovery which was agreed upon at the time, was not a realistic figure, and that this would have been known to both parties. The plaintiff went ahead with the work of preparing the affidavit, and no further protest emanated from the defendants complaining about delay in making discovery, nor did the defendants themselves comply with the discovery order against them at the time prior to bringing their application to dismiss for want of prosecution.
In my opinion, this feature of the case is fatal to the defendants’ said claim to dismiss, and I so decide. My decision is reinforced by reference to the previous lengthy period of delay for which the defendants must accept responsibility when delivery of the defence was being withheld.”

As appears from the statement contained in the speech of Lord Browne-Wilkinson in the House of Lords in Roebuck v. Mungovin [1994] 2 A.C. 224 at p. 233:
“In Lyell’s case the Court of Appeal . . . (regarded the law) . . . as laying down a fixed rule: whenever the defendant has induced the plaintiff to believe that the case is to go to trial (for example, by the defendant taking steps to move the case on) he must be taken to have made a representation that the action is to be allowed to proceed to trial and that if the plaintiff has incurred more than minimal costs in reliance on that representation the defendant will be estopped from striking out the claim on the grounds of the plaintiff’s delay. In Lyell’s case the plaintiff had been guilty of inordinate and inexcusable delay which had prejudiced the defendant: even so, the Court of Appeal reversed the judge’s decision to strike out, holding that comparatively minor acts of co-operation by the defendant in preparing for trial barred any striking out of the claim.”
Lord Browne-Wilkinson stated at p. 234:
“The many members of the Court of Appeal who have had to consider the point since Lyell’s case have uniformly deplored the fetter on the court’s discretion to strike out which the ‘estoppel’ doctrine imposes. For example, in Roche v. Church Leggatt L.J. said: ”
‘That a doctrine of equity should be allowed to operate so as to ensure that an unfair trial takes place constitutes, in my judgment, a travesty of justice’.”
The learned Lord reviewed the practical effects of the decision inLyell and stated at p.234:
“Given that the practical effects of the decision in Lyell’s case have been unsatisfactory, the question remains whether it was wrongly decided. I have no doubt that it was.”
He then stated at pp. 236 and 237 that:
“I therefore reach the conclusion that Lyell’s case should be over-ruled. Where a plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, subsequent 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. Such conduct of the defendant is, of course, a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case. At one extreme, there will be cases like the present where the defendant’s action are minor (as compared with the inordinate delay by the plaintiff) and cannot have lulled the plaintiff into any major additional expenditure: in such a case a judge exercising his discretion will be likely to attach only slight weight to the defendant’s actions. At the other extreme one can conceive of a case where, the plaintiff having been guilty of inordinate delay, the defendant has for years thereafter continued with the action thereby leading the plaintiff to incur substantial legal costs: in such a case the judge may attach considerable weight to the defendant’s activities. But it is for the judge in each case in exercising his discretion to decide what weight to attach in all the circumstances of the case to the defendant’s actions and I trust that in the future there will be few occasions on which the Court of Appeal will be invited to review his decision on the point.”
The principles of law relevant to the consideration of the issues raised in 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 a 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 judgment 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 are 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 weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a 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 a defendant’s reputation and business.
The judgments
It is now necessary to consider separately and in detail the judgments of the learned trail judges in the cases against S.K.C. and Freaneys because the judgments of the learned trial judges involved the exercise by them of their inherent jurisdiction in each case.
Judgment in the S.K.C. case
In the course of a careful and considered judgment, the learned trial judge dealt briefly with the nature of the plaintiff company and the order of the High Court made on the 14th November, 1983, pursuant to the provisions of s. 2 of the Insurance (No. 2) Act, 1983, placing the plaintiff under administration and appointing administrators thereof and the nature of the proceedings instituted by the current administrator against S.K.C. who are a firm of chartered accountants and were appointed as statutory auditors of the plaintiff pursuant to the provisions of the Companies Act, 1963, jointly with another firm, Freaneys, for the financial year ending on the 31st December, 1978.
As appears from the said judgment, S.K.C. acted as such auditors in respect of one year only and the plaintiff alleged in these proceedings that S.K.C. failed to carry out their obligations as auditors for the plaintiff in a careful and prudent manner.
The nature of the plaintiff’s claim against S.K.C. is set out in the judgment and more particularly in the statement of claim delivered on behalf of the plaintiff and, as stated by the learned trial judge, the alleged breach of duty by S.K.C. “led ultimately to the plaintiff being placed under administration in the month of October, 1983, following upon an investigation of its affairs on behalf of the Minister for Trade, Commerce and Tourism . . . the plaintiff was by then insolvent and had to be kept afloat with funds borrowed from the Insurance Compensation Fund . . . the plaintiff could have been put on a sound financial footing much earlier had the defendants carried out their duties properly. Damages claimed amount to a sum in the region of Â£175m.”
The proceedings against S.K.C. were instituted by a plenary summons which was issued on the 21st December, 1984, but not served until the 18th December, 1985. The chronology of the steps taken in these proceedings is set forth in the said judgment and need not be repeated herein.
In the course of his judgment, the learned trial judge clearly identified the prejudice to S.K.C. caused by the institution and continuation of the proceedings against them including damage to their reputation as chartered accountants.
He then proceeded to review the principles of law applicable and in the course thereof stated that:
“However, the central issue which arises for consideration in the present case is one which has not featured prominently in the other cases which have come before our courts. The primary tests of inordinate and inexcusable delay can be disposed of quickly. A delay of fourteen years and upwards between the time when a cause of action is said to have arisen, and the hearing of the claim, must be regarded as inordinate without further argument. In the present case it is also, in my opinion, inexcusable. The initial delay of five years before the possibility of proceedings was even mooted is attributed to mismanagement of the plaintiff company’s affairs by those who exercised control at the time. I am prepared to accept that the task of formulating the claim, drafting the necessary legal documents, and continuing the proceedings down to the stage which they have now reached, may well have been of greater complexity and difficulty than for any previous case to come before our courts. Nevertheless I am of opinion that both parties were blameworthy in the delay which has taken place since the issue of the plenary summons on the 21st December, 1984, and the plaintiff’s contribution to that delay was so substantial as to be inexcusable.
The plenary summons was not served for almost one year after the date of issue, and the general endorsement of claim gave no information whatever as to the basis on which damages were claimed for breach of contract, negligence and breach of duty.
The explanation given for the delay in effecting service is that it was thought desirable to withhold service of the plenary summons until the statement of claim was ready for delivery, and this, in fact, was delivered on the 8th January, 1986. A notice for particulars followed not long afterwards, on the 19th March, 1986, whereupon the action lay dormant for two years before the plaintiff delivered a reply on the 15th March, 1988. An effort has been made to explain away this two-year delay by reference to the very detailed and lengthy nature of the document, and a letter from the plaintiff’s solicitors to the defendants’ solicitors dated the 21st February, 1990, says that it is ‘self-evident why the preparation of the reply to the particulars took some time’. I find the explanation given quite unconvincing and regard this particular delay on the part of the plaintiff as inexcusable, particularly in the wake of the long delay which had already taken place in initiating the proceedings and serving the originating document.
At this stage the onus passed to the defendants to deliver their defence, or to apply for further time to the plaintiff or, if necessary, to apply to the court for this purpose. Instead, the action was allowed by both parties to lie dormant for one and a half years, until the plaintiff called on the defendants to deliver their defence by letter of the 15th September, 1989.
The riposte was the service of a second notice for further particulars on the 26th September, 1989, this time dealt with expeditiously by the plaintiff with replies served on the 9th November, 1989, and a further call for delivery of the defence.
Further demands for delivery of the defence throughout the year 1990 were countered by the offer of the defendants to make their work-papers for the 1978 audit available for inspection, and later by demands (which were not pursued in court) for security for costs. Ultimately, after a motion for judgment in default of defence was brought forward, an extension of time was granted, which proved insufficient for the defendants’ purposes and the defence was ultimately delivered on the 8th January, 1991, the plaintiff having given the necessary letter consenting to a further extension of time. The defence, when delivered, consisted merely of a general traverse of the plaintiff’s claims and could clearly have been prepared and delivered within a matter of weeks had the necessary impetus been applied at the relevant time.
There followed the plaintiff’s application for an order for discovery of documents, served on the 16th January, 1991 and the making of an order and cross-order by consent against both parties on the 25th January, 1991, discovery to be made within four months from the said date.
A further two years then elapsed with the proceedings again lying dormant until the plaintiff’s solicitors announced in the month of February, 1993, that they were nearing completion of their affidavit of discovery and enquiring about the exchange of affidavits with the defendants’ solicitors. This brought matters to a head once again and led to the service of the application to dismiss for want of prosecution. The plaintiff went ahead, however, with the completion of its affidavit of discovery and by letter dated the 6th April, 1993, offered to exchange affidavits, ultimately delivering the affidavit on the 15th June, 1993, without awaiting the defendants’ affidavit.
The plaintiff says that the preparation of the affidavit of discovery was a ‘mammoth task’, involving physical sorting and checking against manual and computerised listings in respect of over 200,000 claims files, and even during the hearing of the application to dismiss for want of prosecution in the month of November, 1993, over 2,000 additional claims files were coming to light for the first time on microfiches and in storage chests.
I think there is more basis for excusing the two-year delay in the preparation of the affidavit of discovery than for the two-year delay which arose at an earlier stage in the preparation of the reply to notice for particulars.
Having regard to the history of the proceedings which has been outlined above, the plaintiff claims that the defendants’ application to dismiss the action for want of prosecution is defeated by the circumstance of the defendants’ own defaults in complying with their obligations under the rules of court and in particular by conduct on the part of the defendants which could be construed as condoning delays which had previously taken place in the processing of the claim.”
Having found that the plaintiff was guilty of unconscionable and inexcusable delay in the institution of and prosecution of the proceedings,
the learned trial judge, who had found that S.K.C. had been guilty of delay, particularly in regard to the delivery of their defence, was entitled to take that fact into consideration in exercising his discretion whether or not to strike out the plaintiff’s claim and to determine the weight to be attached to their conduct, depending upon all the circumstances of the case.
He stated that:
“It is apparent, however, that when an application is brought to strike out or dismiss an action by reason of the exceptional length of time that has elapsed since the alleged cause of action arose or by reason of the plaintiff’s failure to prosecute his claim with reasonable diligence, the court will scrutinise carefully the defendant’s own course of conduct in relation to the proceedings. If he has contributed to the delay in a significant manner it will prejudice his claim to have an action struck out or dismissed.”
He then went on to say, and I emphasise, that:
“It has also been held in a number of recent decisions of the Court of Appeal in England that where, prior to the application to dismiss for want of prosecution, a defendant has by conduct induced a belief in the plaintiff that the action was to be allowed to proceed, and the plaintiff on the faith of that belief has acted to his detriment, a plea of estoppel may be entered against an application at that stage of the proceedings to dismiss for want of prosecution.”
He then referred to County and District Properties Ltd v. Lyell [1991] 1 W.L.R. 683; Reynolds v. British Leyland Ltd. [1991] 1 W.L.R. 675; Trill v. Sacher [1993] 1 W.L.R. 1379 and Culbert v. Westwell & Co. Ltd. [1993] P.I.Q.R. 54.
He then stated that:
“The judgments in these cases hark back to the statements of the law, in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 by Diplock L.J. and Salmon L.J. already referred to and are concerned largely with the issue whether the element of waiver, or acquiescence or estoppel arising by reason of the defendant’s own conduct constitutes an absolute bar to an application to dismiss for want of prosecution or is merely a factor going to the exercise of the discretion which still remains in the Court, to grant or refuse the application. The consensus appears to be that unless the impact of the defendant’s conduct on the plaintiff is minimal or trivial, something equivalent to estoppel may arise.”

The learned trial judge then quoted the passage from the judgment of Roskill L.J. in County & District Properties Ltd. v. Lyell [1991] 1 W.L.R. 683 accepting it as “a very good guideline”.
The learned trial judge then proceeded to apply this guideline to the facts of the present case in the manner outlined earlier in this judgment.
I have quoted extensively from the relevant portions of the learned trial judge’s judgment for the purpose of illustrating the manner in which he exercised the jurisdiction vested in him and, indeed to illustrate the care taken by him in the exercise of such jurisdiction.
It is obvious from the consideration of such judgment that the learned trial judge considered that the fact that S.K.C. had sought a cross-order for discovery of documents when the plaintiff had applied for an order for the discovery of documents against them on the 25th January, 1991, and the fact that the plaintiff had incurred considerable expense in complying with such order, constituted an estoppel and a bar to their application for an order that the proceedings against them be dismissed for want of prosecution.
He stated that:
“In my opinion, this feature of the case is fatal to the defendant’s said claim to dismiss and I so decide.”
In so concluding, he followed the decision of the English Court of Appeal in County & District Properties Ltd. v. Lyell [1991] 1 W.L.R. 638 but, as pointed out in this judgment, this decision was reversed and clearly held to be wrong in law by the House of Lords in Roebuck v. Mungovin [1994] 2 A.C. 224 on the 3rd February, 1994, subsequent to the hearing of the application but prior to the judgment delivered by the learned trial judge.
The learned trial judge would have been entitled to regard these facts as relevant factors to be taken into account by him in the exercise of his discretion whether or not to strike out the claim, but he did not so regard them: he regarded them as fatal to S.K.C.’s claim to have the proceedings dismissed.
In so holding he erred in law in the exercise of his discretion and the appeal by S.K.C. against his order refusing the application made on their behalf to have the proceedings against them dismissed for want of prosecution must be allowed on this ground alone.
Being of this view, it is not necessary at this stage to consider the other grounds upon which it is alleged that the learned trial judge erred in the exercise of his discretion.
This does not however mean that S.K.C. are entitled to the order which they sought: their entitlement thereto remains to be considered by this Court in the exercise of its inherent jurisdiction and I will consider their entitlement thereto after I have considered the judgment of the High Court (Johnson J.) in Freaneys case.
Judgment in Freaneys case
In the course of his judgment delivered on the 9th February, 1995, the learned trial judge, having dealt with the position of the plaintiff and the appointment of administrators thereto in accordance with the provisions of the Insurance Act (No. 2), 1983, stated that:
“The defendants (Oliver Freaney) are a firm of chartered accountants who carry on a practice within the jurisdiction. Their principal place of business is situated at 45, Northumberland Road in the City of Dublin.
For each of the plaintiff’s financial years from the 31st December, 1967, to the 31st December, 1982, inclusive, the defendants were appointed and retained as the statutory auditors of the plaintiff pursuant to the provisions of the Companies Act, 1963, and were officers of the plaintiff accordingly.”
He then dealt with the nature of the plaintiff’s claim against Oliver Freaney and stated that the loss claimed was in excess of Â£172,000,000.
An agreed statement of the relevant steps taken in these proceedings since the appointment of the administrator had been made available to the learned trial judge and he considered them to be the essential elements which enabled him to come to his decision. They are set forth in the course of his judgment.
He then went on to say that:
“This case and indeed a similar case taken by the plaintiff against S.K.C. have gone on for a very, very long time indeed. Many features of this case are similar to the S.K.C. case.
The defendants say in their affidavits that the defence will be deeply prejudiced because of the death of their principal, Mr. Oliver Freaney, who apparently handled the account and had a very great personal input into it and of course had the case been pursued at an earlier date, then they would not have been so prejudiced. However, I note that Mr. Freaney died on the 27th September, 1991, and this motion was brought in June, 1994, and it strikes me that whatever difficulties may have arisen regarding the death of Mr. Freaney were as valid in 1991, at the time of his death, as they were in 1994 some two and a half years later when the motion was brought.
There is in addition another factor in the case which I find somewhat difficult. The plaintiffs indicate that this case will be tried basically on documents. The defendants indicate that far from documents, they were heavily relying on Mr. Freaney. No party has chosen to serve a notice of intention to cross-examine in this case and therefore to this extent I am left with the situation of two contradictory affidavits and under those circumstances I have grave difficulty coming to any firm conclusion as to which of those parties is correct.”
He then stated the parties had agreed that the law governing the application was as set out in the judgment of the High Court (O’Hanlon J.) in Celtic Ceramics Ltd. v. Industrial Development Authority [1993] I.L.R.M. 248 and having set forth these principles went on to say that:
“O’Hanlon J. in his decision in the S.K.C. case delivered on the 11th February, 1994, deals with the parallel or sister case to the present one. It strikes me that many of the factors which govern his decision in that case govern this particular case.” (Emphasis added) Dealing with the facts, the learned trial judge stated:
“The delay in this case from its commencement in 1984 by a letter from Messrs. Arthur Cox to date would undoubtedly appear to be inordinate. Because of the vast bulk of documents which were required to be handled, analysed and examined by the plaintiff for the purpose of preparing its case, I believe that within the terms of the rules and the judgments herein by many courts but which are synthesised in Celtic Ceramics, I am satisfied the delay in the preparation of the case and in the service of the plenary summons and statement of claim would appear to be to be both inordinate and inexcusable. However, having regard to the further proceedings in the case it is quite clear by the 28th February, 1990, when the defendants delivered the defence with a notice seeking further particulars, the defendants had acquiesced in the delay that had taken place until that date. The seeking of further particulars thereafter, particularly together with the acquiescence of the defendants in the motion for discovery and cross-discovery to my mind copper-fastened the acquiescence of the defendants in the situation which arose at that time.
From the motion of discovery, I am satisfied that the plaintiff embarked on its preparation and that whereas there was delay in its preparation, I am not satisfied that it was either inordinate or inexcusable, having regard to the enormous task which faced the plaintiff and to the number and complexity of the documents involved.
The defendants acquiesced in this order and failed to bring a motion to dismiss for want of prosecution until such time as they discovered that the affidavit of discovery of the plaintiff was ready for filing. It ought to have been clear to the defendants that once the discovery was embarked on, it would have required quite a great deal of expenditure, time and labour to complete same.
I accept the views of O’Hanlon J. that it was a mammoth task to prepare the replies to particulars and the affidavit for discovery. In fact, this case being for a large number of years, it is of far greater complexity and size than the S.K.C. case in which O’Hanlon J. refused to dismiss for want of prosecution.”
It is quite clear from this judgment that, in the exercise of his discretion in the application before him, the learned trial judge was influenced by, and had regard to, the decision of O’Hanlon J. in the S.K.C. case.
Having referred to such decision, he stated that:
“It strikes me that many of the factors which govern his decision in that case govern this particular case.”
While he does not specifically identify such factors in the course of his judgment, he referred to the motion for discovery brought by the plaintiff on the 26th June, 1990, and the order and cross-order made in pursuance of such motion on the 17th July, 1990, which orders were made on consent.
He stated that Freaneys had acquiesced in this order and failed to bring a motion to dismiss for want of prosecution until such time as they discovered that the affidavit of discovery of the plaintiff was ready for filing and that it ought to have been clear to Freaneys that once the discovery was embarked on, it would have required quite a great deal of expenditure and time and labour to complete same.
The emphasis that the learned trial judge placed on this fact is illustrated by his statement that:
“The seeking of further particulars thereafter, particularly together with the acquiescence of the defendants in the motion for discovery and cross-discovery to my mind copper-fastened the acquiescence of the defendants in the situation at that time.”
The learned trial judge’s acceptance of the view of O’Hanlon J. that it was a mammoth task to prepare the replies to particulars and the affidavit of discovery again illustrates the fact that at all times he had in mind the judgment in the S.K.C. case.
While he does not specifically find that the acquiescence by Freaneys in the order for discovery and the cross-order and the subsequent expenditures by the plaintiff constituted an estoppel or bar to Freaneys’ application to have the proceedings dismissed for want of prosecution, it would be unreal, having regard to his emphasis on the fact that it would have required a great deal of expenditure and time and labour to complete same and his many references to the judgment of O’Hanlon J. which were quoted with approval, to suggest that he held a view therein contrary to that expressed by O’Hanlon J.
In summary, the learned trial judge held that:
(i) the delay in the preparation of the case and in the service of the plenary summons and statement of claim in this case was both inordinate and inexcusable;
(ii) when Freaneys delivered the defence and a notice for particulars dated the 28th February, 1990, they had acquiesced in the delay that had taken place until that date;
(iii) the seeking of further particulars thereafter, particularly together with the acquiescence of Freaneys in the motion for discovery and cross-discovery copper-fastened their acquiescence in the situation which existed at that time, i.e. 17th July, 1990;
(iv) there was no unreasonable delay by the plaintiff in the preparation of the affidavit having regard to its nature and complexity.
Whether or not the delivery of a defence by Freaneys (which they were obliged to do or risk a motion for judgment in default of defence against them) or a notice requiring particulars of the claim made against them which they were entitled to seek, can be regarded as acquiescence in the delay on the part of the plaintiff is doubtful; but the learned judge so regarded it and dismissed the application.
Once the learned trial judge was satisfied that the delay on the part of the plaintiff was inordinate and inexcusable, he was obliged, in the exercise of his discretion, to exercise a judgment as to whether on the facts, the balance of justice was in favour of or against the proceeding of the case.
The delay on the part of a defendant if it existed, or acquiescence by the defendant in the plaintiff’s delay if found, may be ingredients in the exercise by the court of its discretion but they are not the only ingredients.
The question to be further considered by the court is whether, in the special facts of the case, the delay and consequent prejudice to the defendant is 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.
This question was not considered by the trial judge; rather, he did say that:
“However, it may very well be that at the trial of this action that the trial judge may come to the conclusion that injustice has been caused to the defendants because of the delay and it may be that the trial judge will exercise his discretion in dealing with the particular facts of this case when they come before him in full. I will refer to the final paragraph of O’Hanlon J.’s judgment in S.K.C. and I quote: ”
‘However, while I take the view that the action should not be dismissed at this stage for want of prosecution, for other reasons stated, I consider that in fairness to the defendants they should be given an opportunity, should they wish to exercise it, to raise again the wholly exceptional lapse of time between the completion of the relevant audits and the hearing of the claim. A much clearer picture may emerge when the action comes to trial of the extent of prejudice caused to the defendants, and the degree to which they are inhibited in making a proper defence of the claim by reason of this delay and, as illustrated in the case of Toal v. Duignan , this may in rare cases be accepted as a ground for refusing a claim even when brought within the statutory period and with no failure to prosecute the action once the legal procedures have been set in motion’.”
In this he again followed the approach taken by O’Hanlon J. in the S.K.C. case.
The defendants, Freaneys, are entitled to have the question of the prejudice alleged to have been suffered by them due to the unconscionable and inexcusable delay on the part of the plaintiff and damage to their reputation taken into account by the learned trial judge on the hearing of the application; but no consideration was given by the learned trial judge to this question.
For these reasons I would allow this appeal against the order of the trial judge dismissing the application brought to have the proceedings herein dismissed for want of prosecution.
Again, I re-iterate what I said in regard to the S.K.C. case. The question whether Freaneys are entitled to have the proceedings dismissed for want of prosecution must now be considered by the Court in the exercise of its inherent jurisdiction to dismiss a claim in the interests of justice where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself.
Jurisdiction of the Supreme Court
While the Court has such jurisdiction, it is a jurisdiction which should not be frequently or lightly assumed in the words of Finlay C.J. in Toal v. Duignan (No. 2) [1991] I.L.R.M. 140 at p. 143:
“There can be no doubt that the issue before the court always remains that which was identified by Henchy J. in Ã“ DÃ³mhnaill v. Merrick [1984] I.R. 151 where at page 157, in the course of his judgment he stated: ”
‘In all cases the problems of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her delayed claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not reasonably be expected to defend’.”
It is in the light of this principle and the other principles set forth in the course of this judgment that the applications brought by S.K.C. and Freaneys must be considered by this Court.
Inordinate and inexcusable delay
In both cases, the learned trial judges found that the plaintiff was guilty of inordinate delay in the course of these proceedings.
In the S.K.C. case, the learned trial judge held that:
1. A delay of fourteen years and upwards between the time when a cause of action is said to have arisen and the hearing of the claim must be regarded as inordinate without further argument.
2. Both parties were blameworthy in the delay which has taken place since the issue of the plenary summons on the 21st December, 1984, and the plaintiff’s contribution to that delay was inexcusable.
3. The two year delay on the part of the plaintiff in replying to S.K.C.’s notice for particulars dated the 19th March, 1985, was inexcusable particularly in the wake of the long delay which had already taken place in initiating the proceedings and serving the originating document.

The plaintiff has appealed against the finding by the learned trial judge that it was guilty of inordinate and inexcusable delay and has submitted that the period up to the date of issue of the plenary summons on the 21st December, 1984, was not a relevant factor to be taken into consideration in determining whether the delay was inordinate and inexcusable as the said summons was issued within the period permitted by the Statute of Limitations.
As appears from the statement of claim delivered in this case, the plaintiff’s claim herein is based on alleged negligence and breach of duty of S.K.C. in the audit of the plaintiff’s accounts for the year ending the 31st December, 1978, which audit was carried out jointly with Freaneys and was completed in 1979.
The plenary summons was issued approximately five and a half years after the alleged acts of negligence.
As stated by Henchy J. in Sheehan v. Almond [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.”
However, in spite of the fact that the summons was not issued until five and a half years after the alleged acts of negligence, it was not served until the 18th December, 1985, nearly a full year after its issue.
On receipt of the summons, S.K.C. immediately entered an appearance and the statement of claim was delivered on the 8th January, 1986, nearly seven years after the alleged acts of negligence.
On the 19th March, 1986, S.K.C. served a notice requiring further and better particulars of the matters alleged in the statement of claim.
This notice was not replied to until the 15th March, 1988, nearly nine years after the alleged negligence on the part of S.K.C.
The plaintiff was solely responsible for the delay in the issue of the writ and the delay after the issue thereof must be looked at critically by the Court.
The delay in the service of the plenary summons and statement of claim and in the delivery of the reply to the notice of particulars was, having regard to all the circumstances and as held by the learned trial judge, both inordinate and inexcusable and I would dismiss the appeal against his findings in this regard.

Freaneys
In the course of his judgment in this case, the learned trial judge stated that:
“(1) The delay in the preparation of the case and in the service of the plenary summons and statement of claim would appear to me to be both inordinate and inexcusable.
(2) However, having regard to the further proceedings in the case it is quite clear that by the 28th February, 1990, when the defendants delivered the defence with a notice seeking further particulars, the defendants had acquiesced in the delay that had taken place until that date.”
The plaintiff has appealed against the finding by the learned trial judge that the delay was inordinate and inexcusable.
As appears from the statement of claim delivered against Freaneys, the acts of negligence alleged against them relate to audits carried out by them in the years ending the 31st December, 1978, the 31st December, 1979, the 31st December, 1980, and the 31st December, 1981, and in respect of a report to the Department of Industry and Commerce for the year ended the 31st December. 1982.
In addition damages are claimed in respect of matters arising in 1975 and 1976 but it is pleaded in the defence that these claims are statute barred and I do not propose to refer further to them.
The claim by the plaintiff relates to audits for the four years beginning in the year ending the 31st December, 1978, and ending on the 31st December, 1981, and a report for the year ending the 31st December, 1982.
I am not satisfied that there was inordinate delay by the plaintiffs in the issue of the plenary summons on the 21st December, 1984, but having regard to the fact that the alleged acts of negligence on the part of Freaneys relate back to acts alleged to have occurred in 1978, nearly six years earlier, there was a duty on the part of the plaintiff to proceed with reasonable expedition.
In the circumstances, the delay in the service of the plenary summons and statement of claim was inordinate and inexcusable and I would dismiss the plaintiff’s appeal on this ground.
Delay on the part of the defendants
Being satisfied that in each case there was inordinate and inexcusable delay on the part of the plaintiff, I must now consider whether on the facts in this case the balance of justice is in favour of or against the proceeding of the case.
Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution are ingredients in the exercise by the court of its discretion.
But they are not the only such ingredients. The court is obliged to consider whether the total delay has been such that a fair trial between the parties cannot now be had and whether the defendants have been prejudiced by the continued delay.
These matters must be considered separately in respect of each case.
S.K.C.’s case
Nearly 17 years have elapsed since the completion of the audit which is said to give rise to the cause of action in favour of the plaintiff; five years had already elapsed before S.K.C. were made aware that the manner in which they had carried out the audit was being called into question and could be the subject of court proceedings; a further 11 years have elapsed since the plenary summons was issued, and if the action is allowed to proceed the parties face a further period of delay before it can come to a hearing.
This is the totality of the delay which the Court must consider.
Prior to the issue of the notice of motion herein on the 30th March, 1993, the proceedings had been in being for eight years and three months and, as of the date of the judgment of the learned trial judge, for over 9 years.
From the date of issue of the plenary summons on the 21st December, 1984, until the delivery of the reply to the notice of particulars on the 15th March, 1988, the delay of over three years was solely the responsibility of the plaintiff.
After such delivery the action was allowed by both parties to lie dormant for one and a half years until the plaintiff called on S.K.C. to deliver their defence by letter of the 15th September, 1989.
On the 26th September, 1989, S.K.C. sought further and better particulars arising out of the replies to the notice for further and better particulars which had been replied to by the plaintiff on the 15th March, 1988.
Having regard to the complexity and nature of the claim brought against them, the matters contained in the statement of claim and the replies contained in the replies to the notice of particulars dated the 15th March, 1988, I am satisfied that the service of such notice was necessary and reasonable.
Replies to the said later notice were delivered on the 9th November, 1989, and the plaintiff again called for delivery of a defence.
Significantly, S.K.C.’s solicitors wrote on the 29th January, 1990, to the plaintiff’s solicitors complaining about the lapse of 10 years from the completion by S.K.C. of the audit work and requested a clear statement of alleged deficiencies: they offered to make their working papers available for inspection subject to certain conditions.
By letter dated the 21st February, 1990, the plaintiff’s solicitors rejected the criticism of delay; rejected the offer of inspection of the audit papers; and threatened to seek judgment in default if the defence was not delivered with expedition.
The defence was delivered on the 8th January, 1991: in the intervening period, there had been a request from S.K.C. for security for costs, which was refused and a motion for judgment in default of defence brought by the plaintiff on the 4th July, 1990.
I am satisfied that there was delay on the part of S.K.C., certainly from the time that the plaintiff requested delivery of the defence on the 15th September, 1989.
The period of eighteen months between the delivery of the replies to the notice for particulars on the 15th March, 1988, which had taken two years for the plaintiff to prepare and the request made on the 15th September, 1989, for delivery of defence was not unreasonable having regard to the complexity of the claim and the replies and having regard to the difficulties caused to S.K.C. by the period which had elapsed from the time of the occurrence of the alleged negligence.
Once the defence was delivered, the plaintiff by motion issued on the 18th January, 1991, sought an order for discovery of documents and on the 25th January, 1991, the said order and a cross-order in favour of S.K.C was made by consent.
The discovery by the plaintiff was completed in or about the 6th April, 1993, and the affidavit was served on the 15th June, 1993.
The learned trial judge did not, and I do not, criticise the delay in the completion of the affidavit of discovery. As he stated:
“The plaintiff says that the preparation of the affidavit of discovery was ‘a mammoth task’, involving physical sorting and checking against manual and computerised listings in respect of over 200,000 claims files, and even during the hearing of the application to dismiss for want of prosecution in the month of November, 1993, over 2,000 additional claims files were coming to light for the first time in microfiches and in storage chests.
I think there is more basis for excusing the two-year delay in the preparation of the affidavit of discovery than for the two-year delay which arose at an earlier stage in the preparation of the reply to the notice for particulars.”
While the learned trial judge erred in holding that the seeking of such order against the plaintiff constituted a bar or estoppel to their application to have the proceedings dismissed for want of prosecution, such conduct was, as stated by Lord Browne-Wilkinson in Roebuck v. Mungovin [1994] 2 A.C. 224, a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim; the weight to be attached to such conduct depending upon all the circumstances of the case.
Though considerable expense was undoubtedly incurred by the plaintiff in the preparation of the affidavit of discovery, I do not consider that, in the light of the particular circumstances of this case, S.K.C.’s action in seeking a cross-order for discovery can be criticised.
It was the plaintiff who initiated the discovery process by motion issued on the 16th January, 1991, and they should have anticipated that S.K.C. would have sought a cross-order.
There had been inordinate and inexcusable delay on the part of the plaintiff as outlined herein: there had been delay on the part of S.K.C.
I am satisfied that the delay by S.K.C. in dealing with this case was not such as would amount to a countervailing circumstance as would negative or provide an answer to the inordinate and inexcusable delay on the part of the plaintiff.
The fundamental problem remains, viz. to strike a balance between the plaintiff’s need to carry on its action against S.K.C. and S.K.C.’s basic right not to be subjected to a claim which S.K.C. could not reasonably be expected to defend. As stated by Lord Denning M.R. in Biss v. Lambeth Health Authority [1978] 1 W.L.R. 382:
“The court enquires whether the total delay has been such that a fair trial between the parties cannot now be had.”
An ingredient in the consideration of this issue is whether S.K.C. have been prejudiced by the long, inordinate and inexcusable delay in this case to such an extent that they could not reasonably be expected to defend it.
In the course of his judgment the learned trial judge clearly identified the prejudice to S.K.C. caused by the long delay in the institution and continuation of these proceedings.
His findings may be summarised as follows:
1. Damage to the defendants’ reputation as a leading Irish firm of auditors and accountants with significant international connections. Included in this is what the judge referred to as “widespread adverse publicity in newspapers and journals”.
2. The continued possibility of having to pay a sum in damages “said to make the claim one of the highest of its kind ever brought, not only in this country but anywhere in the world”.
3. The lengthy and considerable delay, at that stage 15 years from the time of completion of the original audit, with the possibility, should the action be allowed to continue, of an appeal to the Supreme Court “which could protract the matter considerably”.
4. Factors inhibiting S.K.C.’s ability to mount a successful defence, including:
(i) most of the staff who worked on the audit have left the company, and a majority have left the jurisdiction also thus ensuring “an enormous expenditure of time and money would be involved in assembling witnesses from overseas”;
(ii) such witnesses as have left the jurisdiction, if unwilling to attend hearings voluntarily, could not be compelled to travel;
(iii) of the four partners involved in the work, one has since died, and the others have retired;
(iv) two of the three partners of Oliver Freaney & Co., who were involved in the joint audit of 1978, have also died, as has the then managing director of the plaintiff company.
5. Auditing standards have undergone considerable change in the intervening years, particularly owing to the exponential leaps made in computer power and technology generally. It would thus be “very difficult” to assess the quality of S.K.C.’s work by reference to standards applicable at the time.
6. It would be “entirely unreasonable” to expect the defendants’ witnesses to be able to answer in detail questions relating to their daily business activities some 16 years ago.

Having regard to the view which the learned trial judge took of the principles enunciated in County & District Properties Ltd. v. Lyell [1991] 1 W.L.R. 683 and their application to the facts in this case, he did not consider the effect of such undoubted prejudice. He did, however, state:
“However, while I take the view that the action should not be dismissed at this stage for want of prosecution, for the reasons stated, I consider that in fairness to the defendants they should be given a further opportunity, should they wish to exercise it, to raise again the wholly exceptional lapse of time between the completion of the relevant audit and the hearing of the claim. A much clearer picture may emerge when the action comes to trial of the extent of prejudice caused to the defendants, and the degree to which they are inhibited in making a proper defence to the claim by reason of this delay, and as illustrated by the decision in Toal v. Duignan this may, in rare cases, be accepted as a ground for refusing a claim, even when brought within the statutory period and with no failure to prosecute the action once the legal procedures have been set in motion.”
I am satisfied, from a consideration of all the authorities, that the prejudice caused to a defendant by inordinate and inexcusable delay on the part of the plaintiff is a fundamental ingredient which may and should be taken into account on an application to dismiss proceedings for want of prosecution and that if the prejudice is such that a fair trial between the parties cannot now be held, then the proceedings should be dismissed and the defendant should not be further prejudiced by the delay that would inevitably be caused by a long and difficult hearing of the action and the possibility of an appeal from the decision of the High Court therein.
I am satisfied that the prejudice caused to S.K.C. by the inordinate and inexcusable delay on the part of the plaintiff as outlined in the course of this judgment is such as to place an inexcusable and unfair burden on S.K.C. in defending these proceedings; is such as to make it impossible that a fair trial between the parties can now be had and that the interests of justice require that the proceedings brought by the plaintiff be now dismissed.
Freaneys’ case
The principles of law applicable to the consideration of the application of this defendant to have the proceedings against them dismissed for want of prosecution have been set out in the course of this judgment and referred to in the consideration of S.K.C.’s application.
The learned trial judge in his judgment stated that:
“The delay in this case from its commencement in 1984 by a letter from Messrs. Arthur Cox to date would undoubtedly appear to be inordinate”,
and
“I am satisfied that the delay in the preparation of the case and in the service of the plenary summons and statement of claim would appear to me to be both inordinate and inexcusable.”
I have dismissed the plaintiff’s appeal against such findings and accept that they were correct.
Though the statement of claim was served on the 8th January, 1986, the defence thereto was not delivered until 28th February, 1990, a period of over four years from the service of the statement of claim.
It appears from the agreed statement of the relevant steps taken in these proceedings since the appointment of the administrator, which was made available to the learned trial judge and set forth by him in the course of his judgment, that on the 3rd February, 1986, Freaneys’ solicitor wrote to the plaintiff’s solicitor stating that they would require to raise a notice seeking further and better particulars and seeking an extension of time for delivery of defence, which request was agreed.
The proceedings then lay dormant until the 8th September, 1989, when the plaintiff’s solicitor wrote asking for the delivery of the defence.
There then followed an exchange of letters between the solicitor relating to the delivery of a defence which was ultimately delivered on the 14th March, 1990, approximately six months from the date of delivery of the letter dated the 8th September, 1989, and accompanied by notice requiring further and better particulars of the matters referred to in the statement of claim.
There was undoubtedly delay on the part of Freaneys in delivering a defence to the proceedings but this delay must be considered in the light of the following circumstances:
(i) The statement of claim was delivered on the 8th January, 1986;
(ii) on the 10th February, 1986, the plaintiff agreed to an extension of time for delivery of defence terminable at the plaintiff’s option;
(iii) the plaintiff did not exercise that option until the 28th September, 1989;
(iv) during that period of three and a half years no steps were taken to ensure delivery of the defence whether by letter or motion for judgment;
(v) the only steps taken by the plaintiff against Freaneys were the service of notice of intention to proceed on the 30th November, 1989, and the 9th November, 1989.
The learned trial judge stated that:
“It is quite clear by the 28th February, 1990, when the defendants delivered the defence with a notice seeking further particulars that the defendants had acquiesced in the delay that had taken place until that date.”
I do not accept that the delivery of the defence and notice for particulars by Freaneys on the 28th February, 1990, can be regarded as acquiescence by them in the delay on the part of the plaintiff.
In view of the inactivity of the plaintiff over this period to the 8th September, 1989, their attitude was a case of “letting sleeping dogs lie”. It was open to the plaintiff during this period to press for the delivery of the defence and to bring a motion for judgment but they failed to do so.
The plaintiff, who was under an obligation to press on with its proceedings, was more blameworthy than Freaneys in respect of the delay during this period.
On the 26th June, 1990, the plaintiff issued a motion for discovery and on the 17th July, 1990, an order for discovery and a cross-order was made by consent.
In this case, as in the S.K.C. case, the discovery proceedings were instituted by the plaintiff and they should have anticipated that a cross-order would be sought by Freaneys. Freaneys cannot be criticised for seeking such an order or the delay caused by the making of such affidavit of discovery.
I am satisfied that the delay by Freaneys in dealing with this case is not such as would amount to a countervailing circumstance as would negative or provide an answer to the inordinate and inexcusable delay on the part of the plaintiff who is primarily responsible for the delay in this matter.
Freaneys have undoubtedly been prejudiced by the delay in this case.
The nature and extent of the prejudice to Freaneys is set forth in the affidavits of Christian Carroll sworn on the 16th June, 1993, and of Noel Louis Fox sworn on the 18th March, 1994.
The nature and extent of the prejudice as averred to in Mr. Fox’s affidavit is set forth in detail in the judgment about to be delivered by O’Flaherty J. and there is not need for me to repeat it.
The learned trial judge, when dealing with the question of prejudice accepted that Freaneys may have been prejudiced because he stated that:
“It may very well be that at the trial of this action the trial judge may come to the conclusion that injustice has been caused to the defendants because of the delay and it may be that the trial judge will exercise his discretion in dealing with the particular facts of this case when they come before him in full.”
As stated by me, when dealing with the S.K.C. case, if prejudice to a defendant’s capacity to defend a case brought against them is caused by inordinate and inexcusable delay on the part of a plaintiff and as a result thereof a fair trial cannot now be held, a defendant should not be further prejudiced by the further delay which would inevitably be caused by a long and difficult hearing of the action.
The nature, extent and effect of such prejudice should be considered at the time of the application to dismiss the proceedings for want of prosecution.
Having regard to the delay which has elapsed since the carrying out of the audit by Oliver Freaney of the accounts of the plaintiff for the year ended the 31st December, 1978, which the plaintiff’s allege was negligently carried out; and the subsequent audits, in respect of which the negligence was alleged to have been continued to date a period of at least sixteen years, prejudice to the defendant caused by such delay could be presumed. However, in this case, Freaneys has established further prejudice as outlined in the course of the affidavits of Christian Carroll and Noel Louis Fox including the prejudice to their capacity to defend these proceedings caused by the death of Oliver Freaney; the death of Mr. Joseph Moore; the death of Mr. Phil Sheridan, the financial controller of the plaintiff at all relevant times; the death of Mr. Edward Keegan of S.K.C. and the damage to their professional reputations as chartered accountants.
I am satisfied that the prejudice caused to Freaneys by the inordinate and inexcusable delay on the part of the plaintiff as outlined in the course of this judgment is such as to place an inexcusable and unfair burden in defending these proceedings and is such as to make it impossible that a fair trial between them can now be had and that the interests of justice require that the proceedings brought by the plaintiff be now dismissed.
O’Flaherty J.
We are here concerned with appeals brought by two firms of accountants. In the first appeal I shall refer to the party as “S.K.C.” and in the second as “Freaneys”. Each seeks the same relief viz. a dismissal of the plaintiff’s claim for want of prosecution, which would require the reversal by this Court of the High Court judgments of O’Hanlon J. of the 11th February, 1994, in the S.K.C. case, and that of Johnson J. of the 19th February, 1995, in the Freaneys case.
The background to the two sets of proceedings is the same and I shall refer from time to time to “the case” when I am dealing with features common to both appeals. At the same time, each appeal has distinct features which I shall highlight from time to time in the judgment.
The plaintiff is a public limited company incorporated under the provisions of the Companies Act, 1963, with the object of carrying on the business of insurer. On the 14th November, 1983, an order was made by the High Court pursuant to the provisions of s. 2 of the Insurance (No. 2) Act, 1983, placing the plaintiff under administration and appointing Kevin J. Kelly to act as administrator to the plaintiff. By a subsequent order of the Court made on the 9th August, 1989, Peter Fitzpatrick replaced Mr. Kelly as administrator and he remained administrator until recently. In the course of this judgment when I refer to the “administrator”, without qualification, I intend to refer to the actual office, rather than the particular holder of the office from time to time.
The Insurance (No. 2) Act, 1983, as it applied to this case, empowered an administrator to take over the management of the business of the plaintiff and to carry on that business as a going concern with a view to placing it on a sound commercial and financial footing. It provided that the administrator should have, in relation to the plaintiff, all such powers as might be necessary for or incidental to his functions in relation to the plaintiff, including the sole authority over the direction of all officers and employees of the plaintiff.
In the course of affidavits sworn in connection with this case, Mr. Kelly averred that the plaintiff had been, to a large extent, controlled by the chairman of the company, Joseph Moore, an assessment that is agreed to on all sides. He went on to say that Mr. Moore at no stage up to his death in June, 1989, ever publicly accepted that the plaintiff was insolvent. In an affidavit sworn by Mr. Moore on the 10th April, 1984, in an action taken by him to have Mr. Kelly removed as administrator, he stated, inter alia, that since “P.M.P.A. Insurance Company Limited was in a sound solvent position on the 31st December, 1982 and also in October,
1983, the appointment of the administrator should be terminated forthwith.” In May, 1989, in further proceedings taken by Mr. Moore to have certain provisions of the Act of 1983 declared unconstitutional, it was set out in the statement of claim as follows:
“5. During the period when the company was under administration the administrator settled claims made against policyholders at a rate substantially in excess of the rate at which claims had previously been settled by the company prior to administration and substantially in excess of the rates at which claims were settled by other insurers carrying on similar insurance business, by reason of which the company is now unable to meet its contingent and prospective liabilities.
6. By reason of the matters aforesaid the plaintiff has been wrongfully and without compensation and without remedy deprived of his proprietary interest in the company and of the value thereof and his rights as shareholder, member and director of the company have been undermined and interfered with in a manner which is contrary to the principles of natural and constitutional justice . . .”
Along the way, in the course of administration, the insurance end of the plaintiff’s business was sold off and apparently now its sole purpose is to pursue this litigation.
This led the trial judge in the S.K.C. action (O’Hanlon J.) to pose the following riddle:
“As a new company appears to have taken over the business of the old P.M.P.A. it is not clear to me who, in human terms, would be the beneficiaries if the claim were allowed to proceed and were brought to a successful conclusion, or who would be the losers were the present application by defendants to succeed.” (Emphasis added).
Freaneys had been sole auditors of the plaintiff since its inception and acted as such for each of the financial years from the 31st December, 1967, to the 31st December, 1982, inclusive. Only for the financial year ended the 31st December, 1978, were S.K.C. retained as auditors of the plaintiff company jointly with Freaneys.
Although a claim for breach of contract was mentioned in the one line indorsement of claim in the plenary summons, no mention of breach of contract is made in the course of the statement of claim.
The claim, as formulated in almost identical terms in the two statements of claim, alleges negligence, breach of duty and breach of statutory duty against each firm. It is strange that a claim for breach of contract was
not set out in the statement of claim since, without any doubt, there was a contractual relationship between the company and each firm of accountants. At the outset of his judgment, O’Hanlon J. refers to the plaintiff’s claim being, inter alia, for breach of contract and it appears that the hearing in the High Court proceeded on the basis that there was no difference between a claim based in negligence as opposed to breach of contract; similarly, this matter was not explored to any extent before us. This course may be permissible in the light of the Court’s decision in Finlay v. Murtagh [1979] I.R. 249 though, since there was no debate on the matter, I will express no concluded view on whether it is so or not. It would, however, surely have been of interest to examine how a claim for breach of contract based on a breach of the terms of the contract, express or implied, would have been framed and what response there would have been by way of defence.
I think in the circumstances that I should assume that the duties owed under contract would have been set out along the same lines as those said to be owed at common law. The plaintiff has formulated what it says were the common law obligations owed by each of the defendants to the plaintiff as follows:
(a) to perform their duties and provide their services with a reasonable degree of skill and care,
(b) to exercise independence of judgment in relation to the expression of their audit opinion on the annual accounts,
(c) to exercise a reasonable degree of competence and diligence in relation to the expression of their audit opinion on the accounts,
(d) to ascertain whether annual evaluations were made in respect of outstanding claims,
(e) to direct the attention of management to the failure to make annual evaluations of outstanding claims,
(f) to satisfy themselves as to the reasonableness of such evaluations as were made in respect of outstanding claims,
(g) to ensure that the accounts conformed to the requirements of the Statements of Standard Accounting Practice issued by the Institute of Chartered Accountants in Ireland,
(h) to ensure that the reports made by them, in respect of annual returns made by the plaintiff to the relevant Minister pursuant to the provisions of the Insurance Acts and the European Communities (Non-Life Insurance Accounts) Regulations, 1977, were accurate.

This formulation of the obligations owed by each professional body, being a firm of accountants, to its clients is accepted on all sides as unexceptionable.
It is important to remind ourselves that the law of negligence was built up over the centuries by reference to cases involving damages claimed for personal injuries or physical damage; the idea that one could sue for the consequences of a negligent mis-statement, aside from contract (and where the claim would lie in contract only), a fiduciary relationship or financial loss flowing from physical damage, did not arise until the decision of the House of Lords in Hedley Byrne & Co. Ltd v. Heller & Partners Ltd. [1964] A.C. 465.
In its classic formulation, Alderson B. said that negligence is “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” Blyth v. Birmingham Water Works Company (1856) 11 Exch. 781.
Where a person undertakes to do something requiring special skill he is called upon, if things go wrong, to prove his competence: though if he is a competent person, the mere fact of a mishap (being of a kind even a competent person is exposed to) would in itself be no evidence of negligence. (Pollock, The Law of Torts, 13th Ed., at page 462).
I bring forward these elementary principles because it is important not to lose sight of them in a case which is said to be hugely complex. The law of negligence was developed as a result of verdicts found by juries. These on facts found by them subject to the trial judge’s jurisdiction to rule that particular conduct was or was not capable of amounting to negligence.
It should also be borne in mind that contributory negligence was a bar to a plaintiff succeeding until the enactment of the Civil Liability Act, 1961. Mr. Kelly has set forth the many respects in which the plaintiff company was negligently or otherwise badly managed, as he contends. I will give details concerning this later in the judgment because it is something of great relevance to the whole case. For now, I confine myself to pointing out that while the Civil Liability Act, 1961, permits the apportionment of fault between plaintiffs and defendants, nonetheless, I do not apprehend that it changes the basic rule of the law which is that where damage is occasioned entirely by the negligence or improper conduct of the claimant such as to render the defendant’s negligence of no causative effect then the plaintiff cannot succeed.
Complicated and all as this case is said to be, it is confined to a claim by a corporate entity which, despite changes in management, remains in law one legal entity as it was when it was first registered; when the administrator was appointed; and is today. Consequently, the sole duty of care owed by the defendants, as far as this case is concerned, was to the company, as such, and so has to be examined within narrow confines. Conversely, the administrator is identified with the plaintiff and cannot distance himself from its wrong doing vis-Ã -vis outsiders, including the defendants. Put bluntly: the administrator is saddled with the company’s wrongdoing.
Wider questions concerning the liability of accountants to third parties, not being parties to any contract with them, are not an issue in this case. It is, however, important to emphasise the necessity of preserving that distinction in a case where the relevant Government Minister, by appointing the administrator, acted as a “rescuer” of the plaintiff. Despite this legal reality it is manifest that the administrator would seek to condemn with an equal fervour both those who managed the company prior to his appointment as well as the defendants.
Many years ago, in the Court of Appeals of New York, Cardozo C.J., in a passage often quoted since, warned against extending the liability of accountants too far when he said:
“If liability for negligence exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of a business conducted on these lines are so extreme as to enkindle doubts whether a flaw may not exist in the implication of a duty that exposes to these consequences”: Ultramares Corporation v. Touche (1931) 255 N.Y. 170 at page 179.
As already pointed out, the accountants’ obligations to the plaintiff are discharged if they exercise reasonable care. They must bring reasonable skill and competence to their task. But they are not required to act as super-humans; nor are they to be faulted simply because an expert witness is produced who says that, if he had been in charge of things, affairs might have been ordered better. Nor do I understand counsel for the plaintiff to say that they regard this as a res ipsa loquitur case, although that plea has found a place in the pleadings. On the contrary, counsel for the plaintiff told us more than once that the onus of proof rested on his clients throughout and so they would have to prove their case in accordance with the applicable rules of evidence. Nor, it is hardly necessary to add, is the defendants’ conduct to be viewed with the wisdom of hindsight.
Further, I believe that any liability in negligence of accountants would have to be established having regard to the legislative framework in which they carry out their duties. In England and I do not understand our relevant company legislation differs in any material respect in this regard the position was summarised as follows by Lord Jauncey of Tullichettle in the course of his speech in Caparo Industries plc v. Dickman [1990] 2 A.C. 605 at p. 660:
“Three matters emerge from the statutory provisions, namely: (1) that the responsibility for the preparation of accounts giving a true and fair view of the company’s financial state is placed fairly and squarely on the shoulders of the directors; (2) that the role of the auditors is to provide an independent report to the members on the proper preparation of the balance sheet and profit and loss account, and as to whether those documents give a true and fair view respectively of the state of the company’s affairs at the end of the financial year and of the company’s profit and loss for that year. Their role is thus purely investigative rather than creative; (3) that the company’s accounts, including the auditors’ report, will be furnished to all members of the company as well as to debenture holders and any other persons entitled to receive notice of general meeting. The accounts will, of course, also be available to any member of the public who chooses to examine the company file in the office of the Registrar of Companies.”
It is now important to recount what Mr. Kelly found when he took over as administrator. Mr. Kelly reported to the High Court, after his appointment was confirmed on the 14th November, 1983, about the fundamental changes which he said were needed to transform the plaintiff from the loss-making activities of its past to a company which would operate as a going concern, as required by the Insurance (No. 2) Act, 1983. In the course of that report he set out a list of the major problems which he and his team had to deal with after his appointment was confirmed. I summarise what he wrote under the following headings:
(i) Lack of management
Four senior members of P.M.P.A. management were asked to take leave of absence on his appointment. Because of the autocratic manner in which the company was run, as he said, he discovered that there was a dearth of appropriate managerial skills throughout the organisation. He placed Coopers & Lybrand (this was the firm to which he belonged) staff in key positions until such time as a complete review of the management structure could take place and permanent senior personnel could be appointed. He and the senior staff on the assignment took over the roles which had previously been the responsibility of the chairman, joint managing directors and the senior financial officer of the company.
(ii) Lack of insurance expertise
The administrator found a lack of insurance expertise at the highest level within the company. A consultant with operational insurance experience and skills who could provide direction and guidance on technical matters was recruited.
(iii) Deficiencies in underwriting arrangements
It was established that the company did not have a realistic basis for setting its pricing policies and that no attempt had been made to relate claims experience with the premium structure as is the norm in other insurance companies. Accordingly, it was necessary to commission a rating structure review on the adequacy of the company’s pricing and to make recommendations as to the future information needs on an ongoing basis. In the months after his appointment the level of renewals was given very close attention and certain changes were made to the motor insurance rates where these were considered appropriate. A detailed review of the non-motor account was carried out and this led to a considerable curtailment of business which had been written at uneconomic rates.
(iv) Deficiencies in claims arrangements
It was the practice of underproviding for claims which enabled the difficulties of the plaintiff to remain hidden for so long and the estimation and settling of claims in an effective manner is vitally important to the future of the plaintiff. The total number and value of the claims to be settled was unprecedented by Irish standards, and procedures and practices prevalent within the claims department were extremely poor. Accordingly, considerable management time and attention was given to this area in addition to work being carried on by Coopers & Lybrand, London and Coopers & Lybrand Associates Limited.
(v) Difficulties with former group companies
Even though most of the companies were placed in receivership within a short period of his provisional appointment and many were later put into liquidation, there was nonetheless a need for continuing liaison with these companies. This was mainly for the purpose of clarifying the nature of historical transactions, agreeing of inter-company balances and resolving legal problems.
(vi) Reinsurance
Shortly after the commencement of the administration, detailed negotiations took place with the company’s reinsurance brokers, Anslow Wilson & Amery, for the purposes of establishing the impact of the administration on the reinsurance arrangements. It was found that although the company had not been recording claims at the full value for accounts purposes it had been keeping the reinsurers up to date and, consequently, the change of control at the plaintiff did not have any adverse consequences on its reinsurance arrangements. At a later stage, a comprehensive review was undertaken of all the reinsurance treaties in place, going back over earlier years, and detailed negotiations took place with the reinsurers. This resulted in the renegotiation of many of the existing treaties on terms which were most advantageous. A fresh look had to be taken at the appropriateness of existing retention levels and the value of the type of reinsurance which the company had in place in preceding years.
(vii) Overmanning
The administrator found overmanning throughout the organisation. All temporary staff and those over 65 years of age were let go immediately. A detailed evaluation of manpower requirements over each area of activity demonstrated that further substantial reductions were achievable. A voluntary redundancy programme was introduced and this had the effect of bringing down the staff numbers to approximately 750. There were approximately 1,150 working in the insurance company at the time of his appointment.
(viii) Poor portfolio of investments
By the time of his appointment the investment portfolio had been considerably depleted because of the adverse cash flow the company had been experiencing. Most of the company’s liquid assets had been disposed of and what was left mainly comprised investments in non-prime properties and the company’s trading subsidiaries. A comprehensive review of all investments was carried out.

It is clear, I believe, that the weals and woes that Mr. Kelly says that he discovered were squarely within the management fabric of the plaintiff.
It is against that background that the claim made against the two firms of accountants must be analysed.
It is alleged against S.K.C. that for the year ended the 31st December, 1978, in respect of accounts audited by them, jointly with Freaneys, the estimate for claims outstanding of IRÂ£34m was grossly inadequate. In the event, it is pleaded, the outstanding claims were underprovided for by a sum of about IRÂ£38m calculated as of the 31st September, 1984. It is alleged that proper provision was not made for outstanding claims in the accounts of Independent Reinsurance Company Ltd. (this was a subsidiary of the plaintiff) and the consequence of this was not reflected in the plaintiff’s accounts.
A similar claim is made against Freaneys in respect of that year but, in addition, claims are made for five other years on the same basis alleging under-provision for outstanding accounts as follows:
31st December, 1979 IRÂ£57m approximately
31st December, 1980 IRÂ£82m approximately
31st December, 1981 IRÂ£110m approximately
31st December, 1982 IRÂ£130m approximately
(these latter were statutory returns under the European Economic Community Non-Life Insurance Accounts Regulations, 1974).
It is alleged against Freaneys that the directors of the plaintiff had in respect of all accounts after the year ended the 31st December, 1976, discontinued a full annual revision of the estimates of the liabilities for outstanding and unsettled claims but, nevertheless, the defendants audited the said accounts (with the exception of the years 1981 and 1982) upon the basis that such a revision was in fact taking place and that proper or prudent allowance and provision for outstanding claims had thereby not been made in the financial accounts of the plaintiff. This allegation as against S.K.C. was confined to the year ended the 31st December, 1978.
The statement of claim identifies a number of allegedly negligent acts on the part of the defendants. The essential allegation is that the defendants failed to prepare accounts in accordance with standard accounting practice for insurance companies. More particularly, complaint is made that the defendants failed to tailor their audit to the particular circumstances of the plaintiff company: it is pleaded that the defendants, notwithstanding their knowledge of inadequacies in the manner in which the directors were having the accounts prepared, did not exercise any independent discretion but instead unreasonably deferred to the management of the company. For the purpose of summarising the allegations made, some general and some particular, I group them under the following headings and which I take to comprise the plaintiff’s case:
(a) The plaintiff’s accounts were not prepared according to the proper codes and practises for insurance companies and were inaccurate.
(b) As already noted, it is pleaded that the directors of the company had, in respect of all accounts after the year ended 31st December, 1976, discontinued a full annual revision of the estimates of the liabilities for outstanding and unsettled claims but, nevertheless, the defendants audited the plaintiff’s accounts for the year ending the 31st December, 1978, upon the basis that such a revision was in fact taking place and that proper or prudent allowance and provision for outstanding claims had thereby been made in the financial accounts of the plaintiff.
(c) The defendants allowed their judgment to be overborne by the directors and failed to carry out prudent independent investigations.
(d) The directors of the plaintiff were notifying to reinsurers figures for estimated revised claims which were inconsistent with and far greater than the provisions being allowed for in the accounts of the plaintiff but the defendants failed to advert to such fact and failed to query, follow up and report on this practice on the part of the directors.
(e) The defendants failed to identify the significance of the indexation of the reinsurance treaties which, as a consequence, gave rise to the underprovisioning for claims in the plaintiff’s accounts.
(f) The defendants failed to report that proper books of account had not been kept by the plaintiff in that they did not give a true and fair view of the plaintiff’s state of affairs or explain its transactions.
It is necessary to indicate that a claim is brought against each defendant for the full amount of IRÂ£175m and this despite the fact that S.K.C.’s direct involvement with the plaintiff was only in respect of one year, whereas the allegation against Freaneys is in respect of a much longer period of time. (I do not lose sight of the fact that there is an allegation, for what it is worth, that S.K.C.’s involvement had some form of “knock
on” effect for future years.) To those who would say that this is a matter that can be dealt with by apportioning fault, if fault is found, I would answer that I think not. Assuming that Freaneys were negligent for the years that S.K.C. were uninvolved directly or indirectly, it is impossible to say that there could be any apportionment of fault in respect of those years attributable to S.K.C.; since the claim is based on tort, presumably the case that the plaintiff would make is that there were diverse tortious responsibilities whether by act or omission of each defendant. Also, the formulation of a claim for liquidated damages of IRÂ£175m is to lay all the responsibility for the plaintiff company’s misfortunes at the door of these defendants which, of course is impossible in light of Mr. Kelly’s report of what he found when he first took over.
The importance of all this is that the defendants’ counsel have, at the outset of their submissions, made the case that even at this remove the matter of causation has never been properly clarified in the pleadings or elsewhere.
They say that the claim lacks any reality in the first place because it is a claim in gross for IRÂ£175m, a claim which they say is devoid of any rational basis. But they go on to say that there is no linkage of the pieces of a chain necessary to join the negligence alleged against their clients with the amount claimed.
Support for this contention is forthcoming from a perusal of the way the matter is pleaded against each of the defendants in the statement of claim, which is to allege as follows:
As a result of the defendants’ said negligence, breach of duty and breach of statutory duty, the plaintiff, in the month of October, 1983, following an investigation carried out into its affairs on behalf of the Minister for Trade, Commerce and Tourism, was placed under administration.
At the time of the said administrator being appointed the plaintiff was insolvent. The plaintiff has avoided the consequences of liquidation on foot of its insolvency by means only of funds borrowed by it from the Insurance Compensation Fund established under the provisions of the Insurance Acts, 1964 to 1983.
Had the defendants carried out their duties and obligations in a proper manner the true financial position of the plaintiff would have been disclosed at a much earlier date and the plaintiff’s business could have been put on a sound financial footing without the plaintiff having to embark upon borrowings. By reason of thematters aforesaid the plaintiff has sustained and continues to sustain loss, damage, expense and inconvenience.
Then follow particulars of special damage which are specified as follows:
Losses sustained between 1975 and 1983 which would not have been sustained but for the defendants’ negligence, breach of duty and breach of statutory duty IRÂ£172m; it is also claimed that dividends were paid in respect of the accounts for the years ending the 31st December, 1976, to the 31st December, 1982, inclusive which would not have been paid but for the defendants’ negligence, breach of duty and breach of statutory duty IRÂ£3,130,000 approximately.
In a reply furnished by the plaintiff to a notice for particulars it is stated:
It is likely that the discovery of the true financial position of the company would have occurred during 1979, i.e. while the audit for the year ended the 31st December, 1978, was being undertaken. The true financial situation was that the company was trading at a substantial loss instead of a marginal profit as disclosed in the published accounts of the plaintiff and the net assets were materially overstated.
If the problems of the company had been identified at the time of the 1978 audit, then appropriate action would have been taken with a view to placing the company on a sound financial footing. The nature of the action taken would have been a matter for the Minister for Industry and Commerce of the day. The scale of the subsequent losses would have been reduced and the substantial borrowings from the Insurance Compensation Fund would not have been necessary.
In short, it is said that the plaintiff would not have had to embark upon borrowings if the defendants had carried out their duties properly. But the plaintiff was only enabled to engage in borrowings by virtue of the passing of the Insurance (No.2) Act, 1983, and the appointment of an administrator. How can a claim to recover the amount that it is said that the plaintiff thus borrowed be recovered either in contract or in tort from defendants who were in no sense privy to these arrangements?
If A runs its business into a state of hopeless indebtedness and borrows money from B which B willingly lends sufficient to get A back afloat can B, having through an agent taken over the running of A, through that agent sue C on the grounds that C helped put A into a state of
indebtedness in the first place and so recover what B lent of its own volition? I cannot find a solution to this theorem in any of our known jurisprudence.
In contract (I deal with it because the High Court dealt with a claim involving, inter alia, a breach of contract), the foundation case of Hadley v. Baxendale (1854) 9 Exch. 341 sets forth the damage which is to be recovered for breach of contract as follows:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
In this case it cannot seriously be contended that the alleged claim can arise “naturally” according to the usual course of things. The passing of the Act and the appointment of the administrator was a most exceptional thing in itself and for the same reason neither was that occurrence in the contemplation of either of the parties at the time that they contracted. The situation in tort appears to be no different where the damages recoverable are those which could reasonably be foreseen to result from the alleged wrong. (As far as the circumstances of this case are concerned. But see H. Parsons (Livestock) Ltd. v. Uttley Ingham & Co. Ltd. [1978] Q.B. 791 and the very interesting discussion on the conceptual practicalities of preserving a distinction as regards remoteness of damages in cases of breach of a contract as opposed to tort in Friel, The Law of Contract, 1995, pp. 199-230).
Assuming that a wrong had been committed by the defendants against the company leading it to a state of insolvency, then the next step in the ordinary way would have been that the company would have been put into liquidation and the loss to the company would be its net worth after deducting liabilities which, I imagine, would have left nothing. But that did not happen.
There is a further point in the case which is that, of course, the relevant Government Minister was the regulatory authority at all material times prior to the company being put into liquidation. It has been deposed to by Noel Fox, who is the senior partner in Freaneys, that if this action were to go on the Minister might have to be made a party to it in some capacity or other. His officers how many of them are now available was not canvassed before us would presumably be required to tell what the Minister’s state of knowledge was at the date of the appointment of the administrator. They would also be required, no doubt, to deal with the “appropriate action” it is said the Minister could have taken and which is alluded to in the reply to the notice of particulars, quoted above.
I have formed the firm view that we have here circuitous litigation which is incapable of producing any result. There is no nexus between any negligence (assuming, without of course deciding, that there was negligence) on the part of the defendants that would entitle the plaintiff to bring home a claim for damages against them. As Brennan J. (now Brennan C.J.) remarked in the course of his judgment in the decision of the High Court of Australia in John Pfeiffer Pty. Ltd v. Canny (1981) 148 C.L.R. 218 at p. 241:
“[A] duty of care is a thing written on the wind unless damage is caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide.”
I justify this excursus into the background of the case because I think it is important to point out how infirm the plaintiff’s case is.
To any objection that the viability of a plaintiff’s cause of action has not been subjected to such scrutiny in the past in any motion to dismiss for want of prosecution, I would answer that it has not arisen in any of the decided cases to which we were referred and where the cause of action was quite clear: cf. Dowd v. Kerry County Council [1970] I.R. 27; O’Reilly v. C.I.E. [1973] I.R. 278; Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561; Sheehan v. Almond [1982] I.R. 235; Ã“ DÃ³mhnaill v. Merrick [1984] I.R. 151; Toal v. Duignan (No.1) [1991] I.L.R.M. 135; Celtic Ceramics v. I.D.A. [1993] I.L.R.M. 248; Hogan v. Jones [1994] 1 I.L.R.M. 512; Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229; National Insurance & Guarantee Corp. v. Robert Bradford & Co. Ltd . [1970] Lloyds Rep. 520; Birkett v. James [1978] A.C. 297; County & District Properties Ltd. v. Lyell [1991] 1 W.L.R. 683; Reynolds v. British Leyland Ltd. [1991] 1 W.L.R. 675; Trill v. Sacher [1993] 1 W.L.R. 1379; Roebuck v. Mungovin [1994] 2 A.C. 224. And where, as here, the real question that we have to resolve turns on whether we do an injustice to one party or the other by allowing such a stale action as this to proceed, it is clearly pertinent to inquire if the plaintiff’s claim is capable of succeeding.
I pass then to an analysis of the High Court decisions. Both judges held that there was inordinate and inexcusable delay on the plaintiff’s part and that the defendants were undoubtedly prejudiced thereby. While
cross-appeals were lodged against those findings, they were not pursued to any degree. Counsel for the plaintiff’s essential position was to rest their case on the findings in the High Court that led to a refusal of the defendants’ motions.
Each judgment has reproduced a summary of the relevant dates, happenings and delays, as has the Chief Justice in the course of his judgment, and, therefore, it is unnecessary for me to recapitulate them. These delays have been properly categorised in the High Court as inordinate and inexcusable.
O’Hanlon J. dealt with the prejudice suffered by S.K.C. as follows in the course of his judgment:
“The defendants claim that they have been seriously prejudiced by the exceptionally long time which has been allowed to elapse between the carrying out of the audit and the processing of litigation in relation to same and there is obviously substance in their complaint. The affidavits sworn in support of the application disclose that the team for the audit comprised 19 people of whom only two still remain in the defendants’ employment. Four partners were involved in the work, of whom one, Edward Keegan, has died, and three have retired. Of the remaining members of the team who have left the defendants’ employment, only five are still in the jurisdiction; one is believed to be in London, two in Australia, one in the Isle of Man, one in Germany, one in the Cayman Islands, and one in France.
It goes without saying that an enormous expenditure of time and money would be involved in assembling witnesses from overseas, and if they were unwilling to come voluntarily they could not be compelled to travel. The late Mr. Keegan is described in the affidavits as ‘a long established senior partner of the defendants and in that capacity the second partner in the audit’. It is averred that he was involved in all major decisions. He provided the critical second opinion on the key issues arising in the course of the audit (and) was heavily involved in formulating the defendants’ position during the period between approximately May, 1979, and August, 1979, when controversial issues as to the plaintiff’s accounting practices and the appropriate audit approach had to be dealt with by the defendants in consultation with the plaintiff.
The defendants also refer to the fact that two of the three partners of Oliver Freaney and Co., who were involved in the joint audit in 1978, have also died, as has Joseph Moore, the managing director of the plaintiff, who is stated to have played a crucial role in the management of the affairs of the plaintiff at that time.
They also claim that auditing standards have undergone significant changes in the period which has elapsed since 1986, with dramatic advances in computerisation and technology generally, and that it would be very difficult at this stage to assess the quality of their work by reference to the recognised standards applicable at the time it was carried out.
The defendants point out that witnesses would have to try to cast their minds back to work done, decisions taken, and meetings and conversations which occurred 16 years previously and say that it would be entirely unreasonable to expect the defendants’ witnesses to answer the plaintiff’s detailed allegations as to what they are supposed to have done or omitted to do.
Another feature of the case relates to the manner in which the defendants have undoubtedly been prejudiced since the initiation of the proceedings by widespread adverse publicity in newspapers and journals, as illustrated by exhibits in the affidavits. There is no doubt that this must be, and must have been, a source of much distress and anxiety to the members of the defendants’ firm, and very harmful to the professional standing of the firm, since the claim was first put forward and while it remains unresolved. It is claimed that this has had a severe impact on the professional indemnity insurance situation of the defendants, but no particulars have so far been given as to any financial loss that may have already been incurred by them under this heading.”
Similarly, Johnson J. found prejudice in the Freaneys situation. In elaboration, however, of his findings, I think it desirable to summarise what Mr. Fox had to say in the course of his affidavit. Dealing with the prejudice these defendants suffered by reason of Mr. Freaney’s death, he pointed out that the late Mr. Freaney had a central role in the audit of the plaintiff company in each of the years 1977 to 1982 inclusive. His method of working was to assign specific jobs to non-senior audit partners. He was not responsible for the detail of audit planning, ongoing control, review of working papers or lesser audit decisions. When the work was substantially complete, the audit partners met Mr. Freaney when necessary and reviewed material matters which had arisen in the course of the audit. He believed that no partner in the firm would come to a decision of really major significance without first discussing it with Mr. Freaney. Mr. Freaney’s input into the bigger cases was by discussion, he advised and gave instructions and was consulted but never kept any time sheets for work done by him on any case. He went on to depose:
“[Mr. Freaney] was the ultimate decision maker as senior partner in the firm and I believe was so regarded by the late Mr. Joseph Moore with whom he attended meetings to discuss the audit opinion for the P.M.P.A. accounts. Because of the autocratic manner in which Mr. Moore ran the P.M.P.A. Insurance Company and personally took control of claims provisions as well as other functions, certain difficulties arose for partners working on the audit in relation to access to information, which required Mr. Freaney having to go to the P.M.P.A. to sort matters out with Mr. Moore with the result that the information would be provided either by Mr. Moore or the late Mr. Hugh Sheridan, financial controller of the P.M.P.A., or otherwise. Such discussions were not recorded by Mr. Freaney but in each case he would have instructed the partner concerned on the outcome.”
Mr. Fox deals with how the defence case is affected by the loss of Mr. O’Connor. He was the audit partner with responsibility for the particular audit for the year ended 31st December, 1978. He had responsibility for planning the audit, controlling its progress, reviewing work done and dealing with the client during the audit. He was a very senior member of the firm and would not require guidance. He would have had considerable contact with Mr. Edward Keegan of S.K.C., also, of course, deceased.
Mr. Fox also complained bitterly in the course of his affidavit a complaint that was repeated by counsel before us that there had been a sustained campaign conducted against his firm through the media. He claims that this publicity did the defendants’ business enormous damage. In addition, nine senior accountants, including partners, left the firm. Gross fee income fell by Â£1.3 million over a period of three years: this represented an annual 20% of fee monies. This ultimately resulted in the firm having to sell all premises owned by them throughout the country apart from the Dublin head office.
A further serious consequence of this adverse publicity was that the firm found it impossible to obtain any professional indemnity insurance except at prohibitive premium rates, a situation which continued for six years. The threat of these proceedings prevented any possible expansion or development of the practice. An opportunity to amalgamate with a substantial firm was missed solely because of the outstanding proceedings in this case.
I must say that I consider that Mr. Fox’s affidavit disclosed a sad, lamentable state of affairs.

With the prejudice in the case, as accepted by them, so brightly illuminated, how did the learned trial judges, nonetheless, come to the conclusion that the action should be allowed to continue?
Both learned judges held that each defendant had compromised its position by participating in the discovery process (Johnson J. added a point about Freaneys serving a notice for particulars with the defence) and that that amounted to conduct which disentitled them from relying on the fact of prejudice.
O’Hanlon J. put it thus:
“. . . this feature of the case is fatal to the defendants’ said claim to dismiss, and I so decide. My decision is reinforced by reference to the previous lengthy period of delay for which the defendants must accept responsibility when delivery of the defence was being withheld.”
Johnson J., in effect, agreed with that reasoning. With respect to both learned judges, I find the proposition relied upon by both to be without any sure foundation. O’Hanlon J. had the misfortune, in reaching his decision, to place reliance on a decision of the Court of Appeal in England which was over-ruled by the House of Lords some few days before he gave his reserved judgment. This was County & District Properties Ltd. v. Lyell [1991] 1 W.L.R. 683.
In the course of his opinion (with which the other noble Law Lords concurred) in Roebuck v. Mungovin [1994] 2 A.C. 224,, which over-ruledLyell, Lord Browne-Wilkinson said that the case had laid down a fixed rule which he described at p. 233 to be as follows:
“. . . whenever the defendant has induced the plaintiff to believe that the case is to go to trial (for example by the defendant taking steps to move the case on) he must be taken to have made a representation that the action is to be allowed to proceed to trial and if the plaintiff has incurred more than minimal costs in reliance on that representation the defendant will be estopped from striking out the claim on the grounds of the plaintiff’s delay. In Lyell’s case the plaintiff had been guilty of inordinate and inexcusable delay which had prejudiced the defendant; even so, the Court of Appeal reversed the judge’s decision to strike out, holding that comparatively minor acts of co-operation by the defendant in preparing for trial barred any striking out of the claim.”
In stating the reason why Lyell should be over-ruled (at p. 236), he said
“Where a plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, subsequent 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. Such conduct of the defendant is, of course, a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case. At one extreme, there will be cases like the present where the defendant’s actions are minor (as compared with the inordinate delay by the plaintiff) and cannot have lulled the plaintiff into any major additional expenditure; in such a case a judge exercising his discretion will be likely to attach only slight weight to the defendant’s actions.”
I think this reasoning accords with our jurisprudence in this matter. If I might paraphrase a citation that I used in my judgment in Murphy v. Minister for Defence [1991] 2 I.R. 161: courts do not exist for the sake of discipline but rather to deal with the essential justice of the case before them. It is only proper that regard should always be had to the rules of court but it must be remembered that the rules are there to help in the administration of justice. The fact that a party avails of his rights under the rules cannot in itself be advanced so as to evoke some form of estoppel against him which prevents him from making his essential argument about the justice of the case, or a particular aspect of it. The essential justice of this case on even the most elementary application of the requirement audi alteram partem and if there was nothing else to be said requires that it should not be permitted to continue. The defendants are simply not able to make their defence for the diverse reasons already referred to but, especially, because of the fact that so many essential witnesses are either dead or beyond the reach of the courts. In addition, I see no possibility at all of either of the defendants being likely to persuade those who have got good jobs abroad (or, indeed, at home) to give up those jobs and spend many weeks or months attending to this case.
I make the further point which is that the plaintiffs advisors must have known discovery would always be necessary and, indeed, the only wonder is that they had not gone about that task much earlier when they were launching proceedings. It is their case and it is the next point I deal with that this is essentially a “documents” case.
Both judges placed some reliance on this suggestion in holding that the case could proceed. However, I believe the short answer to this is to say that there are simple “documents” cases and that there are complicated “documents” cases. An example of a simple “documents” case might be where the documents would be regarded as tantamount to speaking for themselves. Thus, if an architect or a quantity surveyor had drawn up wrong specifications for a building it would be a simple matter of reading the documents to decide whether they could pass muster or not.
Indubitably, this is not a simple “documents” case. It is clearly a very complicated one. I pause to point out that the subsidiary documents put before each of us in these motions alone weighed 10 kilograms in a case where not a word of oral testimony has been given.
A preliminary point about the documents has to be noticed. After discovery and during the hearing before O’Hanlon J., a further 2,000 claim forms were discovered. We were told that these were correlated very rapidly over a weekend. But there was a further supplemental affidavit of discovery sworn on the 16th May, 1994, when a further substantial volume of additional documents was disclosed. It was said that many documents had gone missing: possibly as many as 26% of documents with relevance to a particular audit. In the course of one of the affidavits sworn by him, Marcus T. Beresford, of the firm of solicitors acting for S.K.C., had deposed as follows:
“The plaintiff has only dealt with one specific category of documents, the claims files. In this regard, the plaintiff has admitted that almost 4,000 files no longer remain in existence. An examination of the affidavit of discovery reveals that the files include 26% of the files tested by the defendant in the course of the audit which is the subject of these proceedings. The plaintiff’s affidavit of discovery provides no explanation as to the fate of the missing 4,000 files. We do not know whether they were lost or destroyed, or whether they were disposed of in some other way. Nor are we told when the files are supposed to have left the plaintiff’s possession, nor as to whether this took place following the appointment of the administrator or, indeed, following the bringing of these proceedings.”
In response, Mr. Fitzpatrick deposed, in the course of an affidavit of the 2nd November, 1993, that whereas originally it was thought that about 4,000 claim forms were missing 2,296 of these have now been located, leaving 1,704 claims files unaccounted for. He says that this represents less than 9% of the total of the outstanding claims files as of the 31st December, 1978.
While it has not been established to my satisfaction that the missing documents would prove fatal to the processing of the case, this fact would undoubtedly contribute further confusion to the case. It should be emphasised that documentary evidence needs to be proved in a court like every other evidence. While the general rules of evidence with regard to admissibility, i.e. relevance, hearsay, opinion etc. apply to documentary evidence, additional requirements include proof of contents and proof of due execution: Fennell, The Law of Evidence in Ireland, page 296.
The best evidence rule operates in this sphere to the extent that the party seeking to rely on the contents of a document must adduce primary evidence of those contents, i.e. the original document in question. The contents of a document may be proved by secondary evidence if the original has been destroyed or cannot be found after due search. Similarly, such contents may be proved by secondary evidence if production of the original is physically or legally impossible.
Even if documents get into evidence, they will have to be explained. This is not just the defendants’ case: it is also the plaintiff’s case. Jeremy David Fane Dickson of Coopers & Lybrand, Plumtree Court, London, chartered accountant and partner in the firm of Coopers & Lybrand, has said as much. He said this, in the course of an affidavit:
“Auditors’ negligence cases, are essentially ‘documents’ cases and I say and believe that the defendant should be fully able to explain from its audit working papers the manner in which it conducted the audits of the accounts for each of the (relevant) years.” [Emphasis added]
While counsel for the plaintiff bravely asserted that they would have to prove their case, and if they failed to prove any particular document then their client would have to take the consequences, in the light of the deaths or absence of so many people important to this case, it is impossible to see how the documents will ever get to the stage of being proved let alone being explained or analysed.
Then it is said that expert witnesses will be able to unravel the whole thing in due course to the satisfaction of a trial judge. We have had, in the course of several affidavits, a rehearsal of what the varied expert evidence would be like. Each side has set up positions and demonstrated techniques as regards auditing; there has been reference to what standards may or may not have applied at the relevant time; contrary views on whether actuaries were retained in nonlife business at the relevant time; there has been mention of computerisation and changes in office technique etc. Each move and position has evoked a counter move and the adoption of a different position so that, to me at least, the whole operation bears comparison with the intensity with which a medieval dance routine would have been choreographed.
I have no confidence that expert witnesses could ever unravel this case. They cannot take the place of those who experienced at first hand the auditing of the relevant accounts.
It is significant I think that in all the suggestions of negligence that have been made there is no claim that the defendants did not have the expertise in the sense of being qualified to carry out the work, as a surgeon must be to carry out a particular operation, nor is there any suggestion that insufficient staff were deployed by the two defendants in the work that they had to carry out. In fact, the opposite is implicit in the suggestion that is put forward on behalf of the plaintiff that the defendants can get by in dealing with the documentation with those who are still surviving.
In the circumstances, I cannot see how experts can help much having regard to the unique situation of this plaintiff in the insurance world of the time and the peculiarities of the age in which it operated. The central role of Mr. Moore in the plaintiff company has been emphasised on all sides, so I need say no more than to stress the obvious: that this was a unique company which carried on the biggest motor insurance business in the State at the time, not only on a scale different to that of other insurance companies carrying on motor insurance business but with its own peculiar rules of engagement.
From an affidavit sworn by Richard Wilkinson, who has spent all his professional life since 1967 in the insurance world, I glean a good deal that makes sense and that must correspond with the recollection of those who remember what things were like at the time with which this case is concerned.
I have, as far as possible, in the course of this judgment relied primarily on materials put before the Court on behalf of the plaintiff and have not tended to rely on anything that has been put before the Court by the defendants except where it is obvious, or otherwise agreed. However, I make an exception in the case of Mr. Wilkinson because, although he is a witness put forward by the defendants, indeed he is a member of the world organisation with which S.K.C. is affiliated, I believe that he says so much that is part of the sum of human knowledge that I can properly refer to it, without departing from my resolution not to take anything put forward on behalf of the defendants that would simply favour their position.

Mr. Wilkinson refers, in the first instance, to the inherent uncertainty in estimating the potential cost of claims outstanding against a non-life insurer. Unforseen developments such as high inflation or legal changes can mean that provisions which were perfectly reasonable when set prove to be insufficient to cover the eventual cost of settling outstanding claims many years later. In addition, there can be significant improvements or deterioration in any individual claim prior to its ultimate resolution. Because of this inherent uncertainty in settling insurance claims provisions, it cannot be assumed that simply because particular claims were ultimately settled for a sum greater or less than that originally provided for in the plaintiff’s accounts, therefore the amounts provided for the accounts for the year ended 31st December, 1978, were an unreasonable assessment of the outstanding claims at the time of the approval of the 1978 accounts by the directors of the plaintiff.
He goes on to relate:
“Many factors led to a significant escalation in the cost of insurance claims in Ireland during the years between the 1978 audit and the appointment of the administrator. These include high inflation in Ireland, a marked increase in the size of court awards and settlements in personal injury cases . . . the introduction of VAT on legal fees (and its subsequent increase to 23%), the introduction of the Courts Act requirement to pay interest on damages. Meanwhile, a variety of factors including political (price control on motor insurance premiums) and economic (intense competition in the Irish insurance industry) factors increased the pressure on Irish insurers in the late 1970’s and early 1980’s.”
He referred to Mr. Moore’s report on the 1980 results in which he complained that 1980 was not a good year for the market as a whole and that the motor insurance market had suffered a severe loss. He quotes what Mr. Moore said:
“Motor insurance, our main business, is normally not profitable. It is likely to remain so while price controls remain and while cumbersome legal procedures continue. The Courts of Justice Act, 1981, will add to the cost of claims while the increase in V.A.T. as from September will be a crippling burden.”
He also refers to a practice of the plaintiff of often delaying settlement at a time of rapid claims and inflation. Mr. Wilkinson comments that if this was indeed the plaintiff’s practice then it could well have had the result that claims provisions which had been perfectly reasonable at the time at which they were set, ultimately proved inadequate.

This gives support to a submission that was made to us, which was that the defendants were accountants not insurers. It also brings me back to the statutory frame-work in which auditors operate, to which I have referred.
Finally, to deal with a suggestion put forward by both judges: they held that each defendant would be entitled to renew their applications as regards further prejudice at trial. It follows from what I have said that this course would be quite valueless. It would no doubt follow that the defendants would be able to illustrate the matter of prejudice even more clearly at the trial: but what is the point of that?
To sum up, there is much in Mr. Landy’s pithy suggestion which he made at the outset of his submission: that once delay which is inordinate and inexcusable is established then the matter of prejudice would seem to follow almost inexorably. I hold that the prejudice as chronicled that the defendants would face in this case is total and insurmountable. In addition, however, I believe, that we do no injustice to a party who has little hope of success in making out any plausible case in negligence against these defendants, or either of them, and I believe, as a matter of public policy and in performance of our constitutional obligations to make sure that justice is neither delayed nor denied, we act in the best interests of all parties if we now allow the appeals and grant the defendants’ motions.

Denham J.
I agree with the judgment of Hamilton C.J.

Carroll Shipping Ltd. v. Mathews Mulcahy and Sutherland Ltd.

, High Court, December 18, 1996

Judgment of Mrs. Justice McGuinness delivered on the 18th day of December 1996

1. In these proceedings, three motions were listed for hearing before this Court on the 22nd day of November 1996. The first in time is a motion issued on the 13th March, 1996 by the Plaintiffs to amend their Statement of Claim in the action. The second is a motion issued on the 17th May, 1996 by the Defendant seeking to have the Plaintiffs’ action struck out for delay and want of prosecution. The third is a motion issued on the 29th May, 1996 by the Plaintiffs seeking the reinstatement of the proceedings in the Non-jury List of Uncertified Cases.

2. Counsel for the parties agreed that the logical course was for the Court to deal in the first place with the Defendant’s motion to strike out the proceedings (the second motion). If the Defendant did not succeed in this motion, the Court could then pass on to consider the Plaintiffs’ motion to amend the Statement of Claim, which was vehemently opposed by the Defendant.

3. The history of the proceedings is lengthy and somewhat tortuous. The Plaintiff Company’s business was that of marine contractors and shipping charterers. The Defendant, originally Messrs. Mathews Mulcahy & Sutherland Limited, but now Messrs. Marsh McLennan (Ireland) Limited, is a company of insurance brokers. For a period during the 1970’s, the Defendant arranged shipping insurance for the Plaintiffs. The Plaintiffs’ claim is one of breach of contract and negligence against the Defendant which originally arose out of a shipping accident which occurred on the 26th September, 1975. As a result of this accident, a total of three claims were made in the High Court against the Plaintiff Company. Awards of damages totalling £263,409.00 were made against the Plaintiff Company of which only £50,000 was covered by their insurance. The essence of the Plaintiffs’ original claim in their action is that the Defendant, as their insurance broker, purported to have insured them fully against all risks but in fact had failed to do so and left them exposed to the loss and damage arising from the 1975 accident. The Plaintiffs now seek to amend their Statement of Claim to introduce new claims on behalf of the second named Defendant for personal losses including loss of earnings. It is not, however, necessary to deal at this point with this aspect of the matter. In the original claim, the Plaintiffs relied both on letters written to them by the Defendants in 1973 and on alleged assurances given to them in meetings and telephone conversations with the Defendant and, in particular, with one Cathal McAllister, who was then the main person handling shipping insurance on behalf of the Defendant. The said Cathal McAllister died in 1986.

4. In the three accident claims, judgment was given against the Plaintiffs in the High Court on the 28th January, 1980. On the 8th February, 1980, the Supreme Court granted a stay on those judgments until the 22nd February, 1980 to enable a Notice of Appeal to be filed. On the 10th March, 1980, Notice of Appeal having been filed, the Supreme Court again stayed the judgments of the High Court pending the determination of the appeal but attached a condition that the Plaintiff Company should lodge £100,000 in Court. This money was never lodged. On the 15th January, 1982, the stay was lifted and costs given against the Plaintiffs and this was effectively the end of the appeal.

5. On the 25th February, 1981, the Plaintiffs issued their Plenary Summons in the present proceedings. It was served on the Defendants on the 10th March, 1981 and an appearance was entered on the 12th March, 1981. No further step was taken by the Plaintiffs until the 28th September, 1984 (three and a half years later) when the Plaintiffs’ solicitors wrote to the Defendant’s solicitors requesting a letter of consent to late filing of the Statement of Claim. No reply to this letter was forthcoming. It was not followed up until the 31st July, 1985 when a Notice of Intention to Proceed was served by the Plaintiffs. The Statement of Claim was eventually delivered on the 11th December, 1985, consent to late filing having been given. No further steps were taken until a second Notice of Intention to Proceed was filed on the 2nd December, 1986 and subsequently a Motion for Judgment was issued by the Plaintiffs returnable for 16th March, 1987.

6. There was a reasonable amount of activity in the proceedings during the two years, 1987 to 1989. Particulars were raised by the Defendant and replied to by the Plaintiffs in May-June 1987 and after a further Motion for Judgment, defence was delivered by the Defendant on the 18th July, 1988. The reply to the defence was delivered on the 20th October, 1988 and Notice of Trial dated the 3rd January, 1989 was delivered by the Plaintiffs. On 6th March, 1989, further particulars were requested and replied to by letter dated 8th May, 1989.

7. A discovery procedure then began, an Order and Cross-order for discovery having been made on 10th March, 1989. The discovery procedure appears to have lasted until at least 1992. Counsel for the Plaintiffs argues that the entire of this delay was due to the actions of the Defendant but Counsel for the Defendant submits that the major part of the delay was due to the fact that the Plaintiffs were, for a very long time, unwilling to discover crucial papers in connection with the original proceedings which arose from the 1975 accident. Eventually, the Plaintiffs were ordered by the Master to discover this documentation.

8. Meanwhile, on 6th November, 1990, the first named Plaintiff (the shipping company) was struck off the Companies Register; it appears likely that this was due to a failure to file returns. The Plaintiff Company was not restored to the Companies Register until the 27th November, 1995 so that, legally speaking, for a period of five years, the first named Plaintiff had no existence. The Defendant did not discover until December 1992 that the Plaintiff Company had been struck off.

9. On 15th June, 1993, the proceedings were listed in a call-over of a List of Uncertified Cases. The Defendant’s solicitors attended this list but there was no appearance on behalf of the Plaintiffs and the proceedings were struck out of the list. The non-appearance of the Plaintiffs in the list is explained in the Affidavit of the Plaintiffs’ solicitor, Anthony Neville, as due to the fact that the letter which his town agent sent to him informing him that the matter was appearing in the list arrived in his office after the 15th June, 1993. Apparently, it was felt that the case was not then ready to be certified by Counsel and, therefore, no application was made to reinstate it in the list. However, no notification of this was sent to the solicitor for the Defendant who therefore presumed that the proceedings were no longer being pursued particularly in view of the fact that he was aware that the company had been struck off the register.

10. However, on 5th November, 1993, the Plaintiffs’ solicitors wrote to the Defendant’s solicitors enclosing an amended Statement of Claim. The Plaintiffs’ solicitors had not sought the consent of the Defendant’s solicitor to the serving of an amended Statement of Claim nor had any Order been sought from the Court to permit the service of an amended Statement of Claim.

11. The next step that was taken by the Plaintiffs’ solicitors was on 4th April, 1995 when they wrote to the Defendant’s solicitors requesting an appointment to inspect documents. This letter was replied to on 2nd June, 1995 when the Defendant’s solicitors drew attention to the various matters which had led them to believe that the action was no longer proceeding. There was further correspondence and the Plaintiffs’ solicitors served a Notice of Intention to Proceed dated 16th January, 1996, the first named Plaintiff Company having been reinstated in the Companies Office on 27th November, 1995. The three motions which were listed before this Court on 20th November, 1996 were then issued.

12. In summary, Counsel for the Defendant submits that there has been inordinate and inexcusable delay by the Plaintiffs in dealing with these proceedings. She states that the original Contract of Insurance was in 1969 and the letters and conversations relied upon in the Plaintiffs’ claim took place between 1973 and 1975, over 20 years ago. She submits that an absolutely essential witness for the Defendant would be Mr. Cathal McAllister, who was the person who dealt with the Plaintiffs’ insurance affairs and who held the meetings and telephone conversations with the Plaintiffs at the time. Mr. McAllister died in 1986. She also submits that the present Defendant Company has taken over the business of the original Defendants, Messrs. Mathews Mulcahy & Sutherland Limited, and that the offices of the company have been moved with resultant mislaying or destruction of necessary files, all of which date back to periods of up to 20 years ago. Ms. Macken argues that it is impossible for the Defendant to defend the proceedings properly due to the lengthy delay which has occurred both between the original accident and the present time and between the issue of the proceedings in 1981 and the present time.

13. Counsel for the Plaintiffs, Mr. O’Driscoll, submits that the delays on the part of the Defendant have been at least as great as those on the part of the Plaintiffs. He submits that it was not possible for the Plaintiffs to issue their proceedings until judgment in the original accident claims had been delivered in the High Court in January 1980 and that, in fact, the Plaintiffs’ proceedings should not have been issued until after the end of the appeal proceedings in the Supreme Court in 1982. He argues that a major part of the delay in the issue of the Statement of Claim was due to the Defendant’s failure to agree to late filing in reply to the Plaintiffs’ letter of 28th September, 1984 and that a great deal of the delay was due to the Defendant’s failure properly to make discovery and produce documents for inspection. He submits that a great deal of the arguments of the Defendant could be described as the pot calling the kettle black and that if the Defendant chose to let sleeping dogs lie for long periods in the action, the Defendant could not then argue that the delays in the proceedings were entirely the fault of the Plaintiffs. Mr. O’Driscoll was also extremely critical of the Defendant’s argument that papers and files had been mislaid or destroyed: his view was that it was an essential duty of the Defendant to preserve all papers relevant to an action that was still in being.

14. In his Affidavit on behalf of the Plaintiffs, Mr. Anthony Neville, solicitor for the Plaintiffs, explains at least part of the delay in the issue of the original Statement of Claim and of the amended Statement of Claim as being due to the need to have actuarial calculations done as to the exact losses suffered by the Plaintiffs. I am not at present dealing with the matters set out in the amended Statement of Claim (although in fact I would not have thought that the calculations in the amended Statement were particularly difficult by ordinary actuarial standards). However, I cannot see how it can be argued that there was any complexity in assessing the damages in the original Statement of Claim since they are set out as being the damages granted by the High Court in the original accident claims less the £50,000 insurance cover which did exist. These figures were clearly known to the Plaintiffs and their solicitors and Counsel by January 1980.

15. Mr. Neville also states in his Affidavit that he was unaware of the correct procedure for obtaining a Court Order to issue an amended Statement of Claim and thought that he could only do so by agreement with the Defendant. Since the whole procedure of amendment of pleadings is dealt with clearly under Order 28 of the Rules of the Superior Courts, it seems quite extraordinary that an experienced solicitor would be unaware of these procedures and would allow a period of some eight years to elapse between the issue of the original Statement of Claim and the service of the amended Statement of Claim.

16. There is a very considerable line of authority both in the High Court and in the Supreme Court in regard to the striking out of proceedings due to inordinate delay and Counsel for the Defendant and for the Plaintiffs most helpfully referred me to a number of relevant judgments. The most recent and most comprehensive survey of the law in this area has been undertaken by the Supreme Court in the judgments of the Chief Justice and of O’Flaherty J. in the cases of Primor Plc -v- Stokes Kennedy Crowley and Primor Plc -v- Oliver Freaney & Company – unreported judgments of 19th December, 1995. The two cases were heard and decided together by the Supreme Court. In the first part of his judgment, the Chief Justice carefully and comprehensively surveys the previous law in this jurisdiction and also in the English jurisdiction. At pages 24 to 26 of his judgment, he sets out the relevant principles of law 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 a 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 judgment 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 or procedure,

(ii) whether the delay and consequent prejudice in the special facts of the case are 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 and 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 weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a 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 a Defendant’s reputation and business.”

17. The learned Chief Justice goes on to consider firstly whether the delay was inordinate and inexcusable and, secondly, whether the total delay has been such that a fair trial between the parties could not at that time be had.

18. O’Flaherty J., in his judgment, also stresses the essential question as to whether, after inordinate and inexcusable delay, a just and fair trial may be had between the parties.

19. It is, therefore, in the light of these principles that I must approach the present case.

20. Firstly, a delay of over 15 years since the issue of the Plenary Summons is undoubtedly inordinate, especially when one bears in mind that the actual events giving rise to the claim date back to 1973 to 1975. The situation is aggravated by the fact that the action, even now, cannot proceed with reasonable speed since the Plaintiffs, at the present time, are seeking substantial and crucial amendments to the Statement of Claim which would, in my view, inevitably lead to a whole new round of particulars, discovery and so on before the case could come on for trial.

21. Is the delay inexcusable? In my view, it is. I leave aside the question as to whether the proceedings should have been issued prior to 1981, as even without this first lapse of time, inordinate delay is already established. I have already dealt with the excuse that the framing of the original Statement of Claim required complex calculations. I also reject the argument made by Mr. O’Driscoll on behalf of the Plaintiffs that a large part of the delay in issuing and serving the Statement of Claim was due to the failure of the Defendant to reply to the Plaintiffs’ letter seeking consent to late filing. No doubt, the Defendant’s solicitor should have replied to the letter one way or the other but the Plaintiffs, had they been eager to prosecute their claim, could readily have applied to the Master of the High Court for an extension of time. It has also been argued that the Plaintiffs were not certain of their true insurance position until after they had corresponded with the Insurance Corporation of Ireland in 1983. But again, it must be accepted that the Plaintiffs are businessmen and must surely have ascertained in outline at a fairly early stage after the accident what their true insurance position was.

22. At a later stage, delays in the discovery procedure can be attributed to both sides but the delay in dealing with the amended Statement of Claim is purely that of the Plaintiffs. Again, I have already dealt with and rejected the excuse put forward by the Plaintiffs’ solicitor in this regard and with his inadequate explanation of the fact that when the case was struck out in June 1993 (as can happen accidentally), he did not move to have it reinstated until another three years had passed.

23. Therefore, while the Defendant is not blameless in the matter of delay, I am constrained to hold that the Plaintiffs’ delay in these proceedings was inexcusable given the tenor of the correspondence exhibited in the pleadings and given the history of the matter as a whole. I do not think that the delay of the Defendant or the Defendant’s conduct amounted to acquiescence in the Plaintiffs’ delay. This is particularly so in the more recent part of this unfortunate saga, between the years 1992 and 1996. A crucial factor during this period is that from 1990 until November 1995, the first named Plaintiff Company was non-existent.

24. In all the circumstances of this case, I do not accept that the conduct of the Defendant, while at times it encouraged the Plaintiffs to incur further expenditure in the proceedings, can operate as a bar to the obtaining of an Order striking out the proceedings.

25. The final question to be decided therefore is whether a fair and just trial may be had between the parties at this stage.

26. Where in any trial the issues between the parties which fall to be decided by the Court can clearly be established by documentary evidence only, it may well be that delay, however inordinate or inexcusable, will not in fact prevent the holding of a fair and just trial. However, where matters are at issue which are not, or are not fully, covered by documentary evidence, there is a greater likelihood of prejudice resulting from delay.

27. In the present case, the Defendant Company claims that prejudice will arise under a number of headings. These are set out in the Affidavit sworn by David Caird, Chairman of the Defendant Company, on the 14th May, 1996. In particular, at paragraph 11 of that Affidavit, Mr. Caird lists a number of what he describes as “significant difficulties in seeking to defend the proceedings” as follows:-

“(a) A Mr. Cathal McAllister, who was employed by the Defendant Company for a considerable period of time, is the person who signed the letters referred to in the Statement of Claim, namely, the letters of the 26th February, 1973 and the 13th November, 1973. He is the person who handled all the negotiations between the first named Plaintiff and the Defendant Company and he died on the 26th February, 1986, more than 10 years ago. With the lapse of time, there is now no one available in the Defendant Company who had first hand knowledge of or involvement in the events and transactions out of which the Plaintiffs’ claims purport to arise.

(b) Since 1973, my company has introduced computerised procedures. This has resulted in a fundamental restructuring of the company’s internal administrative activities. Further, the departments into which the company is currently divided are significantly at variance to those which existed in 1973.

(c) In 1973, the Defendant Company was part of the Bowring Group (U.K.). In 1980, Bowring Group (U.K.) was taken over by Marsh & McLennan Group (U.S.).

(d) While there are some Directors on the Board of the Company now who were also on the Board during 1973, all of these are now non-executive Directors. The current Company Secretary was appointed in July 1994, there having been a number of changes in that position since 1973.

(e) In 1975, the Defendant Company moved premises resulting in the dispersal of files, either then or immediately afterwards, which invariably occurs in the case of a move.

(f) Many of the company’s files relevant to this matter no longer exist. This is because, like most companies, we have a policy of retaining files normally for a maximum period of six years only. The Statement of Claim was not delivered until 1985. The Plenary Summons did not disclose matters which would have caused any change to be made in that practice.

(g) As regards staff, only one employee from 1973 remains who admits to having only a vague recollection of the events of 22 years ago and had in fact no direct involvement in any of the matters in issue in the proceedings.”

28. Mr. O’Driscoll, on behalf of the Plaintiffs submitted that the difficulties set out at (b), (e) and (f) should not have arisen. The company was aware since the time of service of the Plenary Summons in March 1981 that an action was in being and all relevant files and papers should have been carefully preserved. While I have a certain sympathy with these difficulties of the Defendant Company in regard to documentary evidence, I must accept that there is validity in the point made by Mr. O’Driscoll. Despite the length of time which has elapsed since 1981 and despite the difficulties and delays, it would have been wise and prudent for the Defendant Company to preserve relevant documentary evidence until the Defendant was absolutely certain that the proceedings had been either unambiguously withdrawn by the Plaintiffs or completely struck out by the Court. Were this to be a case wholly dependent on documentary evidence, I would not be willing to dismiss it on account of these difficulties on the part of the Defendant.

29. However, the matter is somewhat more complex and documentary evidence alone is not the end of the matter. In the Statement of Claim under the heading “Particulars of Representation”, reference is made to three letters written by the Defendant Company to the Plaintiff Company on the 26th February, 1973, the 13th November, 1973 and the 29th September, 1975. However, in the Plaintiff’s letter dated 18th June, 1987 replying to the Defendant’s letter for particulars, it is stated that-:

“No written agreement was entered into between the parties, however, the agreement between the parties as evidenced by a series of correspondence inter partes by letter dated the 9th December, 1969 and a reply thereto dated the 31st December, 1969 and the subsequent correspondence in relation to the nature of the insurance between the Defendant and the Plaintiffs.”

30. Again, in the Plaintiffs’ letter of the 8th May, 1989 in reply to the Defendant’s further letter for particulars, the Plaintiffs, in giving further and better particulars of the “negligent and inaccurate advice alleged in the Statement of Claim” stated as follows:-

“1. See the pleadings herein, the replies to particulars dated 18th June, 1987 and the Statement of Claim. The advices were given in correspondence between the parties dating from 1979 onwards. (This should probably read 1969). During that period, the Plaintiff made many queries of the Defendant as to the adequacy of the insurance and received confirmatory advice from the Defendant to the many requests. Please see the correspondence between the parties.

In addition, there was verbal contact between the parties. It is not now possible to give absolutely precise details of the oral advice given. Suffice it to say that Mr. Carroll met with Mr. McAllister on a number of occasions being approximately 12 occasions in Bantry. There were numerous telephone calls and it is not now possible to remember them all and, in addition, Mr. Carroll visited the Defendant’s premises in Dublin a number of times.”

31. In the Affidavit of Mr. Caird sworn the 28th November, 1996, there is exhibited a letter dated the 25th March, 1980 written by the Defendant’s solicitors to the Plaintiffs’ solicitors. This letter was written before the issue of the Plaintiffs’ Plenary Summons but it throws considerable light on the matters which would be at issue between the Plaintiffs and the Defendant at any trial of the present action. The letter refers to reports contained in the Irish Times and the Cork Examiner of an Affidavit sworn by the second named Plaintiff, Mr. Michael J. Carroll, in connection with the then application to the Supreme Court for a stay on the judgments of the High Court in the cases arising from the 1975 accident. In the course of this letter, the Defendant’s solicitors state as follows:-

“If, in fact, the newspapers correctly report the contents of your clients’ Managing Director’s Affidavit, the Supreme Court has been misled as to the true position relating to your client company’s insurance cover and its business relationship with our client.

The clear inference to be drawn from the contents of Mr. Carroll’s Affidavit as reported in the newspapers is:

(1) That our client were since 1969 and are still your clients’ insurance brokers. In fact, our clients were acting as your clients’ insurance brokers in September 1975 but terminated their business association with you client in 1976 because of the repeated failure of your client to pay their insurance premiums when they fell due or within a reasonable time.

(2) That Mr. Carroll had instructed our clients at all times to keep your client company fully insured and they had failed to do so. In fact, our clients constantly warned Mr. Carroll and your client company that the level of cover in force was less than adequate and that Mr. Carroll’s determination to reduce insurance costs could leave his company inadequately protected against the type of accident that, in fact, occurred in 1975.

(3) That Mr. Carroll and your client company were not aware that the P. & I. Cover had a liability limit of £50,000 until the Plaintiffs’ claim in the above mentioned action was being handled by the solicitors acting for the P. & I. Club. In fact, your clients’ Mr. Carroll was fully aware since 1972, when our clients arranged membership of the P. & I. Club because he was not prepared to pay for a general employer liability cover in the ordinary insurance market, that the P. & I. policy was limited to £50,000. In addition, your client company received a debit note each year expressly referring to the limit of £50,000.

(4) That taking the contents of Mr. Carroll’s Affidavit as a whole as reported, our clients were being held responsible for the mess that your clients now find themselves in. In fact, the very opposite is the true position. If your clients had taken the advice they were given, this claim would have been properly covered and insofar as the P. & I. cover in concerned, our clients immediately notified the P. & I. Club who promptly took over the claim and were dealing with it until your clients purported to cancel their solicitors instructions.”

32. It appears both from the statements contained in the replies to particulars and from the above letter than important issues as to the verbal advices given by the Defendant and as to the state of information and state of mind of the Plaintiffs are certain to arise at any trial of this action. The actual negotiations concerning the Plaintiffs’ insurance position took place between 1969 and 1975, over 20 years ago. In this context, the difficulties set out by Mr. Caird in his Affidavit quoted above at paragraph 11(a), (c), (d) and (g) are very relevant. Above all, it appears to be agreed that Mr. Cathal McAllister was the main person dealing with marine insurance in Messrs. Mathews Mulcahy & Sutherland and that it was he who negotiated with and advised the Plaintiffs during the period 1969 to 1975. Mr. McAllister having died in 1986, the Defendant Company is severely prejudiced in endeavouring to deal with the negligence claims of the Plaintiffs in a trial which is unlikely to take place until at the earliest late 1997. In addition, persons who might have either supervised or assisted Mr. McAllister in dealing with the Plaintiffs’ business are now no longer employed by the Defendant Company. Even were they to be available for the purposes of giving evidence, there is no doubt that their memory of the events of over 20 years ago would be dangerously defective.

33. I am therefore satisfied that the prejudice caused to the Defendant by the inordinate and inexcusable delay on the part of the Plaintiffs is such as to place an unfair burden on the Defendant Company in defending these proceedings and is such as to make it impossible that a fair trial between the parties can now be had. I am also satisfied that the interests of justice require that the proceedings brought by the Plaintiffs be now dismissed.

Cullinane v Eustace

[2005] I.E.H.C. 4

JUDGMENT of Mr. Justice Herbert delivered the 14th day of January, 2005
By an Order, made 7th October, 2003 on foot of a Motion on Notice by the second named Defendant and dated 24th March, 2003, taken pursuant to the provisions of Order 27 rule 1 of the Rules of the Superior Courts, the Master of the High Court dismissed with costs, the Plaintiff’s action for want of prosecution in failing to deliver a Statement of Claim within the period of 21 days from the service of the plenary summons. The plenary summons was issued on 10th May, 2001 and was served on the first named Defendant on 29th May, 2001 and on the second named Defendant on a date prior to 10th August, 2001 when an Appearance was entered on behalf of the second named Defendant.

In an Affidavit sworn by Anthony O’Brien Solicitor for the Plaintiff, on 7th July, 2004, at paragraph 2 thereof he avers that by a letter dated 6th October, 2003 transmitted by telefax to Messrs Pearts, his Town Agents, at 2.57pm on 6th October, 2003, he referred to the matter of David Cullinane v. Peter Eustace and Martin Crowley, “which is listed before the Master’s Court on tomorrows inst.” This letter, a photocopy of which was exhibited with this Affidavit, then continues as follows, “This is a motion to dismiss for want of prosecution by reason of failure to file a statement of Claim. We would very much appreciate if you could apply to extend time as the Plaintiff is currently awaiting a further medical report from U.K.”

In her Affidavit sworn in 2004 by Gemma Coady, Solicitor of Arthur O’Hagan, Solicitors for the second named Defendant, who is the nominated representative and chief executive officer of the Mater Misericordiea Hospital, she states that she was present in the Master’s Court on 7th October, 2003 and exhibits her File Attendance and a photocopy of the Order of the Master of the High Court, both of which confirm that there was no appearance on the occasion on behalf of the Plaintiff even though the case was held over to a second calling.

In these circumstances, on the balance of probabilities, I am satisfied that the Court is entitled to infer that there must have been a breakdown in communication between Mr. O’Brien and his Town Agents. In the second paragraph of his Affidavit sworn on 19th April, 2004, Mr. O’Brien avers that the Plaintiff intended to appeal this decision of the Master of the High Court because his intention to proceed with his action was evidenced by his attending a consultation with a Consultant Ophthalmologist in Coventry on 10th October, 2003. At paragraph 3 of his Affidavit sworn on 19th April, 2004, Mr. O’Brien avers that he forwarded the Report received from the Consultant Ophthalmologist to the Plaintiff. At paragraph 4 of his Affidavit sworn on 7th July, 2004, Mr. O’Brien states that he received this report on 13th November, 2003. Mr. O’Brien does not state how or when he forwarded this report to the Plaintiff or to what address. The address given by the Plaintiff in his Affidavit sworn 21st June, 2004 is Creek House, Brownsmills, Kinsale, County Cork. In this Affidavit Mr. Cullinane does not deal with these matters but does state that the Consultant Ophthalmologist report was received by his Solicitor on 13th November, 2003. At paragraph 3 of his Affidavit sworn on 7th July, 2004, Mr. O’Brien states that due to some breakdown in communication no appearance was entered by his Town Agents before the Master of the High Court on 7th October, 2003. No explanation as to what occurred between 7th October, 2003 and 4th November, 2003 appears in any of the three Affidavits of Mr. O’Brien. If he made contact with his Town Agents as to what occurred on 7th October, 2003 he makes no mention of this fact. It is clear on the face of the Order of the Master of the High Court, made on 4th November, 2003, that he heard submissions from Counsel and Solicitor for the Plaintiff on that day. When Counsel was instructed to appear on this Motion and by whom, does not appear in any of the Affidavits sworn by Mr. O’Brien. It is not stated whether Counsel was informed of the hearing before the Master of the High Court on 7th October, 2003 and, if so informed, what was said in relation thereto.

What is stated at paragraph 3 of the Supplemental Affidavit of Mr. O’Brien sworn on 19th April, 2004 offers no explanation as to why an Appeal to this Court from the Order of the Master of the High Court made on 7th October, 2003 and passed and perfected on 14th October, 2003 was not taken within the permitted period of six days from the latter date. As already indicated neither Mr. O’Brien nor Mr. Cullinane had received the report from the Consultant Ophthalmologist until 13th November, 2003.

At paragraph 6 of his Affidavit sworn on 21st June, 2004, the Plaintiff, David Cullinane, swears as follows:-

“6. I say that at all times in and about the making of the Orders of the Master of his Honourable Court I was intent on prosecuting my case. I say that I instructed my Solicitor to act on my behalf and to prosecute an action against the Defendants in relation to the injury I sustained on 20th May, 1998. My instructions were not limited and to the contrary extended to taking all steps necessary to include bringing any Application including this Application appealing from Orders made or any other legal step that was required in order to prosecute the claim to its completion. It was always my intention to prosecute the action from on or about the time the Originating Summons was first issued. I believe that I have a good cause of action but of course I was as already indicated, advised by my Solicitor that I needed expert evidence of a medical specialist before the action could be prosecuted to completion. I was not aware of technicalities such as the time allowed for Appealing Orders but my instructions to my Solicitor were at all times very clear that he take all steps including the Appealing of any Order made in proceedings which was against my interest. To that extent my instructions and my intention always was and still is to prosecute the claim in every aspect. My instructions were not qualified in any way.”
I am satisfied on the Affidavit evidence and I find, that despite the considerable delay from 20th May, 1998 when the alleged incident giving rise to this action occurred, the Plaintiff in October and November, 2003 still intended to prosecute his claim if he could. At paragraph 7 of his Affidavit sworn on 20th February, 2004, Mr. O’Brien avers that the Plaintiff was notified, – he does not say when, – of the Motions dated 24th March, 2003 by the second named Defendant and 14th August, 2003 by the first named Defendant to strike out his action for failure to deliver a Statement of Claim. I accept the Affidavit evidence, that at considerable inconvenience and expense, the Plaintiff had obtained a consultation with a Consultant Ophthalmologist in Coventry on 10th October, 2003. In such circumstances, on the balance of probabilities, I am quite satisfied that the Plaintiff would have vigorously contested his claim being struck out and, would have insisted upon an appeal being taken to this Court from the Order of the Master of the High Court made on 7th October, 2003 until he had at the very least an opportunity of obtaining the Report and Opinion of the Consultant Ophthalmologist.

I am satisfied on the balance of probabilities that the only reason why an Appeal from the Order of the Master of the High Court made on 7th October, 2003 and passed and perfected on 14th October, 2003 was not taken within the six days allowed by Order 63 rule 9 of the Rules of the Superior Courts, was the breakdown in communication between the Solicitor for the Plaintiff and his Town Agents. This was not a mistake as to procedure or a mistake by the Solicitor as to the meaning of Order 63 rule 9 of the Rules of the Superior Courts. What happened here, on the balance of probabilities, was a simple though erroneous assumption by Mr. O’Brien that things were as they appeared on their face to be, followed, until it was too late, by an understandable but entirely mistaken further assumption on his part that the application to the Master to extend the time for the delivery of a Statement of Claim had been successful.

As the Order of the Master of the High Court made on 4th November, 2003 was not passed and perfected until 11th November, 2003, the letter by Mr. O’Brien to Junior Counsel dated 4th November, 2003 with instructions to draft an application to set aside both Orders of the Master is sufficient evidence in my judgment, of an intention to appeal formed within the appropriate time.

I have read the Report of Mr. Brett L. Haliday, F.R.C.S., F.R.C. (O.P.H.T.), Consultant Ophthalmologist, dated 11th November, 2003 and in particular the Opinion expressed at pages 19 and 20 thereof. I am satisfied, without in anyway purporting to express any opinion whatsoever as to the outcome of this action, that in the words of Lavery, J., in the case of Eire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170 at 175, “the proposed appeal has substance and is not merely intended to gain time and to postpone the day of reckoning.”

In the circumstances, I find that the Plaintiff has succeeded in satisfying the conditions stated in the case of Eire Continental Trading Company Limited v. Clonmel Foods Limited, (above cited) at page 173 of the Report as necessary to be satisfied before this Court will allow an extension of time within which to appeal the Orders of the Master of the High Court made on 7th October, 2003 and 4th November, 2003. The Court will extend the time accordingly.

Both Defendants contend that the Orders of the Master of the High Court should be confirmed by this Court and that the Plaintiff’s cross-motion seeking an extension of time for the delivery of a Statement of Claim in this action should be dismissed. The cross-motion is dated 20th February, 2004 and, was served on both Defendants on 2nd March, 2004. At paragraph 4 of his Affidavit sworn on 7th July, 2004, Mr. O’Brien avers that he wrote to Junior Counsel on 14th November, 2003 to draft an application to set aside both Orders of the Master of the High Court. He goes on to state that he did not receive a reply from Counsel until 17th December, 2003 in which Counsel indicated that he could not deal with the matter. Mr. O’Brien states that on the same day he briefed another Junior Counsel to deal with the matter and received the necessary papers from this Counsel on 15th January, 2004. No explanation is offered as to why the cross-motion was not issued until 20th February, 2004 and then not served on the Defendants until 2nd March, 2004.

There has been considerable delay in the prosecution of this action by the Plaintiff. The delay appears to fall naturally into a series of definite and distinctive periods.

The first period commences on 20th May, 1998, the date of the alleged incident and, continues until the start of the year 2000. I accept what is stated at paragraph 1 of the Affidavit sworn by the Plaintiff on 21st June, 2004 that during this period of approximately nineteen months he was hoping that his eye, despite indications to the contrary, might still improve. Mr. Robert Acheson, a Consultant on the staff of the Mater Misericordiea Hospital had performed a vitretomy and, was monitoring the condition of the Plaintiff’s eye on an on-going basis. The Plaintiff’s wife, then his fiancée, was employed in the same Hospital and worked with the first named Defendant until the end of 1999. The Plaintiff states that in such circumstances he was most reluctant to commence proceedings against the Defendants. There is no suggestion that Mr. Acheson is not available as a witness or that the records of his treatment of the Plaintiff at the Mater Misericordiea Hospital after 20th May, 1998 are not available. In my judgment these are genuine and objectively reasonable explanations as to why the Plaintiff did not commence proceedings during this period.

The next period of delay extends from the start of the year 2000 until 18th September, 2001, a further period of 21 months. At paragraph 3 of his Affidavit sworn on 21st June, 2004 the Plaintiff avers that for much of the year 2000 he was engaged in stressfully urgent work in the Netherlands, so much so that he was able to return to Ireland only at infrequent periods. At paragraph 6 of his Affidavit sworn on 20th February, 2004 Mr. O’Brien states that the Plaintiff was unable to obtain a medical-legal opinion from any Surgeon in Ireland and was required to travel to the United Kingdom for that purpose. Mr. O’Brien points to no facts in support of this assertion, a situation which is altogether unsatisfactory. At paragraph 4 of his Affidavit sworn on 21st June, 2004, the Plaintiff states that he received a list of potential expert witnesses in the United Kingdom from Mr. O’Brien who, since it is not stated, I can only infer told him, that he had taken the advice of Senior Counsel and had consulted the Law Society of Ireland, of Northern Ireland and, of England and Wales in this regard.

At paragraph 11 of his Affidavit sworn on 23rd June, 2004, the first named Defendant states that the Irish College of Ophthalmologists at the Royal College of Surgeons in Ireland, maintains a list of Consultant Ophthalmologists in Ireland who are willing to give medical reports for the purpose of litigation. He expresses surprise that the Plaintiff, according to the Affidavit of Mr. O’Brien, was unable to obtain a medico-legal report in this jurisdiction. The first named Defendant states that any Consultant Ophthalmologist in the State approached on behalf of the Plaintiff for such a medico-legal report would have sought his permission to furnish such a report and he would have granted this permission willingly. He states that no such approach was made to him. On the Affidavit evidence, I am unable to resolve this problem. During the course of this hearing I afforded all the parties an opportunity of filing additional Affidavits. However, in the course of argument, Senior Counsel retained by Mr. O’Brien to represent the Plaintiff informed me that he had directed as part of his general preliminary advice of proofs that the Plaintiff be examined by a Consultant Ophthalmologist from outside the jurisdiction.

At paragraph 4 of his Affidavit sworn 21st June, 2004, the Plaintiff states that because of his work commitments in the Netherlands it was 12th March, 2001 before he could arrange to see a Consultant Ophthalmologist in the United Kingdom. He states that on 3rd May, 2001 he flew to the United Kingdom where he was examined by a Consultant Ophthalmologist who advised him that nothing could be done to improve the condition of his eye which would not recover. The Plaintiff then goes on to state as follows:-

“…my Consultant could not provide a medical report until such time as I was able to obtain copies of my medical files from the Defendants and from the Isle of Man Hospital where I had been previously treated. I say that my solicitors ultimately received a medical report from my consultant on 18th September, 2001. I say that this report was inconclusive and I was advised by my Solicitor and Senior Counsel that I should seek a report from another U.K. Consultant.”
The Plenary Summons in this action was issued on 10th May, 2001, prior to the receipt of this, “inconclusive report”. No information was furnished by the Plaintiff or by Mr. O’Brien in their Affidavits as to when or for what purpose the Plaintiff had been treated in an Isle of Man Hospital or by whom or with what effect.

This is most unsatisfactory. The purpose of an Affidavit is to put sworn evidence in the form of facts before a Court from which that Court may then reach a just conclusion. Assertions of alleged consequences flowing from undisclosed facts are of little or no assistance to a Court in determining an issue. However, despite the shortcomings in the Affidavits filed on behalf of the Plaintiff I am satisfied that there was a genuine and objectively reasonable explanation for this additional delay on the part of the Plaintiff in prosecuting his action. At this stage, the limitation period of three years within which an action of this nature must be commenced, and within which this action was in fact commenced, had been exceeded by only four months.

The next delay covers the period from 18th September, 2001 to 14th November, 2003 when Mr. O’Brien, according to the Affidavit evidence to which I have already adverted, requested Junior Counsel to draft an application to this Court to set aside both Orders of the Master of High Court. This additional delay of almost two years and two months is difficult to explain or excuse. At paragraph 5 of his Affidavit sworn on 21st June, 2004, the Plaintiff states that he became unemployed as a freelance computer consultant in the latter part of 2001 due to adverse conditions in the computer industry and it was not until the middle part of 2002 that he was able to obtain temporary employment with Permanent TSB. He married his fiancée on 26th April, 2002. Prior to this he states that he spent time and approximately €82,500.00 in renovating a house which he had purchased at the end of 1999. From mid 2002 to mid 2003 he states that he was involved in a dispute with his insurers arising out of a subsidence claim in respect of this house the remedying of which cost €70,000 and in respect of which he recovered €65,000.00 from the insurers. The Plaintiff asserts that as a result of time and financial constraints arising from these matters he was unable to afford to travel to the United Kingdom for a further medical examination prior to mid 2003 and obtained an appointment to see Mr. Haliday on 10th October, 2003.

On 3rd May, 2001 the Plaintiff had been advised that, to use his own expression, he would be effectively blind in his left eye for the rest of his life. The Court may infer, though it is not positively stated in his Affidavit or in the Affidavits sworn by Mr. O’Brien, that the Plaintiff was informed by Mr. O’Brien that the Plenary Summons in this action had been issued on 10th May, 2001. It is clear from paragraph 4 of his Affidavit sworn 21st June, 2004 that the Plaintiff was aware that the initial medico-legal report received on 18th September, 2001 was inconclusive and, he had been advised by Mr. O’Brien and by Senior Counsel that he should seek another report from a Consultant Ophthalmologist in the United Kingdom. It is very difficult to understand, how in such circumstances he allowed a further two years to go by without obtaining this medico-legal report without which a statement of claim could not be delivered in the action. This is especially so having regard to the statement of Mr. O’Brien at paragraph 7 of his Affidavit sworn on 20th February, 2004, that he had notified the Plaintiff of the applications by the Defendants dated 24th March, 2003 and 14th August, 2003 to strike out his action for failing to deliver a statement of claim. In my Judgment the reasons advanced for this delay by the Plaintiff do not amount to an objectively justifiable explanation for his failure to progress this action during this period. However, in my judgment a delay of two and a half years beyond the statutory limitation period would not in itself be sufficient to entitle this Court in the absence of specific proof to assume that the Defendants had thereby suffered some material detriment. I would wish to reserve my opinion on the question of whether delay by a party wishing to proceed must be determined to be inordinate before a Court should consider exercising its discretion to strike out the matter. In any event, in my judgment the delay in this case could not be so described.

No replying Affidavit has been filed by or on behalf of the second named Defendant sued as the nominated representative of the Mater Misericordiea Hospital. This is scarcely surprising having regard to the pleading in the draft statement of claim exhibited at paragraph 9 of the Affidavit of Mr. O’Brien sworn on 26th February, 2004.

In his Affidavit sworn on 23rd June, 2004, Professor Eustace, avers that he was obliged to retire from hospital practice in the year 2000 because of ill health but has continued to see patients on two mornings each week. He states that these are mostly persons who have been patients of his for many years and who still require regular check-ups. The only proper inference to be drawn from this evidence is that fortunately Professor Eustace, though physically somewhat infirm, has not suffered any degree of memory or mental impairment and clearly remains fully competent to defend this claim.

At paragraph 9 of this Affidavit Professor Eustace states that he advised his secretary that she could destroy the original medical records relating to the Plaintiff as part of the winding up of his practice but only after he had been informed that the Plaintiff, “could not continue his claim against me”. He then goes on to state as follows:-

“A copy of the records are held in the offices of McCann Fitzgerald, Solicitors, and while I can no longer compare the copy with the original, I believe the copy is complete.”
These copy documents would be admissible in evidence in the circumstances. It may be also possible to compare them with the medical files which the Plaintiff, at paragraph 4 of his Affidavit sworn 21st June, 2004 states were furnished to him prior to 18th September, 2001. Professor Eustace does not make a case that the natural lessening in the acuity of recall which occurs with the passage of time as been such over the period of six years prior to the date of swearing of his Affidavit that it would be unjust and unreasonable, even with the assistance of medical records, to expect him to be able to properly defend this claim. Professor Eustace avers at paragraphs 8 and 10 of his Affidavit sworn on 23rd June, 2004, that he has never previously had proceedings taken against him in relation to his professional practice and this claim has consequently caused him considerable stress and worry particularly since he believed that it had been dismissed by the Courts. Unfortunately, involvement in any form of litigation must for almost all persons carry with it a greater or lesser degree of stress, concern, annoyance and anxiety. While I have no reason to doubt anything of what Professor Eustace states in this regard. I do not believe that the Court would be justified in concluding that this stress and worry is solely referable to the delay in progressing this case and is not in any part due to the fact of the existence of proceedings and to their most unfortunate timing in his career. On the Affidavit evidence it would not in my judgment be open to the Court to find that the stress and worry was such and had continued for such a prolonged period as to amount to an illness which so impaired the capacity of the sufferer to defend himself as to render it unjust and oppressive in the Court to permit the action to proceed further.

Having examined the details of the case as they appear from the Affidavit evidence and taking a careful overview of that evidence, in my judgment the potential injustice to the Plaintiff in dismissing this action for want of prosecution, despite the delay in the delivery of a statement of claim, exceeds the potential prejudice to the Defendants in allowing the claim to proceed despite the passage of more than six years since the date of the alleged incident giving rise to the claim. I find no evidence of any undue acquiescence on the part of either of the Defendants in any delay on the part of the Plaintiff. The Court will therefore reverse the Orders of the Master of the High Court made respectively on 7th October, 2003 and 4th November, 2003 dismissing this claim. The Court will hear the parties on the question of costs and any other consequential orders.

Other cases referred to in argument:
Rainsford v. Limerick Corporation [1995] 2 ILRM. 561
Hughes v. O’Rourke [1986] ILRM. 538
Sheehan v. Amond [1982] I.R. 235
Primor Plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459
Anglo Irish Beef Processors Ltd. v. Montgomery & Others [2002] 3 IR 510
Dowd v. Kerry County Council [1970] I.R. 27
Celtic Ceramics Ltd v. Industrial Development Authority [1993] ILRM. 248
DALTM v. The Minister for Finance [1989] ILRM. 519
Approved: Herbert J.

Shanahan v PJ Carroll and Co Ltd

[2007] I.E.H.C. 229

Judgment delivered on the 24th day of April, 2007, by Gilligan J.
These proceedings concern the second named plaintiff who was born on the 21st December, 1948, and who resides at Cloonaghmore, Abbeylara in the County of Longford.
The first three named defendants are corporate bodies engaged in the manufacture, distribution and supply of tobacco and cigarettes within this jurisdiction. The fourth, fifth and sixth named defendants represent the interests of Ireland.
The plaintiff claims damages for personal injuries by reason of the negligence and/or breach of duty and/or breach of statutory duty of the defendants and each of them, their servants and agents and by virtue of the provisions of the Liability for Defective Products Act, 1991. The personal injuries aspect is broken down as to a primary claim for damages caused by the effects of tobacco smoking to the plaintiff since he commenced smoking in 1960/1961 and a secondary claim related to ongoing damage to the plaintiff’s health caused by his addiction to nicotine.
Further, the plaintiff makes a claim for declaratory relief in the following terms:-
(a) A declaration that the manufacture, distribution and/or supply of cigarettes is injurious to the public health generally and to the health of the plaintiff specifically;
(b) A declaration that the defendants and each of them have violated and/or failed to respect and protect the constitutional rights of the plaintiff;
(c) A declaration that the fourth, fifth and sixth named defendants have failed to vindicate the constitutional rights of the plaintiff;
(d) A declaration that the plaintiff has been deprived of his constitutional rights as identified in Article 40 of the Constitution of Ireland;
(e) A declaration that the continued sale of cigarettes represents a burden on the economic welfare of Ireland and the people of Ireland;
(f) A declaration that the first and/or second and/or third named defendants have made extraordinary profits from the sale of products that they knew or ought to have known to be noxious and addictive;
(g) A declaration that, notwithstanding the ostensible legality of the manufacture and sale of the first and/or second and/or third named defendants’ products, the exercise of such entitlements constitutes an excess of powers due to the injuries knowingly inflicted thereby;
(h) Further, the plaintiff claims damages including aggravated and/or exemplary damages for assault and battery, conspiracy, breach of contract, fraud and/or misrepresentation, negligence and/or breach of statutory duty under the Liability for Defective Products Act, 1991, and/or wrongful interference with and failure to protect the rights of the plaintiff under the Constitution of Ireland and/or breach of duty under the laws of the European Union and/or breach of duty under the European Convention of Human Rights.
In or about 1960 to 1961, at the age of 12 or 13, the plaintiff commenced smoking cigarettes manufactured and distributed by the first named defendant and marketed as the “Sweet Afton” brand and cigarettes manufactured and distributed by the second named defendant, marketed as the “Star” and “Wild Woodbine” brand (hereinafter referred to as “Woodbine”). On commencing smoking in or about 1960 to 1961 until in or about 1965, the plaintiff smoked approximately 10 “Sweet Afton” and “Woodbine” cigarettes per day. During this period the plaintiff occasionally smoked other brands of cigarettes including the “John Player” and “Gold Flake” brands, manufactured, advertised and/or distributed by the second named defendant. From in or about 1965 to in or about 1968, the plaintiff smoked approximately 15 to 20 “Sweet Afton”, “Woodbine” and “John Player” cigarettes per day and occasionally smoked other brands of cigarettes, namely “Embassy”, manufactured, advertised and/or distributed by the second named defendant and “Park Drive” cigarettes. From in or about 1968 to in or about 1973, the plaintiff smoked approximately 30 cigarettes per day, primarily “Sweet Afton” and “Woodbine”. From in or about 1973, the plaintiff commenced smoking the cigarettes manufactured and distributed by the first named defendant and marketed as “Carrolls No. 1” (hereinafter known as “Carrolls”) and “Major Extra Size” (hereinafter known as “Major”). In or about 1973 to in or about 1976, the plaintiff smoked approximately 30 “Major”, “Carrolls” and “John Player” cigarettes per day. From in or about 1976, the plaintiff changed the brand that he smoked to the cigarettes manufactured and distributed by the second named defendant and marketed as “Players No. 6” (hereinafter known as “No. 6”). From in or about 1976 to in or about 1978, the plaintiff smoked 40 “Major”, “Carrolls”, “John Player” and “No. 6” cigarettes per day. From in or about 1978 to in or about 1988, the plaintiff smoked approximately 40 “John Player” cigarettes per day. From in or about 1988 to in or about 1993, the plaintiff smoked approximately 50 to 60 “John Player” cigarettes per day. From in or about 1993 to in or about 2000, the plaintiff smoked approximately 60 to 80 cigarettes per day. From in or about 2000, the plaintiff has smoked approximately 60 cigarettes per day of the “Silk Cut” brand, manufactured, advertised and/or distributed by the third named defendant. In the summer of 1996, the plaintiff began to experience cramping in his legs and pain in his left calf and he went to see his general practitioner in September, 1996, who duly referred him to a consultant vascular surgeon at St. Vincent’s Hospital, Dublin, where he attended on 13th September, 1996. Segment Doppler pressures were carried out and confirmed that the plaintiff was suffering from arterial disease with atherosclerosis. The plaintiff was admitted to hospital for angiography and these tests showed narrowing in the femoral artery of the thigh on both sides. As a result balloon angioplasty was performed and the plaintiff’s position appears to have improved. Despite his efforts, the plaintiff avers that he was unable to stop smoking and in January, 1999 he first learned that Peter McDonnell and Associates, Solicitors were taking claims on behalf of individuals suffering from smoking related illnesses. The plaintiff avers that he came to the realisation that, in addition to being addicted to cigarettes, he could suffer ongoing damage to his health as a consequence of his addiction. He contacted Mr. McDonnell in January, 1999 and provided written instructions to him on or about 16th February, 1999, and at the same time was continuing to undergo medical treatment. Having been reviewed by his vascular surgeon in February, 1999 he was advised strongly to cease smoking but was unable to do so.
The plaintiff says he gave further and more detailed instructions to Beauchamps, Solicitors, following which a plenary summons was issued on his behalf on 19th January, 2000, the plaintiff stating that he felt at that time unable to focus on a possible legal claim as opposed to the disease he had contracted. The plaintiff says that he was unaware that there was a possibility that he might have a stateable claim against tobacco companies arising out of his personal injuries, ongoing addiction to cigarettes and ongoing health damage and that it was only in January, 1999 when he learned of Peter McDonnell and Associates, Solicitors being involved in taking legal actions, that he was aware of the possibility that he might have a stateable legal claim.
In further particulars of personal injury, loss and damage as delivered on 8th November, 2006, the plaintiff indicated that he gave up smoking at Easter, 2004 and as a result has found that he has been able to walk further and has gained weight. The plaintiff has indicated that he was unable to dance for a number of years which he put down to his cigarette smoking and also describes how he had to stop playing handball in 1992, also as a result of smoking. He described his lack of fitness and reported that while in the army, he was one of a number of people who were always lagging behind and he realised that all of these persons were smokers.
In the background it appears that in early 1999, Peter McDonnell and Associates realised that they were not in a position to handle the large number of clients who had retained their services in connection with tobacco litigation and in October, 1999 Beauchamps, Solicitors, following consultation with Mr McDonnell, became involved in the prosecution of the cases and came on record for clients in January, 2000 as joint solicitors so that the plenary summons herein as issued on 19th January, 2000, was issued jointly by Beauchamps and Peter McDonnell and Associates.
The plenary summons issued on the 19th January, 2000, named only the first three named defendants in the title to the proceedings. The summons issued was not served on the various defendants for a period of approximately eight months, the first named defendant being served on the 18th September, 2000, the second named defendant on 27th September, 2000, and the third named defendant on 10th October, 2000. Appearances were entered within a matter of days by all three defendants to the plenary summons, which appearances called for delivery of a statement of claim within 21 days.
On 20th September, 2002, the plaintiff issued a motion to join the fourth, fifth and sixth named defendants (hereinafter referred to as the “State defendants”) and to amend the plenary summons pursuant to the grounding affidavit of Mark Heslin as sworn on 19th September, 2002, in which affidavit the deponent sets out that the State defendants ought to have been joined as defendants at the commencement of the proceedings. The motion came on for hearing before this Court (Johnson J.) and an order was made on 3rd February, 2003, giving liberty to the plaintiff to join the fourth, fifth and sixth named defendants and to amend the plenary summons. The amended plenary summons was not served on the first three named defendants until in or about 18th July, 2003.
The State defendants proceeded to enter an appearance to the amended plenary summons as served upon them on 29th July, 2003, and a statement of claim was served on 5th December, 2003. The first three named defendants at various times called upon the plaintiff to deliver a statement of claim and referred in general terms to prejudice without identifying any particular aspect of prejudice actually suffered. Approximately three years and two months after the entry by the defendants of their appearances, statements of claim were purportedly delivered on or about the 8th December, 2003, with neither consent to late delivery nor leave of the Court.
On 9th March, 2004, the State defendants raised an extensive notice for particulars, which was replied to on the plaintiff’s behalf on 21st June, 2005. The notice of motion herein on behalf of the State defendants was issued on 20th June, 2005. It is accepted that from 9th March, 2004, until 21st June, 2005, being the relevant dates between the notice for particulars and replies thereto, no correspondence passed between the solicitors for the State defendants and the solicitors for the plaintiffs and, in particular, no request was made for the replies to particulars to be delivered.
The relief as sought by the various defendants in the motions that come before the Court can be summarised as follows:-
(a) An order dismissing the second named plaintiff’s claim against the defendants for want of prosecution on the grounds of the inordinate and inexcusable delay on the part of the plaintiff in the commencement and the prosecution of the proceedings, which delay has prejudiced the defendants such that the balance of justice requires that the claim be dismissed;
(b) Further, or in the alternative, and without prejudice to the foregoing, an order pursuant to the inherent jurisdiction of this Honourable Court dismissing the second named plaintiff’s claim by reason of lapse of time and/or pursuant to Article 6 of the European Convention

RELEVANT LEGAL PRINCIPLES
The first aspect of the application is to dismiss the plaintiff’s claim for want of prosecution by reason of inordinate and inexcusable delay in commencing and prosecuting the proceedings, resulting in prejudice such that the balance of justice requires that the claim be dismissed.
The locus classicus is the decision of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 but the ground was to some extent laid by Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561 and, in particular, at p. 567 where the four cornerstones were laid in the following terms:-
(1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings;
(2) Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings;
(3) Even where the delay has been both inordinate and inexcusable, the court must further proceed to exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action, and, to some extent, a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion;
(4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant’s personal blameworthiness for delay is material to the exercise of the court’s discretion.”
Finlay P. at p. 569 of his judgment in Rainsford refers to the meaning of the word “inexcusable” and states as follows:-
“It was submitted to me on behalf of the plaintiff that the true explanation of this delay from about 1974 onwards was firstly the fact that the solicitor in the plaintiff’s solicitors [sic] office who was dealing with the case in detail left that office towards the end of 1974 and secondly that the senior partner in the office who then took over the conduct of the case was periodically ill for a considerable period and attending only to a limited extent due to illness in his office until his death in September 1978. That makes the delay in the prosecution of this case, in my view, clearly understandable but I do not consider that, using the word as it is intended to be used in the decisions to which I have referred, it makes it excusable. I am therefore forced to the conclusion that the delay in this case on the part of the solicitors for the plaintiff was both inordinate and inexcusable.”
There is a further helpful passage in respect of the nature of the discretion to be exercised if the court comes to the view that the delay is both inordinate and inexcusable, wherein at p. 570 Finlay P. states as follows:-
“Having come to the conclusion, however, that an inordinate and inexcusable delay did occur it next becomes necessary for me to try and ascertain where in the justice of the case lies the balance between dismissal and its continuance. In my view the first material consideration in the exercise of this discretion is the nature of the case itself. It is clear from the statement of counsel that the injuries to the plaintiff are very severe and that his chance if he has a good cause of action of being compensated for those injuries probably represents the last major opportunity notwithstanding an extreme handicap to provide for himself and his dependents. What the defendants seek to have dismissed is no mere trivial or ordinary action but one which is probably vital to the future material prospects of the plaintiff. No action brought by a litigant to the courts should be considered unimportant or trivial if a bona fide cause of action exists. In relation, however, to the exercise of a discretion as to where the balance of justice may lie it seems to me that a material consideration must be the gravity of the claim concerned and the consequences of its dismissal upon the injured claimant. In this case it seems to me that the consequences would be dire. The second material consideration is the type of claim on the issue of liability which arises in this case. What was alleged against the defendants was a temporary dangerous obstruction on the roadway in the course of some works being carried out by them. Obviously what actually was there on the night in question; what lighting or absence of lighting existed and the extent and visibility of the obstruction were all matters that had to be ascertained by both the plaintiff and his advisers on the one hand and the defendants and their servants or agents on the other hand within a very short period indeed of the accident on 14 May 1971. The plaintiff’s solicitor was indeed alive to that fact and had a survey of the scene carried out by a professional witness within an extremely short time. There is therefore a distinction in my view between this type of claim, where if the defendants did not investigate it very soon after the happening of the accident they would probably have never been able satisfactorily to investigate it, and a claim where the evidence of a physical nature might remain much longer but where a really lengthy delay in the prosecution of the proceedings might prevent such evidence from being made available to the defendants. I am quite satisfied that if the defendants had not made the appropriate investigations on the issue of liability long before what I consider to have been the reasonable period for the institution of these proceedings, namely August 1973, that the further delay which occurred between 1975 and now could not have further prejudiced their situation.”
In Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 Hamilton C.J. at pp. 475 and 476 succinctly sets out the principles of law relevant to the consideration of the issues raised in an application to dismiss an action for want of prosecution and these were 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 a 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 judgment 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 are 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 weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a 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 a defendant’s reputation and business.
Hamilton C.J. at p. 469 of the judgment reviewed the position relating to a late start as follows:-
“In Birkett v. James (1978) A.C. 297 Diplock L.J. stated:-
“A late start makes it the more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that had already passed before the writ was issued”.
In the course of his judgment in Department of Transport v. Chris Smaller (Transport) Ltd. [1989] A.C. 1197 Lord Griffiths stated at p. 1207:-
“The principles in Allen v. Sir Alfred McAlpine & Sons Ltd. and Birkett v. James are now well understood and I have not been persuaded that a case has been made out to abandon the need to show that the post writ delay will either make a fair trial impossible or prejudice the defendant. Furthermore, it should not be forgotten that long delay before issue of the writ will have the effect of being looked at critically by the court and more readily being regarded as inordinate and inexcusable than would be the case if the action had been commenced soon after the accrual of the cause of action. And that if the defendant has suffered prejudice as a result of such delay before issue of the writ he will only have to show something more than minimal additional prejudice as a result of the post writ delay to justify striking out the action.”
The nature of the prejudice regarded as necessary to be shown was discussed in the case of Biss v. Lambeth Health Authority [1978] 1 W.L.R. 382 where Denning M.R. quoted from his own judgment in Sweeney v. Sir Robert McAlpine & Sons Ltd. [1974] 1 W.L.R. 200:-
“ … the court does not look merely at the delay since the writ … The court enquires whether the total delay has been such that a fair trial between the parties cannot now be had.”
Denning M.R. further referred to a passage from his judgment in Thorpe v. Alexander Fork Lift Trucks Ltd. [1975] 1 W.L.R. 1459 where he stated:-
“ … the plaintiff is not entitled to delay as of right for four years from the accident, three years before the issuing the writ and another year for service. He has no such right. He is not entitled to delay at all. It is his duty once the writ is issued to serve it promptly and get on with it promptly.’
At p. 390 he stated:-
“It is, I believe, accepted on all hands that if the plaintiff is guilty of inordinate and inexcusable delay before issuing the writ, then it is his duty to proceed with it with expedition after the issue of the writ. He must comply with all the Rules of Court and do everything that is reasonable to bring the case quickly for trial. Even a short delay after the writ may in many circumstances be regarded as inordinate and inexcusable and give a basis for an application to dismiss for want of prosecution. So in the present case the delay of nine months was properly admitted to be inordinate and inexcusable. It is a serious problem to the hospital to have the action hanging over its head even for that time. On this simple ground I think this action should be dismissed for want of prosecution.”
At p. 392 Geoffrey Lane L.J. stated:-
“As Lord Denning M.R. has already indicated, there are many ways in which defendants may be prejudiced by continued delay. A small business concern faced with a huge claim in damages may well suffer continuing financial stringency and loss each week that goes by through having to set aside funds against their contingent liabilities. In the present case the nurses whose competence and standards of care are in question are no doubt suffering at least some apprehension as to what may happen or be said at the trial. Why, one may ask, should they continue to have to suffer? That to my mind provides enough by way of prejudice to entitle one to say in accordance with Birkett v. James that extra prejudice beyond that caused by the pre writ delay has occurred to the defendants here, justifying us in dismissing the action.
There are, however, other considerations. It is the duty of the court to prevent its procedures being used to create injustice. A plaintiff who issues a writ outside the normal limitation period under the terms of either the Act of 1963 or the Act of 1975 has only a defeasible right to continue the action. That right will ultimately depend on the decision of the judge at the trial. Whatever the merits of his claim he may find himself defeated because he cannot bring himself within the terms of the particular Act. The defendant meanwhile must expend time and money on preparing for trial. In these circumstances it is incumbent on the plaintiff to prosecute the action with diligence. If he fails to conform with the rules of court as to the various steps in the action and is guilty of serious and inexcusable delay, the court should have and I believe has, the power in its discretion to dismiss the action for want of prosecution. It would not be necessary for the defendant to prove any additional post-writ prejudice. Such prejudice should in these circumstances be presumed.
Thus in cases where (1) the writ was issued after the normal period of limitation had expired, (2) the plaintiff has failed to comply with all the rules of the court as to time, (3) the plaintiff has been guilty since the issues of the writ of serious and inexcusable delay, (4) the totality of the plaintiff’s delay either made it substantially impossible for there to be a fair trial of the issues or alternatively has prejudiced the defendant, the court should be entitled in its discretion to dismiss the action.”
The principles as set out by Hamilton C.J. in Primor were resummarised by Hardiman J. in J O’C v. The Director of Public Prosecutions [2000] 3 I.R. 478 wherein at pp. 499 and 500 he states:-
“Examples of the application of these principles in civil cases can be multiplied. Enough, however, has been said to indicate that it has consistently been held:-
(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: “the chances of the courts being able to find out what really happened are progressively reduced as time goes on”;
(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his “capacity … to be effectively heard”;
(c) that such lapse of time may be so great as it would be “contrary to natural justice and an abuse of the process of the court if the defendant had to face a trial in which (he or) she would have to try and to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial …”;
(d) that, having regard to the above matters the court may dismiss a claim against a defendant by reason of the delay in bringing it, “whether culpable or not”, because a long lapse of time will “necessarily” create “inequity or injustice”, amount to “an absolute and obvious injustice” or even “a parody of justice”;
(e) that the foregoing principles apply with particular force in a case where “disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past …”, as opposed presumably to cases where there are legal issues only, or at least a high level of documentation or physical evidence, qualifying the need to rely on oral testimony.”
Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 at pp. 293 and 294 of his judgment made the following observations:-
“It is important to make the point that there have been significant developments in this area since the decision of the High Court in Rainsford or in Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459. By S.I. No. 63 of 2004, Order 27 of the Rules of the Superior Courts has been significantly amended in particular by the following provision:
“(1) If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, subject to the provision of rule 1A, at the expiration of that time apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of the first such application, the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just; and on the hearing of any subsequent application, the Court shall order the action to be dismissed as aforesaid, unless the Court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure …”
Secondly, the courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued. Thirdly, following such cases as McMullen v. Ireland ECHR 422 97/98. July 29, 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. These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope. The principles they enunciate may themselves be revisited in an appropriate case. In particular, the assumption that even grave delay will not lead to the dismissal of an action if it is not on the part of the plaintiff personally, but of a professional adviser, may prove an unreliable one…It hardly needs saying that any further delay in the taking of any step in this action in the context of the gross delay that has already occurred will expose the plaintiff to a very serious risk of the dismissal of his action.”
Quirke J. in O’Connor v. John Player & Sons Limited [2004] 2 ILRM 321 applied the principles in Primor plc in respect of a claim which was one of approximately 138 similar claims commenced by the plaintiff’s solicitors on behalf of various claimants against the defendant tobacco companies. The Master of the High Court had made an order dismissing the plaintiff’s claim for want of prosecution and from this order the plaintiff appealed to the High Court to have the order of the Master set aside and for an order permitting them to proceed with their claim against the defendants. The headnote contains a particularly useful summary of the judgment and is set out at pp. 322 and 323 in the following terms;
“(1) The principles of law which apply to an application to dismiss an action for want of prosecution are well settled. The application of those principles required consideration of the following questions: whether there was inordinate delay on the part of the plaintiff in prosecuting her claim against the defendants, and, if there was such inordinate delay, whether that delay was excusable and, if the delay has been both inordinate and inexcusable, whether the balance of justice is in favour of or against the case proceeding, having regard to the facts disclosed on the evidence. Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 applied.
(2)The onus of establishing that the delay complained of has been inexcusable rests upon the party so alleging; however, the onus may be discharged by way of evidence and argument demonstrating that no reasonable or credible explanation has been offered or can reasonably be said to exist which would account for or excuse the delay.
(3) The determination of whether, on the facts, the balance of justice is in favour of or against the plaintiff’s case requires consideration of (1) the conduct of the defendant since the commencement of the proceedings for the purpose of establishing (a) whether any delay or conduct on the part of the defendant amounted to acquiescence in the plaintiff’s delay and (b) whether the defendants were guilty of any conduct which induced the plaintiff to incur further expense in pursuing the action, (2) whether the delay was likely to cause or has caused serious prejudice to the defendants, (a) of a kind that made the provision of a fair trial impossible, or (b) of a kind that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action and (3) whether having regard to the implied constitutional principle of basic fairness of procedures, the plaintiff’s claim against the defendants should be allowed to proceed or should be dismissed.
(4) In general, there is no obligation upon a defendant to expedite the prosecution of a claim made against him or her. There was no conduct on the part of the defendants which induced the plaintiff to embark on any particular task thereby causing a delay in the prosecution of her case. Neither was there delay on the part of the defendant in delivering any particular pleading or taking any particular step in the proceedings.
(5) A defendant, faced with a claim, is entitled to be provided with particulars of the wrong alleged, the full nature and extent of the injury and loss claimed and the contention alleged between those two factors. This is required so that the validity of the claim and the extent of the damages sought can be assessed by the defendant. Such particulars must be provided within a reasonable time. Thereafter a defendant is entitled to the trial with reasonable expedition.
(6) It would be difficult to envisage circumstances where a delay of four years and eleven months between the issue and service of proceedings and the delivery of a statement of claim would not be described as inordinate. The fact that the proceedings themselves comprised a claim for damages arising out of alleged events covering a period in excess of 50 years added even greater weight to the contention that the delay on the part of the plaintiff in delivering a statement of claim was inordinate. Accordingly, the defendants had discharged the onus which rested upon them of establishing that there had been inordinate delay on the part of the plaintiff in prosecuting her claim against the defendants.
(7) For a period of almost three years no tangible steps of any kind were taken on behalf of the plaintiff to prosecute her claim. The explanations offered were unsatisfactory and the defendants had discharged the onus of proving that no reasonable explanation or excuse existed which justified the delay complained of.
The judgment of Quirke J. in O’Connor was followed by the judgment of Finlay Geoghegan J. in Manning v. Benson and Hedges Limited and Others [2004] 3 IR 556 where she adopted the legal principles as set out in O’Connor particularly relying on the judgment of the Supreme Court in Primor.
In dealing with the want of prosecution application, Finlay Geoghegan J. took the view that the court cannot, in considering the prejudice caused by delay, take into account any period prior to the date of the accrual of the cause of action. She stated at pp. 563 and 564 of her judgment:-
“Until the cause of action accrues the plaintiff normally cannot commence proceedings. Hence even if as I have concluded the obligation to prosecute includes the obligation to commence proceedings there cannot be any question of delay until the entitlement to commence i.e. the accrual of the cause of action occurs.
Another way of looking at the issue is to consider what would have been the position if subsequent to the date of diagnosis of each of the plaintiffs they had proceeded with alacrity to commence proceedings and prosecuted the proceedings within the time limits in the Rules. If that had been done the defendants could not have applied for an order to dismiss for want of prosecution notwithstanding the long lapse of time between the first occurrence of the alleged wrongful acts and the date of accrual of the cause of action.
It follows from this conclusion that in considering the application to dismiss for want of prosecution, the court should not consider prejudice caused to the defendants or the risk that it is not possible to have a fair trial by reason of lapse of time between the alleged wrongful acts and accrual of the cause of action. The fact that there was such a lapse of time may however be relevant when considering the relevant factors to the balance of justice issues. The court should not ignore the fact that the alleged wrongful acts took place a long time ago. At minimum where there is a long lapse of time between wrongful acts and accrual of a cause of action it may mean that the claim is already difficult for the defendant to deal with and prejudice caused by subsequent delay may have to be more critically examined. Also, such a long lapse of time places a special onus on a plaintiff to proceed with due expedition after the accrual of the cause of action.”
The Supreme Court in Keogh v. Wyeth Laboratories Inc [2006] 1 IR 345 made observations as regards the position of a plaintiff suing a multinational company for damages for personal injuries and her personal situation when compared to the might of the defendant and also in respect of the issue of the trial essentially being based on documents and/or the necessity for oral evidence.
McCracken J. delivering the judgment of the court stated at p. 352 of the judgment:-
“The trial judge also held that the action in the present case is likely to be tried essentially on documents. The appellants hotly contest this finding, and argue that they will not only suffer the general prejudice of having to give evidence of matters which took place very many years ago, but that they will suffer actual prejudice. They point to the fact that the psychiatrist first consulted by the respondent is not available and while they accept that she was seen by other psychiatrists subsequently in the public health system, nevertheless the evidence of the first psychiatrist would be particularly important. While documentation may certainly go a long way towards showing the origins of the drug and the tests which it underwent, it must be remembered that the negligence alleged against the appellants relates, not to the fact that they put a dangerous drug on the market, but that they failed to warn either the medical profession or the patients being treated with the drug as to the possibility of addiction. To meet this, the appellants will certainly have to try to adduce evidence of the knowledge of members of their staff back in 1979 when the respondent was first prescribed the drug. In addition, the plaintiff’s own medical condition between 1979 and 1984 will be of vital importance and will require substantial oral evidence. At p. 41 of his judgment the learned trial judge acknowledged that it might not be possible for the appellants to rely on witnesses whom they might have wished to do so if the trial had taken place earlier, but said that he could not accept that they could not engage alternative experts who could just as ably assist the court. While this may well be true as to expert witnesses who simply review the documents, the learned trial judge went on to say “equally so with regard to employees of the defendants”. It seems to me that there must of necessity be many former employees of the appellants who will not now be available to give evidence of events which occurred over twenty years ago, and they could not be replaced by alternative witnesses. In my view the appellants would have serious difficulties in relation to meeting the respondent’s case by reason of the unavailability of witnesses.”
He further stated at pp. 353 and 354 of the judgment:-
“It is urged in the present case that the plaintiff is a person of very limited means and that the solicitor for the plaintiff is a sole practitioner. This is of course true but it is also a situation which arises in a large number of claims for personal injuries. This is not a case where specific blame can be laid at the door of the solicitor, and the court has no evidence of what, if any, attempts were made by the plaintiff personally to progress her case.
The fact that the defendants may be large multi-national pharmaceutical companies does not mean that they are not entitled to a consideration of fairness by the court, nor that any prejudice suffered by them should be ignored. Having considered the same evidence as the trial judge, I am of the view that he erred in the exercise of his discretion and in some of the conclusions which he drew from the evidence. In the light of the enormous delay in this case, I believe that justice would be served by allowing this appeal and striking out the plaintiff’s claim and I would order accordingly.”
Clarke J. in Stephens v. Flynn [2005] IEHC 148, dealing with an appeal against an order of the Master of the High Court dismissing the plaintiff’s claim for want of prosecution on the grounds of inordinate and inexcusable delay in the commencement and prosecution of the proceedings, applied the law as already referred to herein in Rainsford, Birkett, Gilroy and Primor. Dealing with the fact that there was a delay in the institution of the proceedings Clarke J. stated that:-
“Based on Hogan it is clear that there was a heavy onus upon the Plaintiff to proceed with extra diligence in progressing these proceedings having regard to the fact that a delay of just a few days short of six years had been allowed to occur prior to the issuance of the proceedings in the first place. In the light of the fact I would have been satisfied that a delay of over 20 months in the filing of a statement of claim was inordinate even on the basis of what I might call the traditional jurisprudence. It is clear that in the light of the factors identified by the Supreme Court in Gilroy that view must be taken with even greater strength.As to whether the delay is excusable it would appear that the only real reason put forward was the difficulty encountered in obtaining reports from the Plaintiff’s experts necessary to enable counsel to draft the appropriate particulars required for inclusion in the statement of claim. To this may be coupled the fact that it would appear that the relevant expert was ill for at least a portion of the relevant time. However it does not seem to me that having regard to:-
(a) the undoubted need to move with extra expedition in the light of the extraordinary delay in the commencement of proceedings
(b) the lack of any realistic explanation as to why it should have taken the expert concerned as long as it apparently did to produce a report;
(c) the statement in Gilroy to the effect that, in particular, delay attributable to a professional advisor may be less excusable than might once have been the case; and
(d) in the light of the need, by virtue of the developments identified by the Supreme Court in Gilroy, to exercise a significant degree of additional scrutiny on excuses put forward,
I am satisfied that the delay is inexcusable. Having reached that conclusion it is necessary for me to consider where the balance of justice lies.”
Clarke J. went on to state that:
“I now turn to the factors which are relevant to a consideration of the balance of justice. For the reasons indicated above it does seem to me that there needs to be a re-calibration of the weight to be attached to many of those factors in favour of imposing a significantly greater obligation on parties to move with expedition. The factors, and my assessment of them, are as follows:-
(a) The degree of delay
For the reasons indicated above I am satisfied that there was a very significant delay indeed particularly having regard to the principle set out in Birkett to the effect that a particular obligation to move with expedition lies upon a party who has waited to the last moment to commence proceedings within the limitation period. I am satisfied that a delay which goes beyond the minimum which may be considered inordinate can be an additional factor to be weighed in the balance. I am satisfied that such a delay occurred here.
(b) The excuse tendered
I am also satisfied that the Plaintiff has not only failed to render that delay excusable but has failed to do so by a significant margin and this must also be a factor to be taken into account.
(c) Prejudice
The Defendant contends for prejudice based upon the fact that the evidence which will require to be tendered to the court will be impaired by the lapse of a minimum of ten years between the events and any likely trial date. He has not, however, been able to point to any specific witness who is no longer available. It must also be taken into account that there are, apparently, statements of the relevant witnesses to the events of the 5th December, 1995 taken by the Gardaí on the occasion in question. That being said an issue as to the credibility of witnesses (which will almost certainly arise) will be all the more difficult of resolution where those witnesses are being asked to recollect matters that occurred so long ago. While the prejudice may not be quite as great as the Defendant contends for I am satisfied that it will nonetheless be of some significance. In relation to the evidence which will need to be tendered in respect of quantum I am not so sure that the same level of prejudice has been established. It would appear on the evidence that the Defendant was afforded, at the relevant time, an opportunity to have the premises concerned inspected by an engineer. It has not been contended that the engineer concerned is not available or that his records have become unavailable by the passage of time so as to render his evidence less clear. As the onus will lie upon the Plaintiff to establish his case it will be necessary for the Plaintiff to call all necessary witnesses concerning the quality of the works carried out by the Defendant, the extent of the works which remained to be done as of the date of the departure of the Defendant, and the costs of all additional and remedial works that were required. There will be some additional difficulty placed upon the Defendant at being asked to attempt to evaluate that evidence in respect of events that occurred a very considerable period of time ago. However on the basis of the evidence before me I could not place that prejudice at a higher degree than moderate.
(d) Inaction of the Defendant
It is clear from both Rainsfort and Hogan that “delay on the part of a Defendant seeking a dismissal of the action and, to some extent, a failure on his part to exercise a right to apply at any given time for the dismissal of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion”. In this case there was no significant delay on the part of the Defendant. It might be said that there was some inaction between July 2002 and November 2003. However it is clear that even on the basis of the traditional test inaction is of less weight than delay. It is described as applying “to some extent”. While remaining a factor it is one which, in the current context, should be given an even lower weighting.
I am therefore satisfied that the Defendant has suffered prejudice by virtue of the delay, but that same cannot be placed at too high a level. Finally in that regard I have considered the prejudice on the basis of the delay from the time of the incidents giving rise to the proceedings rather than solely in respect of the period from the commencement of the proceedings to date. While I agree that the court is confined, in determining whether a delay has been inordinate, to the period subsequent to the commencement of proceedings I am of the view that in assessing the balance of justice the court has a wider discretion and can take into account prejudice which may be cumulatively attributable to a delay both prior to and subsequent to the commencement of proceedings.
In all of the above circumstances I am satisfied that the weight to be attributed to both the delay and its excusability coupled with the moderate degree of prejudice and the minor weighting attributable to the limited inaction on the part of the Defendant is such that the balance of justice favours the dismissal of the proceedings.”
The second aspect of the defendants’ application is pursuant to the inherent jurisdiction of the court to dismiss the plaintiff’s claims by reason of there being a real and serious risk of an unfair trial or a clear and patent unfairness in asking the defendant to defend the action by reason of the lapse of time. Reliance is also placed on Article 6 of the European Convention on Human Rights.
The jurisprudence in respect of an application to dismiss the plaintiff’s proceedings by reason of the lapse of time involved, without any reference to culpable delay and pursuant to the inherent jurisdiction of the court, emanates from the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151 wherein at pp. 157 and 158 he stated:-
“After due regard to all relevant factors I am driven to the conclusion that not only was the delay in this case inordinate and inexcusable but there are no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial and a claim for damages of which she first learned 16 years after the accident…. While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial.”
O’Domhnaill was followed in Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v. Duignan (No. 2) [1991] ILRM 140 wherein Finlay C.J. upheld the inherent jurisdiction stating at pp. 142 and 143:-
“In the course of the argument on these appeals a question was raised as to whether the court had jurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas. My judgment in the previous appeal in respect of the other defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151 with which Griffin J. agreed. I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiction of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself or herself against the claim made. I have also recognised the dissent from the view expressed by McCarthy J. in the judgment delivered by him in O’Domhnaill v. Merrick. I adhere to the view expressed by me in the previous appeal in this case that the court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas the supremacy over the courts which is inconsistent with the Constitution.”
There is also the very pertinent judgment of Hardiman J. in JO’C v. Director of Public Prosecutions [2000] 3 I.R. as already referred to herein.
Kelly J. in Kelly v. O’Leary [2001] 2 I.R. 256 ultimately reached his conclusion in holding that the relevant criteria for a dismiss in the interests of justice arise from answering the same two fundamental questions which arise from the two Toal decisions and from the O’Domhnaill decision which are:-
1. Whether, by reason of the lapse of time (or delay), there is a real and serious risk of an unfair trial;
2. Whether, by reason of the lapse of time (or delay), there is a clear and patent unfairness in asking the defendant to defend the action.
Finlay Geoghegan J. succinctly summed up the situation in Manning
at p. 565 wherein she stated:-
“I accept that the courts have recognised the existence of a jurisdiction to dismiss a claim by reason of a lapse of time without there being any delay in the sense of culpable delay by a plaintiff and where the requirements of what are variously described as the “interests of justice” or the prevention of “patent unfairness” or the requirements of “constitutional principles of fairness of procedure” or the risk of putting “justice to the hazard” so require.”

Article 6 of the European Convention of Human Rights states:-
“In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The European Convention of Human Rights has now been incorporated into domestic law by the European Convention of Human Rights Act 2003 which came into force on 31st December, 2003. Section 2 of the Act of 2003 provides as follows;
“(1) In interpreting and applying any statutory provision or rule of law the a court shall in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provision.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
Article 6 of the ECHR was considered by Henchy J. in the Supreme Court in the context of an application to dismiss for want of prosecution in O’Domhnaill v. Merrick [1984] I.R. 151. Henchy J. stated that one had to assume that the Statute of Limitations 1957 was enacted (giving no indication therein of a contrary intention) subject to the postulate that it would be construed and applied in consonance with the State’s obligations under international law including any relevant treaty obligations. He explained the relevance of this rule of statutory interpretation as follows at p. 159:-
“ … [A]rticle 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides:-
‘In the determination of its civil rights and obligations or of any criminal
charge against him everyone is entitled to a fair hearing within a reasonable time by an independent and impartial Tribunal established by law.’
While the Convention is not part of the domestic law of the State, still, because the Statute of Limitations, 1957, was passed after this State ratified the Convention in 1953, it is to be argued that the Statute, since it does not show any contrary intention, should be deemed to be in conformity with the Convention and should be construed and applied accordingly”.
In McMullen v. Ireland, European Court of Human Rights No. 422 97/98 29th July, 2004, the Court of Human Rights held that Ireland had violated Article 6(1) of the Convention because “the proceedings… were not dealt with within a “reasonable time” as required by Article 6.1.” In explaining its reasoning the European Court of Human Rights stated inter alia as follows:-
“The court recalls that a State is obliged to organise its legal system so as to allow its courts comply with the reasonable time requirement of Article 6. It has held on a number of occasions that a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time. If a State lets proceedings continue beyond the reasonable time prescribed by Article 6 of the Convention without doing anything to advance them it will be considered responsible for the resultant delay”.
Hardiman J. in Gilroy v. Flynn at p. 294 stated:-
“ … [F]ollowing such cases as McMullen v. Ireland… 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.”
In O’Connor v. John Player & Sons Quirke J. at p. 342 of his judgment stated;
“However, a defendant faced with a claim, is entitled to be provided with particulars of the wrong alleged, the full nature and extent of the injury and loss claimed and the connection alleged between those two factors. This is required so that the validity of the claim and the extent of the damages sought can be assessed by the defendant. Such particulars must be provided within a reasonable time. Thereafter a defendant is entitled to the trial with reasonable expedition.”
Finlay Geoghegan J. in Manning dealt extensively with this very issue concerning a dismiss in the interests of justice, and having reviewed the various relevant authorities including in particular the views of Hardiman J. as expressed in J O’C v. DPP as already referred to herein, went on to say at pp. 568 and 569 of her judgment:-
“The constitutional requirement that the courts administer justice requires that the courts be capable of conducting a fair trial. This, was submitted, is required by Article 34 of the Constitution. Accordingly, if a defendant can on the facts establish that having regard to a lapse of time for which he is not to blame there is a real and serious risk of an unfair trial then he may be entitled to an order to dismiss. Also, if a defendant can establish that a lapse of time for which he is not to blame is such that there is a clear and patent unfairness in asking him now to defend the claim then he may also be entitled to an order to dismiss. This entitlement derives principally from the constitutional guarantee to fair procedures in Article 40.3 of the Constitution. Whilst in some of the cases the judgments have referred to matters under both these headings, they appear to be potentially separate grounds upon which the inherent jurisdiction to dismiss may be exercised. The factor to be considered by the court in relation to each question may overlap. It appears to me that these may include:-
1. has the defendant contributed to the lapse of time;
2. the nature of the claims;
3. the probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues;
4. the nature of the principal evidence; in particular whether there will be oral evidence;
5. the availability of relevant witnesses;
6. the length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and the probable trial date.”
There is however one area that appears to require clarification and that is the view that is to be adopted by the court in the exercise of its discretion in an application to dismiss for want of prosecution on the balance of justice and in the interest of justice. Clarke J. noted that, while he agreed that the court is confined in determining whether a delay had been inordinate to the period subsequent to the commencement of proceedings, he was of the view that in assessing the balance of justice the court had a wider discretion and can take into account prejudice which may be cumulatively attributable to a delay both prior to and subsequent to the commencement of proceedings.
Finlay Geoghegan J. in Manning posed the same question in respect of the dates of the alleged wrongful acts, the date of accrual of the cause of action and the date of commencement of the proceedings and, in considering the balance of justice issue, what period of delay is relevant to the issue of prejudice to the defendant or the risk that it is not possible to have a fair trial.
Finlay Geoghegan J. came to the conclusion that it was logical where the application to dismiss was for want of prosecution on the balance of justice, that the court could not, in considering the prejudice caused by delay, take into account any period prior to the accrual of the cause of action, bearing in mind that until the cause of action accrues the plaintiff cannot normally commence proceedings. Finlay Geoghegan J. concludes on this issue by stating that, in considering the application to dismiss for want of prosecution, the court should not consider prejudice caused to the defendants or the risk that it is not possible to have a fair trial by reason of lapse of time between the alleged wrongful act and accrual of the cause of action. Finlay Geoghegan J. appears to modify this stance by stating that “the fact that there was such a lapse of time may however be relevant when considering the relevant factors to the balance of justice issues and the courts should not ignore the fact that the alleged wrongful acts took place a long time ago.” Finlay Geoghegan J. refers to the fact that where a claim as such arises after a long lapse of time it may already be difficult for the defendant to deal with and prejudice caused by subsequent delay may have to be more critically examined. Finlay Geoghegan J. also refers to the fact that a long lapse of time places a special onus on a plaintiff to proceed with due expedition after the accrual of the cause of action.
I take the view that a claim to dismiss for want of prosecution cannot arise, if having issued proceedings within the statutory time limits, a plaintiff moves with expediency and within the time limits provided for by the Rules of the Superior Courts. The proceedings can only be instituted once the cause of action accrues, which in the case at instance is the date of diagnosis being September, 1996. I do not consider that it would be appropriate for this Court to consider prejudice caused to the defendants or the risk that it is not possible to have a fair trial by reason of any matter arising prior to September, 1996, being the date when the plaintiff could first have instituted his proceedings. If there is delay in the institution of the proceedings then clearly it follows that a special onus is placed on a plaintiff to proceed with due expediency.
In any event, whereas in this case the defendants have also brought a claim for the dismissal of the plaintiff’s action pursuant to the inherent jurisdiction of the court because of lapse of time, the relevant period is covered in the sense that the lapse of time aspect clearly goes as far back, as pleaded, to 1942 and to1960/61 when the plaintiff started smoking and continued through the date of accrual of the cause of the action and the institution of these proceedings.
Peart J. in Byrne v. The Minister for Defence, Ireland and the Attorney General [2005] 1 IR 577 in giving judgment in a case where there was inordinate and inexcusable delay took the view that pursuant to the inherent jurisdiction of the court, having regard to the lapse of time involved, the court could dismiss a plaintiff’s claim in the absence of any prejudice to the defendant. This was against a background where the plaintiff had been a member of the armed forces for three years from 1974 and issued proceedings in 1998 alleging noise induced hearing loss and tinnitus.
Peart J. in the course of his judgment at p. 585, in discussing the particular circumstances that were before him, referred to the fact of a situation where the application was to dismiss pursuant to the inherent jurisdiction of the court by reason of lapse of time, where the delay involved was inordinate and inexcusable but where there was no real evidence of prejudice. He referred to the fact that he had not been referred to any authority where pre-commencement delay was both inordinate and inexcusable and yet there was no prejudice made out to justify a dismissal. He went on to state;
“In addressing that interesting question, I believe that it would be proper to consider what interests are there to be considered and protected by the court’s inherent jurisdiction to dismiss a claim on the grounds of inordinate and inexcusable delay. Certainly there are competing interests. There is first of all the plaintiff’s undoubted right of access to the courts. There is also the defendant’s right to an expeditious hearing of any claim brought against him and to finality. Linked to this consideration is the defendant’s right not to be adversely prejudiced in such defence by delay for which he bears no responsibility. Finally, there is a public interest which is independent of the parties, in not permitting claims which have not been brought in a timely fashion to take up the valuable and important time of the courts and thereby reduce the availability of that much used and needed resource to plaintiffs and defendants who have acted promptly in the conduct of their litigation, as well as increase the cost to the Courts Service and through that body to the taxpayers, of providing a service of access to the courts which serves best the public interest.”
Peart J. went on to discuss whether the public interest as identified trumps the plaintiff’s right of reasonable access to the courts in the case before him and he came to the conclusion that it did so and he dismissed the claim.
Insofar as the plaintiff relies on certain provisions of the Liability for Defective Products Act, 1991, it appears that the relevant provisions are as follows:-
“4.—The onus shall be on the injured person concerned to prove the damage, the defect and the causal relationship between the defect and damage.
5.—(1) For the purposes of this Act a product is defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account, including—

( a ) the presentation of the product,
( b ) the use to which it could reasonably be expected that the product would be put, and
( c ) the time when the product was put into circulation.
(2) A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.
6.—A producer shall not be liable under this Act if he proves—

(a) that he did not put the product into circulation, or

(b) that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that that defect came into being afterwards, or

(c) that the product was neither manufactured by him for sale or any form of distribution for an economic purpose nor manufactured or distributed by him in the course of his business, or

(d) that the defect concerned is due to compliance by the product with any requirement imposed by or under any enactment or any requirement of the law of the European Communities, or

(e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered, or

(f) in the case of the manufacturer of a component or the producer of a raw material, that the defect is attributable entirely to the design of the product in which the component has been fitted or the raw material has been incorporated or to the instructions given by the manufacturer of the product.

7.—(1) An action for the recovery of damages under this Act shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date (if later) on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.

(2) (a) A right of action under this Act shall be extinguished upon the expiration of the period of ten years from the date on which the producer put into circulation the actual product which caused the damage unless the injured person has in the meantime instituted proceedings against the producer.

(b) Paragraph (a) of this subsection shall have effect whether or not the right of action accrued or time began to run during the period referred to in subsection (1) of this section.
(3) Sections 9 of the Civil Liability Act, 1961, shall not apply to an action for the recovery of damages under this Act.
(4) The Statutes of Limitation, 1957 and 1991, shall apply to an action under this Act subject to the provisions of this section.

(5) For the purposes of subsection (4)—

( a ) subsection (1) of this section shall be deemed to be a provision of the Statute of Limitations (Amendment) Act, 1991, of the kind referred to in section 2 (1) of that Act,
(b) “injury” where it occurs in that Act except in section 2 (1) ( b ) thereof includes damage to property, and “person injured” and “injured” shall be construed accordingly, and
(c) the reference in subsection (1) of this section to the date when the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer shall be construed in accordance with section 2 of that Act, but nothing in this paragraph shall prejudice the application of section 1 (3) of this Act.”
In my view, a relevant background feature is that Mr McDonnell, from a point in time as early as the 31st August, 1997, was giving extensive interviews to the media in general. The subject matter of the interviews follows much the same pattern to the effect that the tobacco industry knew of the dangers associated with cigarette smoking since 1957, that they knew the tar in tobacco was carcinogenic, that they knew that nicotine was addictive and that time was a significant factor. As early as 11th September, 1997, Mr. McDonnell was indicating that he would have the cases in the High Court within two years. In particular, on 19th October, 1998, in an interview with Séamus Martin of Tipp FM, Mr. McDonnell indicated that the case was a long drawn out process but he would like to be in court in about 18 months or less than two years but the tobacco companies would like to keep them out of court for 42 years. On 24th March, 2000, Mr. McDonnell in an article in the RTÉ Guide was indicating that work had been ongoing on the tobacco cases for the previous two and a half years and it would be another 12 months before they were likely to be able to be in court. Mr. McDonnell indicated to the public at large that Ireland was leading the way in tobacco cases outside the United States, that they were the furthest on in their preparations and that it was in Ireland that the first individual case would be heard. A central thread of many interviews given by Mr. McDonnell was about time and when the cases would be heard in court.
A further feature in the background was the question of the preservation of the individual plaintiffs’ lifetime medical records. This aspect of matters was addressed in a letter as dated the 19th February, 1999, from Arthur Cox and Co., solicitors for the third named defendant, to Peter McDonnell and Associates addressing the importance of the individual plaintiffs’ lifetime medical records, requesting their collection and preservation and offering to undertake the task of collection with the costs involved being costs in the cause. Several reminders were sent from Arthur Cox to Peter McDonnell and Associates without reply. Following the coming together of Mr. McDonnell and Beauchamps to represent the various plaintiffs including the plaintiff herein, Beauchamps declined the offer of the third named defendant’s solicitors to collect the medical records and indicated that the matter would ultimately be dealt with at the discovery stage. Subsequently on 24th January, 2001, motions in respect of the medical records relating to two other similar cases were issued by Arthur Cox on behalf of the third named defendant and these eventually came on for hearing before Butler J. on 25th July, 2001, and certain orders were made directing the collection and preservation of the plaintiffs’ lifetime medical records. The order of Butler J. was appealed to the Supreme Court. Subsequent extensive correspondence passed between the relevant parties including a letter of 19th December, 2001, from Beauchamps confirming that they were not prepared to consent to the application of the order of Butler J. to other proceedings in which Gallaher and Benson and Hedges Limited were named as defendants and requesting Arthur Cox and Co as solicitors for the third named defendants to identify any particular cases in which there was a risk of the destruction of the medical records.
The appeal from the order of Butler J. was listed for hearing before the Supreme Court on 20th February, 2002, but was withdrawn by the plaintiffs/appellants on the morning of the appeal. This was followed by a letter from Beauchamps of 15th March, 2002, to the solicitors for the defendants indicating that all necessary steps were being taken to collect and preserve the lifetime medical records of all plaintiffs from whom they had instructions to proceed but adding that this confirmation did not constitute a confirmation that the lifetime medical records were necessarily relevant. Subsequent correspondence ensued attempting to reach a precise agreement as regards the preservation of the lifetime medical records in accordance with the order of Butler J. as made originally on 25th July, 2001, and in default of agreement in this regard, a motion was issued on 9th August, 2002, seeking inter alia the preservation of the individual plaintiffs’ medical records including that of the plaintiff herein and this motion was returnable for 16th December, 2002. Extensive affidavits were filed on behalf of all parties and on 22nd July, 2003, the plaintiff in these proceedings and certain other individual plaintiffs provided undertakings concerning the preservation and collection of the individual plaintiffs’ lifetime medical records in accordance with the terms of the order of Butler J. as made on 25th July, 2001, and on the basis of this signed undertaking by consent, an order was made by this Court (Ó Caoimh J.) which said undertaking was annexed as a schedule and the various motions were struck out.
Mr. McGonigal, counsel for the plaintiff, quite properly in my view, as the finding was inevitable, conceded on the 11th day of the hearing, that the delay on the part of the plaintiff in advancing the claim against the first three named defendants was inordinate. Counsel also conceded that the delay on the plaintiff’s part in advancing the claim against the State defendants was inordinate.
The statement of claim was served on the State defendants on the 5th December, 2003 and they raised a notice for particulars on the 9th March, 2004. On the 10th May, 2004, the Chief State Solicitor on behalf of the State defendants wrote a letter intimating the possible necessity to bring an application to have the plaintiff’s proceedings struck out on the grounds of delay. In my view, the content of this letter is of some importance because it put the plaintiff’s solicitors on notice of the attitude of the State defendants and that in effect they were considering their position and one of the options being considered was the bringing of an application to the Court to have the plaintiff’s claims stayed and/or struck out on the basis of delay, prejudice, and allied grounds. The letter indicated that following receipt of replies to particulars, as sought, the Chief State Solicitor would advise the plaintiff’s solicitors as to their intentions in the matter. Notwithstanding this correspondence, the replies to particulars were not furnished and on the 20th June, 2005, the State defendants issued their motion to dismiss the plaintiff’s claim and the plaintiff’s solicitors on the 22nd July, 2005, delivered the replies to particulars which had been sought as far back as the 9th March 2004. I fully accept that no correspondence of any relevance passed between the Chief State Solicitor’s office and the solicitors for the plaintiff after the plaintiff’s solicitor’s reply of the 13th May, 2004, to the Chief State Solicitor’s letter of the 10th May, 2004.
Accordingly, I am satisfied that there was inordinate delay in the prosecution of the plaintiff’s claim as against all defendants, and that in the circumstances that pertain, the delay involved goes far beyond the minimum which may be considered inordinate.
The second issue that arises is as to whether or not the inordinate delay was inexcusable.
The excuses advanced on the plaintiff’s behalf are as follows:-
1. The need to collect the plaintiff’s lifetime medical records and the motions as brought in respect thereof;
2. The streamlining of some 205 claims;
3. The discontinuance of a number of actions other than the plaintiff’s case;
4. The collection of evidence and the preparation of the case in relation to liability, and the assembly of expert witnesses;
5. The issue of the liability and joinder of the State defendants.
I will deal with each of the excuses as offered on the plaintiff’s behalf individually, but before I do so there is a thread running through the plaintiff’s submissions to the effect that the plaintiff is a person of inadequate means for the purpose of this litigation and the defendants are owned and controlled by multinational companies, that the plaintiff is a person for the purpose of this litigation of little or no resources whereas the defendants have every available resource at their disposal. The plaintiff was aware in September, 1996, when diagnosed that his illness was smoking related. He consulted his solicitor in January, 1999 against a background where Mr. McDonnell was extremely active in the public domain advertising his expertise as a solicitor to act on behalf of persons who had suffered personal injury as a result of smoking tobacco. It is clear that Mr. McDonnell had access to a number of experienced counsel and Mr. McDonnell was joined by Beauchamps Solicitors in late 1999 and together they continued to act on the plaintiff’s behalf with access, as one would expect from the Bar, to a significant number of very experienced counsel.
Mr. McDonnell in his affidavit as sworn on the 8th September, 2004, does not accede to any delay or inaction on his part nor any difficulty in prosecuting the plaintiff’s claim as against any of the defendants. He refers in particular to a great deal of investigation and analysis that was carried out by his firm in relation to issues of fundamental relevance to proceedings on behalf of this and all other plaintiffs arising out of injuries and loss suffered by them as a result of cigarette smoking. He avers that those issues included causation of various illnesses by cigarette smoking, nicotine addiction, cigarette advertising, government health warnings and various findings made against tobacco companies arising out of litigation in other jurisdictions, as well as an analysis of a large volume of relevant documentation and efforts to source appropriate experts and potential expert witnesses. A non exhaustive schedule of the work that was carried out by Mr. McDonnell is set out in exhibit PMcD1 as attached to his affidavit and from a perusal of this documentation it is clear that he was aware of the relevance of the Surgeon General’s reports from the United States. He had liaised extensively with American lawyers involved in very substantial tobacco litigation on behalf of plaintiffs, had attended seminars specifically designed for lawyers acting on behalf of plaintiffs in tobacco litigation and had liaised with Martin Day, Solicitor, of Leigh Day & Company, Solicitors, London, who acted on behalf of a large number of plaintiffs in respect of tobacco litigation in the United Kingdom. He had carried out extensive website research, had liaised with the Department of Health and in particular in November, 1998 had analysed a video lecture by Professor Sir Richard Doll, Professor of Medicine at the University of Oxford which charted the history of the scientific knowledge of the harmful affects of smoking accumulated since the late 18th century. He had involved himself extensively with a lead in to the Houses of the Oireachtas Sub-Committee on Health and Smoking inquiry and perused the relevant legislation pertaining to tobacco products.
During 1999, Mr. McDonnell was liaising and engaging in conference calls with Ness Motley, a law firm from South Carolina and was perusing documents prepared by Dr. Gregory Connolly of the Massachusetts Tobacco Control Programme, Boston.
Throughout the exhibit, reference is made to Mr. McDonnell liaising with both junior and senior counsel. There is not even a hint from Mr. McDonnell himself of any lack of resources. By the time he came to liaise with Beauchamps to join him as solicitors, he had accumulated approximately 230 clients.
I note in particular that Mr. Daly, of Beauchamps, explains the basis for the joining of the two solicitors’ firms to represent the various plaintiffs in the following terminology:-
“The extent and demands of the litigation which had commenced became apparent to Mr. McDonnell and he realised early in 1999 that his firm was not in a position to prosecute the large number of cases and to conduct the investigations on the issue of causation on its own. He therefore approached my firm to establish if we would be willing to assist in jointly prosecuting the actions. I say and believe that my firm considered the matter at length and made the decision to become involved in the prosecution of these claims in October, 1999.”
Beauchamps joined with Mr. McDonnell in October, 1999 and proceeded to prosecute this claim on the plaintiff’s behalf and issued the plenary summons on the 19th January, 2000.
Mr. Daly on behalf of the plaintiff has not raised as an excuse for delay any lack of resources in the various affidavits as sworn by him. The only reference to a lack of resources is contained in a letter from the plaintiff’s solicitors on the 23rd December, 2003, which simply contains the bare assertion that:-
“In view of the work which was involved and the resources available to us statements of claim in their final form as settled by senior counsel could not have been delivered any sooner.”
There is no question arising on this application of the plaintiff not having access to solicitors and counsel and no real basis for contending that, in some way, the plaintiff suffered from a lack of resources in taking on this litigation. Accordingly, insofar as the question of resources on the plaintiff’s behalf is even impliedly put forward, either as a ground of excuse in respect of the inordinate delay or in some way as an explanation for any default on the plaintiff’s behalf, the contention is rejected.
The first excuse offered on the plaintiff’s behalf is the necessity to collect the plaintiff’s lifetime medical records and that this took between 2001 and 2003 and deserves significant weight due to their importance.
A significant period of time was taken up on the hearing of this application in relation to this aspect. In my view, this aspect can be simplified down to the fact that from the moment Mr. McDonnell took on the plaintiff as a client in January, 1999 the plaintiff’s lifetime medical records were clearly going to be of significant relevance, and in my view, it could never have been disputed on a motion for discovery that would inevitably have been brought by the defendants as against the plaintiff, that these records were not relevant to the proceedings, and could not in any sense be the subject matter of a valid claim of privilege. This was, and is, a vital part of the causation aspect of the plaintiff’s claim.
The third named defendant’s solicitors wrote on a number of occasions to Mr. McDonnell seeking to clarify the position as regards the lifetime medical records but no response was received to this correspondence. Subsequently on the 10th March, 2000, Beauchamps replied to a letter of the 6th March, 2000, indicating that they were not agreeable to the collection of the plaintiff’s lifetime records by the defendants and that they would continue to review the matter on an ongoing basis and ultimately the matter would have to be decided in document exchange at discovery stage.
On the 26th April, 2000, Beauchamps began the process of the collection of the plaintiff’s lifetime medical records by forwarding to him a draft letter of authority for his signature which was returned by the plaintiff duly signed on the 9th May, 2000. This process was still continuing three years later and Beauchamps were corresponding and attending with Marie Ruane, Deputy Hospital Manager, Midland Regional Hospital, Mullingar, Co. Westmeath, regarding the plaintiff’s medical records and pathology material and the situation was still under review on the 24th November, 2003, as per an internal memorandum regarding the current status regarding identification on preservation of pathology material from each of the hospitals attended by the plaintiff.
It has to be borne in mind that the collection of the plaintiff’s lifetime medical records represented one of only sixteen remaining cases in which the solicitors acting on behalf of the plaintiff in these proceedings represent the other 15 persons. Nowhere is it indicated that there was some major difficulty and insurmountable obstacle in the collection of these records and yet it appears to have taken, in my view, an inordinate amount of time to complete the task.
I accept fully that it was a matter for the plaintiff’s solicitors, in the exercise of their discretion and as a matter of tactics in adversarial litigation, to approach the defendant’s offer to take up the plaintiff’s lifetime medical records as they saw fit and they were perfectly entitled to refuse the defendant’s offer in this regard. I cannot, however, see any basis for refusing to indicate that they would collect and preserve the plaintiff’s lifetime medical records, and further, that they would make them available to the defendants on request and although it may be easy in hindsight to say so, I come to the conclusion that any reasonable objective overview of the situation pertaining to the collection of the plaintiff’s lifetime medical records would indicate that the motion and all the time and effort that went into dealing with that aspect was largely unnecessary, but was, in my view, brought about by the attitude adopted by the plaintiff’s solicitors and was carried on through by reason of mutual distrust between the parties.
I do not accept that the situation that pertained to the collection of the plaintiff’s lifetime medical records, in some way, provides a valid excuse for the inordinate delay as found on the plaintiff’s behalf. In any event, I am satisfied from a perusal of the statement of claim that the content of the plaintiff’s lifetime medical records are nowhere referred to and were not a necessary ingredient for the preparation of either the plenary summons or the statement of claim.
The plaintiff also relies on his solicitors having to deal with initial motions as brought by the defendants in relation to three plaintiffs pertaining to the lifetime medical records, which motions were heard before Butler J. and judgment delivered on 25th July, 2001, and the further motion as issued on the third named defendant’s behalf on 9th August, 2002, concerning the preservation of the plaintiff’s lifetime medical records. I do not consider it is necessary to set out every intricate detail as to what occurred with regard to this aspect of matters. As already stated herein, all parties accept the absolute importance of collecting and preserving the plaintiff’s lifetime medical records. The plaintiff had the initial opportunity to allow the defendants to identify and preserve the plaintiff’s lifetime medical records but he chose to decline this offer. Three separate motions were then brought which culminated in a decision in the defendants’ favour handed down on 25th July, 2001. The plaintiff, in my view, clearly could have worked within the parameters of the order as handed down but chose instead, in a clear indication as set out in a letter on the 19th day of December, 2001, from Beauchamps to Arthur Cox Solicitors on behalf of the third named defendants, to refuse to apply the procedures as directed by Butler J., rejecting the contentions that there was any risk that the records could be destroyed. Further correspondence passed between the parties and it was not until 15th March, 2002, that Beauchamps wrote confirming that all necessary steps were being taken to collect and preserve the plaintiff’s lifetime medical records. This letter was written some three years after the solicitors for the third named defendants first wrote to Mr. McDonnell by letter of 19th February, 1999.
On 9th August, 2002, the solicitors on behalf of the third named defendants issued a motion seeking orders in relation to the preservation of the plaintiff’s medical records. It is quite clear that during the course of this motion Beauchamps were extremely active in identifying and taking the necessary steps to preserve the medical records and matters began to crystallise in early 2003, when, following delivery of an affidavit by Gabriel Daly of Beauchamps on 11th December, 2002, it was accepted in general terms on the defendants’ behalf that the situation was clearer as regards the steps undertaken by the plaintiff’s advisors to collect and preserve the medical records but that some issues remained to be clarified.
Beauchamps, on behalf of the plaintiff, on or about 13th February, 2003, indicated that they were continuing to clarify the position as regards the finalisation of the identity and preservation of the plaintiff’s lifetime medical records. At that point in time, inter alia, the plaintiff’s entire medical records were being examined by a medical consultant in order to ensure that such records were complete on the basis that, if a medical consultant identifies a reference to other medical providers, they will take immediate steps to identify, collect and preserve the same. Subsequently on 31st July, 2003, a consent order was made in respect of the identity and preservation of the medical records. I have some sympathy with the plaintiff’s position and the torrent of paperwork that surrounded a perceived dispute between the plaintiff and the various defendants, but in my view, no greater fault can be attributed to either side. I do not accept that the issuing of both sets of motions was a cynical exercise on the defendants’ behalf.
I do not consider that the issuing of the original three motions which led to the decision of Butler J. on 25th July, 2001, or the subsequent issuing of the motion as against this plaintiff with respect to the identity and preservation of his lifetime medical records as issued on 9th August, 2002, and which culminated in a consent order on 31st July, 2003, forms the basis for a valid excuse as to the cause of the inordinate delay in the prosecution of the plaintiff’s claim.
The second excuse offered is the necessity to streamline some 205 claims, including a perusal of the plaintiff’s lifetime medical records and the ensuing discontinuance of all but 17 claims. The streamlining of the cases does not appear to have commenced prior to February, 2002. The necessity for the streamlining appears to have been brought about by the relevant solicitors failing to clarify prior to the institution of proceedings, that the relevant plaintiff had a stateable case. I take the view that the streamlining process in itself occurred at a very late stage having regard to the date of the issuing of the plenary summons. On the basis that I do not consider that there was any lack of resources, I cannot, therefore, see any basis for regarding the streamlining process as a valid excuse for delay in the present proceedings.
A further argument advanced by the plaintiff is the necessity to carry out extensive research on the aspect of causation and for the assembly of expert witnesses for the hearing of the action.
In this regard Mr. McDonnell in his affidavit as sworn on the 8th September, 2004, avers that a great deal of investigation and analysis was carried out by his firm in relation to issues of fundamental relevance to the proceedings on behalf of the plaintiff herein and all the other plaintiffs, arising out of the injuries allegedly suffered by them from cigarette smoking. Such issues included causation of various illnesses by cigarette smoking, nicotine addiction, cigarette advertising, government health warnings and various findings made against tobacco companies arising out of litigation in other jurisdictions, as well as an analysis of a large volume of relevant documentation and efforts to source appropriate experts and potential expert witnesses.
According to Mr. McDonnell, by the time Beauchamps became involved in late 1999, he had, in his view, carried out a great deal of investigation and analysis as is evident from the relevant schedule as referred to.
Mr. Daly sets out that the position in January, 2000 was that proceedings had been issued on behalf of some 200 plaintiffs. He then set about reviewing and analysing each case which was an extremely painstaking process. He consulted with the various plaintiffs and then set about preparing a draft proof of evidence. He then wrote to each client’s medical experts seeking detailed medical reports and began an analysis of each plaintiff’s situation vis à vis the Statute of Limitations 1957 and in particular, s. 3 of the Statute of Limitations (Amendment) Act, 1991. He indicates that the analysis of the case with respect to the Statutes of Limitations was carried out at the same time that a Joint Oireachtas Committee on Health and Children had, in November, 1999 issued a report entitled “A National Anti Smoking Strategy”. He considered the judgment of Wright J. as delivered in England on 9th February, 1999, in the matter of Hodgson and Others v. Imperial Tobacco Limited and Others.
Mr. Daly refers to the fact that solicitors and researchers carried out specific items of research on 28 days in a period of five months between 10th April, 2000, and 31st August, 2000. Reference is made to having extensively researched many of the 30 million pages of tobacco industry internal documents made public as a result of a Minnesota Court ruling in 1994. Extensive discussions were held with counsel and the relevant research continued throughout September and October, 2000, but, on the basis of the details as furnished, it appears that the research was only actually carried out over 32 days in a seven month period.
From all that has been stated in this regard, I am inclined to the view that the relevant research as to causation can be narrowed down to the Surgeon General’s reports and the relevant information that was available from lawyers in the United States involved in tobacco litigation, liaison with United Kingdom solicitors involved in tobacco litigation, the content of the Joint Committee on Health and Children Report on health and smoking as published in November, 1999 and the House of Commons Select Committee on Health’s Second Report on The Tobacco Industry and the Health Risks of Smoking as published on 5th June, 2000, and that a reasonable conclusion is that the statement of claim should have been forthcoming shortly thereafter.
An analysis of the statement of claim as purportedly delivered on 5th December, 2003, reveals in my view very little specificity.
Paragraph 9 contains details relating to the plaintiff, which at all times was available to the plaintiff’s solicitors.
At para. 13 of Part III of the statement of claim it is pleaded that the first, second and third named defendants knew or ought to have known that cigarettes were harmful and knew or ought to have known that cigarette smoking was likely to cause cancer and/or arterial disease. The particulars of knowledge of the harmfulness of cigarettes were set out in the first schedule as attached to the statement of claim.
The first schedule sets out a list of documents, most, if not all, of which were in the public domain since their publication and the vast majority of which preceded the publication of the House of Commons Health Committee Report in June, 2000, save for an Irish document published in December, 2002, being a report on the health effects of environmental tobacco smoke in the workplace and a reference to the then Minister for Health on Thursday 30th October, 2003, launching a national smoking cessation campaign entitled “Every Cigarette is Doing You Damage”.
At paras 15 and 16 of the statement of claim in Part IV, it is alleged that, at all material times, the first, second and third named defendants knew that cigarettes were addictive. The particulars of knowledge in this regard were set out in the second schedule to the statement of claim. This schedule begins with a document published in 1942 by L.M. Johnston which recognised nicotine as the drug administered by smoking and found that the heavier the smoking, the stronger the subsequent craving and the tendency therefore for heavier smoking to continue, which constitutes a vicious circle. The schedule goes on to list various documents including Surgeon General’s reports from the United States of America and Royal College of Physicians of London reports. All of the documentation referred to in this schedule appears to have been available prior to the end of the year 2000.
In Part V of the statement of claim at paras. 17 and 18, it is alleged that the first, second and third named defendants designed their cigarettes so as to have widespread appeal to all persons in Ireland, including children and the plaintiff, and particulars in this regard are set out in the third schedule to the statement of claim which schedule does not appear to rely on any specific documentation and is general in nature.
In Part VI of the statement of claim at paras. 19, 20 and 21, it is alleged that the first, second and third named defendants marketed and advertised their cigarettes in order to encourage people including the plaintiff to smoke, and that, despite various warnings that were placed on packets of cigarettes and a ban on tobacco advertising on television, the first, second and third named defendants persisted in marketing their product and they did so in such a way as to reinforce the appeal and addictive properties of their cigarettes so as to attract all persons in Ireland including children. Particulars of the advertising and marketing of the defendants’ cigarettes are set out in the fourth schedule.
The particulars as set out in the fourth schedule go back as far as 17th February, 1950, with a copy of an advertisement from the Irish Times and also concentrates quite extensively on other advertisements throughout the 1950s and 1960s and to a lesser extent from the 1960s onwards.
Part VII of the statement of claim and in particular paras. 23, 24 and 25 dealt with the aspect of ‘warning’, alleging that prior to 1972, no warnings whatsoever were provided and that from in or about 1972 the warnings as provided by the first, second and third named defendants were inadequate and particulars thereof are set out in the fifth schedule to the statement of claim in paragraphs enumerated A to E.
Part VIII of the statement of claim deals with the particulars of personal injury, loss and damages suffered by the plaintiff.
Part IX of the statement of claim deals with the Liability for Defective Products Act, 1991 and specifically alleges only against the second named defendant, that they were a producer of defective products namely “John Player Blue” cigarettes. It is alleged in Part IX that the fourth, fifth and sixth named defendants being the State defendants, failed to implement Council Directive 85/374/EEC promptly or within the time limit for implementation as set out in the Directive, and as a result of this failure, the plaintiff has been wrongfully denied a recourse for damages pursuant to that Directive against the second named defendant in respect of damage caused between 7th August, 1988, and 16th December, 1991, and has suffered loss.
Part X deals with allegations against the State defendants that they failed in their duty to vindicate and protect the plaintiff’s right to bodily integrity pursuant to the provisions of Article 40 of the Constitution of Ireland, the law of the European Union and the European Convention on Human Rights.
Particulars of breach of duty of the fourth, fifth and sixth named defendants are set out in the sixth schedule to the statement of claim and the particulars as therein set out and enumerated A to Q are of an all-embracing, generalised nature.
Part XI of the statement of claim, containing paras. 44 to 49, set out general allegations against the State defendants including allegations of assault and battery and public nuisance and relies on the doctrine of res ipsa loquitur.
In my view, the publication of the Report of the House of Commons Select Committee on Health on the tobacco industry and the health risks of smoking in June, 2000 is the relevant cut off point for the preparation of the statement of claim. Any type of extensive research with adequate resources clearly would have revealed the necessary information for the preparation of the statement of claim. A thread runs through the submissions made by the plaintiff that a sizeable amount of documentation had to be read and considered and effectively deciphered before decisions were taken as to which was the relevant documentation and which could be left aside. I take the view that this argument holds little weight when one considers the content of the report as published by the Oireachtas Sub-Committee on Health and Children and the House of Commons report.
I take the view that all the relevant information was available on reasonably diligent research and the research that was necessary does not, in my view, provide a valid excuse for the inordinate delay in delivering the statement of claim.
An addendum to this issue was the necessity to assemble the relevant witnesses and I do not consider that there is any basis for a valid excuse in this regard. No approach was made to any relevant expert witnesses prior to May, 2001. Subsequently an oncologist, Dr. Armstrong appears to have attended a meeting on 28th May, 2001, and there follows subsequent correspondence. An expert in palliative medicine was seen on 31st August, 2001, a consultant radiologist was corresponded with in May, 2002 and a consultant histopathologist was written to on the 18th November, 2002. None of these events appear to me to have any relevance in explaining the inordinate delay in delivering the statement of claim.
The final reason advanced by the plaintiff relates to the issue of liability and joinder of the State defendants.
The plenary summons itself was not amended until 3rd July, 2003, and was served on the State defendants on July 25th, 2003. A statement of claim was then delivered on December 5th, 2003. The grounding affidavit in respect of the application to amend the plenary summons to join the State defendants does not explain why they were not joined as defendants in the original plenary summons nor does it offer any explanation for the delay in moving to join them.
The reality of the situation appears to have been that, following the publication of the report of the Joint Oireachtas Committee on Health and Children in November, 1999, the plaintiff’s legal advisors were of the opinion that there was a prospect that proceedings may have been taken against each of the various tobacco companies by the State authorities in respect of those companies whose cigarettes were sold and distributed in Ireland. The plaintiff’s advisors believed that there was a realistic prospect that the State would commence such proceedings and they took the decision that it would be prudent to consolidate these present proceedings with the State’s anticipated proceedings, as they were of the view that much of the evidence would be common to both actions. The plaintiff’s legal advisors believed that they could co-operate with the State in bringing litigation and met with the Minister for Health on two separate occasions to discuss the possibility of the State authorities offering a form of legal aid to assist persons such as the plaintiff in the present proceedings against the tobacco companies.
In effect the plaintiff’s legal advisors adopted a “wait and see” attitude as to whether or not the State authorities would consider instituting litigation against the tobacco companies for the cost of State health care involved in treating persons allegedly suffering from smoking related illness and as to whether there was any possibility of some form of special legal aid being made available. When it became apparent that neither aspect was going to come to fruition, it was only then that the plaintiff’s solicitors proceeded to investigate the potential liability of the State and when this research was concluded, senior counsel advised that it would appropriate to seek to join the State defendants.
In my view, the sequence of events and background circumstances which pertained relative to the joining of the State defendants does not provide a valid excuse for the inordinate delay in the prosecution of the plaintiff’s claim.
The test involved is whether the plaintiff can point to factors which excuse his acknowledged failure to prosecute his claim with reasonable diligence, evidenced by the failure to meet the objective milestones of civil litigation within the period stipulated in the rules or within any reasonable period of time. In my view, overall no valid excuse has been offered which explains the plaintiff’s failure to prosecute his claim and in the circumstances, I find that not only is the delay involved in this instance inordinate, but it is also inexcusable.
Notwithstanding that I find that the delay has been both inordinate and inexcusable, I have an obligation to exercise a judgment on whether, in my discretion, on the facts, the balance of justice is in favour of or against the proceeding of the case.
As previously discussed herein, I make a distinction between an application to dismiss for want of prosecution where I have to consider the balance of justice and an application to dismiss for want of prosecution pursuant to the inherent jurisdiction of the court relating to “lapse of time”. The distinction to be made in my view is that, in the former, a relevant starting date is the date of the accrual of the cause of action which in this case is September, 1996, whereas in the latter, the relevant starting date in this instance is 1942, being the earliest reference to certain alleged relevant material.
In my view, the approach to be taken is on the basis of the plaintiff’s primary claim for damages for personal injuries caused by smoking cigarettes, the secondary continuing addiction claim, the claim pursuant to the Act of 1991 and the claim for the declaratory reliefs.
The broad thrust of the submissions made by the defendants follows much the same pattern. Each defendant submits that they cannot now obtain a fair trial and that it would be grossly unfair to require them to defend the proceedings having regard to the delays and lapses of time which have occurred. Each puts forward evidence of prejudice, that the prejudice is multi-faceted and increasing with the passage of time. The defendants collectively submit that they would not now receive fair procedures.
It is quite apparent that one of the central issues in the case is the actual knowledge of each of the defendants and, on the basis of the plaintiff’s pleadings, the issue of knowledge arises as early as 1942 and continues right to the present day. The plaintiff commenced smoking in 1960/1961 and government warnings appeared on cigarette packaging in 1972 and, accordingly, it is reasonable to take the view that the defendants’ state of knowledge prior to 1972 is going to be a relevant feature in respect of the determination of liability. As Ms. Foley avers in her affidavit grounding the application on behalf of the third named defendant, the plaintiff alleges that the third named defendant knew or ought to have known since 1942 that cigarettes were addictive and knew or ought to have known since 1950 that cigarettes were harmful, yet the plaintiff refrained from initiating proceedings until January, 2000, almost 60 years later. She refers specifically to the health warnings which were printed on packets of cigarettes since 1972 and that, for instance, from 1972 until 1979, the third named defendant printed a warning on its cigarette packets and advertisements which stated “Government Warning – smoking can damage your health”. From 1979 until 1986, the warning as printed read “smoking seriously damages your health – Government Warning” and from 1986 until 1991, the warning read “smoking is a health hazard” and, in addition, three of the following four warnings had to be rotated with equal frequency on packets of cigarettes – “smoking causes cancer”, “smokers die younger”, “smoking kills” and “smoking causes heart disease”. Ms. Foley refers to the specific plea that, since at least 1950, the risks that smoking might cause harm to one’s health, including potentially fatal diseases such as cancer have been widely known.
It is contended on behalf of the various defendants that the statement of claim as purportedly delivered to the solicitors for the first three named defendants on the 5th December, 2003 and as actually delivered on that day to the Chief State Solicitor on behalf of the State defendants is, by its very content, a wide ranging document and centres on the issue of the knowledge of the defendants, the alleged deliberate sale and marketing of a product which, it is alleged, the first three named defendants knew to be harmful and addictive and the alleged failure by the various defendants to provide adequate health warnings.
In relation to the nature, breadth and complexity of the plaintiff’s allegations, it is submitted on behalf of the first three named defendants that even as of today, the proceedings have not advanced beyond the delivery of a purported statement of claim, the plaintiff having purported to do so over three years outside the period prescribed by the Rules of the Superior Courts. In this regard, the first three named defendants submit that:-
The plaintiff alleges that the defendants owed a duty of care to the plaintiff and claims damages for negligence and for breach of duty, yet the plaintiff has not provided any particulars of alleged negligence and breach of duty on the part of the first three named defendants;
The plaintiff alleges assault and battery but provides no details;
The plaintiff alleges that cigarette smoking constitutes a public nuisance but provides no details;
The plaintiff claims a declaration that the defendants have violated and/or failed to respect and protect the plaintiff’s constitutional rights but no details are provided;
The plaintiff claims damages including aggravated and/or exemplary damages for wrongful interference with his constitutional rights, yet has not identified those alleged constitutional rights or provided any particulars of the manner in which the third named defendant allegedly wrongfully interfered with them;
The plaintiff claims damages for conspiracy, breach of contract and fraud, but no details are provided;
The plaintiff claims damages for breach of duty under the law of the European Union but has not identified any relevant provisions of law or provided any particulars of the manner in which the first three named defendants allegedly breached their duties arising thereunder.
It is contended by the first three named defendants that, despite the purported delivery of the statement of claim, they do not know the full extent of the claim or even the most basic information in relation to the claim being made by the plaintiff.
It is further contended by the first three named defendants that the current state of the proceedings is such that further very substantial delays are likely to occur if the action is to proceed, that clearly there would be a need for a very extensive notice for particulars, extensive replies, discovery, possibly interrogatories, and that, in effect, the reality of the situation is that an actual hearing of the plaintiff’s claim is still some years off, against a background where the cause of action accrued in September, 1996. The common thread running through the submissions on behalf of all the defendants is the non-availability of witnesses with direct knowledge of events which are relevant to the allegations made by the plaintiff and which are essential both to enable the defendants to properly defend themselves against the allegations made and also to enable the Court to fairly determine the issues before it. The defendants contend that the passage of time resulting from the plaintiff’s delay has greatly affected the availability and/or quality of the evidence available, making it substantially more difficult for the Court to properly assess the merits of the case.
It is contended by the defendants that the problems with adducing evidence are now very real. The vast majority of critical witnesses for the issues arising in this litigation are either deceased or infirm or very aged or living abroad, all of which give rise to the very significant statement as made by Ms. Foley on behalf of the third named defendant that, having regard to the breath and complexity of the allegations, she does not believe that independent expert witnesses will be able to compensate for the absence of first hand testimony by employees of the third named defendant or other personnel employed by them.
Clearly there is a considerable amount of documentary evidence but equally it is contended by the defendants that documentation which may have been of relevance to the defence is no longer available. For example, it is contended on behalf of the third named defendant that in 1986, by virtue of a change of offices, a considerable amount of documentation was no longer retained. Furthermore, it is specifically averred to on behalf of the third named defendant that it has a very limited database for the period prior to 1960 and even for the period during the 1960s, documentation relating to the activities of the third named defendant is very scarce. The matter is put very succinctly by Ms. Foley when she states that “the position is simply that paper records from that time were not retained”.
As regards the State defendants, the statement of claim as delivered, arising on foot of the amended proceedings was the first occasion upon which the State defendants had any indication as to the extent of the claims being made against them. The State defendants raised particulars by way of a notice as dated 9th March, 2004, and no replies to those particulars were delivered prior to the institution of the motion herein.
The statement of claim and the cases made out against the State defendants are extraordinarily wide in their scope.
Mr. Eamonn Corcoran of the Department of Health and Children avers in his affidavit sworn on 20th June, 2005, that copy documents in the 1940s, 1950s and 1960s were produced on manual typewriters using carbon paper. Record keeping was confined to essential materials and was usually effected by manual systems. The sort of facilities which are now taken for granted and which have resulted in copies of most documents being preserved in many different media including fax machines, high resolution copiers, electric typewriters, and later word processors were many years in the future to the events relied on in much of the plaintiff’s statement of claim. In addition, Mr. Corcoran avers that it must be remembered that the implications of tobacco use was just one of many issues being dealt with by the Minister’s predecessors and officials from the 1940s onwards. Mr. Corcoran avers to the fact that the importance of retaining information of historical application would not have been appreciated.
The scale of the documents’ position pertaining to the Department of Health is outlined by Mr. Corcoran when he avers that in autumn, 2001, work commenced within the Department on a records management renewal project. This project was set up in part to address the issue of the historical records of the Department that were not listed anywhere and that were being sought on an increasing basis for inquiries, discovery orders, court cases and freedom of information requests.
The general position pertaining to the State defendants’ documentation appears to be that there was no documentation in the files selected relating to the 1940s. The only information available relating to that period of time emanates from a departmental record prepared, seemingly, in 1979. The files contain no copies of any documents relating to smoking generated by government officials in the 1950s, although documents from later decades did refer to documents having been generated earlier by the Department of Health. It thus appears that there were documents created but they have not been located. There is a 1964 Memorandum for Government relating to smoking and health which is on the file as is a departmental document entitled “Smoking and Health – A Summary of Surveys of the Evidence”. From the 1970s onwards there is more information available on the files. It is significant to note that the Chief Medical Officers who were responsible for advising the Department of Health on medical issues and who held that position prior to 1983 are now all deceased. A similar position pertains to the tobacco companies. Many of the essential personnel who would be in a position to deal with the defendants’ state of knowledge from the 1940s onwards are deceased or infirm or no longer available to give evidence.
It is contended by the plaintiff that there was a voluminous amount of work carried out by the solicitors for the plaintiff between 1999 and 2004 and the conduct of the plaintiff’s solicitor should not be judged by the standard of perfection. The plaintiff’s lifetime medical reports have been obtained and preserved, some 205 claims have been streamlined and discontinued so that there are only at present 16 individual claims left remaining, and considerable work has been carried out in respect of the collection of the evidence and the preparation of the case in relation to liability.
It is contended that the statement of claim is a full and detailed document and demonstrates the visible progression of the plaintiff’s case.
Professor Armstrong has been retained to assist in relation to causation and the engagement of other expert witnesses is ongoing.
In respect of the balance of justice, it is contended by the plaintiff that an achievement of the present motion to dismiss is to delay further the trial of the action as against defendants and that the matter could be simplified with, in the first instance, the liability issue being determined. Insofar as prejudice is alleged, the plaintiff contends that the tobacco defendants were meeting regularly through ITMAC and the TAC committees and that, from as early as 1992, the tobacco defendants and their solicitors had formed agreements in relation to dealing with tobacco related litigation. It is submitted by the plaintiff that the Oireachtas committee report, as published in 1999, indicated that the third named defendant was aware of tobacco related litigation and had collected documentation relevant to that litigation to produce in court, if necessary.
It is further submitted by the plaintiff that the motion to dismiss should have been brought following service of the plenary summons in January, 2000 and that there was no need as such to wait until March, 2004. Further, the motion to compel the collection of the plaintiff’s lifetime medical records was unnecessary and cynical and delayed work on the plaintiff’s claim. It is contended by the plaintiff that there are a number of ongoing “present day” claims in respect of which the defendants cannot possibly be prejudiced and these are the ongoing claim arising from the plaintiff’s addiction to nicotine, the claims pursuant to the Liability for Defective Products Act, 1991 and the declaratory reliefs as sought.
The plaintiff contends that no issues of prejudice have been identified by the defendants and that this in turn leads to a situation where no witnesses have been identified in respect of those matters and no evidence has been described which the witnesses would have given had they been available. Therefore, in the absence of the identification of the issues in the case, it is impossible for the Court to reach a conclusion that prejudice has occurred. Counsel for the plaintiff urges that the defendants have focused exclusively on the historical nature of the plaintiff’s claim. Counsel refers to the fact that the plaintiff has sought a declaration that cigarettes are injurious to the public health generally, and the outcome to this aspect will depend to a large extent on the knowledge that the defendants had in relation to the dangers of cigarettes and the knowledge that the State defendants had in relation to the dangers and their duties under the Health Acts.
Counsel refers to the fact that the plaintiff is trying to show that, at the time he commenced smoking in 1960/1961, the tobacco company defendants knew or ought to have known that smoking was dangerous and that this appears to be the position in the House of Commons Report. Counsel emphasises that the defendants are not saying what the position is and in respect of the Houses of the Oireachtas Report and the House of Commons Report, no issue was raised having regard to the passage of time.
As regards the issue of prejudice, counsel refers to the fact that the first and second named defendant, effectively, is involved in the proceedings since the 1940s but the third named defendant is only implicated from 1965 through until 1968 in relation to the occasional smoking of the third named defendant’s product “Park Drive”. The plaintiff also smoked the third named defendant’s products from 2000 until 2004 following his diagnosis. The continuing injury claimed does not involve the first named defendant.
Counsel submits that there can be no possible prejudice in respect of the modern claims and, in particular, the continuing addiction claim and the plaintiff relies on the decision of the Supreme Court in Delahunty v. Player and Wills (Ireland) Limited and Others [2006] 1 IR 304 to the effect that the court will look at the reality of the case pleaded rather than look to every literal plea in the statement of claim, that a good stateable case can be made that continued smoking is capable of causing continuing injury even after diagnosis with a smoking related injury, that the Liability for Defective Products Act, 1991 is a live issue in smoking related litigation and that the case made by the plaintiff is of enormous public importance.
Counsel for the plaintiff refers extensively to the judgment of Fennelly J. in Delahunty referring to the fact that the plaintiff in those proceedings changed to “Silk Cut” post-diagnosis in October, 1995, “Silk Cut” being a Gallahers product. He refers to the fact that, in the present case, Mr. McCormack was diagnosed in 1996 and changed to “Silk Cut” in the year 2000. Counsel asks that the Court consider the aspect of cigarettes being smoked with precision and not be constrained by the very general plea in the earlier part of the statement of claim. Counsel urges that it is appropriate, right and proper that this Court should look carefully at the reality of the case pleaded and not be taken up with pleas relating to 1942 which have no bearing on this case and further urges that the plaintiff in these proceedings make no bones but that his case is that cigarettes should not be available on the market.
Counsel refers to a particular passage from the judgment of Fennelly J. in Delahunty wherein he states at p.310:-
“In my opinion, this is not a suitable case for the remedy either under the Rules of the Superior Courts or the inherent jurisdiction of the court. There are complex and difficult issues of both law and fact to be decided which are more appropriately argued and tested at the full hearing of the action”.
Counsel emphasises that the continuing addiction claim relates to issues of fact that post date 1996.
Fennelly J. went on to state at p. 311:-
“I do not think a court could possibly decide, on a motion of the type before the court on this appeal, whether cigarettes “fail to provide the safety which a person is entitled to expect”. That will require a great deal of evidence to be given at the trial. It is also highly material that the Act of 1991 was passed in order to transpose into Irish law the provisions of the Council Directive of 1985 mentioned above. The definition of defective product is based on article 6 of the Directive. The Act must be interpreted in the light of the Directive. If the matter comes before this court in circumstances where a decision on such an interpretation is necessary for the decision of the court, it would appear that the obligation of the court to refer this matter to the Court of Justice of the European Communities pursuant to Article 234 of the Treaty would arise. That will, of course, depend on whether such an interpretation is necessary for its decision. For that reason alone, it would be impossible to determine such an important issue at this stage. Furthermore, the High Court may wish to refer such questions to the Court of Justice and may do so at any stage of the proceedings.”
Counsel for the plaintiff refers further to the judgment of Fennelly J. in stating that there is explicit recognition therein contained that in a suitable smoking litigation case, it is reasonable to expect continuing damage from smoking and refers to a further passage in the judgment of Fennelly J. wherein at p. 312, he states:-
“Finally, I turn to the apparently attractive argument based on causation, which I have summarised above. On the hypothesis that the plaintiff was addicted as a result of smoking the cigarettes of the first named defendant and that she knew smoking causes cancer when she commenced smoking the second named defendant’s cigarettes, the second named defendant was neither responsible for the addiction nor for the consequences of the addiction. On the other hand, the plaintiff claims that the second named defendant’s “Silk Cut” cigarettes were targeted at vulnerable people such as the plaintiff. It was foreseeable that such people would consume cigarettes placed on the market by them. Issues of causation can be some of the most difficult in tort law. While the second named defendant has raised an arguable point, I cannot agree that it is decisive.”
Counsel refers to the fact that on the issue of prejudice, having collected the plaintiff’s lifetime medical records, no effort has been made by any of the defendants to examine those records yet the defendant’s expert Nigel Standfield has indicated that the identification, assembly, preservation and careful early review of the plaintiff’s lifetime medical records are essential for the defence of the claim. Counsel relies on the fact that Mr. Standfield has unequivocally stated that he can reach a conclusion as to the nature of the disease and its causes and the date of diagnosis from the plaintiff’s lifetime medical records and he does not anywhere suggest that there is any need for oral evidence.
Counsel contends that there is no reason why this Court cannot look at documents from the archives of the various defendant companies or documents that are in the public domain and come to a proper decision as to what was known or ought to have been known at a particular time. The central thrust of the claim that is being advanced by the plaintiff is that, on the balance of probabilities, the tobacco companies knew at all material times to these proceedings that smoking was dangerous and, further, that nicotine was addictive. Counsel at the same time suggests that the defendants will not be prohibited from getting a fair trial and there is a duty on this Court to ensure that anything that they have to say, anything that they produce in evidence or any expert witness which they may wish to call in relation to the issues, will be heard and this evidence will be given full credence. Counsel contends that the Irish courts have never been shy of granting a fair trial to every person or company in a civil or criminal matter. Emphasis is placed on the particular circumstances of this case to the effect that what is concerned is the knowledge of the defendant companies at a particular time and that knowledge, the plaintiff contends, can be garnered from the documents in the schedule to the statement of claim.
Counsel submits that the claim relating to the Liability for Defective Products Act, 1991 only relates to matters coming into being after December, 1991 and there is no averment of prejudice in this regard. The only debate that will be involved, arising under the Liability for Defective Products Act, 1991, will be as to whether cigarettes from 1991 onwards failed to provide the safety which a person is entitled to expect taking all the circumstances into account.
Counsel for the plaintiff contends that the reality of the situation is that the defendants in these proceedings have available to them relevant documentation which not only is documentation in the public domain but also documentation that has been preserved over the years and the nature of this documentation should have been indicated to the Court together with an indication of the material or evidence which they will be deprived of being able to use at the trial which is so essential for whatever reason. Counsel instances the fact of Peter Wilson who was the then Managing Director of the third named defendant company giving evidence to the House of Commons Committee in January, 2000 in relation to the company’s state of mind from the 1960s on. No indication has been given as to whether Mr. Wilson is now available to give evidence or not. Counsel refers to the fact that the third named defendant when giving evidence to the Houses of the Oireachtas Committee never indicated he was prejudiced in any way and, furthermore, both Mr. Goodrich and Mr. Birks gave evidence on behalf of the third named defendant to the joint committee and both are still alive but neither are mentioned in the affidavit delivered on behalf of the third named defendant. An indication has been given that they will have no relevant information to give to the Court but that is as far as the matter is put. In essence, counsel contends that it is clear from the Joint Houses of the Oireachtas Committee Report that the defendants have already collected the necessary documents.
Counsel contends that the plaintiff’s trial will involve witnesses, documentary evidence and witnesses to explain some of the documentary evidence. It has not been shown by the defendants that the persons identified in their various affidavits as not being available are necessary witnesses. The issue in this case can be dealt with by other witnesses available to the defendants including expert witnesses.
Counsel submits that the plaintiff will be ready to proceed with the action at the latest by January, 2008.
Counsel for the plaintiff submits that other jurisdictions have managed without difficulty to deal with cases involving facts of some antiquity.
Reference is made to Thompson v. Smiths Ship Repairers (North Shields) Limited (1984) 1 QB 405 which was in relation to a hearing loss case covering a period in excess of 40 years.
Counsel submits that the handling of the case demonstrates that a court will take steps to ensure that the defendants will receive a fair trial despite a lapse of time. It is clear that the onus of proving the case remains firmly on the plaintiff and, further, that the court will not draw any adverse inferences against the defendant who is, as a consequence of lapse of time, unable to call witnesses or produce documents.
Counsel relies on a passage from p. 417 of the judgment of Mustill J. in the following terms:-
“Plainly, the further back into history the inquiry is taken, the more difficult it is to find anyone with personal knowledge of the individual employer’s processes of thought. But such persons exist in respect of more recent times, and the omission to call them has ruled out any possibility of a finding that the defendants specifically addressed themselves to the question, and took a decision which was reasonable at the time, even if appearing mistaken in retrospect. On the other hand, I do not think it legitimate to draw inferences adverse to the defendant from the complete absence of factual evidence on their side, and in particular to infer that at some date in the past the management considered the problem and cynically decided to do nothing about it. It would be proper, before drawing such an inference, to test it against the contemporary documents, and this is no longer possible because, with a few exceptions, none prior to the 1970s remain in existence. It is not the defendants’ fault that the case is so old, and it would be unfair to assume against them that the missing documents would have revealed something damaging. This being so, I consider that the right course is to proceed on the basis that, until such dates as existing documents begin to provide concrete information, the defendants simply shared in the indifference and inertia which characterised the industry as a whole.”
Further reference is made to the fact that Mustill J. considered what the defendants could have done to provide ear protection and this analysis covered a period of at least 100 years. The judge considered the employer’s means of knowing what appliances were available to minimise the effect of noise and this involved examining literature and publications that were years old. Mustill J. went on to hold the defendants liable from the year 1963.
Further reference is made to asbestos litigation and the case of Holtby v. Brigham and Cowan (Hull) Limited [2000] 3 All ER 421 which involved a plaintiff who was exposed to asbestos dust for many years of his working life as a marine fitter from 1942 to 1981. In 1996 the plaintiff was diagnosed as suffering from asbestosis and claimed damages. Stuart-Smith L.J. in the course of his judgment stated as follows at p. 429:-
“Cases of this sort, where the disease manifests itself many years after the exposure, present great problems, because much of the detail is inevitably lost. I can see that in Borel’s case, where the defendants were manufacturers as opposed to employers, the position may be particularly difficult. But in my view the court must do the best it can to achieve justice, not only to the claimant but also to the defendant, and among defendants.”
Further reference is made to the judgment of Hale J. in Jeromson v. Shell Tankers (UK) Limited [2001] ICR 1223 which again involved exposure to asbestos. The plaintiff’s husband had been employed by the defendant from 1956 to 1961 and in June, 1996 died after developing malignant mesothelioma due to exposure to asbestos. Hale L.J., having considered the law and the factual findings, proceeded to consider the literature available to a careful employer at the time and stated as follows:-
“It is necessary therefore to consider the literature itself and what an employer such as Shell should have made of it. This is not an issue which an expert opinion could determine. The experts were helpful in producing the literature but what a reasonable and prudent employer should have made of it was a matter for the court…. The judge was entitled to conclude that a prudent employer would have taken precautions or at the very least made enquiries about what precautions, if any, they should take. If Shell had made enquiries, the judge was in little doubt what advice they would have received…. Accordingly, the judge having correctly directed himself on the law, having made findings of fact about the nature and extent of potential exposure to asbestos dust, was entitled to draw the conclusions he did from the foreseeability of harm flowing from such exposure at the relevant time”.
Further reference is made to McTear v. Imperial Tobacco Limited [2005] CSOH 69. Counsel refers to the fact that it was clear from the judgment of Lord Nimmo Smith that, despite the lapse of time from 1964 to 2004, the defendant was able to defend the claim and particular reference is made to the fact that more than 10 years had elapsed between the date of the accrual of the cause of action and the hearing. Further reference is made to the New Zealand case of Pou v. British American Tobacco (New Zealand) Limited and WD & HO Wills (New Zealand) Limited [2006] 1 NZLR 661 in which Lang J. stated at paragraph 40 of his judgment that he was proceeding:-
“[O]n the basis that it is probable that the defendants, in common with other major manufacturers of tobacco products, kept abreast of the growing concern during the 1960s that there was likely to be link between smoking tobacco and the incidence of lung cancer. These developments are considered in greater detail later in this judgment. In particular, I have no doubt that they were aware of the principal conclusions reached in 1962 by the Royal College of Physicians in the United Kingdom and in 1964 by the advisory committee to the United States Surgeon General. Those conclusions were expressed in clear and unmistakable terms, and were also the subject of significant comment in the media when the reports were released. The reports, and the publicity that followed, would have been obvious and of immediate relevance to all the major players in the tobacco industry throughout the world at that time. They of all people would have appreciated the potential ramifications of these matters both from their own prospective and that of the industry as a whole”.
Lang J. stated at paragraph 42 of his judgment that:-
“Given the level of knowledge that the tobacco manufacturers, including the defendants, must have had in 1968, I am satisfied that a prima facie duty to warn is likely to have existed at common law by that time. The duty to warn would include a requirement to warn consumers that smoking cigarettes may be very hard to give up and that it could be injurious to health.”
Counsel refers to the fact that Lang J. considered the history and development of smoking in New Zealand and then considered the level of information that was available to the community at large in the 1960s regarding the dangers of smoking.
Counsel submits that these various cases are authority for the proposition that this type of litigation involving tobacco companies can be conducted in a fair manner despite the lapse of time between the date of commencement of smoking, the date of accrual of the cause of action and the date of the hearing of the action itself.
Counsel for the plaintiff emphasises that no personal blame attaches to the plaintiff, that such delay as there has been is not characterised by a complete absence of activity and in this regard the Court is entitled to have regard to the reality of the situation in which the plaintiff’s solicitors have found themselves, acting for a large number of plaintiffs in complex litigation and that there are contemporary claims in respect of which there can be no allegation of delay or prejudice which it is submitted must proceed to trial. These claims have had an obvious link and/or overlap with the historical claims in respect of which there are allegations of delay and/or prejudice. It is submitted that it is just and convenient to have all matters proceed to trial. Further, to grant the reliefs sought is to preclude the plaintiff absolutely, whereas to deny the reliefs sought does not deny the defendants the opportunity to defend. In other jurisdictions they have demonstrated an ability to defend and to defend successfully claims of similar antiquity.
It is submitted by way of reply by the defendants that, in effect, the plaintiff is attempting to distinguish the facts of the instant case from those that pertained in O’Connor and Manning, by reason of the fact that the plaintiff’s lawyers were engaged in work relating to the case during the period which they now accept resulted in inordinate delay, that the defendants have failed to provide a sufficient degree of particularity of prejudice suffered as a consequence of the delay, that the plaintiff has a distinct claim in respect of his addiction to smoking on an ongoing basis and a claim pursuant to the provisions of the Liability for Defective Products Act, 1991. It is suggested by the plaintiff that these aspects of the claim are not affected by the historical position and, further, that in respect of the declaratory relief claimed, this is directed to the present rather than to the past.
Counsel for the first named defendant, in reply, contends that proceedings in this jurisdiction are governed exclusively by the provisions of the Statute of Limitations Act, 1957, as amended, and by the Rules of the Superior Courts. Once proceedings are commenced within the period provided for by the statute and once they are progressed within the periods identified in the Rules, the plaintiff has the right to proceed with his action and the court has an obligation to hear and determine the issue.
Counsel contends that the critical consideration is as to whether or not it is possible for the action to proceed in a manner that is compatible with the principles of fair procedures and any references to what occurs in other jurisdictions such as smoking cases or asbestos cases involving a significant lapse of time, are of limited assistance. Counsel contends that the constitutional guarantee in this jurisdiction is the right to fair process which is rooted in the entitlement to a fair hearing. The crucial right is to adduce evidence in support of one’s case and to confront one’s accusers and if a party is deprived of this entitlement then a case cannot be presented in a manner that secures the entitlement to constitutional fair procedures and, in effect, is a fair trial possible not upon the perceived strengths or weaknesses of the position of either party but in the context of a fair hearing?
Counsel also contends that, in determining the effect of the right of fair process, what is critical is not merely the impact of delay upon the ability to present one’s defence, but also the nature and extent of the claim that has to be met. In this instance the plaintiff’s case is pleaded in a very broad manner. Counsel emphasises that central to the claim is the situation pertaining to knowledge and in this regard the plaintiff is urging upon the Court that there was a breach of duty because the defendants knew or ought to have known that their actions were likely to cause arterial disease in the plaintiff, that the defendants knew or ought to have known that cigarette smoking was addictive, that the defendants designed their cigarettes so as to deliver nicotine and at the same time reduce negative sensations associated with cigarettes, designed their cigarettes so as to appeal to children and to the plaintiff, designed their marketing so as to reinforce the appeal and addictive quality of cigarettes, and deliberately concealed and suppressed information. Each of these claims of knowledge occurs at every point on a continuum from at the very earliest, having regard to the references as made by the plaintiff, being 1942, but certainly from 1980 onwards.
Counsel contends that the plaintiff has deliberately gone back in history in formulating his claim in the belief that this may assist him in asserting that at the time he began smoking he did not appreciate that smoking was a risk factor and that he became addicted before he realised that fact so that, in effect, the case is that the plaintiff became addicted to cigarettes from in or about 1960/1961 and that at that time the defendants knew or ought to have known that cigarettes were addictive. The further the plaintiff goes back in time the more difficult it becomes for the defendants to counter the allegations that the plaintiff makes. Counsel contends that this is particularly invidious, as in these proceedings the plaintiff seeks to mount his claim by reference to a plethora of documents which he will presumably seek to adduce in evidence through the vehicle of an expert but whose authors are not available for cross examination. The crucial question which the plaintiff does not answer is as to how the defendants are to counter the allegations made against them as to their state of mind and knowledge, when, as is the case for this defendant, the critical decision makers for the relevant knowledge at the relevant times are deceased or unable to give evidence.
As regards the plaintiff’s claim pursuant to the provisions to the Liability for Defective Products Act, 1991, counsel for the first named defendant contends that the plaintiff does not and cannot make a case based solely upon events post-1991. He has to establish that he has been injured by the product and must establish that he consumed it unaware of risks associated with it and, to do this, he inevitably has to base his case back in the 1960s at a point in time when he started smoking. An important aspect of this part of the claim is that the defendants knew or ought to have known that cigarettes were addictive and if the plaintiff alleges that he became addicted in the 1960s, the only knowledge of the defendants relevant to the addiction issue is the knowledge of the defendants in the 1960s and thus knowledge is central to a claim brought under the Liability for Defective Products Act, 1991.
As regards the declaratory proceedings, it is clear that if the plaintiff’s claim is dismissed in respect of damages, it must also fall in respect of the declaratory reliefs. Counsel contends that the declaration sought at para. 3 confers no benefit of any kind on the plaintiff given that he is a person who has ceased smoking. The claims at paras. 4, 5, 6 and 8 are historical. The claims at paras. 7 and 9 are not pleaded in the plenary summons and are not properly before the Court at all. Paragraph 11 is a matter exclusively for the State defendants and para. 12, being a legislative decree from the High Court that cigarettes are to be banned, is a relief which, apart from its inherent implausibility, could only be made when all the persons having an interest in the matter are before the Court and, as a number of the tobacco companies are not before the Court in this case, the relief sought, in truth affords no basis for salvaging the plaintiff’s claim.
Counsel on behalf of the second named defendant further emphasises that the significant issue in these proceedings is what the second named defendant knew or ought to have known at any particular point in time as to the alleged harmfulness of smoking and what the second named defendant did or ought to have done as a result and why. The plaintiff cannot be under any misapprehension as to the position of the second named defendant in this regard as is evident from the hearings before the Oireachtas Joint Committee on Health and Children and the House of Commons Health Committee. The second named defendant has consistently maintained that it at all times acted reasonably in all the circumstances.
Counsel refers to the debate as to whether the reality of the situation is that the relevant period of time flows in this case from 1960 when the plaintiff started smoking or as far back as 1942, bearing in mind the reference to certain documentation. Counsel refers to a particular passage of discussion on day 9 of the hearing of the motion between counsel for the plaintiff and the court, wherein the question was asked “so are you saying that any period of time before 1960 is irrelevant to this case?” to which the answer was “except in the sense that insofar as there are documents which are relevant to a prior period, they are documents which would go to the knowledge”.
Counsel relies on this answer as bringing this claim back to a starting point in 1942 and that in truth and in substance there has been no resiling from the dates set out in the statement of claim, nor any material limitation of the period of time to which the court is going to have to have regard.
With reference to the reliance placed on the judgment in Thompson by counsel for the plaintiff, Mr. Collins, counsel for the second named defendant, refers to a particular passage from the judgment at p. 416 wherein Mustill J. States:-
“An employer who took an interest in the subject might, for most of the 20th century have had to be content with published material which was incomplete and in some instances misleading. But those employers who were engaged in ship building and ship repair had no need for published material. With one exception the whole of the oral evidence and the voluminous written material very properly collected and adduced at the trial point to the same conclusion; namely that every one in those industries took the existence of the problem for granted”.
The problem related to hearing loss associated with occupational exposure and Mustill J. went on to state at p. 417:-
“The next step is to consider what means the defendants took to combat this risk….Here we come to a striking feature of the case. Not one witness has been called from any of the three defendants to explain what if any consideration they gave to the problem, what decisions were taken, and for what reason. The defendants were not obliged to account for their choice of witnesses and did not do so. Plainly, the further back into history the inquiry is taken, the more difficult it is to find anyone with personal knowledge of the individual employer’s processes of thought. But such persons must exist in respect of more recent times, and the omission to call them has ruled out any possibility of a finding that the defendants specifically addressed themselves to the question, and took a decision which was reasonable at the time, even if appearing mistaken in retrospect”.
Counsel refers to the fact that there are a number of points which arise from these passages. Firstly, there is no suggestion in the passages or anywhere in the judgment that it had been explained to the Court that in fact there were no witnesses available or that the explanation referred to, was one which was beyond the power of the defendant company to give. On the contrary, the tenor of the passage suggests that the Court regarded the failure to call such witnesses as one which had not been explained.
The other matter arising is that of the consideration that the defendants gave to the issue of the alleged risks associated with smoking, what decisions were taken and for what reason. Counsel refers to the fact that, in terms of a claim for negligence, as the claim is made here, an issue arises or may arise as to whether a party, to use the words of Mustill J., “specifically addressed themselves to the question, and took a decision which was reasonable at the time, even if appearing mistaken in retrospect”.
Counsel specifically refers to the content of the statement of claim and that it is not suggested or pleaded that the ongoing injury has any different derivation or any different legal basis to the injury apparently diagnosed in 1996. It is not presented as such and is not capable of constituting on the pleadings a separate claim because it is entirely co-terminus with what is characterised as the historical claim and relates to precisely the same alleged wrongful conduct stretching back to 1942. Counsel emphasises that the claim relates to ongoing injury and commences with the plaintiff starting to smoke, the product being addictive, and his being unable to stop.
Counsel for the second named defendant emphasises that the defendants need only rely on general prejudice as a basis for the application to dismiss the plaintiff’s claim for want of prosecution and it is not necessary to establish specific prejudice. Even where specific prejudice is asserted, as it is in this instance, it has never been necessary to establish a complete absence of witnesses. The argument as advanced on the plaintiff’s behalf that the tobacco companies were able to produce witnesses to give evidence to parliamentary hearings, is wholly misconceived in that it ignores the fundamental distinction between a parliamentary inquiry and civil litigation in this jurisdiction. The former is concerned with informing the legislature in its legislative capacity, not with the determination of civil legal liability, and, further, the rules of evidence are wholly different to those which pertain before a parliamentary inquiry. Insofar as the plaintiff relies on the decision of the Supreme Court in Delahunty, counsel observes that no issue as to delay was raised or considered in the application before the Court and the only issue was whether the claim ought to be dismissed as disclosing no reasonable cause of action and that was the context in which the case was dealt with.
As regards the Liability of Defective Products Act, 1991, that claim has to be viewed against the background of precisely the same delay and any claim pursuant to the Act of 1991 cannot be divorced from the events prior to the coming into force of that Act.
Counsel contends that the Court has jurisdiction to dismiss only part of the plaintiff’s claim.
It is submitted by way of reply by the third named defendant that, having regard to the nature and extent of the plaintiff’s allegations, this case is not a straightforward case in relation to the plaintiff suffering injury but is a type of action that appears, in effect, to be a public inquiry that the Court is invited to conduct into the tobacco industry. The central thrust of the statement of claim focuses on knowledge, action, and inaction. It raises the question as to the knowledge of the defendant company at certain points in time and that knowledge is proved by internal witnesses. In counsel’s submission, it goes further in asking the questions: what did you do? Why did you do it? Why did you not do it? The statement of claim in counsel’s submissions discloses huge controversy in relation to, amongst other things, areas where knowledge has changed and where it has been cumulative, the historical controversy on scientific issues, the controversy on design, what was done or not done, what was possible or not possible at different points in time, and the interface between the tobacco companies and the regulators through various organisations. The plaintiff relies on the documentary side, but in the particular circumstances of such wide ranging complaints, counsel contends that in order to defend themselves the defendants have to have witnesses who were there at the time, who can testify from their contemporary knowledge and with a reasonable recollection not rendered largely useless by the passage of time. Counsel contends that it is hard to imagine any case in which the plaintiffs are so clearly intent on using such a broad range of documents from regulatory authorities in many countries including Ireland, the United Kingdom, and the United States, from other companies in the same industry, from other geographic markets dealing with issues of chemistry, science, public health, marketing, public awareness, causation, psychiatry and addiction, over such a massive spread of time. The defendants simply do not have contemporary witnesses who have a sufficiently good recollection or could be expected to have a sufficiently good recollection to deal with the many issues that the plaintiff pleads against the defendants. Counsel for the third named defendant points out that there is no claim under the Act of 1991 against the third named defendant in the purported statement of claim as delivered in December, 2003. Counsel contends that this was a conscious decision, as the case was carefully pleaded against individual defendants who potentially could have had an exposure under the Act of 1991. One reason may be that it was realised that the plaintiff had started smoking “Silk Cut”, one of the third named defendant’s brand of cigarettes after the writ had been issued.
It is contended by way of reply on behalf of the State defendants, that the reliefs in general pertain to the tobacco company defendants as distinct to the State defendants. The relevant declaratory reliefs as sought, germane to the State defendants, appear to be reliefs 11 and 12 which, in effect, seek an order prohibiting the sale of tobacco products, including cigarettes, and an order directing the defendants to make available to the general public all material available to them relating to the health risks posed by cigarettes and their component parts. Essentially, counsel submits that the court is being asked to direct the Minister to exercise discretionary powers under two statutory provisions. In effect, these are judicial review applications which are governed by very strict time limits as set forth in the Rules of the Superior Courts and, in essence, are now hopelessly out of time. Further, counsel contends that the plaintiff is straying into government policy matters against a background where no formal request has been made by the plaintiff for any of the actual declaratory reliefs as sought and these, in any event, would be entirely a discretionary matter for the relevant Minister. If this relief is genuinely being pursued by the plaintiff, it has to be dealt with as a judicial review application and not as some constituent part of what in effect is a personal injuries action. Insofar as relief is being sought that the relevant Minister should make available to the public, or particularly to the plaintiff, information which he has previously obtained under the two relevant statutory powers which are specifically invoked, such an application is amenable to a Freedom of Information application and is a completely unnecessary application in this type of action.
With regard to striking out the whole or part of the plaintiff’s claim, counsel emphasises that the State defendants are seeking to strike out the plaintiff’s claim in its entirety. It is for the plaintiff to say whether there is something in the information in the pleadings that can still stand up despite the present application but this has not been done.
Counsel for the State defendants asserts that tobacco is not a new item. Cigarettes have been on sale since the beginning of the 20th century and tobacco has been in circulation in the western world probably going back to the time of Walter Raleigh. In order to be able to meet a case in relation to what has been the policy of the State, counsel submits that you can not look at what happened from 1996 onwards and ascertain whether a State policy is flawed or not. Policy by definition is an evolving matter in the part of the running of a State. Counsel says that, in order for the State to meet a claim of this kind, it is necessary to look at the steps that were taken at particular times along the way in the light of the knowledge that the State had and what steps were to be taken and whether those steps were or were not taken at the particular time. The policy of the State cannot be judged on a snapshot exercise as to what has been the state of knowledge or the activity on the part of the framers of policy made over the last number of years.
The case that counsel for the State defendants emphasises is very simple: knowledge is one thing but that does not necessarily explain the thinking behind the policy of policy framers and policy makers over the relevant period of time, which in this instance, appears to date back as far as 1942. The proper person to deal with the framing of government policy is not somebody coming in at this stage applying some sort of learned, historical perspective to documents which were framed and drafted in another era; the proper person is the person who was actually the thinker or the framer behind the particular policy at the time of its inception.
The plaintiff pleads that the State defendants knew or ought to have known that, from around 1942, cigarettes were addictive and that, from 1950, cigarettes were harmful. The claim accordingly is not a contemporary claim and on any view is a historical claim.
Insofar as the thrust of the plaintiff’s claim against the State defendants is concerned, counsel submits that the plaintiff is really tackling the policy making of successive governments from the Finance Act of 1950 onwards.
Counsel specifically refers to the averments of Mr. Corcoran on behalf of the State defendants that the precise difficulty for the State defendants is that they are now being asked to assemble evidence and to call witnesses relating to the events leading up to the enactment of relevant legislation, some of which has been on the statute books for almost 30 years.
Counsel submits that the representations made by the plaintiff fall well short of providing an answer to the position that the State defendants find themselves in, of not being in a position to represent themselves at any trial of this action because the documentary evidence or the documentary trails as identified, does not elaborate on the philosophy behind the policy making, and only gives a snapshot of what happened at various legislative or administrative milestones over a period of time.
As regards the 1964 Memorandum to Government, a document which was opened during the course of the hearing, counsel advises that every key civil servant and politician connected with this particular document is now deceased.
In counsel’s submission, there is no explanation as to why the State defendants were not joined in the proceedings at the same time as the tobacco companies. In order to conduct a balancing exercise, counsel submits that the Court has to have something on the other side of the scale by way of an explanation that excuses or even explains why the State defendants were not joined in at the same time as the tobacco companies and counsel contends that the scales only tip one way.
Counsel contends that no assertion is made on the plaintiff’s behalf to the effect that reliance had been placed on the Report of the Oireachtas Committee to the detriment of the plaintiff. Nor is it said that the plaintiff was lulled into any sense of false security and that, as regards this aspect of the case, the plaintiff adopted a ‘wait and see’ policy.
In essence, counsel submits that the only way that the events of 30 years ago, as far as policy making is concerned, can properly be judged in a court is not by a public inquiry or by historians, but by a court having the first hand testimony of the persons actually behind the thinking and the framing of the policy at the particular time.
Counsel refers to the recent decision of this Court (Peart J.) in Byrne v. The Minister for Defence [2005] 1 I.R. at p. 577 where the Court was specifically asked to look at delay on the basis that the defendants claimed that, as a result of the time which had elapsed before the commencement of the proceedings, they were greatly prejudiced in the conduct of their defence against a background where the plaintiff had served as a member of the armed forces for three years from 1974, during which time he was exposed to noise from rifles, mortars and machine guns. In 1998, he commenced proceedings against the defendants seeking damages for hearing loss and injuries which he alleged resulted from his exposure to noise while in the Defence Forces and while not provided with any ear protection. Counsel refers to the view as adopted by Peart J., which is instructive in contrasting what is the appropriate approach to be taken in the Irish jurisdiction as opposed to the approach taken in certain other jurisdictions.
Peart J., in dismissing the plaintiff’s claim, took the view that where there was inordinate and inexcusable delay on the part of a plaintiff in bringing proceedings to dismiss the proceedings in the absence of any prejudice to the defendant, that an army deafness claim was in a category of its own and that there had been a very large number of such claims wherein the State’s capacity to deal with a claim had not been hampered and prejudiced and there had not been a risk of an unfair trial.
Peart J. took the specific view that, in exercising its inherent jurisdiction on the grounds of inordinate and inexcusable delay, the Court had to consider and protect competing interests which were the plaintiff’s right of access to the courts and the defendant’s right to an expeditious hearing, to finality and not to be adversely prejudiced by delay, and the public interest which was independent of the parties, in not permitting claims which had not been brought in a timely fashion to take up the valuable and important time of the courts and thereby reduce the availability of the much used and needed resource to plaintiffs and defendants who had acted promptly in the conduct of their litigation, as well as the increased cost to taxpayers for providing a service of access to the courts which best served the public interest.
Accordingly, in Byrne the court found that there was no disadvantage to the Department of Defence in meeting a deafness case because they had previously dealt with many similar type cases and they appeared to have the appropriate documentary records. Counsel contends that this point applies, a fortiori in the instant case, where the defendants have shown prejudice and the plaintiffs have been unable to show any countervailing matter of justice to be put into the balance which is based on an explanation or excuse as to why the State defendants were not sued earlier.
As regards Article 6 of the European Convention on Human Rights, counsel contends that it is an extra factor to be taken into consideration by the Court in the application of existing Irish law and jurisprudence. The legislation bringing the European Convention on Human Rights into domestic law operates only from the 31st December, 2005, and it affects the conduct of a trial that the State defendants are now contemplating. It affects the State defendants and the possible prejudice to them in meeting a trial at this stage or a trial at any stage in the future, and in that way, the State defendants are entitled, as are the tobacco company defendants, to call to their assistance, Article 6 of the European Convention on Human Rights as an extra factor to be put in the balance along side the protections under Article 34 of the Constitution.
Conclusion
Accordingly, the first issue now to be determined is as to whether or not in the Court’s discretion, on the facts, the balance of justice is in favour of or against the proceeding of the case.
The basic criteria is whether the delay has given rise to a 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.
An issue arises as regards whether or not a statement of claim has actually been delivered on the first three named defendants on 5th December, 2003. The Rules of the Superior Courts are quite clear in stipulating the relevant periods of time for the delivery of a statement of claim. In the case of each of the first three named defendants the relevant period of time had long since elapsed.
It is clear that the plaintiff’s solicitors did not, at the relevant point in time, seek the consent of the solicitors for the defendants to the late delivery of a statement of claim and proceeded unilaterally to forward a statement of claim to the respective solicitors for the first three named defendants in December, 2003. The situation has become even further complicated by reason of the fact that apparently through an alleged error, no claim was made out against the third named defendant for a claim in respect of relief pursuant to the Liability for Defective Products Act, 1991 and counsel for the plaintiff handed into court, during the course of the hearing, a further amended statement of claim. I would regard the situation pertaining to the purported delivery of the statement of claim as unsatisfactory in itself and I come to the conclusion that the amended statement of claim as submitted, represents most probably the final version of a statement of claim that would be delivered by the plaintiff if this Court saw fit in the appropriate circumstances to grant the relevant extension of time. Accordingly, in referring to the “purported delivery of the statement of claim”, that is the status which, in my view, the document merits vis à vis the position of the first three named defendants.
In my view, it is clear from a perusal of the statement of claim that the claims being advanced by the plaintiff as against each of the defendants are very wide ranging and non specific with sparse particulars. The wrongful acts alleged go back as far as a specific reference, to certain events in 1942, followed by references to other specific acts in the 1950s and to the plaintiff having commenced smoking in 1960/1961.
If the statement of claim is delivered to the first three named defendants at this stage by leave of the Court, it is inevitable that detailed notices for particulars will be raised and one only has to look at the history of events in this regard to come to a conclusion, as a matter of probability, that replies to particulars will take some considerable period of time. There may well be a preliminary issue raised as regards the Statute of Limitations and there may well be interrogatories. Clearly there will be orders for discovery sought and cross orders and there will be side bar motions in respect of claims of privilege as referred to in the arguments as made before the Court. I fully accept that, the submission made by counsel for the plaintiff, as regards a potential hearing date of January, 2008, is made in good faith, but I do not accept that there is any reality to that proposition. My overall conclusion is that, at best, it may be possible to have a full hearing of this claim in the latter half of 2009.
In my view, having regard to the passage of time since the accrual of the cause of action in September, 1996, there is presumed prejudice on the part of all of the defendants.
The affidavits sworn for each of the defendants clearly make out a case of actual prejudice and ongoing prejudice due to delay and lack of progress in the prosecution of the proceedings, not only from the date of the accrual of the cause of action in September, 1996, but also from the date of the institution of the proceedings. A number of relevant persons have died since the date of the accrual of the cause of action and the ongoing delay of a number of years, as a matter of probability, will further reduce the potential witnesses who will be available to the defendants to give any or any meaningful assistance. I am satisfied that this is not, despite the voluminous documentation, a document’s case. There are issues before the Court which can only properly be addressed, indeed fairly addressed, in viva voce evidence from those who can speak from their own knowledge of the events and happenings during the relevant period to these proceedings. With the passage of time, clearly there will be the fading of memories for those who are alive and available and there is the increasing likelihood of there being deficiencies in documentary records, documents lost or misplaced and a significantly increased difficulty in ascertaining what was done and crucially, why it was done or not done, at the relevant periods of time regarding the issues before the court.
It is necessary to consider the conduct of the defendants since the commencement of the proceedings for the purpose of establishing whether any delay or conduct on the part of the defendants amounted to acquiescence in the plaintiff’s delay and as to whether the defendants were guilty of any conduct which induced the plaintiff to incur further expense in pursing the action.
Counsel for the plaintiff raises the issue that the defendants collectively could have brought the motion to dismiss for want of prosecution following the issue of the plenary summons and that by waiting until March, 2004 to bring this motion they and each of them acquiesced in the plaintiff’s inordinate delay.
I am satisfied that the steps taken by the defendants in relation to the plaintiff were reasonable and were not such as to debar their entitlement to an order for a dismiss if the facts otherwise so dictate. I do not consider that the motion as brought by the defendants in respect of the collection and preservation of the plaintiff’s lifetime records was an unnecessary step or that it put the plaintiff to unnecessary expense. I do not consider that it was incumbent on the defendants to bring the motion to dismiss for want of prosecution following the issue of the plenary summons. In respect of the State defendants, it was reasonable, having received the statement of claim, to raise a detailed notice for further and better particulars and to have anticipated a reply thereto within a reasonable period of time. Accordingly, I do not fault the defendants in the manner in which they have conducted the defence of the plaintiff’s claim against them. Counsel for the plaintiff emphasises the fact that, in essence, on any reasonable appraisal of the voluminous documentation that has been made available, and in particular, but not exclusively, having regard to the information contained in the Houses of the Oireachtas Report and the House of Commons Report, the plaintiff has a strong case on grounds of causation and foreseeability. I do not consider in the particular circumstances of a motion such as this to strike out proceedings for want of prosecution, that the question of whether a plaintiff has a strong case or not is a relevant feature, because the motion is only concerned with a failure to prosecute based on inordinate and inexcusable delay linked into prejudice and the issue to be decided is governed by the principles as set out in ‘Primor’, which does not indicate that the strength or otherwise of the plaintiff’s claim is a relevant factor to be taken into account.
I do not consider that there was any delay on the part of the defendant or that the conduct of the defendants amounts to acquiescence in any way in respect of the plaintiff’s inordinate and inexcusable delay.
I take the view, that insofar as the State defendants are concerned, the plaintiff, in effect, adopted a ‘wait and see’ policy, hoping initially that the State may have taken some action against the tobacco industry or, alternatively, that they may have subsidised in some way the present litigation on behalf of individual plaintiffs against the tobacco industry. While there may have been a recommendation from an Oireachtas committee that litigation against the tobacco industry could be contemplated by the State, there is no evidence before me that the government of the day itself actually ever gave any realistic consideration to instituting legal proceedings against the tobacco industry nor any indication that the State was ever giving hope to individual plaintiffs that some form of special arrangement would be made to assist them financially with litigation against the tobacco industry. In the circumstances, I do not differentiate between the relevant time factors arising from the date of the accrual of the cause of action and the date of the actual delivery of the statement of claim by the plaintiffs to the State defendants and the purported delivery of the statement of claim to the first three named defendants. The crucial period is from the date of the accrual of the cause of action and clearly the proceedings against the State defendants should have been instituted at the same time as the proceedings against the first three named defendants. In my view, there is no material difference in the delay involved and no different considerations apply merely because, as a result of the manner in which things worked out, the statement of claim was actually served on the State defendants.
In the particular circumstances of this case, the plaintiff complains of having suffered a significant illness and these proceedings, if he has a good cause of action, represent the only opportunity in which he has to recover compensation.
I am satisfied that the dismissal of the claim would have serious consequences for the plaintiff. I am further satisfied, for the sole purpose of this motion, on the facts as known to me and having regard to the submissions as made on the defendant’s behalf that no blame, in the circumstances, attaches to the plaintiff personally.
I am satisfied, having regard to the judgment of Clarke J. in Rogers, that this Court has an entitlement to dismiss all or any part of the plaintiff’s claim as it sees fit. An argument was raised during the course of the submissions that the Court has jurisdiction only to strike out the entire of the plaintiff’s claim or none of it at all, the logic of this argument being that, even if the Court considered that several aspects of the plaintiff’s claim should be dismissed for want of prosecution, if there were any saving aspects which, in the Court’s view, should not be dismissed then the entire claim must go forward to a hearing. I do not accept that there is any merit in this contention and consider that, pursuant to the inherent jurisdiction of the Court, I am entitled to dismiss the plaintiff’s claim in its entirety or any aspect thereof, as I deem fit.
I do not consider that any conduct by any of the defendants herein induced the plaintiff to incur further expense in pursuing the action. I appreciate that the solicitors on behalf of the State defendants called for the delivery of a statement of claim and in turn, when delivered, raised an extensive notice for further and better particulars, but I do not consider, in the exercise of my discretion, that any significant weight is to be attached to this conduct and I do not consider that it was conduct which induced the plaintiff to incur further expense in pursuing the action to such an extent as to constitute an absolute bar preventing the defendant from obtaining the reliefs as sought herein.
Counsel for the plaintiff has argued that there are considerable differences between the factual situations that pertain in both O’Connor and Manning, which should lead this Court to a different conclusion in the plaintiff’s favour.
I accept that clearly there are factual differences between this case and the O’Connor and Manning cases. For example, in O’Connor, Quirke J. came to the conclusion that, following the issue of the proceedings, for a period of almost three years no tangible steps of any kind were made on behalf of the plaintiff to prosecute her claim. No evidence was adduced before the trial judge of investigations into the claim or of the collection of evidence as to liability and no claim was advanced that such activity caused or contributed in anyway to the delay in the prosecution of the claim. Quirke J. went so far as to state that it was difficult to avoid the conclusion that virtually nothing was done to prosecute the plaintiff’s claim between March, 1999 and November, 2001.
In Manning, Finlay Geoghegan J. came to the conclusion that, in essence, no explanation whatsoever was offered for the delay in the issue of proceedings and no plaintiff in those proceedings had sworn an affidavit. Further, Finlay Geoghegan J. stated that there was absolutely no explanation as to why in each case no proceedings were issued until almost three years after the date of diagnosis relied upon or indeed why the summons was not served in each case for approximately eleven months after issue.
As previously indicated, I take the view that, having regard to all of the research as carried out by Mr. McDonnell prior to his joining with Beauchamps in the autumn of 1999 to represent the plaintiff, and with the publication of the Houses of the Oireachtas Report in October, 1999 and of the House of Commons Report in June, 2000, the relevant information was available for the purpose of the delivery of a statement of claim, and, as previously indicated, any further alleged research and work carried out does not, in my view, provide a valid excuse for the delay in the delivery and purported delivery of the statement of claim in December, 2003. Accordingly, while I accept that there are factual differences between what occurred in O’Connor and Manning, in contrasting a situation where nothing at all may have happened, as opposed to the nature of the work as outlined that was carried out on the plaintiff’s behalf, the factual circumstances do not, in my view, enhance the present plaintiff’s situation and as accepted by the plaintiff, do not alter in any way the legal principles to be applied.
As regards the work done, I am satisfied to accept the submission made by Mr. Murray, counsel for the first named defendant, that no satisfactory explanation is offered as to why a plenary summons was not issued for over one year following consultation with the plaintiff or why, having been so issued, it was not served for a period of eight months and why no statement of claim was delivered or purportedly delivered for period of four years following the initial consultation with the plaintiff. In my view, after mid 2000, there is very little, if anything, of real relevance that can be related to the final end product in the statement of claim. The lifetime medical records that were gathered do not, in my view, manifest themselves in any way in the statement of claim with the account of the plaintiff’s medical condition finishing with his attendance with Mr. Meighan in May, 2000. The lifetime medical records were not required for the statement of claim and are not reflected in any way in the statement of claim, and in any event, only related to the remaining seventeen claims at the relevant time.
The streamlining of the various cases was necessitated by reason of the fact that Mr. McDonnell was seeking clients in the public arena without due regard as to the realistic prospect of sustainable litigation against the relevant tobacco companies. This was a situation that could easily have been ascertained with due diligence and would, in my view, be regarded as the most minimal of precautions to have been taken when a solicitor takes on a new client in what clearly was going to be a matter involving complex litigation. This issue has previously been determined herein as not being a valid excuse for the type of period of delay that has occurred.
Insofar as the plaintiff relies on contact with relevant witnesses, it does appear that no approach was made to a single witness prior to May, 2001. At its highpoint, this work involved a meeting with Mr. Armstrong, several items of correspondence with him, meeting an expert in palliative medicine, the sending of three letters to a consultant radiologist and the writing of a letter to a consultant histopathologist, none of which appears to have been relevant to disposing of the case with due expedience, having regard to the fact that the first port of call was the delivery of a statement of claim following the receipt of an appearance from the defendant’s solicitor and the consideration of the issue of suing the State defendants.
As previously indicated, I take the view that, while there was some ongoing work being performed by the plaintiff’s solicitors, the nature of the work does not excuse the failure to prosecute the claim with due expediency or at all.
As regards the two central issues of causation and foreseeability, I take the view that there is merit in the submission by counsel for the plaintiff that the actual issue of causation is not likely to lead to any undue prejudice as the plaintiff’s lifetime medical records have now been assembled and preserved and the identification, assembly, preservation and careful, early review of the plaintiff’s lifetime medical records have been described by the defendant’s medical expert, Mr. Nigel Standfield, as essential to the defence of the claim that is made herein. Further, Mr. Standfield has unequivocally stated that he can reach a conclusion as to the nature of the disease and its causes and the date of diagnosis from the plaintiff’s lifetime medical records and nowhere is it suggested on the defendant’s behalf that there is any actual need for other information in this regard. In any event, it has been open to the defendants to examine the plaintiff’s lifetime medical records since the time of their final assembly, but the defendants have chosen not to do so, and further, it has been open to the defendants to have the plaintiff medically examined and they have chosen not to do so.
As regards the issue of foreseeability, the plaintiff relies very heavily on the existence of documentation both in the public and private domain. Documents can be prepared on the basis of a great number of reasons. Houses of the Oireachtas reports and House of Commons reports represent merely the opinions of those persons sitting on the relevant committee. It has never been the practice in the Irish courts to decide issues on the basis of unproven documentation. It would, in my view, be entirely inappropriate for a trial judge to sift through and consider all the documentation that, for instance, is set out in the schedules attached to the statement of claim and rely on same in the absence of oral evidence, having proved the documentation as a basis for a conclusion on the balance of probabilities as to the issue of foreseeability arising herein. Further, it would be inappropriate, in my view, for a trial judge to rely on the opinions of other persons formed on the basis of information contained in documents and evidence as adduced before them in a situation not governed by the rules of evidence as applicable in the Irish courts and in accordance with the applicable rules of practice and procedure.
I accept that there were personnel available on the defendants/defendants parent companies’ behalf to assist the Houses of the Oireachtas Committee and the House of Commons Committee. However, I do not accept that there is any merit in the plaintiff’s argument that because the defendants or their parent companies were in a position to produce witnesses to give evidence to these parliamentary hearings, there should be now no difficulty in the same or similar witnesses giving evidence at the hearing of the trial of this action. There is a fundamental distinction between a parliamentary inquiry and civil litigation of the type involved here. The rules of evidence are wholly different as are the objectives sought. In any event, with the passage of time, it appears that it would be some nine years between the hearings before the Houses of the Oireachtas and the House of Commons Committee and the hearing of these proceedings and, as I have already stated, I am satisfied that there is not only presumed prejudice but also actual prejudice which is running on a continuing basis.
Counsel for the plaintiff has relied on a number of foreign judgments. With regard to Thompson which was a case about shipyard noise, there does not appear to have been any factual issue involved and there is nothing in the judgment which suggests that there was any impossibility as regards calling evidence or anything to suggest that the defendants took issue with their capacity to defend the case.
A similar position arises in Jeromson and Holtby. In neither of these cases was there any significant factual issue. The jurisprudence of this Court is governed by Primor and Manning. The courts in this jurisdiction have never taken the view that they must do the best they can, or that defendants have to accept the best the court can do, in whatever the circumstances and irrespective of whether there is prejudice or not. In any event, no issue arose, in any of the cases referred to, of impairment caused to the defendants in the defence of their case. Nor was there any suggestion of, or culpable delay on the part of the plaintiff.
With regard to Pou and McTear it appears to me that the issues are different. It does not appear to have been suggested that there was any particular difficulty arising in either case and it does not appear that there was any evidence before either court of any prejudice.
Roderick Bourke, solicitor for the second named defendant, in his supplemental affidavit as sworn on 16th day of November, 2004, referred specifically to the McTear case as heard in Scotland. He set out that there were very significant differences between the Scottish legal procedure and the procedure governing civil litigation in this jurisdiction. He contrasts the allegations in the McTear case with the very wide and broader allegations that are made herein.
The averments of Mr. Bourke in this regard are not challenged.
The issue before this Court is whether the proposed trial would be fair and would be just having regard to the factors as set out in the jurisprudence which binds this court.
Insofar as the plaintiff makes a secondary claim for continuing addiction to nicotine, that claim is only made out as against the second named defendant, no claim having been made against the first named defendant in this regard due to the particular factual circumstances, and no claim having been made against the third named defendant due, apparently, to error.
I note that nowhere in the affidavits delivered on the plaintiff’s behalf is there a reference to the plaintiff’s alleged addiction to nicotine being a continuing injury claim or a contemporary or modern claim and neither is that particular characterisation of the plaintiff’s claim reflected in the statement of claim. Nowhere in the statement of claim is the point in time when the plaintiff says he became addicted to cigarettes set out and the only continuing claim identified in the statement of claim is for continuing injury as opposed to a continuing wrong. The specific averment at para. 8 of the statement of claim is to the effect that, due to his addiction to cigarettes, the plaintiff has been unable to cease smoking and continues to sustain ongoing damage to his health as a result. I take the view that this claim only has relevance to the point in time when the plaintiff became addicted and clearly this claim is historical, the plaintiff having commenced smoking in 1960/1961. Further, the claim is directed to causation and knowledge extending over an extensive period of time and, in my view, involves the same defects as the primary claim for personal injuries and creates the same problems.
As regards the claim pursuant to the Act of 1991, it is quite clear that the plaintiff has to establish causation and damage.
The plaintiff has placed considerable emphasis on the decision in Delahunty but it is clear that no issue of delay was ever raised in Delahunty and the sole issue before the court was whether the claim ought to be dismissed as disclosing no reasonable cause of action. Further, the Court was not asked to consider, nor did it express, any view as to whether a claim in respect of continuing injury inevitably requires consideration of the knowledge and conduct of the manufacturers at all material times.
The claim in respect of the Liability for Defective Products Act, 1991 is presented as a fresh or current claim. In my view, the plaintiff in the circumstances of this case, does not and cannot make out a case based solely upon events subsequent to 1991. The plaintiff has to establish that he was injured by the product and that he consumed it unaware of the risks associated with it and to do this he inevitably has to base his case back in the 1960s at a point in time when he started smoking, bearing in mind that he has smoked on his own admission continuously since 1960/1961 through until a point in time when he ceased smoking in 2004. The central issue will be as to whether the defendants knew or ought to have known that cigarettes were addictive and the only relevant knowledge in that regard is at the point in time when the plaintiff became addicted. That claim, in my view, is characterised by exactly the same delay as the plaintiff’s claim in negligence. I do not consider that the plaintiff’s claim under the Act of 1991 can be divorced from the events prior to the coming into force of the Act, and in particular, ss. 4 and 5 necessarily involve a consideration and analysis of events prior to 1991.
I take the view that the claim for declaratory reliefs suffers from precisely the same difficulty. I note that the plaintiff ceased smoking in 2004. In my view, each of the declarations sought by the plaintiff are directed to matters of historical fact and are closely related to the causes of action on foot of which the plaintiff claims damages. I do not consider that the claim for declaratory reliefs can stand alone.
In overall conclusion, on the issue of the balance of justice, the plaintiff commenced smoking tobacco in 1960/1961 and was diagnosed as suffering from a smoking related illness in September, 1996, which becomes the date of the accrual of the cause of action. The plaintiff first contacted his solicitor in January, 1999. It was necessary for the solicitors to institute proceedings on the plaintiff’s behalf within three years of the date of the accrual of the cause of action in order to satisfy the relevant provisions of the Statute of Limitations Act, 1957, as amended, and a plenary summons duly issued on the 19th January, 2000. The plaintiff’s solicitors were aware that this was a late start in the proceedings and that, as a matter of law, accordingly, they had to move with due expediency. They were also aware from their research and their instructions that the plaintiff had started smoking in 1960/1961 and that knowledge on the defendant’s part going back in time was going to be one factor if not the crucial factor in the case. They failed to serve the plenary summons for a period of eight months and only served a statement of claim in December, 2003 on the State defendants and purported to deliver the statement of claim on the first three named defendants at the same time. Taking into account the date of the accrual of the cause of action and the date of the issue of the proceedings, the plaintiff failed to move with due expediency after a late start. The delay involved goes far beyond the minimum which may be considered inordinate. I fully accept that the tobacco companies were aware for quite some time of impending litigation and had an association which monitored ongoing events in this regard and were in a position to give evidence both to the Houses of the Oireachtas Committee and the House of Commons Committee and that the relevant solicitors for the tobacco companies have been working together since 1992, pursuant to an agreement to protect their clients’ common interest. A presumed prejudice, however, clearly arises in the particular circumstances and I am satisfied from the affidavits as sworn on behalf of the various defendants that there is evidence of actual prejudice on a continuing basis and with a trial date unlikely until late 2009, thirteen years after the date of the accrual of the cause of action, I take the view that the delay involved has given rise to a substantial risk that it is not possible to have a fair trial and the defendants have been caused serious prejudice. I am further satisfied that, in late 2009, to ask the defendants to meet the plaintiff’s claim, some 13 years after the date of the accrual of the cause of action, runs contrary to the implied constitutional principles of basic fairness of procedures.
In these circumstances I dismiss the plaintiff’s claim on the balance of justice by reason of inordinate and inexcusable delay and for want of prosecution.
I turn now to the application to dismiss the plaintiff’s claim by reason of lapse of time, pursuant to the inherent jurisdiction of the Court. The order as sought in this regard differs from the earlier claim to dismiss for want of prosecution because it necessarily involves in the circumstances of this case matters going back in time to 1942, and further involves no culpable delay. However, the relevant findings I have already made herein apply equally to this aspect of the application.
The essential questions that arise are whether, by reason of the lapse of time, there is a real and serious risk of an unfair trial and whether there is clear and patent unfairness in asking the defendants to defend the action. The same six criteria that were referred to by Finlay Geoghegan J. in Manning arise in this instance and they are that none of the defendants, in my view, can be considered to have contributed in any significant way to the relevant lapse of time. The claims being made are extremely wide ranging both in the nature of the wrongful acts alleged and the time over which they are alleged to have occurred. There will be significant factual issues to be determined by the Court if the claim went to trial, there will inevitably have to be much oral evidence and, as I have previously indicated, the essential issue in this case probably will be the knowledge of the defendants, which is going to involve knowledge of the relevant personnel at the relevant periods of time and the fact that I am satisfied on the affidavits sworn by the solicitors for each of the defendants, that a significant number of relevant witnesses for the fundamental claims made will not now be available to the defendants given the lapse of time involved since 1942.
In addition to the allegations regarding what the first three named defendants knew or ought to have known about cigarettes and cigarette smoking, as set out earlier in the judgment, further serious allegations are made, namely that the first three named defendants added ammonia to facilitate the absorption of nicotine, manipulated nicotine levels to maintain addiction, conspiracy and fraud.
It is clear from the statement of claim that the allegations being made by the plaintiff go back prior to 1960/1961 and that the statement of claim focuses on knowledge, action and inaction and raises questions as to the knowledge on the part of the defendant companies at various points in time. The statement of claim discloses huge controversy in relation to, amongst other things, areas where knowledge has changed and where it has been cumulative, the historical controversy on scientific issues, the controversy on design, what was done or not done, what was possible or not possible at different points in time and the interface between the drug companies and the regulators through various organisations.
As previously referred to, while there may be voluminous documentation in this case, in my view it is a case which will have to be decided on oral testimony rather than on documentation alone.
Not only have I decided that there is presumed prejudice but also actual prejudice and that was in the context of deciding the issue on the balance of justice from the date of the accrual of the cause of action being September, 1996. Now, in effect, the Court is asked to look at the entire period involved in the case, which period goes back some 66 years, but even taking it from the point in time when the plaintiff commenced smoking, the relevant period of time is some 49 years.
The European Convention on Human Rights was incorporated into Irish law by virtue of the enactment of the European Convention on Human Rights Act, 2003, the Act coming into effect on 31st December, 2003. The Act of 2003 operates prospectively only from that date. Article 6 of the European Convention is an extra factor to be added into consideration by the court but subject to the application of existing Irish law and jurisprudence.
For a court to be asked in late 2009, to determine issues of fact of the nature which would be required by this claim, in the absence of many of the persons actually involved, as clearly demonstrated in the various affidavits sworn on behalf of the defendants, would, in my view, result in a basic unfairness of procedures, give rise to a real and serious risk of an unfair trial, create a clear and patent unfairness in asking the defendants to defend the action, fail to provide the defendants with a fair hearing within a reasonable time of the wrongful acts complained of and would, in the words of Henchy J. in O’Domhnaill, “put justice to the hazard”. In these circumstances, there is no alternative but to dismiss the plaintiff’s claim for want of prosecution by reason of lapse of time pursuant to the inherent jurisdiction of the Court.

Comcast International Holdings Inc v Minister for Public Enterprise

[2007] I.E.H.C. 274

JUDGMENT delivered on the 13th day of June, 2007, by Gilligan J.
These three sets of proceedings arise from the first named defendant’s decision on October 25th, 1995, to award the second GSM mobile telephone licence to ESAT and involve serious allegations including corruption, misfeasance in public office, fraud, and deceit.
The background to all three sets of proceedings is such that, on or about the 2nd March, 1995, the then Minister for Public Enterprise, Michael Lowry (hereinafter referred to as ‘the Minister’), announced a bid process for the award of the second GSM mobile phone licence (hereinafter referred to as ‘the licence’) in Ireland. The deadline for receipt of tenders was extended on 16th June, 1995, and the result of the competition was announced on 25th October, 1995, awarding the second GSM mobile telephone licence to ESAT Telecommunications Limited.
The first set of proceedings bearing Record No. 2001 No. 9288 P centre on the decision of the Minister as taken on 16th June, 1995, to extend the deadline of the 23rd June, 1995, for the receipt of tenders for the award of the second GSM mobile telephone licence and the proceedings seek a declaration that the decision is null and void and of no effect and, in addition, claim damages for breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract.
The plaintiffs in the first set of proceedings were party to a joint venture agreement entered into with Raidió Teilifís Éireann and Bord na Móna who submitted a tender for the licence on or about the 4th August, 2005, under the name “the Cellstar Group”.
The plaintiffs issued these proceedings by way of a plenary summons on 15th June, 2001, but delayed in service of the plenary summons until 14th June, 2002. An appearance was entered on behalf of all defendants on 20th June, 2002, and a statement of claim was not delivered until the 3rd June, 2005.
In the second set of proceedings involving Comcast and bearing Record No. 2001 No. 15119 P the plaintiffs allege that the Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders, disclosed or caused to be disclosed confidential information in relation to the bid process to ESAT, modified the terms and unlawfully interfered with the tender process to favour ESAT and accepted improper payments made by Denis O’Brien and/or ESAT which payments were made to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to ESAT.
The plaintiffs claim a declaration that the decision as announced on October 25th, 1995, to award the second GSM mobile telephone licence to ESAT is unlawful, null and void and of no effect and claim damages for breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract.
The second set of proceedings was commenced by way of the issue of a plenary summons on the 10th October, 2001, which was not served until 4th October, 2002. An appearance was entered on behalf of the defendants on 16th December, 2002, and a statement of claim was not served until 3rd June, 2005.
The third set of proceedings involve Persona Digital Telephony Limited and Sigma Wireless Networks Limited as plaintiffs and bear the Record No. 2001 No. 9223 P. The plaintiffs allege against the defendants, through the first named defendant, breach of contract, deceit, conspiracy, breach of duty of care, misfeasance in public office, and dishonest assistance. The plaintiffs claim damages including exemplary damages.
The third set of proceedings was commenced by way of the issue of a plenary summons on 15th June, 2001, which summons was not served until 10th June, 2002. An appearance was entered on behalf of the defendants on 20th June, 2002, and a statement of claim was delivered on 21st April, 2006.
The State defendants by way of a notice of motion as dated 26th May, 2006, bring this application which seeks:-
1. An Order pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the State defendants for delay and/or want of prosecution.
2. An Order pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the State defendants in the interests of justice.
3. Such further and ancillary orders as this Honourable Court may deem proper and appropriate.
4. The costs of this application.
There is no significant material difference in respect of the applications as brought on behalf of the State defendants before this Court and the grounds of defence as raised thereto by the various plaintiffs and, as all three motions were heard together I propose to deliver one judgment in respect of the three sets of proceedings and the application as brought before the Court.
In an affidavit sworn on the defendants’ behalf on the 26th May, 2006, Matthew Shaw, a solicitor of the Office of the Chief State Solicitor, avers that this Court should dismiss the plaintiffs’ claim as against the defendants for want of prosecution on the grounds of inordinate and inexcusable delay on the part of the plaintiffs in the commencement and prosecution of the proceedings, which delay has prejudiced the defendants such that the balance of justice requires that the claim be dismissed, that the periods of delay themselves are unacceptable and justify this Court exercising its discretion to order the dismissal of the plaintiffs’ action as against the defendants and in the interests of justice, in defence of the defendants’ rights under the Constitution, including the right to fair procedures and a fair trial, that the delay has infringed the requirement of having to have a hearing with reasonable expedition and within a reasonable period of time pursuant to Irish law and/or Article 6 of the European Convention for the Protection of Human Right and Fundamental Freedoms.
Mr. Shaw sets out the periods of delay as evidenced from the schedule of events as previously referred to herein.
Mr. Shaw emphasises that, in the Comcast proceedings, a statement of claim was not delivered until nine years after the events complained of and that in the Persona proceedings the statement of claim was not delivered for nearly eleven years after the events complained of.
Mr. Shaw, on behalf of the defendants, complains that the allegations which are set out in the statement of claim and which refer to events of some considerable time earlier, including allegations involving breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract, constitute the most serious of allegations which have not been properly particularised by the plaintiffs in the statement of claim as delivered herein.
Further, Mr. Shaw avers that the plaintiffs have been guilty of inordinate and inexcusable delay and prejudice has arisen, that, further arising from a consideration of the contents of the statement of claim and the delay in its delivery, the balance of justice can no longer favour the processing of the plaintiffs’ claim.
Further, Mr. Shaw avers that, in assessing the balance of justice as between the parties, it is, in his view, wholly unacceptable for the plaintiffs to claim that they are unable to fully particularise the extent of the alleged wrongdoing of the Minister pending the investigation of the Tribunal of Inquiry established to enquire into payments to politicians and related matters under the sole member of the Tribunal, the Honourable Mr. Justice Michael Moriarty, and that furthermore, to the extent that the plaintiffs place reliance on the workings of the Tribunal of Inquiry as a purported explanation for the delay, the same is not referable to the conduct of these proceedings but rather on the information furnished to a Tribunal of Inquiry.
Insofar as particulars were furnished, Mr. Shaw avers that these particulars are based on what is described as information disclosed at the public hearings of the Moriarty Tribunal to date and that this Tribunal has yet to make a final report into the matters of substance concerning its inquiry into the awarding of the second GSM mobile telephony licence to ESAT.
In essence, Mr. Shaw avers that any happenings before the Moriarty Tribunal do not justify the plaintiffs in delaying these proceedings until those sessions are concluded and does not excuse and/or justify any further delay. Furthermore, he avers that dependence on the Moriarty Tribunal is no explanation for the periods of time which have in fact elapsed. He refers to the fact that the Moriarty Tribunal was appointed by instrument of An Taoiseach on 26th day of September, 1997, and, having regard to the plaintiffs’ purported reliance on the happenings at the Moriarty Tribunal, it could be 12 to 15 years from the date on which the alleged events complained of occurred before the trial actually takes place. In this regard he refers to the fact that when the plaintiffs issued the plenary summons in 2001, the Moriarty Tribunal had not commenced its public sessions on the GSM competition and indeed it may never actually have decided so to do. The fact that the Moriarty Tribunal did subsequently have public sessions on the GSM licence does not justify the plaintiffs in delaying these proceedings until those sessions are concluded and does not excuse and/or justify any delay. Furthermore, Mr. Shaw avers that it is no explanation for the periods of time which have, in fact, elapsed. He avers that the plaintiffs on their own admission have simply selected discrete information given before the Moriarty Tribunal of Inquiry some 10 years after the alleged cause of action arose.
Mr. Shaw avers that it would be inimical to the interests of justice as between the parties to these proceedings to allow this claim to proceed in circumstances where over 10 years previously the plaintiffs allege without, in his view, any particularity, the most serious wrongdoings as against the defendants and effectively seek to postpone providing any evidential basis to the claims until information is provided at the Moriarty Tribunal or as a result of its final report.
Mr. Shaw avers that, by reason of the lapse of time between the alleged wrongful acts relied on by the plaintiffs and the probable date of the trial of the action, it would be in breach of the rights to fair procedures of the first named defendant and/or its servants or agents and contrary to the interests of justice to allow the plaintiffs’ claim to proceed. He avers that, by reason of the lapse of time there was a real and serious risk of an unfair trial and also there is a clear and patent unfairness in asking the defendants to defend the plaintiffs’ claim at this stage.
Damien Young, a solicitor in the firm of Philip Lee Solicitors, acting on behalf of the plaintiff in the Comcast proceedings, in a replying affidavit as sworn on the 23rd June, 2006, avers that it was, of course, public knowledge that the subject matter of these proceedings is also the subject of a Tribunal of Inquiry into payments to Mr. Charles Haughey and Mr. Michael Lowry, namely the Moriarty Tribunal, and that this tribunal was appointed by instrument of An Taoiseach on 26th day of September, 1997. He avers that matters are dealt with by the Moriarty Tribunal on a modular basis and that it was anticipated that the Moriarty Tribunal would have completed its work in relation to the second GSM licence module within a one year period following the issuing of the plenary summons, i.e. by June, 2002 and unfortunately this has not been the case.
At the time of the issuing of these proceedings, Mr. Young avers that the plaintiffs believed that the award of the second GSM licence to ESAT Telecommunications Limited, the third named defendant, was wrongful. However, he avers that the plaintiffs were not in a position to know the detail of the manner, nature and extent of the breaches of the tender process and they hope that this detail will be clarified by the Moriarty Tribunal permitting delivery by the plaintiffs of a particularised statement of claim.
Mr. Young avers that, unfortunately, the second GSM licence module of the Moriarty Tribunal has not yet been completed and has been ongoing for a number of years and was recently suspended pending the outcome of an appeal to the Supreme Court as brought by Mr. Denis O’Brien.
Mr. Young confirms that a statement of claim delivered on 3rd June, 2005, was in response to an application to strike out the plaintiffs’ proceedings as brought by the fourth named defendant and in the context of that application, Mr. Young swore an affidavit in which he indicated to the Court that the plaintiffs wished to await the outcome of the investigation of the Moriarty Tribunal but had nonetheless given instructions that a statement of claim be prepared on the basis of the facts as then known by virtue of the public hearings of the Moriarty Tribunal.
Mr. Young does not accept the criticism as made by Mr. Shaw of the particulars as delivered in the statement of claim and he avers that the statement of claim itself makes clear that the plaintiffs are unable to fully particularise the extent of the wrongdoing of the Minister pending the conclusion of the investigation of the Moriarty Tribunal. Nonetheless he avers that, on the basis of the information as disclosed at the public hearings, the plaintiff provided considerable detail in relation to the principal allegations made against the State defendants. He refers to the fact that no notice for particulars was raised by the State defendants since the delivery of the statement of claim in June, 2005.
Mr. Young accepts that there has been delay in this case but that this delay is excusable by reference to the fact that the subject matter of the proceedings is also the subject of continuing investigations by the Moriarty Tribunal. The complexity of the subject matter of these proceedings is evidenced from the time taken by the Moriarty Tribunal in investigating the matter. The plaintiffs who were of course also involved in tendering for the second mobile phone licence cannot have been expected to be aware of all the details of the improper payments and conduct which his client believes to have resulted in the award of the second mobile phone licence to ESAT. In the circumstances, he avers that it is reasonable for the plaintiffs to await the information provided by way of public hearings at the Moriarty Tribunal prior to the delivery of the statement of claim. Furthermore, he avers that the delay is excusable and that a consideration of the interests of justice does not arise. However, if the balance of justice were to be considered, he does not believe that it would favour the State defendants.
Mr. Young avers that the State defendants do not assert any particular prejudice arising from the delay in this case and that, indeed, it is difficult to see how the State defendants could have sought to make a claim of prejudice as they of course have been intimately involved in the hearings that have taken place before the Moriarty Tribunal and therefore, irrespective of their knowledge of the existence of this claim since 2002, the State defendants have presumably collated all the necessary documentation relating to the award of the second mobile licence and have given evidence in relation to same. Mr. Young avers to the fact that Mr. Shaw in his affidavit has not outlined the steps that have been taken by the State defendants to assist the Moriarty Tribunal with its investigation. In the absence of any clear lack of any particular prejudice as suffered by the State defendants, Mr. Young avers that it would be unfair to penalise the plaintiff by way of striking out the proceedings and in circumstances where they did not know and could not know of the details of the claim made by them until the Tribunal investigated these matters. Mr. Young avers that the allegations in respect of the interests of justice as advanced by Mr. Shaw are vague and unsubstantiated in nature and must be contrasted with the clear prejudice that would be suffered by the plaintiffs if the claim was to be struck out.
Mr. William Jolley, Solicitor, has sworn on 23rd June, 2006, a replying affidavit on behalf of the plaintiffs in the Persona bearing Record No. 2001/9223 P and he avers that, in his view, it is somewhat surprising that Mr. Shaw does not seek to set out the background and surrounding circumstances to these proceedings to enable the Court properly consider the motion that is before the Court.
He outlines the background circumstances leading into the granting of the second GSM mobile licence and avers that the first named plaintiff, Persona Digital Telephony Limited, was ranked second in the process, the licence itself ultimately being awarded to ESAT.
Mr. Jolley avers that the plaintiffs have always had serious and real misgivings about the manner in which the process was operated and from the announcement of the winner of the process on 25th October, 1995, had voiced concerns to the defendants. In particular, Mr. Jolley avers that the plaintiffs were of the view that the then Minister had deliberately interfered with the process with a view to ensuring that ESAT Digiphone was the ultimate grantee of the licence and that the interferences by the Minister as more particularly set out in the statement of claim represent a complete abuse by the Minister of his office, that these interferences were undertaken by the Minister knowingly and deceitfully and constituted a conspiracy between the Minister, his servants and agents and ESAT Digiphone and its servants and agents. Despite voicing these most serious concerns and misgivings, at the time the plaintiffs received constant assurances from the State that the process for the evaluation of the tenders and the ultimate grant of the licence were entirely beyond reproach. Mr. Jolley avers that in 1996 the plaintiffs made a complaint to the European Union in relation to the manner in which the competition for the grant of the licence was conducted but was told that the matter was essentially one for the Irish courts.
Faced with the constant and repeated assurances by the State that the process was above reproach, the plaintiffs did not pursue their complaints further but in or about the beginning of May, 2001, when advised that the Moriarty Tribunal was commencing investigations into the circumstances in which the then Minister granted the licence to ESAT Digiphone, a decision was taken by the plaintiffs to issue these proceedings and any delay in issuing the proceedings is directly attributable to the constant denials by the defendants of any wrongdoing on their part. Mr. Jolley avers that, having regard to the foregoing and bearing in mind that the proceedings relate to deliberate and deceitful conduct on the part of the first named defendant and his servants and agents, the defendants cannot seek to rely upon any delay in issuing the proceedings as a basis for having those proceedings dismissed against them. In June, 2002 the plaintiffs’ then solicitor, J.G. Maloney, sought access to all records relating to the competition for the award of the licence both under the Freedom of Information Act 1997 and voluntarily and this request was denied.
Mr. Jolley avers that the Moriarty Tribunal went into public session in relation to the circumstances surrounding the grant of the second mobile licence in December, 2002 and that the defendants had been represented at the public hearings by Mr. Shaw on behalf of the Chief State Solicitor’s Office. The plaintiffs’ former solicitors and, in particular, Mr. Maloney and Mr. O’Donovan have attended at more or less every public sitting of the Tribunal since 2001 and Mr. Maloney has informed Mr. Jolley that on a number of occasions casual conversations have taken place between him and Mr. Shaw and, in particular, Mr. Shaw had asked Mr. Maloney if he was going to deliver a statement of claim and Mr. Maloney advised Mr. Shaw that he would not be delivering it for the foreseeable future for the very reason that the plaintiffs would be following the evidence which was likely to unfold at the Tribunal. Mr. Maloney informed Mr. Jolley that at no stage did Mr. Shaw object to this proposed course of action and, indeed, if anything appeared to be relieved as his clients had more than enough to do in dealing with the Tribunal.
Having regard to the constant attendance by the plaintiffs’ legal representatives at the Moriarty Tribunal and the conversation referred to, the defendants, Mr. Jolley avers, were well aware of the plaintiffs’ intention to prosecute these proceedings and during the course of the Tribunal hearings a Mr. Boyle, a director of the plaintiffs in the third set of proceedings, had given evidence and had been subjected to cross examination by counsel for the first named defendants. No complaint was made about any delay in the pursuit of these proceedings.
Mr. Jolley avers that the proceedings herein are serious and complex and involve the assimilation of a large volume of information and evidence. Certain information and avenues of inquiry have been identified during the course of the public sittings of the Moriarty Tribunal which have assisted the plaintiffs in the preparation of their case and the assimilation of evidence outside of the Tribunal. The prosecution of the case is not, however, dependent upon any particular finding of the Moriarty Tribunal and it is the plaintiffs’ intention to proceed with these proceedings irrespective of what conclusion the Moriarty Tribunal may come to.
Mr. Jolley avers that the module of the Moriarty Tribunal dealing with the granting of the second GSM mobile licence is ongoing and to his knowledge no complaint has ever been made by or on behalf of the defendants or on behalf of any officials of the Department of any prejudice due to the remove in time between the Tribunal hearings and the events under investigation dating back to 1995. Furthermore, it is apparent from the public hearings of the Tribunal that considerable documentation is available to assist the various Department officials in their recollection of events where such is necessary. Mr. Jolley avers that the timing of the issue of the notice of motion for the relief as claimed herein is of significance
because no complaint was ever made between the issuing of the proceedings and entry of appearance and the eventual delivery of the statement of claim. In fact, what occurred, avers Mr. Jolley, is that on 23rd March, 2006, he served on the Chief State Solicitor’s Office a notice of change of solicitor taking over, in effect, from Mr. Moloney, the previous solicitor. Within a week of receipt of that letter, Mr. Shaw wrote seeking delivery of a statement of claim and consenting to its delivery within 21 days. Nowhere in the letter did Mr. Shaw complain of any prejudice and, on the contrary, he invites the plaintiffs to proceed with the claim. Mr. Jolley avers that he, in fact, sought an extension of time and when this was not forthcoming he was, in fact, in a position to deliver the statement of claim within the 21-day period as requested by the defendants’ solicitor. Mr. Jolley avers that he takes the view that the purpose behind the request for the immediate delivery of the statement of claim was done so as to “catch the plaintiffs on the hop”.
Insofar as there may have been any delay in either the issue or prosecution of the proceedings herein, Mr. Jolley avers that there is a basis for excusing such delay, if any such delay exists. In these proceedings, he avers that the plaintiffs primarily allege misfeasance in public office which necessarily embraces the tort of deceit and corrupt practices on the part of the defendants, their servants and agents. It is the plaintiffs’ case that the defendants embarked upon a deliberate deceit in declaring the winner of the competition in October, 1995 and, subsequent thereto, put in place elaborate measures to conceal their wrongdoing. Furthermore, Mr. Jolley avers that the compilation of the claim and its prosecution is extremely complex involving, as already indicated, the assimilation of an enormous amount of evidence and information and clearly the evidence identified at the hearing of the Moriarty Tribunal assists the plaintiffs in circumstances where the defendants have refused to furnish information to the plaintiffs. In that regard, Mr. Jolley avers that it is significant that the Moriarty Tribunal is, some five years after indicating its intention to commence an investigation into the circumstances in which the licence was granted, still continuing to investigate the matter. The Moriarty Tribunal has sat in public for approximately 333 days and the reality is that, had the plaintiffs sought to bring to trial these proceedings during the currency of the Moriarty Tribunal, he (Mr. Jolley) would have no doubt but that the defendants would have objected on the basis that they could not deal with the two issues at the one time. As more evidence is adduced at the public sittings of the Moriarty Tribunal, the more convinced the plaintiffs become as to the validity of their claim.
Mr. Jolley avers that it is in the interest of justice to refuse the reliefs as sought and that the plaintiffs have, as requested by the defendants, delivered their statement of claim which is a comprehensive document and Mr. Jolley does not accept that it lacks in detail as is asserted by Mr. Shaw or that the defendants have suffered any prejudice.
The Tribunal of Inquiry into Payments to Politicians and Related Matters has not yet issued a report with regard to the awarding of the second GSM mobile telephone licence and continues to sit in relation to this module.
There is no dispute between the parties that the delay herein has been inordinate and, accordingly, the first issue that arises for determination is as to whether or not the delay involved has been inexcusable.
The plaintiffs in the Comcast proceedings rely heavily on the fact that they were not in a position to know the detail of the manner, nature and extent of the breaches of the tender process and that they hoped that this detail would be clarified by the Moriarty Tribunal permitting the delivery by the plaintiffs of a particularised statement of claim. The Comcast plaintiffs do not accept that the statement of claim was not properly particularised but they do accept that they are unable to fully particularise the extent of the wrongdoing of the relevant minister pending the conclusion of the investigations of the Moriarty Tribunal. If the State defendants had required further particulars they could have raised a detailed notice for particulars following delivery of the statement of claim in June, 2005. These plaintiffs contend that the complexity of the subject matter of these proceedings is evident from the time taken by the Moriarty Tribunal to investigate and conclude its report into this matter relating to the award of the second mobile telephone licence.
The plaintiffs in the Persona proceedings rely on the constant denials of the State authorities that there was any wrongdoing on their part in the awarding of the licence. They say that they sought access to all records relating to the competition for the award of the licence both under the Freedom of Information Act, 1997 and voluntarily and this request was denied. They further say that they have been in attendance at all times at the Tribunal of Inquiry when the issue relating to the awarding of the second mobile licence was being dealt with and that there was contact between their then solicitor, Mr. Moloney, and Mr. Shaw of the Chief State Solicitor’s Office and that, on an occasion when asked by Mr. Shaw if he was going to deliver a statement of claim, Mr. Moloney indicated that he would not be delivering it for the foreseeable future for the very reason that the plaintiffs would firstly be following the evidence which was likely to unfold at the Tribunal and that at no stage did Mr. Shaw object to this proposed course of action and, indeed, if anything, appeared to be relieved as his clients had more than enough to do in dealing with the Tribunal. The plaintiffs contend that the State defendants were at all times well aware of the fact that proceedings had been commenced but were not being prosecuted while the inquiry before the Moriarty Tribunal was continuing and no complaint was raised. They contend that the within proceedings are serious and complex and that the inquiry before the Moriarty Tribunal has assisted them to identify and assimilate evidence outside of the Tribunal, but accept that the prosecution of these proceedings is not however, dependent upon any particular finding by the Moriarty Tribunal and it is the plaintiffs’ intention to proceed with these proceedings irrespective of what conclusion the Moriarty Tribunal may come to. They say that clearly the evidence identified at the hearing of the Tribunal assists the plaintiffs in circumstances where the defendants have refused to furnish that information to the plaintiff and that, in any event, the defendants would have objected to the proceedings continuing at the same time as the Moriarty Tribunal as they could not deal with the two issues at the one time.
The inquisitorial inquiry before the Moriarty Tribunal can have no bearing on the outcome of these proceedings in the High Court and, accordingly, the several years of inquiry, the taking of evidence from large numbers of interested parties, the consideration of the voluminous documentation that necessarily must be involved and the final report are not relevant and play no role in the context of these proceedings which are adversarial before a court of law, whereas the Moriarty Tribunal involves, in essence, an expression of opinion in relation to matters considered by the Chairman of the Tribunal.
Moriarty J., in Part I of the Payments to Politicians and Related Matters Tribunal Report as issued in December, 2006, outlines the position succinctly in the following terms at para 1.40:-
“Since the work of the Tribunal is inquisitorial and not adversarial, the essence of its operation is of necessity a fact-finding exercise. It does not concern itself with, or proceed from, allegations, and is not involved in the administration of justice. As was emphasised by the Supreme Court in Lawlor v. Flood [1999] 3 I.R. 107 at 137, a Tribunal hearing is neither a criminal trial nor a civil court trial, and findings of a Tribunal can impose no criminal sanctions or civil liabilities on any person; In essence, the findings of this or any other Tribunal are no more than an expression of opinion in relation to matters considered by it.”
Murphy J. in Lawlor v. Flood [1999] 3 I.R. 107 at pp. 142 and 143 also emphasised the difference between a court of law and a tribunal of inquiry in the following terms:-
“Clearly an inquiry may, as it did in In re Haughey [1971] I.R. 217, evolve into a charge by the investigative body against what should be a witness. On the other hand, it is to my mind, inconceivable that witnesses who are called before a tribunal to give such evidence as is available to them in relation to the subject matter of the tribunal should be treated as defendants in civil or criminal proceedings or afforded the rights which would be available to such parties. An inquiry as such does not constitute legal proceedings (whether civil or criminal) against any person: less still does it constitute a multiplicity of legal proceedings against each and every of the witnesses subpoenaed to appear before it. If such were the case it would be impossible to conduct any inquiry. In that event it would be necessary for each witness to cross-examine not only the witnesses who gave evidence before he did but also that he should have an opportunity of cross-examining those who gave evidence after he had been heard.

It must be remembered that the report of the tribunal whilst it may be critical and highly critical of the conduct of a person or persons who give evidence before it is not determinative of their rights. The report is not even a stage in a process by which such rights are determined. The conclusions of the tribunal will not be evidence either conclusive or prima facie of the facts found by the tribunal.
This is not to suggest for one moment that a party to adversarial proceedings has extensive natural and constitutional rights and that a witness before a tribunal has none. It is merely to recognise that the need for rights in determinative proceedings differs from those which have no such consequence and that some of the rights long associated with adversarial proceedings do not translate into those of an inquisitorial nature.”
The cause of action in these proceedings can reasonably be identified as having taken place between the 2nd March, 1995, being the date upon which the Minister announced a bid process for the award of the second GSM mobile phone licence in Ireland and the 25th October, 1995, when ESAT was declared by the Minister to be the successful party and the winner of the competition for the licence.
The Statute of Limitations 1957, as amended, provides a six-year limitation period for the institution of proceedings and the plaintiffs waited for five years and eleven months to institute this claim. Notwithstanding an immediate entry of appearance on behalf of the State defendants, the Comcast statement of claim was not delivered until June, 2005 and the Persona statement of claim not until April, 2006. Accordingly, the delay between the issue of the plenary summons and the delivery of the statement of claim in the first Comcast proceedings bearing Record No. 2001 9288 P, was from the 15th June, 2001, until the 3rd June, 2005, a period of some four years; in the second Comcast proceedings bearing Record No. 2001 15119 P, from the 10th October, 2001, until the 3rd June, 2005, a period of some three and a half years; and in the Persona proceedings from the 15th June, 2001, until the 21st April, 2006, a period of some five years. However, the periods of time involved from the actual cause of action in 1995 is approximately some ten years in the Comcast proceedings and eleven years in the Persona proceedings. I am satisfied that the reality of the situation is that the plaintiffs in the within proceedings all adopted a wait and see approach, waiting until the eleventh hour within the six-year time limit as imposed by the Statute of Limitations 1957, as amended, to institute the proceedings, waited until the eleventh hour within the one-year period prescribed for the service of the plenary summons, and then failed to deliver a statement of claim within the time prescribed by the Rules of the Superior Courts, awaiting developments before the Moriarty Tribunal.
It is, in my view, of considerable significance that the Rules of the Superior Courts set out the rules governing the practice and procedure to be adopted by the parties to civil litigation which are to be contested on an adversarial basis before the courts in Ireland. The Rules, in the public interest and for the common good, set out various procedures for the delivery of pleadings between the parties within certain prescribed periods of time, for the raising of particulars and replies thereto, for the raising of interrogatories and replies thereto and for the seeking of discovery of documents and these procedures apply in the same manner to all litigants.
Insofar as Mr. Moloney, the previous solicitor to the plaintiffs in the Persona proceedings, had casual conversations with Mr. Shaw on behalf of the Chief State Solicitor’s Office at public hearings before the Moriarty Tribunal, I take the view that the averments as contained in the affidavit of Mr. Jolley represent matters of hearsay and I am entitled to attach such weight to them as I consider appropriate. It does appear that there was a conversation in respect of the delivery of a statement of claim but, as described by Mr. Moloney to Mr. Jolley, this was apparently during the course of casual conversation and, while Mr. Moloney indicates that at no stage did Mr. Shaw object to the proposed course of action to be adopted by the plaintiffs that they would not be delivering a statement of claim for the foreseeable future, that is as far as the matter went.
I do not find favour with the averment by Mr. Jolley that the reality of the situation is that, had the plaintiffs sought to bring to trial these proceedings during the currency of the Moriarty Tribunal, there is no doubt but that the defendants would have objected on the basis that they could not deal with the two issues at the one time. As previously referred to herein, the conduct of the inquiry before the Moriarty Tribunal and the final report on its outcome has no bearing on the conduct of these proceedings and their outcome and I doubt as a matter of judicial knowledge, that the offices of the Chief State Solicitor would not be in a position to have dealt with all the procedural matters that would arise within these proceedings or have had difficulty in instructing counsel to attend at any hearing of the matter and I do not regard this explanation as constituting a valid excuse for the delay in the prosecution of these proceedings.
I take the view that the plaintiffs could well have advanced their claim and sought discovery of documents pursuant to the Rules of the Superior Courts. I note that the plaintiffs in the Persona proceedings in June, 2002 made an application to access all records relating to the competition for the award of the relevant licence, both under the Freedom of Information Act, 1997 and voluntarily, and that this request was denied. The denial pursuant of the Freedom of Information Act, 1997 was capable of being appealed but this route was not pursued and, as previously indicated herein, the voluntary refusal was capable, with the advancement of the claim, of being dealt with by way of discovery of documents.
Insofar as the plaintiffs rely on the constant denials of the defendants that there was anything remiss arising on the awarding of the licence, I take the view that this step would be regarded as normal in adversarial litigation unless an admission was forthcoming which clearly was not the situation that pertained.
I note that no complaints were made on behalf of the State defendants to the Moriarty Tribunal of any prejudice due to the remove in time at which people were requested to participate by giving evidence and to referring to documents, but the issues involved and the consequences of being involved are clearly different in the matters under investigation before the Tribunal of Inquiry into Payments to Politicians and Related Matters from these proceedings in which damages for alleged wrongdoing are sought.
I take the view that the statements of claim as delivered herein are somewhat lacking in detail, but the general thrust of the allegations being made are clearly set out and I do not attach any significant importance to this aspect.
My overall conclusion is that I do not consider that the excuses offered by the plaintiffs and, in particular, that they were monitoring the hearings of the Moriarty Tribunal into the award of the second GSM mobile telephone licence and, hence, did not deliver a statement of claim, an explanation that constitutes a valid excuse and, accordingly, I come to the conclusion that the delay involved in the prosecution of all three claims herein is not only inordinate but also inexcusable. The delay, in my view, goes beyond the minimum which may be considered inordinate.
Accordingly, having come to the conclusion that the delay herein is both inordinate and inexcusable, the Court has to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case.
The first aspect of the application is the order sought dismissing the proceedings on the balance of justice as against the State defendants for delay and/or want of prosecution.
The locus classicus is the decision of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 following on the ground as to some extent laid by Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561.
In Primor plc v. Stokes Kennedy Crowley Hamilton C.J. at pp. 475 and 476 succinctly sets out the principles of law relevant to the consideration of the issues raised in an application to dismiss an action for want of prosecution and these were 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 a 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 judgment 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 are 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 weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a 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 a defendant’s reputation and business.”
The principles as set out by Hamilton CJ in Primor were re-summarised by Hardiman J. in J O’C v. The Director of Public Prosecutions [2000] 3 I.R. 478 wherein at pp. 499 and 500 he states:-
“Examples of the application of these principles in civil cases can be multiplied. Enough, however, has been said to indicate that it has consistently being held
(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: “the chances of the courts being able to find out what really happened are progressively reduced as time goes on”;
(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his “capacity … to be effectively heard”;
(c) that such lapse of time may be so great as it would be “contrary to natural justice and an abuse of the process of the court if the defendant had to face a trial in which (he or) she would have to try and to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial …”;
(d) that, having regard to the above matters the court may dismiss a claim against a defendant by reason of the delay in bringing it, “whether culpable or not”, because a long lapse of time will “necessarily” create “inequity or injustice”, amount to “an absolute and obvious injustice” or even “a parody of justice”;
(e) that the foregoing principles apply with particular force in a case where “disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past …”, as opposed presumably cases where there are legal issues only, or at least a high level of documentation or physical evidence, qualifying the need to rely on oral testimony.”
Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 at pp. 293 and 294 of his judgment made the following observations:-
“It is important to make the point that there have been significant developments in this area since the decision of the High Court in Rainsford or in Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459. By S.I. No. 63 of 2004, Ord. 27 of the Rules of the Superior Courts has been significantly amended in particular by the following provision:
(1) If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, subject to the provision of rule 1A, at the expiration of that time apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of the first such application, the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just; and on the hearing of any subsequent application, the Court shall order the action to be dismissed as aforesaid, unless the Court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure …”.
Secondly, the courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued. Thirdly, following such cases as McMullen v. Ireland [ECHR 422 97/98, July 29, 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. These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope. The principles they enunciate may themselves be revisited in an appropriate case. In particular, the assumption that even grave delay will not lead to the dismissal of an action if it is not on the part of the plaintiff personally, but of a professional adviser, may prove an unreliable one…It hardly needs saying that any further delay in the taking of any step in this action in the context of the gross delay that has already occurred will expose the plaintiff to a very serious risk of the dismissal of his action.”
Clarke J. in Stephens v. Flynn [2005] IEHC 148, dealing with an appeal against an order of the Master of the High Court dismissing the plaintiff’s claim for want of prosecution on the grounds of inordinate and inexcusable delay in the commencement and prosecution of the proceedings, stated that:-
“ … I now turn to the factors which are relevant to a consideration of the balance of justice. For the reasons indicated above it does seem to me that there needs to be a re-calibration of the weight to be attached to many of those factors in favour of imposing a significantly greater obligation on parties to move with expedition. The factors, and my assessment of them, are as follows:-
(a) The degree of delay
For the reasons indicated above I am satisfied that there was a very significant delay indeed particularly having regard to the principle set out in Birkett to the effect that a particular obligation to move with expedition lies upon a party who has waited to the last moment to commence proceedings within the limitation period. I am satisfied that a delay which goes beyond the minimum which may be considered inordinate can be an additional factor to be weighed in the balance. I am satisfied that such a delay occurred here.
(b) The excuse tendered
I am also satisfied that the Plaintiff has not only failed to render that delay excusable but has failed to do so by a significant margin and this must also be a factor to be taken into account.
(c) Prejudice
The Defendant contends for prejudice based upon the fact that the evidence which will require to be tendered to the court will be impaired by the lapse of a minimum of ten years between the events and any likely trial date. He has not, however, been able to point to any specific witness who is no longer available. It must also be taken into account that there are, apparently, statements of the relevant witnesses to the events of the 5th December, 1995 taken by the Gardaí on the occasion in question. That being said an issue as to the credibility of witnesses (which will almost certainly arise) will be all the more difficult of resolution where those witnesses are being asked to recollect matters that occurred so long ago. While the prejudice may not be quite as great as the Defendant contends for I am satisfied that it will nonetheless be of some significance. In relation to the evidence which will need to be tendered in respect of quantum I am not so sure that the same level of prejudice has been established. It would appear on the evidence that the Defendant was afforded, at the relevant time, an opportunity to have the premises concerned inspected by an engineer. It has not been contended that the engineer concerned is not available or that his records have become unavailable by the passage of time so as to render his evidence less clear. As the onus will lie upon the Plaintiff to establish his case it will be necessary for the Plaintiff to call all necessary witnesses concerning the quality of the works carried out by the Defendant, the extent of the works which remained to be done as of the date of the departure of the Defendant, and the costs of all additional and remedial works that were required. There will be some additional difficulty placed upon the Defendant at being asked to attempt to evaluate that evidence in respect of events that occurred a very considerable period of time ago. However on the basis of the evidence before me I could not place that prejudice at a higher degree than moderate.
(d) Inaction of the Defendant
It is clear from both Rainsfort and Hogan that “delay on the part of a Defendant seeking a dismissal of the action and, to some extent, a failure on his part to exercise a right to apply at any given time for the dismissal of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion”. In this case there was no significant delay on the part of the Defendant. It might be said that there was some inaction between July 2002 and November 2003. However it is clear that even on the basis of the traditional test inaction is of less weight than delay. It is described as applying “to some extent”. While remaining a factor it is one which, in the current context, should be given an even lower weighting.
I am therefore satisfied that the Defendant has suffered prejudice by virtue of the delay, but that same cannot be placed at too high a level. Finally in that regard I have considered the prejudice on the basis of the delay from the time of the incidents giving rise to the proceedings rather than solely in respect of the period from the commencement of the proceedings to date. While I agree that the court is confined, in determining whether a delay has been inordinate, to the period subsequent to the commencement of proceedings I am of the view that in assessing the balance of justice the court has a wider discretion and can take into account prejudice which may be cumulatively attributable to a delay both prior to and subsequent to the commencement of proceedings.
In all of the above circumstances I am satisfied that the weight to be attributed to both the delay and its excusability coupled with the moderate degree of prejudice and the minor weighting attributable to the limited inaction on the part of the Defendant is such that the balance of justice favours the dismissal of the proceedings.”
Peart J. in Byrne v. The Minister for Defence Ireland and the Attorney General [2005] 1 IR 577 came to the conclusion that, in exercising its inherent jurisdiction to dismiss a claim on the grounds of inordinate and inexcusable delay, the court had to consider and protect competing interests which were the plaintiff’s right of access to the courts and, on the other hand, the defendants’ right to an expeditious hearing, to finality and not to be adversely prejudiced by delay as well as the public interest which was independent of the parties in not permitting claims which had not been brought in a timely fashion to take up the valuable and important time of the courts and thereby reducing the availability of that much used and needed resource to plaintiffs and defendants who had acted promptly in the conduct of their litigation as well as increasing the cost to the taxpayers of providing a service of access to the courts which best served the public interest.
Peart J. at pp. 585 and 586 of his judgment states as follows:-
“It is usually the situation therefore, at least in the case of a twenty year delay, that where a plaintiff has been guilty of inordinate delay and the court is not satisfied that it is excusable, the court will proceed to dismiss the claim because the defendant will usually have been able to show that he/she is prejudiced. But I have not been referred to a case and I am certainly not aware of one, where the pre-commencement delay is both inordinate and inexcusable and yet there has been no prejudice made out to justify a dismissal.
22. In addressing that interesting question, I believe that it would be proper to consider what interests are there to be considered and protected by the court’s inherent jurisdiction to dismiss a claim on the grounds of inordinate and inexcusable delay. Certainly there are competing interests. There is first of all the plaintiff’s undoubted right of access to the courts. There is also the defendant’s right to an expeditious hearing of any claim brought against him and to finality. Linked to this consideration is the defendant’s right not to be adversely prejudiced in such defence by delay for which he bears no responsibility. Finally, there is a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up the valuable and important time of the courts and thereby reduce the availability of that much used and needed resource to plaintiffs and defendants who have acted promptly in the conduct of their litigation, as well as increase the cost to the Courts Service and through that body to the taxpayers, of providing a service of access to the courts which serves best the public interest.
23. It is really the final interest which is relevant to consider in the present case since I have already found that the defendant has not been prejudiced by the plaintiff’s delay. The question is whether the public interest which I have identified trumps the plaintiff’s right of reasonable access to the courts in the present case.
24. In the unusual circumstances of the present case, I believe that it does. I say that, because a feature of this case is that the major portion of the plaintiff’s claim has fallen away, namely the claim related to tinnitus which emerged in about 1998. Prior to that the plaintiff had some difficulty with hearing loss, but it was not significant and certainly not sufficiently significant to drive him to consult either a solicitor or a doctor. Mr Dougan, audiologist, has described his loss of hearing as mild to moderate and that it ought not to impact him greatly. I have already stated that in all probability the plaintiff would not have brought a claim in respect of this hearing difficulty were it not for the emergence of the loss of balance difficulty which started in 1998.
25. The court has therefore had to hear a claim whose only real justification was on the basis of tinnitus, rather than hearing loss. That claim for hearing loss, if it were to stand alone, could have been and should have been commenced much earlier than 1998 and certainly not in the High Court. By 1998 it was in my view a stale claim. The court’s jurisdiction to dismiss such an old claim is an important power in the public interest, regardless of prejudice to the defendant, yet one which must be used sparingly lest a plaintiff might unreasonably be deprived of a remedy to which he is entitled. If the court were never to invoke that power it would send the wrong message, namely that the courts will tolerate and indulge unreasonable delay in the bringing of claims where a defendant cannot show prejudice. That consideration must exist regardless of the existence of a defendant’s right to plead the Statute of Limitations by way of defence pleading. That statute has the capacity to protect the defendant’s rights which I have identified, but it serves no purpose in the protection of the public interest to which I have referred.”
I take the view that it is appropriate in considering this application to dismiss for want of prosecution that I have regard to the fact that there was for all practical purposes a delay of seven years from the date of the cause of action until service of the plenary summons and that this imposed on the plaintiffs a duty to expedite the proceedings. In considering prejudice, however, arising from the inordinate and inexcusable delay on this aspect of the State defendants application, I take the view that it is appropriate that the issue of prejudice be considered only from the date of the issue of the plenary summons herein on the basis that it was issued within the time prescribed and allowed for by the Statute of Limitations, 1957, as amended.
No case is made out on the defendants’ behalf of any specific prejudice having occurred by reason of the inordinate and inexcusable delay.
Mr. O’Donnell on the defendants’ behalf submits that the defendants did not contribute to the delay and that there is no obligation on the defendants to force the plaintiff’s hand. It is submitted that the defendants did not in any way encourage the delay and even if there was permissive delay on the part of the State defendants, this does not achieve any significant rating in respect of the court’s decision.
Mr. Cush, on behalf of the Comcast plaintiffs, submits that there is no risk of an unfair trial in the circumstances that arise and that the State defendants are in the best position because all relevant witnesses have made statements and given evidence before the Moriarty Tribunal. There is no suggestion of a single missing document and no suggestion of any incapacity on the part of any relevant witness. There is no specific prejudice identified. Mr. Cush accepts that any significant delay necessarily involves almost some level of prejudice but, within the particular circumstances of this case, the State defendants have been dealing with the very issues involved by engaging actively with the Moriarty Tribunal.
Mr. O’Neill, on behalf of the Persona plaintiffs, refers to the test as laid out in Primor and submits that the Court should look at the overall delay and that aspect of the delay as attributable to the inaction on the part of the State defendants. The State knew at all times what the issues were and that the statement of claim was not being delivered. Insofar as the State defendants sought delivery of the statement of claim from the Persona plaintiffs within 21 days, they caused the plaintiff to incur additional expense as it appears that they were intent in bringing the motion herein on for hearing in any event.
Mr. O’Neill submits that there is no specific prejudice actually affecting the State defendants and they are in the best position themselves having prepared for the Moriarty Tribunal. While it would have to be accepted that memories do lapse over a period of time, the reality in this situation is that the State defendants have been focusing on the issues that are involved throughout the hearing of the module before the Moriarty Tribunal dealing with the second GSM mobile telephone licence. Mr. O’Neill submits that there is no question that a fair trial is impossible and the balance of justice is very much against a dismissal of the proceedings and it would be unfair to deprive the plaintiff of its cause of action.
In my view, in the particular circumstances of this case, both the plaintiffs and the defendants have contributed to the delay involved.
In the particular circumstances of this case all the parties who are involved in these three sets of proceedings were parties with an interest in the matters being dealt with at the Moriarty Tribunal. The relevant parties to these proceedings were present on every hearing date relating to any matters touching on the subject matter of these proceedings.
Insofar as Mr. Maloney, the previous solicitor to the plaintiff in the Persona proceedings, had casual conversations with Mr. Shaw from the Chief State Solicitor’s Office at public hearings before the Moriarty Tribunal, Mr. Jolley is not in a position to indicate that at any stage Mr. Shaw consented to the ongoing situation.
A statement of claim was delivered in the Comcast proceedings on the 3rd June, 2005, and this was delivered in response to an application to strike out the plaintiff’s proceedings as brought against the fourth named defendant in the Comcast proceedings, Mr. Denis O’Brien. No notice for particulars was ever raised in respect of the content of that statement of claim and, accordingly, the next move was for the defendants to have filed their defence within the time as prescribed by the Rules of the Superior Courts and not alone have they not complied with the Rules, but they have never at anytime sought an extension of time to deliver a defence.
Further, against this background, the present solicitors for the Persona plaintiffs served a notice of change of solicitor on 23rd March, 2006, and this notice was met within seven days by a letter from the solicitors for the defendants looking for a statement of claim and making no reference to having suffered any prejudice. In effect, the solicitor for the defendants was inviting the plaintiffs to proceed with the claim and when Mr. Jolley sought an extension of time his request was refused. Mr. Jolley, accordingly, delivered the statement of claim on behalf of the Persona plaintiffs within the 21 days as allowed for by the solicitor on behalf of the defendants and then subsequently was met with the motion herein to dismiss for want of prosecution.
It is clear from the judgment of Clarke J. in Stephens v. Paul Flynn Limited [2005] IEHC 148 which I propose to follow, that there is a shift in emphasis in respect of the manner in which delayed proceedings are to be approached in an application such as is now before this Court. As Clarke J. stated at p. 7 of his judgment “the calibration of the weight to be attached to various factors in the assessment of the balance of justice and, indeed, the length of time which might be considered to give rise to an inordinate delay or the matters which might go to excuse such delay are issues which need to be significantly reassessed and adjusted in the light of the conditions now prevailing” furthermore, “the balance of justice may be tilted to imposing grater obligations of expedition and against requiring the same level of prejudice as heretofore”.
In the circumstances of this application, the State defendants are not in a position to identify any particular witness who may not be available at the hearing of these proceedings or any particular document which may have been mislaid and which would have been available if the matter had been brought to trial expeditiously notwithstanding a late start but nevertheless a start within the time period as provided for in the Statute of Limitations. I am, nevertheless, of the view that in the particular circumstances of this case, clearly with the passage of time involved since the commencement of the proceedings, as a matter of probability, the memory of relevant witnesses as to what occurred at the time when the alleged cause of action arose will be dimmed and in this regard, allowing for the passage of time involved, the State defendants will suffer a presumed prejudice. Clearly issues as to the credibility of witnesses will almost certainly arise in this case and thus that issue will be all the more difficult to resolve where the witnesses are now being asked to recollect vital matters that occurred so long ago. I am satisfied in this regard that the prejudice that will be suffered by the State defendants is moderate.
I take account of the fact that in the first and second sets of proceedings involving Comcast a statement of claim was delivered on 3rd June, 2005, and no further action was taken by the State defendants. I take into account that in the third set of proceedings involving Persona the statement of claim was delivered on 21st April, 2006, in reply to a direct request from the State defendant’s solicitors who, having requested delivery of the statement of claim, declined to give any extension of time to the plaintiff’s solicitors in this regard. I further bear in mind that it was, at all times open to the State defendants to have brought this motion to dismiss for want of prosecution at a much earlier stage.
There was, in my view, active inaction on the part of the State defendants in failing to either raise a notice for particulars or deliver defences to the Comcast statements of claim as served in June, 2005 but, having not received a defence within the time as prescribed by the Rules of the Superior Courts, it was alternatively open to the plaintiff’s solicitor to bring a motion for judgment in default of defence which course of action they did not pursue. I do not attach any significant weight to the fact that the solicitors on behalf of the State defendants called upon the Persona plaintiffs to deliver their statement of claim which they did on 21st April, 2006, and which was followed up by the notice of motion herein as dated 26th May, 2006. Overall I would attach a minor weighting to the limited inaction on the part of the State defendants and I am satisfied that, in any event, it only applies to some extent.
The plaintiffs in these proceedings have a constitutional right of access to the courts and the defendants have a right to an expeditious hearing of any claim as brought against them within a reasonable period of time.
There is no doubt but that this is a very substantial commercial claim for damages running undoubtedly into many millions of Euros and, in addition, people’s individual characters and reputations will be subjected to the most significant scrutiny and may be subject to serious impact.
I take the view that in the present day and age with a modern legal system in place, with the advances in technology that are available, with the continuing shift in emphasis of evolving jurisprudence against delay, the circumstances of each case of this nature have to be subject to more rigorous scrutiny than heretofore may have been the view adopted. In this case there has been inordinate and inexcusable delay and the delay, in my view, on the part of the plaintiffs goes beyond the minimum which may be considered inordinate. There have been deliberate tactics in commercial litigation on the part of the plaintiffs to delay the proceedings to benefit their cause of action by awaiting developments at the Tribunal of Inquiry into Payments to Politicians and Related Matters. While no actual prejudice has been referred to, I am satisfied that there is presumed prejudice at a moderate level. There is, I am satisfied, evidence of active inaction on the part of the defendants in failing to react to the delivery of the Comcast statements of claim in June, 2005 and further evidence of inactivity in not having brought this motion at an earlier stage but I do not regard the inaction on the part of the State defendant as being of any real significance in the particular circumstances of this case against the plaintiffs’ declared tactics of not taking any steps in the litigation while the Tribunal was continuing. I take the overall view that the excuse as offered on the plaintiffs’ behalf fails by a significant margin to excuse the delay.
What is, in my view, of particular significance is the failure on the part of the plaintiffs after a late start to move on the proceedings expeditiously against a background where there is no onus on a defendant to force the plaintiff on with proceedings that have been instituted. The defendants have to be entitled to a trial within a reasonable period of time of the commencement of the proceedings and, as matters presently stand, it is now six years since the first set of Comcast proceedings were issued by way of a plenary summons, somewhat over five and a half years since the second set of Comcast proceedings were issued and six years since the Persona proceedings were issued and in each case the proceedings now rest with the delivery of a statement of claim. There can be no immediate prospect of a hearing in these matters and, allowing for the completion of the pleadings, discovery, possible claims to privilege in respect of discovery, possible interrogatories and the final preparations for a hearing, it appears reasonable to come to a conclusion that a full hearing of the subject matter of these proceedings is unlikely for a further two years.
In my view, a hearing of a substantial commercial matter deliberately delayed for seven to eight years from the date of the issue of a plenary summons is not a hearing within a reasonable period of time. I am further satisfied that the prospect of a fair trial is significantly undermined by reason of the inordinate and inexcusable delay on the part of the plaintiffs giving rise to presumed prejudice.
I come to the conclusion that where responsibility for inordinate and inexcusable delay rests primarily with the plaintiffs, where there is presumed prejudice of a moderate nature, where the issues to be determined are of a very substantial commercial nature, where the actions leading to the delay involved are deliberate and conscious, where the prospects of a fair trial have been undermined, where the plaintiffs have failed after a late start to advance their proceedings expeditiously, the balance of justice favours the dismissal of the proceedings and, accordingly, I dismiss the plaintiffs proceedings as against the State defendants for want of prosecution.
The second aspect of the defendants’ application is pursuant to the inherent jurisdiction of the court to dismiss the plaintiffs’ claim in the interests of justice. In this regard reliance is also placed on Article 6 of the European Convention on Human Rights.
The jurisprudence in respect of an application to dismiss the plaintiffs’ proceedings by reason of the lapse of time without any reference to culpable delay pursuant to the inherent jurisdiction of the courts emanates from the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151 at pp. 157 and 158:-
“After due regard to all relevant factors, I am driven to the conclusion that not only was the delay in this case inordinate and inexcusable but there are no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the accident…. While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial.”
O’Domhnaill was followed by Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v. Duignan (No. 2) [1991] ILRM 140 wherein Finlay C.J. upheld the inherent jurisdiction stating at pp. 142 and 143:-
“In the course of the argument on these appeals a question was raised as to whether the court had jurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas. My judgment in the previous appeal in respect of the other defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151 with which Griffin J. agreed. I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiction of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself or herself against the claim made. I have also recognised the dissent from the view expressed by McCarthy J. in the judgment delivered by him in O’Domhnaill v. Merrick. I adhere to the view expressed by me in the previous appeal in this case that the court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas the supremacy over the courts which is inconsistent with the Constitution.”
There is also the very pertinent judgment of Hardiman J. in J.O’C v. Director of Public Prosecutions [2000] 3 I.R. 478 as already referred to herein.
Kelly J. in Kelly v. O’Leary [2001] 2 I.R. 526 ultimately reached his conclusion that the relevant criteria for a dismiss in the interests of justice arise from answering the same two fundamental questions which appear to be raised in the judgments in the two Toal decisions and the O’Domhnaill decision and which are:-
1. Whether, by reason of the lapse of time (or delay), there is a real and serious risk of an unfair trial;
2. Whether, by reason of the lapse of time (or delay), there is a clear and patent unfairness in asking the defendant to defend the action.
Finlay Geoghegan J. succinctly summed up the situation in Manning v. Benson and Hedges [2004] 3 IR 556 where at p. 565 wherein she stated:-
“I accept that the courts have recognised the existence of a jurisdiction to dismiss a claim by reason of a lapse of time without there being any delay in the sense of culpable delay by a plaintiff and where the requirements of what are variously described as the “interests of justice” or the prevention of “patent unfairness” or the requirements of “constitutional principles of fairness of procedure” or the risk of putting “justice to the hazard” so require.”
Article 6 of the European Convention of Human Rights states:-
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The European Convention of Human Rights has now been incorporated into domestic law by the European Convention of Human Rights Act 2003 which came into force on 31st December, 2003. Section 2 of the Act, of 2003 provides as follows:-
“(1) In interpreting and applying any statutory provision or rule of law, a court shall in, so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
Article 6 of the ECHR was considered by Henchy J. in the Supreme Court in the context of an application to dismiss for want of prosecution in O’Domhnaill v. Merrick [1984] I.R. 151. Henchy J. stated that one had to assume that the Statute of Limitations, 1957 was enacted (giving no indication therein of a contrary intention) subject to the postulate that it would be construed and applied in consonance with the State’s obligations under international law including any relevant treaty obligations. He explained the relevance of this rule of statutory interpretation as follows at p. 159:-
“ … [A]rticle 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides:-
‘In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial Tribunal established by law…’
While the Convention is not part of the domestic law of the State, still, because the Statute of Limitations, 1957, was passed after this State ratified the Convention in 1953, it is to be argued that the Statute, since it does not show any contrary intention, should be deemed to be in conformity with the Convention and should be construed and applied accordingly.”
In McMullen v. Ireland, European Court of Human Rights No. 422 97/98 29th July, 2004 the Court of Human Rights held that Ireland had violated Article 6(1) of the Convention because “the proceedings… were not dealt with within a “reasonable time” as required by Article 6.1.” In explaining its reasoning the European Court of Human Rights stated inter alia as follows:-
“The court recalls that a State is obliged to organise its legal system so as to allow its courts comply with the reasonable time requirement of Article 6. It has held on a number of occasions that a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time. If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be considered responsible for the resultant delay.”
Hardiman J. in Gilroy v. Flynn at p. 294 stated:-
“ … [F]ollowing such cases as McMullen v. Ireland… 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.”
Finlay Geoghegan J. in Manning dealt extensively with this very issue concerning a dismiss in the interests of justice, and having reviewed the various relevant authorities including in particular the views of Hardiman J. as expressed in J O’C v. DPP as already referred to herein, went on to say at pp. 568 and 569 of her judgment:-
“The constitutional requirement that the courts administer justice requires that the courts be capable of conducting a fair trial. This, as was submitted, is required by Article 34 of the Constitution. Accordingly, if a defendant can on the facts establish that having regard to a lapse of time for which he is not to blame there is a real and serious risk of an unfair trial then he may be entitled to an order to dismiss.”
Also, if a defendant can establish that a lapse of time for which he is not to blame is such that there is a clear and patent unfairness in asking him now to defend the claim then he may also be entitled to an order to dismiss. This entitlement derives principally from the constitutional guarantee to fair procedures in Article 40.3 of the Constitution.
Whilst in some of the cases the judgments have referred to matters under both these headings, they appear to be potentially separate grounds upon which the inherent jurisdiction to dismiss may be exercised.
The factors to be considered by the court in relation to each question may overlap. It appears to me that these may include:-
1. has the defendant contributed to the lapse of time;
2. the nature of the claims;
3. the probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues;
4. the nature of the principal evidence; in particular whether there will be oral evidence;
5. the availability of relevant witnesses;
6. the length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and the probable trial date.
The cause of action herein has to have its genesis at a point in time between 2nd March, 1995, when the competition process for the awarding of a second GSM mobile telephone licence was announced and the result of the competition on 25th October, 1995, and that brings about a situation whereby the Court is asked to consider the matter at this point in time some 12 years on and, allowing for a further two years for the action to come on for hearing, the Court would then be asked to decide the issues between the parties some 14 years after the date of the cause of action allegedly occurred.
Turning to the matters as referred to by Finlay Geoghegan J. in Manning, the State defendants did contribute to the lapse of time involved but not, in my view, in any significant way. The nature of the claim as previously outlined herein is clearly of a very serious nature. I take the view that it is reasonable to come to the conclusion that, by and large, the issues in this case will be primarily factual as distinct to legal issues. The evidence that will be involved will as a matter of probability be primarily oral in addition to documentary evidence and it appears that the relevant witnesses will be available although as previously concluded herein their memories will be dimmed especially at a remove of some 14 years from the cause of action.
The situation with regard to the European Convention on Human Rights is that Article 6 was brought into force of domestic law by the European Convention of Human Rights Act, 2003 on 31st December, 2003, which provides for a fair and public hearing within a reasonable time.
The Act of 2003 operates prospectively only from the date of the coming into force of the European Convention on Human Rights Act, 2003 but I am satisfied, having regard to the available jurisprudence, that the European Convention of Human Rights is an extra factor to be added into consideration by this Court but subject to the application of existing Irish law and jurisprudence.
In my view, for this Court to be asked in 2009 to determine primarily issues of fact that will have occurred at the time of the prospective hearing date some 14 years previously, gives rise to a basic unfairness of procedures, undermines the defendants ability to have a fair trial, creates a clear and patent unfairness in asking the defendants to defend the action, and clearly fails to provide the defendants with a hearing within a reasonable time of the alleged cause of action having occurred. In essence, in my view, in a case such as this, it puts “justice to the hazard to such an extent that it would be a derogation of basic fairness to allow the case to proceed to trial” as per Henchy J. in O’Domhnaill at p. 158. In these circumstances, I come to the conclusion pursuant to the inherent jurisdiction of the court to dismiss the plaintiffs claim as against the State defendants.

McBrearty v North Western Health Board

, High Court, MacMenamin, J., December 14, 2007

Judgment of Mr. Justice John MacMenamin dated the 14th day of December, 2007.
Introduction
1. The first, third, and fourth named defendants seek a number of reliefs dismissing the plaintiff’s claim by reason of alleged non-compliance with time limitations laid down by the Rules of the Superior Courts, and delay in initiating and prosecuting the proceedings herein, where the plaintiff claims damages in respect of alleged negligence and breach of duty on the part of these defendants arising from his birth at 1.40 a.m. in Letterkenny General Hospital early on New Year’s Day, 1st January, 1981. He now suffers from severe cerebral palsy of the spastic quadriplegic type, has severe learning difficulties and a mental handicap. He is substantially disabled and requires an electronically-powered wheelchair. He is unable to live independently. He alleges that these medical conditions arise from the negligence and breach of duty of those defendants who are the moving parties.

2. The first named defendant is sued as the then owner and operator of Letterkenny General Hospital. Notice of discontinuance has been served against the second named defendant, Mr. Andrew McFarlane, a Consultant Obstetrician Gynaecologist in the hospital. He is no longer therefore, a party to these proceedings and no allegation of any form of negligence or breach of duty now remains against him. The third named defendant was a Senior House Officer, and the fourth named defendant was then a Locum consultant Obstetrician in the hospital who attended at the birth.

3. Each motion focuses on a number of issues, some of which overlap and others which do not. In order to minimise repetition, and to best illustrate the issues this judgment will deal sequentially with the course of the proceedings, common features between all the applications, and with the specific applications brought by the fourth, third and first named defendants.
The course of the proceedings
4. The plaintiff is now a person of unsound mind, though not yet so found. His mother claims that at the time of the birth, now twenty-six years ago, no one informed her that there was any question of negligence. She was simply told that what had occurred was “one of those things”. She states that she and her husband are ordinary lay people with little formal education, and are not informed about medical or legal matters. It was only in 1999, soon after Christopher’s eighteenth birthday, that she and her husband were advised by Dr. Diarmuid Hegarty, their G.P., that he felt “duty bound” to tell them in Christopher’s presence, that they should investigate what happened to their son at or about the time of his birth.

5. Anna McBrearty states that she initially sought advice from a firm of solicitors in Donegal. She wrote to them on 11th July, 2000 seeking their advice. In turn, they wrote to the first named defendant (the Health Board) to obtain the medical records relating to the birth and received them on 19th December, 2001. Mrs. McBrearty and her husband were then advised that it was worthwhile obtaining opinion from an independent medico-legal advisor on the issue of liability. However, she was advised this work should be carried out by a firm of solicitors who had more experience in dealing with medical negligence matters.

6. The first contact with the plaintiff’s present solicitors, Messrs. Tansey & Associates, took place on 21st November, 2001. On 27th November, 2001 proceedings were issued by plenary summons against the Health Board and Dr. Andrew McFarlane only.

7. On 6th December, 2001 a letter was sent from the Health Board’s insurers to the Medical Defence Union (M.D.U.), thought to be indemnifiers of Dr. Singh and Dr. Glynn, advising them of the potential claim. On 24th October, 2002 a letter was sent from the M.D.U. to Irish Public Bodies (the indemnifiers of the first named defendant) confirming that they had identified Dr. Singh as a member of the MDU and that he had been located in Canada. Almost one year after the plenary summons was issued, on 8th November, 2002 service was effected on solicitors for Dr. McFarlane, Messrs. McCann Fitzgerald. That firm was acting for Dr. McFarlane, indemnified by M.D.U.. On 19th November, 2002 the solicitors for the Health Board, Messrs. Coffey & McMahon, were served with the proceedings. They entered an appearance on 22nd November, 2002. On 31st January, 2003, an appearance was entered on behalf of the second named defendant, Dr. McFarlane, by Messrs. McCann Fitzgerald. One and a half years after the issuing of the plenary summons, on 6th May, 2003, a statement of claim was delivered to Dr. McFarlane. On 26th July, 2003 a medical report of Professor Taylor for the plaintiff, (not exhibited but referred to in a report from Mr. Roger Clements, Consultant Obstetrician Gynaecologist) was obtained. One year and ten months after the issuing of the plenary summons, on 10th September 2003, a statement of claim was delivered to the Health Board which, five months later, on 7th March, 2004, raised a notice for particulars. On 23rd March, 2004, a defence was filed by Dr. Andrew McFarlane, and a notice for particulars was served by him on the plaintiff’s solicitors. On 21st June, 2004 the High Court (Kearns J.) granted an order to the first named defendant permitting four weeks for the filing of a defence on foot of a notice of motion. On 30th January, 2005 the plaintiff obtained a further medical report from a Dr. Philip Anslow. On 7th March, 2005 the High Court (Gilligan J.) granted the first named defendant, the Health Board, one week to file a defence, this being the second notice of motion brought against them. On 7th March, 2005 a defence was filed by the Health Board.

8. On 11th March, 2005, a notice of motion was issued by the Health Board to join Dr. Singh and Dr. Glynn as third parties. On 25th April, 2005 the High Court (Johnson J., as he then was) granted an order on application by the plaintiff in that motion joining Dr. Singh and Dr. Glynn as co-defendants. On 23rd May, 2005 the plaintiff furnished replies to particulars to the first and second named defendants. On 26th May, 2005 the plaintiff received the medical report of Professor Alan Hill from Vancouver. On 10th November, 2005 a letter was sent by the plaintiff’s solicitors to the “medical defendants”, Dr. Singh and Dr. Glynn, asserting that the cerebral palsy of the plaintiff was caused inter alia by the negligence and breach of duty of those defendants and requesting them to confirm that they would compensate the plaintiff. This letter, in form an “O’Byrne” letter, was sent after Dr. Singh and Dr; Glynn had already been joined as co-defendants but prior to amending the plenary summons. On 28th November, 2005 the plaintiff’s solicitor received a medical report from Dr. Roger Clements, referred to earlier. On 16th December, 2005 an order was made amending the plenary summons. On the same date, a concurrent summons was issued with respect to Dr. Singh, then residing in Canada. On 13th January, 2006 the Master of the High Court granted liberty to amend the title of the plenary summons to read “Christopher McBrearty (a person of unsound mind not so found suing by his mother and next Friend Anna McBrearty)”. On 22nd February, 2006 the Master of the High Court extended the time within which to comply with the order dated 13th January, 2006 by a period of two weeks. On 8th March, 2006 the summons in question was amended in accordance with the orders of 13th and 22nd January, 2006.

9. On 20th April, 2006 (incorrectly recorded as 20th April, 2005) a letter from the plaintiff’s solicitors to Dr. Singh advised him that he had been joined as co-defendant pursuant to the order dated 25th April, 2005. On 12th May, 2006 an amended statement of claim was delivered to the first and second named defendants. On 28th May, 2006 the High Court (Peart J.) extended the time for applying for renewal of the amended plenary summons and concurrent summons to 29th May, 2006; renewed the summonses for a period of six months as against Dr. Glynn and Dr. Singh; granted liberty to serve notice of the said concurrent summons of Dr. Singh at his address in Canada; and granted Dr. Singh eight weeks from the date of service of the notice of summons within which to enter an appearance to that summons. On 12th July, 2006 an amended plenary summons and statement of claim, now alleging negligence against all four defendants, was delivered to the Health Board’s solicitors. Over four and a half years after the date of the plenary summons, on 17th July, 2006 notice of the summons was served on Dr. Singh in Canada. On 25th July, 2006 an appearance was entered on behalf of Dr. Singh. On 27th July, 2006 the plaintiff’s solicitors delivered an amended statement of claim to Dr. Singh’s solicitors. On 9th August, 2006 a plenary summons was served on the third named defendant, Dr. Glynn.

10. On 23rd January, 2007 a motion for judgment in default of defence was brought against the fourth named defendant, Dr. Singh. On 14th February, 2007, the notice of motion herein was issued on behalf of Dr. Glynn. On 16th February, 2007 the notice of motion herein was issued on behalf of Dr. Singh. On 8th March, 2007 a notice of motion by the plaintiff seeking judgment in default of appearance against Dr. Glynn was issued. The first return date for the motions brought on behalf of Dr. Singh and Dr. Glynn was of 12th March, 2007. On 4th April, 2007 a limited appearance was entered on behalf of Dr. Glynn. The plaintiff’s motion for judgment in default of appearance was made returnable for 23rd April, 2007.

11. On 10th May, 2007 a notice of indemnity and contribution, alleging specific negligence and breach of duty, was served by the first named defendant on Dr. Singh and Dr. Glynn. On 10th May, 2007 an amended defence was filed on behalf of the Health Board. On 24th May, 2007 the motions against Dr. Singh and Dr. Glynn and the plaintiff’s motion against the fourth named defendant were adjourned so as to permit a similar motion to dismiss be brought by the Health Board. On 31st May, 2007 the notice of motion herein was issued on behalf of the Health Board returnable for 6th June, 2007. On 27th June, 2007 the aforesaid motions were listed for hearing, adjourned and were ultimately tried on 30th October, 2007 and two succeeding days.
Elapses of time
12. The defendants point to the following elapses of time as being significant in the consideration of these motions.

1. 30th December, 1980/1st January, 1981 – 1st January, 1998/early 1999:
A period of 17 to 18 years elapsed between the birth of the plaintiff and his parents seeking legal advice.

2. 1st January, 1998/early 1999 – 17th November, 2001:

A period of between 1½ and 2½ years between the plaintiff’s parents seeking legal advice and the issuing of proceedings against the first and second named defendants.

3. 27th November, 2001 – 25th April, 2005:

Application to join Dr. Singh and Dr. Glynn as defendants made:

(a) over 3 years and 5 months after the plenary summons herein was issued in which only the first two defendants were named;
(b) over 6 years after the plaintiff’s parents obtained legal advice in relation to the plaintiff’s birth and 24 years after the plaintiff’s birth and the alleged events the subject matter of the plaintiff’s claim.

4. 25th April, 2005 to 16th December, 2005:
An elapse of time of 6 months occurred after applying to join Dr. Singh as a defendant, and writing to him on 10th November, 2005 alleging that he had caused the plaintiff’s injuries.

A further period of seven months elapsed after applying to join Dr. Singh as a defendant and amending the plenary summons (on 16th December, 2005) in breach, it is contended, of O. 28, r. 7.

5. 16th December, 2005 to 20th April, 2006:

Plaintiff delayed for a further period of over 4 months in notifying Dr. Singh that he had been joined as a co-defendant.

Thus, having obtained an order on 25th April, 2005 joining Dr. Singh as a co-defendant the plaintiff did not inform him that he had been so joined until 20th April, 2006, almost a full year later.

6. 20th April, 2006 to 27th July, 2006:

The plaintiff did not serve a plenary summons on Dr. Singh until 17th July, 2006, over 4½ years after the plenary summons was issued, over one year and three months after an order joining Dr. Singh was made, and over 25 years after the alleged events the subject of the plaintiff’s claim.

The statement of claim was not served until 27th July, 2006.

13. In making the order joining Dr. Singh and Dr. Glynn on 23rd April 2005, the High Court was clearly made aware that Dr. Singh was then resident in Canada; the summons was marked “not for service outside the jurisdiction”. All those involved clearly assumed that Messrs. McCann Fitzgerald, instructed by the M.D.U., who had acted for Dr. McFarlane, would also be instructed for Dr. Singh and Dr. Glynn. This impression was conveyed by letter from the Health Board’s solicitors to Tansey & Associates in letters dated 4th May and 27th June, 2005. As matters transpired, for reasons later described, no such nomination was made either in the case of Dr. Singh or Dr. Glynn. The plaintiff’s solicitors point out that they wrote to Dr. Singh personally on two occasions, on 10th November, 2005 and 20th April, 2006. There was no response to these letters. Furthermore, Messrs. McCann Fitzgerald, wrote on 14th November, 2005 stating that, contrary to previous belief, they would not be representing those defendants. It transpired that this was by reason of the crux which had arisen as a consequence of the decision of the M.D.U. to withdraw indemnity in relation to obstetrical claims within this State. Only then was it clear that Dr. Singh would have to be personally served in Canada, necessitating a further application to the High Court (Peart J.) on 26th May, 2006. Counsel on behalf of the plaintiff, Mr. Eoin McCullough S.C., emphasises that, after personal service had been effected on Dr. Singh on 17th July, 2006, an unconditional appearance was entered on his behalf only a very short period thereafter, on 25th July, that is within a period of eight days. A copy of the amended statement of claim was provided to Dr. Singh’s solicitors, Messrs. O’Connors, on 27th July, 2006. It is suggested that it is remarkable that Dr. Singh, having previously not nominated a solicitor in Ireland to accept service, and having compelled the plaintiff’s solicitors to “go through the hoops” in order to personally serve him in Canada, could nonetheless within an unusually short time, arrange for the filing of an appearance after personal service had been effected.
14. It is clear that these specific difficulties with regard to the service on Dr. Singh and Dr. Glynn the medical defendants, were in the first instance, attributable directly to the decision taken by the M.D.U. to withdraw indemnity for obstetrical cases in Ireland.

15. Counsel for the plaintiff has informed the court that the plaintiff’s expert reports are now complete both as to liability and quantum, and that the case could be set down for trial rapidly once the defences of the two medical defendants are received. The plaintiff avers that much delay was caused either by the M.D.U. or Dr. Singh and Dr. Glynn themselves, who could have had sight of the pleadings from 2005 had they chosen simply to nominate a firm of solicitors. As a matter of fact Dr Glynn was at all times resident in the jurisdiction.

16. It is submitted that there has been an expenditure of significant costs and outlay in relation to obtaining reports from expert witnesses and that this outlay has been largely incurred since Dr. Singh and Dr. Glynn were joined as defendants. In March, 2006 the plaintiff’s solicitors flew over, at their own expense, Professor Alan Hill, Professor of Neurology at British Columbia Children’s Hospital. Reports were also received by Dr. Philip Anslow, Consultant Neuro-radiologist at the Radcliffe Infirmary, Oxford, Dr. Dewi Evans, Consultant Paediatrician, and Mr. Roger Clements, Consultant Obstetrician and Gynaecologist. Reports have also been obtained from an actuary, a vocational assessor, an occupational therapist, a nursing expert, assistive technology experts and an architect.
Dr. Singh’s application
17. Dr. Singh’s application raises first a procedural point pursuant to O. 28, r. 7 of the Rules of the Superior Courts, and second seeks to have this claim dismissed for want of prosecution by reason of inordinate and inexcusable delay.
The procedural issue
18. Order 28, rule 7 of the Rules of the Superior Courts provides:

“If a party who had obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no such time is thereby limited, then within fourteen days of the date of the order such order to amend shall, on the expiration of such limited time as aforesaid become ipso facto void unless the time is extended by the court.”

It is submitted any subsequent amendment outside that time is ipso facto void. Mr. Shane Murphy, S.C. and Mr. Douglas Clarke B.L. appeared for Dr. Singh. They submitted that this order placed an onus upon the plaintiff, having obtained an order to amend the summons, to effect such amendment within a period of fourteen days. The relevant dates which they point to are:
Order joining the third and fourth named defendant 25th April, 2005.
Summons in fact amended by adding the named of the third and fourth named defendants, 16th December, 2005.

Order renewing the summons made on 29th May, 2006. Thus they submit the amended summons, made outside the posited time limit, is void.
19. In order to consider this issue it is necessary first to consider the precise terms of the orders actually made. The order as described made on 25th April, 2005 was simply for the joinder of Dr. Glynn and Dr. Singh as third and fourth named defendants. However, no order was made at that stage to amend the plenary summons. The plaintiff submits that either in fact or in effect, the order made by Johnson J. was not an order for leave to amend pleadings within the meaning of O. 28, r. 7, but rather the order in question was made pursuant to O. 15, r. 13, which provides that the court may in order to effectively and completely to adjudicate upon and settle all questions involved in the cause or matter, at any stage in the proceedings, either upon or without an application of either party, and on such terms as may appear to the court to be just, order that the names of any parties not properly joined, whether it be plaintiffs or defendants, be either struck out or added. The consequence of such an order is addressed in O. 15, r. 15, where it is simply stated:

“Where a defendant is added or substituted the plaintiff shall, unless otherwise ordered by the court, file an amended copy of and take out a summons and serve such new defendant with such summons or notice in view thereof in the same manner as the original defendants are served.” No time limitation is prescribed.

20. The essential question here therefore is what is the true nature of the order made? Was it to amend a pleading, or to join a party? I consider it was the latter. As a matter of common practice a period of some time may elapse between the joinder of a party and service of amended proceedings upon him. Issues as between defendants may be defined by pleading not by mere joinder. I am unable to find how Order 28, r. 7 is applicable to this situation or that there would be any rationale for the application of this order and rule in this way. The order of 25th April, 2005 was not to amend the pleadings but to join Dr. Singh as a defendant. The question of amending the pleadings so as to make out the case against the new co-defendant(s) fell to be determined later, but not in circumstances where the failure to amend the plenary summons within fourteen days would render the joinder of an additional party, and any subsequent proceedings against him, void. This would be a most draconian consequence and would, if intended, surely have been the subject of a specific provision in the Rules. Order 28, r. 7 merely falls to be considered within the context of an application made by way of notice of motion to amend either a pleading or a defence. Such application would normally be moved on a grounding affidavit exhibiting the proposed amended proceeding. Thus, in such circumstances, a limited timescale would be appropriate, but not otherwise where frequently the circumstances to be pleaded in a newly joined defendant require analysis and preparation. See generally chapter 6-24 to 6-37, Delaney and McGrath Civil Procedure in the Superior Courts 2nd edition and the authorities therein cited which illustrate the distinction between joinder of parties and subsequent amendment of pleadings of parties and issues are quite distinct aspects of a case.
21. I consider that the application which was made before Johnson J. was for an order simply pursuant to O. 13, r. 13 of the Rules of the Superior Courts and that the point made is misconceived. In such circumstances, it has not been suggested that any specific time limit exists such as provided for in O. 28, r. 7 and is therefore not out of time.

22. The order of Peart J. of 29th May, 2006 extended the time for the service of the amended plenary summons from the date thereof pursuant to O. 8, r. 1 of the Rules of the Superior Courts for a period of six months as against the third and fourth named defendants. Consequently, even if I am incorrect in my interpretation of the order of Johnson J., I consider that any such defect was cured by the (unappealed) order of Peart J. of 29th May, 2006.

23. Furthermore, even if either of these findings was incorrect, the court would be entitled pursuant to O. 122, r. 7 to enlarge or abridge the time appointed by the Rules or to affix by any order enlarging time for doing any act or taking any proceedings. Were it necessary, therefore, I would enlarge the time for the amendment of the summons, in the circumstances, and for reasons outlined later in this section of the judgment dealing with the issues of delay, discretion and the balance of justice appertaining to this applicant.
The application to dismiss for want of prosecution or for inordinate or inexcusable delay.
24. In Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, a decision of 31st July, 1979, Finlay P. identified general principles applicable in applications to dismiss for want of prosecution. He held that it should first be established that the delay complained of has been inordinate and inexcusable. The onus in this regard lies on the party seeking the dismissal of proceedings (see dicta of Fennelly J. in Anglo Irish Beef Processors v. Montgomery [2002] 3 IR 510, 518). Even where the delay has been inordinate and inexcusable the court is required to exercise its discretion to decide whether the balance of justice is in favour of the case proceeding. Finlay P. stated that delay on the part of the defendant in seeking a dismissal may be an ingredient in the exercise by the court of its discretion and that, while a party must to an extent be vicariously liable for the inactivity of his solicitor, a litigant’s own personal blameworthiness is material to the exercise of the court’s discretion. (See generally Delany and McGrath Civil Procedure in the Superior Courts, Thomson/ Round Hall 2005, Chapter 13).

25. In Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at pp. 475 and 476, Hamilton C.J. summarised the principles to be applied (below slightly paraphrased) 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 a 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 its judgment 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 principle of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are 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 defendants 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 weight to be attached to such conduct depending on all the circumstances of the particular case,

(vi) whether the delay gives rise to a 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 other than that merely caused by the delay, including damage to a defendant’s reputation and business.

Thus summarised it is now necessary to apply to these principles to the facts of this case.
Inordinate delay
26. It cannot be gainsaid that by any reckoning there has been an inordinate delay by the plaintiff in the prosecution of the proceedings. The delay in the instant case lies at the extreme parameter in the entire jurisprudence. A delay of over fifteen years from the issue of the plenary summons was described as undoubtedly inordinate in Carroll Shipping v. Mathews Mulcahy & Sutherland, the High Court, McGuinness J., 18th December, 1996. Much shorter periods have been found to be excessive.
Inexcusable delay
27. The periods of delay relied upon by this and other defendants have been outlined earlier in the course of this judgment.

In assessing these periods of delay for the second aspect of the test a further authority is relevant, that is Stephens v. Flynn, the High Court, 30th April, 2005, Clarke J., Unreported. In the course of that judgment Clarke J. observed:

“In Hogan v. Jones [1994] 1 I.L.R.M. 512, Murphy J. having referred to Rainsford further approved and applied a principle stated by Lord Diplock in Birkett v. James [1977] 2 All E.R. 801 at p. 808 to the following effect:
‘It follows a fortiori from what I have already said in relation to the effects of Statutes of Limitation on the power of the court to dismiss actions for want of prosecution that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced by the consequent lack of early notice of the claim against him, the fading recollections of the potential witnesses, their death or their untraceability. To justify dismissal of an action for want of prosecution the delay relied on must relate to the time which the plaintiff allowed to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.’”
(emphasis added)

28. Having regard to the above, it is clear that here and applying this test, inordinate and inexcusable delay in the commencement of proceedings is not, in itself, a factor, though it may colour what happens later. The events between 30th December, 1980 and 1st January, 1981 must be seen as the ingredients constituting the accrual of the cause of action. However, the elapse of time up to but prior to the issue of the writ are not factors to which the court should have regard in the ordinary application of this test. The first period therefore, for the court to consider is that between 27th November, 2001 and 25th April, 2005 when Dr. Singh was joined as a defendant, over three years and five months after the plenary summons was issued, in which only the first two defendants were named, in excess of six years after the plaintiff’s parents obtained legal advice with regard to the plaintiff’s birth and 24 years after the plaintiff’s birth itself, during which time the events outlined in the chronology occurred.
Circumstances of respondent
29. There are a number of factors which are relevant which must be weighed by the court. As to the respondent, it is undisputed that the plaintiff and his family come from a background where they have no unfamiliarity with legal procedures. One must consider also the circumstances of the plaintiff in this case who was not only a minor up to the year 1999 but also, it would appear, a person subject to a significant and ongoing mental incapacity. The plaintiff himself, therefore, is not in the position of a large undertaking such as the defendant or an indemnifier in order to police and monitor the progress of his proceedings.
Imputed responsibility for acts or omissions of legal representatives
30. In Brennan v. Western Health Board, Macken J., the High Court, Unreported, 18th May, 1999, that judge took into account the extent to which delay caused by a servant or agent of the plaintiff could be considered for the purpose of deciding whether the latter’s delay has been inordinate and inexcusable. She considered that in almost all cases involving infants there could be no control by a minor plaintiff over next friend or parents. The question for resolution however, is as to whether the minority or incapacity of the plaintiff falls to be considered as an issue in the category of excusable delay or balance of justice. This matter is dealt with later in this judgment.
Recent developments in jurisprudence
31. From the applicant’s standpoint in Gilroy v. Flynn [2005] 1 ILRM 290, 294, Hardiman J. commented that “In the light of European Convention on Human Rights Act, 2003 the assumption that even grave delay will not lead to a dismissal of an action if it is not on the part of the plaintiff personally, but of a professional adviser, may prove an unreliable one”. To similar effect, Clarke J. in Rogers v. Michelin Tyre, the High Court, 28th June, 2005, Unreported, commented that less weight should be attached now to the fact that the delay is accepted as being attributable to the plaintiff’s solicitors as opposed to the plaintiff himself. These observations concern applications made with regard to delay after the commencement of proceedings of article 6 of the Convention, and Seymour Human Rights Practice, Chap. 6.158, Thomson Sweet and Maxwell, McMullen v. Ireland, European Court of Human Rights, 29th July, 2004.

32. It is an inescapable fact that by reason of the inordinate delay which occurred in this case, there devolved upon the plaintiff’s solicitor a particular and specific duty to ensure that the proceedings moved with very great expedition. This must be seen in the context of the ability of a defendant to defend a claim after the elapse of time of what is now 26 years. Such considerations may necessitate the application of standards which would not otherwise be applicable, and the imposition of time scales to an order of rigour which would not otherwise be expected.

33. Because of that 26-year elapse of time in the instant case, I consider that even (as here) in the circumstances of an absence of culpability on the part of the plaintiff, culpability may nonetheless be imputed to the plaintiff by virtue of delay on the part of his solicitors in the determination as to whether or not the delay was inexcusable. Different considerations apply, however, in the third aspect of the test, that of “balance of justice”. A number of issues have been identified which are relevant so far as Dr. Singh is concerned.

34. During the period 27th November, 2001 (date of summons) to the 25th April, 2005 date of joiner, the plaintiff joined two other defendants, that is to say the Health Board and Dr. McFarlane. The Health Board only filed its appearance on 22nd November, 2002. No motion for judgment in default of appearance was brought against it. Then there was an elapse of time of six months between that date and 6th May, 2003, at which point the original statement of claim was delivered to the Health Board. This would appear to have pre-dated the receipt by the plaintiff’s solicitors of a medical report on 26th July, 2003. Thereafter, a significant delay, up to 10th September, 2003, occurred prior to the delivery of the statement of claim to Dr. McFarlane. A further elapse of time occurred between 10th September, 2003 and 7th March, 2004, at which point a notice for particulars was raised by the Health Board. On 23rd March, 2004 Dr. McFarlane’s defence was filed and a notice for particulars was served from his solicitor. On 21st June, 2004 the first named defendant was given four weeks to deliver a defence. On 7th March, 2005 the Health Board was given a further week to deliver a defence. Thus, only on 7th March, 2005 was the defence of the first named defendant filed which raised allegations of negligence against Dr. Singh and Dr. Glynn. It appears the only information which would have been available to the plaintiffs prior to that date was upon the basis of the medical notes where Dr. Singh was briefly referred to as having been present, but his role not described. But this merely begs the question as to why further, and expedited steps were not brought against the Health Board. It is an insufficient explanation to say that it took two years for medical reports to become available without outlining where precise steps were taken between 2001 and 2003 to progress the case. True Dr. Singh’s role was not fully clear at that point. It was certainly not made clear that he was acting in the role of locum consultant. It would appear that the plaintiff was not apprised of any specific or substantive role on the part of Dr. Singh until the filing of the defence by the first named defendant. But all this information could have been ascertained far earlier had steps been taken to expedite the proceedings as a whole and as against the first and second named defendants.

35. After the order of the High Court of 25th April, 2005 joining Dr. Singh and Dr. Glynn, it was not until 16th December, 2005 that the plenary summons was amended in order to allege negligence against him. The concurrent summons was issued on that date. On 13th January, 2006 the Master of the High Court granted liberty to amend the title of the proceedings so far as the plaintiff and next friend were concerned. It then became necessary to extend the time within which to comply with this order for a further period of two weeks, again pursuant to a further order of the Master of 22nd February, 2006. The summons was only actually amended as per the orders of 13th and 22nd January, 2006 on 8th March, 2006. Only on 20th April, 2006 was there a letter from the plaintiff’s solicitors to Dr. Singh advising him that he had been joined as a co-defendant pursuant to an order dated as long ago as 25th April, 2005, that is almost exactly one year. The amended statement of claim was not delivered to the first and second named defendant until 12th May, 2006. It was not until 29th May, 2006 that by order of the High Court, (Peart J.) the time was extended for the renewal of the amended plenary summons and concurrent summons to 29th May, 2006; renewing the summonses for a period of six months against Dr. Glynn and Dr. Singh; liberty granted to serve notice of the concurrent summons on that Dr. Singh in Canada, which service was effected only on 17th July, 2006, to be followed by the service of the amended statement of claim on 27th July, 2006. I am conscious that during that period the plaintiff’s solicitors were informed in error by the first named defendant’s solicitors that Messrs. McCann Fitzgerald would probably accept service in the case. It is clear that the original amended summons, including Dr. Singh, was marked “not for service out of the jurisdiction”. It is clear that once it was established that there were no solicitors nominated who would accept service on behalf of Dr. Singh, the plaintiff’s solicitors were constrained to return to court. It is hard to avoid the conclusion that they were being “put through the hoops”. During this time, up to November, 2005, there was uncertainty. It was only at that time that Messrs. McCann Fitzgerald reverted to the plaintiff’s solicitors to indicate that they were not acting in the matter. In November, 2005 the plaintiff’s solicitors wrote to Dr. Glynn and Dr. Singh. Dr. Glynn did in fact respond to this correspondence (per contra the averment made in the affidavit sworn on behalf of the plaintiff). No response emanated from Dr. Singh. Similarly, there was no response to a further letter on 20th April, 2006. As referred to earlier, applications were made to amend the title of the proceedings and Anna McBrearty was added for the first time as next friend. In April, 2006 a letter was written directly to Dr. Singh and Dr. Glynn in which it was said once it became clear that Messrs. McCann Fitzgerald were not going to act for them. The application to renew the summons was only brought on 29th May, 2006.

36. In normal circumstances an elapse of time of this type with these explanations might not give rise to a finding of inexcusable delay. But this must be seen in the context of the fact that from 7th March, 2005 the first named defendant had filed its defence wherein the role of Dr. Singh was identified. Yet it was not until 17th July, 2006 that notice of the plenary summons was served upon him.

37. Having regard to the principles outlined in Primor and as applied in Stephens, I consider that the late start after inexcusable delay made it the more incumbent upon the plaintiff to proceed with all due speed. While in normal circumstances the pace of progress might have been excusable if the action against Dr. Singh had been started sooner, I consider that having regard to the circumstances, the actual joinder of Dr. Singh already occurred at a time when there had been already inexcusable delay after the original writ was issued. This is so even having regard to the fact that the full role of Dr. Singh only emerged after the defence of the Health Board had been filed following two motions for judgment. This finding is made too, even having regard to the ongoing disability of the plaintiff having attained his majority, the elapse of two years in identifying expert consultants and obtaining reports and, even bearing in mind, as regards “excusability”, that the plaintiff’s solicitor engaged in substantial expenditure in bringing witnesses into this jurisdiction and in obtaining expert reports both on the questions of liability and quantum. While undoubtedly these are factors to be weighed in the balance, the position of the plaintiff during this latter period could have been more effectively protected by bringing on, at an early date, an application to serve notice of the plenary summons, within a short time of the filing of the two earlier defences which themselves should have been filed far earlier even by dint of further motions for judgment in default. While in other circumstances an estoppel against the fourth named defendant might well lie by permitting such expenditure, if a clear definition could be made as to when expenditure was incurred, I do not consider such a finding can be made in this case where, once the issue was crystallised by the first named defendant, the primary onus was upon the plaintiff to ensure that all relevant parties were joined into the proceedings. It is not shown that a delay or other misconduct by this defendant caused or contributed to the expenditure. The personal position of the blameless plaintiff suffering from an incapacity is, however, a different question to be considered in the balance of justice.

38. As pointed out in Gilroy v. Flynn and Rogers v. Michelin Tyre, the part of a plaintiff’s solicitor or professional adviser is now one which must be seen as one of increasing significance by the court, particularly so on the facts of the instant case. I find, therefore, there was inexcusable delay between 27th November, 2001 and 17th July, 2006, the date of service of notice of the plenary summons on this defendant, even despite the conduct of the defendant in rendering service of the proceedings difficult to achieve.
The balance of justice
39. Having found that these delays were both inordinate and inexcusable, the court must then exercise its discretion to decide whether on the facts of the particular case the balance of justice is in favour of dismissal or permitting the action to proceed. In doing so, the court should again apply the principles identified by Finlay P. in Rainsford and also Hamilton C.J. in Primor. The court must look to the conduct of the defendants since the commencement of the proceedings for the purpose of establishing whether any delay or conduct on the part of the defendant amounted to acquiescence in the plaintiff’s delay and whether the defendant was guilty of any conduct which induced the plaintiff to incur further expense in pursuing the action. The court too must assess whether the delay is likely to cause, or has caused, serious prejudice to the defendants of a kind that would make the provision of a fair trial impossible; or which would make it unfair to the defendant to allow the action to proceed thereby rendering it just to strike out the action; and whether, having regard to the implied constitutional principles of basic fairness of procedures, the plaintiff’s claim against this defendant should be allowed to proceed or should be dismissed.
The effect of ‘specific prejudice’
40. Prior to a further consideration of the facts of the instant case it will be convenient here to consider the decisions of the Supreme Court in Toal v. Duignan (No. 1) [1991] I.L.R.M. 135 and Toal v. Duignan (No. 2) [1991] I.L.R.M. 140, and a number of other authorities which concern both delay pre-commencement and post-commencement of proceedings. In Toal v. Duignan (No. 1) it was held that, even though the plaintiff might have been blameless in regard to the date upon which the proceedings were instituted, there would be an absolute and obvious injustice in permitting the case to continue against the second and fourth defendants in that case. The absence of detailed clinical notes and records and the death of both the gynaecologist and the paediatrician concerned made it wholly impossible for either of those defendants to defend themselves against the allegations of negligence. Additionally, it was accepted that the notes and records of the case were incomplete, no-one was aware of the whereabouts of the nurses concerned, and two central witnesses, that is the gynaecologist and paediatrician, had both died.

41. In Toal (No. 2) some of the defendants met a different result. A general practitioner who was joined as a defendant ultimately obtained an order dismissing the proceedings for want of prosecution because she had no records, and had made a detailed search for such records and could not find any. By way of contrast, however, two other defendants did not obtain relief because the first, a doctor involved was alive, had personal records, and had not sworn an affidavit giving detail of his disadvantage in giving evidence. Furthermore, it was held that another defendant, the hospital, had not made out a case for probable injustice which would entitle it to be dismissed out of the action as there was no real evidence of a concrete nature with regard to the availability, or unavailability, of records and witnesses.

42. In Reidy v. The National Maternity Hospital (The High Court, Barr J., 31st July, 1997, Unreported) a case concerning both pre and post-commencement delay, that judge considered that, even in a case where there was an absence of personal recollection by a doctor and where the records were significantly less than full, the case should be permitted to proceed. In the course of his judgment Barr J. observed that there were “sufficient hospital records to establish the facts essential to a determination of the negligence issue between the parties, that is the hospital notes made soon after the birth of the plaintiff and in the days following to which I have referred and the accuracy of which is not in dispute, together with Dr. Lowry’s letter of 15th June, 1976 when the Reidy family doctor establishes, inter alia, that there was a problem with the baby’s left hip.” (emphasis added)

43. Similarly, in Glynn v. the Governor and Guardians of the Hospital for the Relief of Poor Lying-in Women in Dublin, (the High Court, O’Sullivan J., 6th April, 2000, Unreported) there were absent witnesses and no CTG record. Nonetheless, the action was not dismissed because there were notes available and the witnesses were alive.

44. The defendants have placed much reliance on the case of Faughnan v. Maguire & Ors., O’Sullivan J., 2006 IEHC 282. The facts of this case are somewhat distinct from those earlier cited and fall into a different category because of very specific prejudice identified therein, that is the apparently pivotal issue of whether a particular remark had been made in relation to the plaintiff’s pain threshold and, if so, who had made that remark. The Senior House Officer who was the applicant asserted that he had no recollection of making such a remark , an issue upon which the question of determination of liability against him could have turned. It was because the evidence identified this specific issue that O’Sullivan J. held that there was specific prejudice.

45. These principles in the authorities are now considered below.
Prejudice
46. For the purposes of this aspect of the application, the court will approach the issue of prejudice upon the basis that firstly, the onus of proof lies upon the defendant to demonstrate prejudice, and secondly, that for the purposes of this test prejudice must be specific in nature, that is to say identifiable, germane and material in the context of the facts and parameters of the case.

47. On behalf of Dr. Singh it has been contended

(a) there has been insufficient identification of the precise case being made against him in the pleadings;
(b) he had no recollection of the occurrence and was entirely dependent on the notes and records of the events at issue;

(c) the notes and medical records “while possibly adequate by the standards of 1980/1981, were inadequate to enable him to defend against the plaintiff’s allegations at this stage”;

(d) there were no notes available from the paediatrician

(f) the records did not contain detailed information in respect of each of the events relevant to the issues;

(g) it had been accepted even by the plaintiff’s expert consultant, Dr. Clements, that the records in a number of areas were of “poor quality”, sometimes untimed and failed to identify specifically the role played by each doctor;

(h) in areas of significance there had been a lack of identification as to whether certain procedures were carried out by a doctor or midwife, such as the application of a fetal scalp electrode to the plaintiff’s head;

(i) There was an absence of names, dates or times of the CTG trace.

(g) the tocograph records recorded poorly and the cardiograph has a somewhat flat, featureless baseline.

(h) the absence of indemnity from the M.D.U.

Dr. Clements’ description of the birth of the plaintiff as derived from the medical records
48. In view of its central importance to these applications it is necessary to summarise the lengthy report from Dr. Roger Clements, Consultant Obstetrician retained by the plaintiff. This is so because the report has been referred to extensively by counsel for all parties. It is necessary in order to determine the nature and parameter of the case. Clearly, no finding can be made at this stage in regard to the validity of the contents of the report but rather as an indicator of the nature of the range of issues which arise, and whether limited or general in scope.

49. Dr. Clements states that observations of this labour were indeed of poor quality, that there was ample evidence even from the limited observations that were made that the progress of labour was poor and the fetal condition was not reassuringly normal. At the time of artificial rupture of the membrane there was meconium in the liquor. When the fetal heart was monitored there were abnormalities on the CTG. At 17.30 p.m. on 31st December a doctor was called at four fingers dilatation because the fetal heart was abnormal. Dr. Clements states that the doctor who was called left no note and gave no advice for change. In spite of the abnormalities on the CTG the syntocinon infusion was continued. He observes that medical experts consider that it is mandatory in the presence of fetal distress that oxytocin is discontinued or its rate reduced.

50. In essence therefore, the contention to be advanced on behalf of the plaintiff is that –

(i) fetal distress was present;
(ii) Oxytocin should have been discontinued or reduced once that was apparent;

(iii) no advice for change was given;

(iv) appropriate augmentation procedures should have been adopted in order to achieve an increased rate of labour, but in an acceptable manner;

(v) during such augmentation, inter-uterine pressure should have been monitored to ensure that adequate myometrial relaxation was occurring between contractions;

(vi) the resting uterine tone was increased to an undesirable level by oxytocin;

(vii) if the administration of oxytocin promoted contractions which were too frequent or prolonged, the complications of management would have outweighed the advantages of acceleration;

(viii) when the CTG ended at approximately 40 minutes past midnight on the morning of 1st January, the fetus was still in reasonable condition, although there were decelerations in CTG, there was very good recovery thereafter;

(ix) it was not clear what happened between 12.30 (half past midnight) and 1.40 on New Year’s Day, when the plaintiff was delivered and particularly whether there had been monitoring of the fetal heart of any kind between that period and during which a dangerous and difficult vacuum extraction was performed.

With regard to this extraction, Dr. Clements alleges that –
(i) in 1980 it was occasionally permissible to apply a ventouse before full dilatation. It was also occasionally permissible to apply the ventouse to a head high in the pelvic cavity;
(ii) however, it was never permissible to apply the ventouse before full dilatation with the head high and fetal distress was already present on the CTG;

(iii) the attempted ventouse delivery was ill-advised;

(iv) there had been no significant progress in the labour for four hours. A rim of cervix was palpable at 20.30. A rim of cervix was still described at 00.30. Such arrest of labour, in spite of oxytocin, and particularly in the presence of fetal distress and with the head high in the pelvis, should have been managed by Caesarean section.

(v) There was a clear indication for Caesarean section at 20.30 and Christopher McBrearty should have been born by 21.30 on 31st December, 1980.

(vi) The attempted ventouse delivery was likely to end in damage to the fetus.

51. With regard to these, the plaintiff’s case is that the records show while the plaintiff himself should have been born by 9.30 p.m. on 31st December, he was not in fact delivered until 1.40 a.m. on the following morning, a period of several hours later and during that last hour of labour his injuries occurred. It is further contended that there was no monitoring of the fetal heart between 45 minutes past midnight and 1.40 a.m., at which point a dangerous and difficult vacuum extraction was performed.
Nature of prejudice relied on
52. The points raised contain elements of specific and presumptive prejudice. Specifically it is contended inter alia that the case is pleaded too generally, that there was no paediatric report on the plaintiff after the birth and that there was absent any detailed information in relation to each of the events relevant to the matters at issue in these proceedings as evidenced by the expert reports adduced by the plaintiffs themselves, the records being as they are, unpaginated, sub optimal by today’s standards and often untimed. This is to be seen in the context of an allegation of presumptive prejudice caused by the elapse of time and decay of memory.

53. The statement of claim embodying much of Dr. Clement’s report, however, does not complete the description of the framework of the precise case made against Dr. Singh. In the preparation of its defence the Court was informed the Health Board obtained expert consultant medical advice from an eminent consultant obstetrician, Dr. Peter Lenihan. This report was not exhibited for the purposes of the application by the Health Board but its consequences are relevant.

54. Two points, here, are of particular importance to Dr. Singh’s application. The first is that the Health Board did not assert prejudice at all until this issue was raised by the medical defendants. This is so despite the fact that it had received the original statement of claim on 6th May, 2003 and the amended statement of claim on 12th May, 2006. However, this motion was brought by the Health Board (the first named defendant) only on 31st May, 2007, some four years after it had received the original statement of claim and one year after it had received the amended statement of claim. At no time prior to that point had any issue been raised by the Health Board as to any such difficulty which it might have encountered in determining the facts material to this case.

55. Second, while Dr. Lenihan’s report has not been exhibited. It is clear that on 10th May, 2007 the Health Board served a notice of indemnity and contribution on Dr. Singh (and Dr. Glynn, whose position is considered later). In that notice, twelve specific allegations of negligence, breach of duty and breach of contract are made. These include Dr. Singh’s alleged failure to diagnose the difficulty which the plaintiff’s mother was experiencing during the second stage of labour, failure to deliver the plaintiff as soon as possible; failure to carry out proper assessment of the plaintiff’s mother during the course of her second stage of labour; failure to take cognisance of the fact that the plaintiff’s mother had a narrow sub-pubic arch; failure to take cognisance of the fact that the combination of long labour and the presence of meconium would place the plaintiff at a high risk of asphyxia and catastrophic injury; the attempting a ventouse delivery for a second time when the first attempt was unsuccessful; failure to consider or carry out a Caesarean section or to manage the second stage of labour; and causing and permitting the plaintiff to be subject to hypoxic insult. It can only be inferred that these focused allegations derive from the report of Dr. Lenihan obtained by the Health Board. No other proposition has been advanced to the court.

56. It has not been suggested on behalf of Dr. Singh that there exists here any issue relating to his “normal procedure” or any alleged departure therefrom. It has not been submitted as being part of the plaintiff’s case that there is here any specific “incident” or exchange of words or any portion of the evidence which might have a bearing on the issue of liability. It is asserted that the notes and records in relation to the delivery would not comply with today’s standards. Of more fundamental importance, however, it has not been contended by Dr. Singh, or by any of the other defendants, that whatever their deficiencies or inadequacies, there were on any previous time notes or records which are now lost or missing.

57. A further problem which might have arisen would have been the resolution of any potential issue between the third and fourth named defendants. At any time prior to the initiation of this motion a notice of indemnity and contribution might have been served between those parties. However, this course of action was not adopted. Therefore no specific issue between the third and fourth named defendants has been identified. It had been thought at an earlier stage that both medical defendants would be indemnified by the MDU. It was also considered probable that they would be represented by the same firm of solicitors. That latter position altered only subsequent to the withdrawal of the indemnity by Dr. Glynn and Dr. Singh by the MDU.

58. Thus any potential question of individual liability of the two doctors emerged as a feature only after the withdrawal of liability by the MDU. While it might have been thought that the service of the notice of indemnity and contribution on the first named defendant might have prompted a like procedure between the third and fourth named defendants, this has not occurred.

59. While there is no duty upon any defendant to serve a notice for particulars prior to the bringing of a motion of this type, equally the onus is upon the defendant as moving party to demonstrate prejudice. To do this it is necessary to go further than mere assertion that the defendant has no recollection of what occurred.

60. One of the acid tests applied in the exercise of this discretion is whether there is available sufficient documentation or whether the absence of such documentation constitutes a serious prejudice or a substantial risk that it was not possible to have a fair trial. I find that essentially this is a documents case, in that there is sufficient cotemporaneous documentation to permit a fair trial, where all other witnesses are available as described later, although the applicant states he has no recollection. This latter point itself is not determinative here or elsewhere. The moving party has not identified any other factor intervening between the events in issue and the hearing of this motion where recollection, records or events have materially altered, or been affected.

61. It was not submitted by this or the first named defendant who was the custodian of the records that any medical notes or records which previously existed are now missing.

62. It is in fact incorrect to say that there are no paediatric notes. In fact, there is a report from a paediatrician, Dr. Ryan, written to the plaintiff’s general practitioner on 11th March, 1981. This deals with the general circumstances of the plaintiff’s birth, but it has not been shown that the plaintiff or his next friend were apprised in any way at that time of any potential significance attaching to this report on the question of negligence.

63. A further unique feature distinguishes this case even despite the very substantial time elapse. Not only are Dr. Singh and Dr. Glynn both alive, but the nursing records include a narrative of events which, although not full, by the standards of today, contain the midwives’ records in sequence over the period in question. There is a labour record as to the facts and circumstances of the plaintiff’s birth. Most remarkably, it has not been suggested that even one of the persons involved in the events in question is not available or has died, despite the very long period of 26 years’ time elapse. Indeed, all but one of the nursing staff involved in the case are actually still working in Letterkenny General Hospital. It has not been submitted that any one of the named nursing or midwifery staff is unavailable to give evidence. While the court has been informed by counsel on behalf of the first named defendant that interviews have been conducted with the nurses and midwives, no evidence has been adduced by the Health Board or any one of the moving parties in relation to any question of specific prejudice or lack or recollection by the other identified participants in the events apart from the two medical defendants.

64. It is also noteworthy that the notes and records have not inhibited the furnishing of reports to the plaintiff (which have been exhibited) by Dr. Philip Anslow, Consultant Neuro-radiologist, Professor Alan Hill, Professor of Neurology, Dr. Dewi Evans, Consultant Paediatrician or Dr. Roger Clements, Consultant Obstetrician and Gynaecologist. The absence of any application asserting prejudice on the grounds of the first named defendant until 31st May, 2007 has already been referred to. Finally, it is noteworthy that the only assertion of prejudice comes from Dr. Singh himself, not a professional expert retained by him.

65. A further factor relied on by the medical defendants is the absence of indemnity from the M.D.U.. I am not persuaded this is a factor which should be taken into account for the following reasons:-

(a) The court has been informed that an application is to be made to join the M.D.U. as third parties to their proceedings.
(b) This application is brought by Dr. Singh, and also in the future by Dr. Glynn, both on this occasion being represented by the Chief State Solicitor.

At best therefore I consider this issue constitutes a contingent prejudice not now proved and potentially remediable in the event of the successful bringing of these third party applications and a finding being made there in favour of the defendants.
66. Furthermore as pointed out by Clarke J. in Rogers v. Michelin Tyres, (Unreported, the High Court, 28th June, 2005) I am not at all persuaded that as the “deepness of the pockets” of a party should or can be a material consideration in an application of this type.

67. The court may, again in the balance of justice, take into account some expenditure of the plaintiff’s solicitor in expert reports after Dr. Singh was joined, even if the evidence was insufficient to establish an estoppel from a time standpoint. Also in the balance must be the defendant’s conduct with regard to the service of proceedings.

68. A final factor here is that the plaintiff suffering from an incapacity which is severe and ongoing and cannot, in the balance of justice, be held liable for delay by his solicitor any more than a minor. cf. Kelly v. C.I.E. [1973] I.R., Henchy J.

69. Weighing each of these factors as identified in Primor and with reference to the tests as to the balance of justice, I find the defendant has failed to discharge the onus of proof upon him of demonstrating injustice.
Inherent jurisdiction
70. In the absence of a sufficient degree of prejudice or detriment in the weighing of the balance of justice established in Primor, can the defendants rely on the inherent jurisdiction as identified in O’Domhnaill v. Merrick, recognised in Primor and applied most recently in a series of tobacco cases, particularly Manning v. Benson & Hedges & Ors. [2004] I.R. 556; O’Connor v. John Player & Sons Ltd. [2004] 2 I.L.R.M. 231 and McCormack v. P.J. Carroll & Company, the High Court, 24th April, 2007, Unreported, Gilligan J.

71. This inherent power to dismiss proceedings in the interests of justice, even if brought within time, is now statutorily recognised cf. s. 3 of the Statute of Limitations Amendment Act, 2000.

72. In Byrne v. The Minister for Defence, the High Court, Peart J., Unreported, 28th April, 2005, that judge observed that separate criteria are to be adopted in assessing pre and post-commencement delay. (See also McH. v. M., Peart J., the High Court, Unreported, 3rd March, 2004. Peart J. considered that the Primor principles were applicable in cases of post-commencement delay by a plaintiff, and where a defendant sought to dismiss a plaintiff’s case for want of prosecution; the principles arising from the judgments in O’Domhnaill v. Merrick and Toal v. Duignan were more applicable to cases of pre-commencement delay. He stated:

“I am of the view that there are two separate and distinct tests, one, the Primor test in respect of post-commencement delay, and the other, the Toal v. Duignan test, if I can so describe it, in respect of pre-commencement delay. First of all the distinction reflects the different and respective contexts in which the delay took place in each case. But beside that I am of the view that there are sound and logical reasons why the test in each instance ought to be different.” (p. 7 of the judgment)
He then went on to outline in detail the rationale for the distinction. The pre-commencement delay test is best illustrated in the judgment of Finlay Geoghegan J. in Manning, cited above, a ‘tobacco case’.
73. The tests which she identified are:

1. Is there, by reason of the lapse of time a real and serious risk of an unfair trial; and
2. Is there by reason of the lapse of time a clear and patent unfairness in asking the defendant to defend the action.

The relevant lapses of time are the periods between the wrongful acts alleged on which a court will be asked to make determinations and the probable trial dates.
74. In the course of her considerations in Manning, Finlay Geoghegan J. identified six significant issues as bearing on her consideration. These were in summary form:

(1) None of the defendants could be considered to have contributed in any significant way to the relevant lapse of time;
(2) the claims being made were extremely wide-ranging, both in the nature of the wrongful acts alleged and the time over which they were alleged to have occurred;

(3) there would be significant factual issues to be determined by the court if the claims went to trial;

(4) there would inevitably have to be much oral evidence;

(5) a significant number of relevant witnesses to the fundamental claims made would no longer be available;

(6) the lapse of time between many of the wrongful acts alleged, and hence factual issues the court would have to decide, and a probable trial date would be extremely long. In relation to certain issues in all cases it might be almost 100 years. For many others it would be at least 60 years and in other cases 40 years.

I have identified these criteria in detail because they illustrate the fundamental distinction which exists between the facts of the instant case and the tobacco cases. The claim here is not wide-ranging, either to the nature of the wrongful acts alleged or the time over which they are alleged to have occurred. In fact, they are, relatively narrow.
75. In the eyes of the consultants who have been retained, the descriptions of the factual issues are apparently sufficient to allow detailed assessments to have been made as to what is said to have occurred. No complaint has been made that the records are inadequate for this purpose by the experts consulted by the plaintiff or, apparently, any expert retained by the first named defendant. No expert consultants have been relied on by the medical defendants to make out their case. Apparently, all the relevant witnesses to the fundamental claims are available. Finally, as indicated, the temporal range of the case is very much more limited than that arising in the tobacco cases where some of the evidence and claims apparently stretch back over a century. In fact, by coincidence, the elapse of time in this case is very proximate to that which arose in the case of Toal v. Duignan.

76. The second authority relied on in relation to the inherent jurisdiction test is that of O’Domhnaill v. Merrick [1984] I.R. 151, Henchy J., speaking on behalf of the Supreme Court, held that in the exercise of its inherent jurisdiction the court would restrain a trial proceeding as a matter of natural justice because of the substantial time which had elapsed between the occurrence of the road traffic accident the subject matter of the proceedings in 1961 and the time of the application. There are, however, a number of noteworthy features in O’Domhnaill which require focus. The first of these is that, immediately after the accident which occurred in 1961, the plaintiff’s father consulted a solicitor. There was, therefore, no question but that the plaintiff or the plaintiff’s next friend was alive within a very short time as to the potential existence of a cause of action. Here, the plaintiffs have claimed that while the incident in question occurred in 1981, it was only in 1989 that the plaintiff’s parents became aware even of the possibility of a cause of action.

77. The deductive approach of O’Domhnaill v. Merrick must be seen in the context of Toal v. Duignan No. 1 and No. 2, where Finlay C.J., by induction, identified areas of prejudice which were the basis upon which the trial was restrained against some, but not all of the defendants. These issues have been discussed earlier.

78. Finally, and by way of contrast, in O’Domhnaill itself, Henchy J. identified minority, or incapacity on the part of a plaintiff as being factors which might cause the court to refrain from granting the relief sought. The incapacity of the plaintiff has not been disputed here.

79. There have undoubtedly been delays in prosecuting the instant case, but as observed earlier, while those delays were sufficient to make the failure to prosecute the claim expeditiously inexcusable, there were, nonetheless, other factors to be weighed in the balance of justice, that is the third aspect of the Primor test. The court in the exercise of its equitable inherent jurisdiction should look to the personal position of the plaintiff, the person suffering from incapacity, rather than the conduct of his legal representative whose conduct falls to be considered more appropriately in the realm of inexcusable delay. Thus, on the facts, this case is substantially different from O’Domhnaill v Merrick, delay with a plaintiff of full age at the time of the application.

80. Thus, having regard to these important distinctions which apply to each of the defendants, I do not consider that any of the moving parties have established that this is a case where the court should prevent a trial from proceeding in the exercise of its inherent jurisdiction. While the defendants undoubtedly will suffer a detriment by reason of the elapse of time and absence of memory, these in themselves do not outweigh the other factors, which indicate that, on balance, the trial should be permitted to proceed. Absence of recollection per se cannot prevent a civil trial from proceeding, any more than a defendant who cannot recollect an accident, or even a defendant who is deceased. The balance of rights and framework of reference falls within Article 34 of the Constitution as opposed to a different weighting which would apply to a criminal trial pursuant to Article 38 of the Constitution. Even in the case of a criminal trial, it has been recently held that absence of recollection may not be a bar to a trial. cf. Murphy v. D.P.P., O’Neill J., the High Court, Unreported, O’Neill J., 23rd October, 2007.
The application of the third named defendant
81. Order 8, rule 2 of the Rules of the Superior Courts provides:

“In any case where a summons has been renewed on an ex parte application any defendant shall be at liberty before entering an appearance to serve a notice of motion to set aside such order.”
In the instant case, the appearance entered on behalf of the third named defendant was a conditional one. In his focused submissions Mr. Gleeson S.C. relies on quotations from Delany & McGrath, para. 2-36, to the effect that an order granting relief to renew a summons should only be made where it is in the interests of justice to do so, that is where the injustice to the plaintiff in not being able to pursue his claim outweighs any injustice which would be caused to the defendant in renewing the summons. He relies on the general chronology outlined earlier and asserts that injustice to his client outweighs any other factor.
82. Counsel relied on two decisions, Behan v. Bank of Ireland, The High Court, Unreported, Morris J., 14th December, 1995, and Chambers v. Kennefick, (the High Court, Unreported, Finlay Geoghegan J., 11th November, 2005). For the purpose of this application, I accept an applicant is entitled to rely on facts not put before the court which significantly alter the nature of the plaintiff’s application. However, it may also be open to a defendant, by submission, to seek to demonstrate to the court that even on the facts before the judge hearing the ex parte application upon a proper application of the relevant legal principles, an order for renewal of a summons should not be made. Such application must be made in a timely way and cannot be used as a mechanism for a ‘late appeal’.

83. In considering the phrase “other good reason” the court should consider first whether there is a good reason to renew the summons. That good reason need not be referable to the service of the summons. Second, if the court is satisfied that there are facts and circumstances which actually or potentially constitute a good reason to renew then the court should move to what is sometimes referred to as the second limb of considering whether, because of that good reason, it is in the interests of justice between the parties to make an order for the renewal of the summons. Third, in considering the question of whether it is in the interests of justice as between the parties to renew because of the identified good reason the court will consider the balance of justice for each of the parties if the order for renewal is or is not made. The issues identified are:-

(a) The involvement of Dr. Glynn was evident from the medical notes themselves. His role as S.H.O. was identified on a number of occasions including a report to the plaintiff’s G.P. in a discharge letter.
(b) With that knowledge within their procurement, even if not so fully identified, the plaintiffs issued their proceedings from 27th November, 2001 and elected to proceed against the North Western Health Board and Dr. McFarlane only.

(c) The grounding affidavit sworn by the solicitor for the plaintiff for the purposes of application to renew the summons on 12th May, 2006 before Peart J. failed to advert to the clinical notes made contemporaneously which referred to Dr. Glynn.

(d) The reference made in the course of the grounding affidavit was simply to the notice of motion of the first named defendant seeking to join Dr. Singh and Dr. Glynn, did not advert to these clinical notes but instead apparently relied on information from the first named defendant’s solicitors.

(e) Dr. Glynn was always resident within the jurisdiction and available for service.

(f) On 10th November, 2005 a letter was sent to, inter alia, Dr. Glynn and Dr. Singh in the nature of an “O’Byrne” letter, thereby adding to the delay.

(g) It would be impossible to defend Dr. Glynn because of the specific nature of the allegations in the statement of claim of which he has no recollection.

(h) A fortiori it will be impossible to defend the claim now brought on foot of the notice of indemnity by the first named defendant.

(i) That any trial at this stage would be a “parody of justice”.

In response, Mr. McCullough S.C. submits that:
(a) The order joining Dr. Glynn was made on 25th April, 2005.
(b) The solicitors for the first named defendant wrote to the plaintiff’s solicitors both prior to and after the joinder of Dr. Glynn indicating that as far as they knew Messrs. McCann Fitzgerald were going to accept service. It was only on 14th November, 2005 that it was made clear this was not so.

(c) It became clear it was necessary to amend the proceedings to add Mrs. McBrearty as next friend. That order was made on 13th January, 2006 and the amendment made on 8th March, 2006.

(d) In the meantime the plaintiff’s solicitors wrote directly to Dr. Glynn to which he responded outlining the position.

(e) It was thought appropriate to deal with Dr. Glynn and Dr. Singh together in circumstances where it was necessary to revert to the High Court to obtain a further order in relation to Dr. Singh because his summons had been marked “not for service outside the jurisdiction”.

(f) Applying the balance of justice, the court should have regard to the detriment to the plaintiff in the event that an order renewing the summons was set aside because there must now be a serious risk if that is so that the Statute of Limitations would now come into play.

(g) So far as Dr. Glynn’s indemnifiers were concerned, they were aware that there was an intention to, at least sue Dr. Singh as far back as 2002.

(h) The delay between the expiry of the summons in March, 2006 and the application to renew the summons on 29th May, 2006 is a short period.

Consideration
84. In considering the matter one must have regard too the decision of O‘Neill J. in O’Grady v. The Southern Health Board and Anor. [2007] 2 ILRM 51. As pointed out by O’Neill J., it is not open to a court to treat this application, made in October, 2007, as a form of appeal made against the order of Johnson J. made in June, 2005, joining Dr. Glynn, or Peart J. of 29th May, 2006 extending the time for the service of the summons for a period of six months from that date.
85. It is accepted that the summons was not served until 9th August, 2006.

86. The essential question for determination here is as to whether there are other good reasons for renewing the summons. The phrase “other good reasons” is not confined to issues as to service, and may embrace a number of factors, for example, whether the refusal to renew the summons would (as here) render the plaintiff’s claim statute barred. It is necessary for the defendant to demonstrate in the clearest terms that there is actual prejudice such that his defence to the claim has been substantially impaired. Baulk v. Irish National Insurance Co. [1969] I.R. 66.

87. In O’Grady O’Neill J. stated:

“… All this tends to persuade me, as indicated earlier, that unless a defendant demonstrates on a rule 2 application the clearest case of actual substantial impairment of his defence, the court should at that stage relieve against the ultimate actual prejudice to a plaintiff namely the time-barring of his claim unless the summons is renewed.”
88. Dr. Glynn is referred to on a number of occasions in the nursing notes. The first is on a midwife’s note. An entry commencing at 8.30 p.m. refers to:
“Catheterised. Vomiting coffee ground fluid. Dr. Glynn informed.”
Then two lines below there is a reference to Dr. Glynn having been informed and an arrow followed by the words:
“vacuum attempted. Dr. Singh called. Difficult vacuum extraction of live male …”
In the Labour Record, opposite the date 1st January, 1981 there is a reference which commences “thick mec” (presumably meconium) “s/h (fetal heart) down” “below 100. Dr. Glynn informed”.
89. Mr. Gleeson S.C. submits that the tenor of the entries made by the midwives whose names appear on the note is that they were hoping that obstetrical assistance would not be required that, they were monitoring the progress of the birth, certainly in the first stage of labour, and that thereafter became apparent to them that this was a delivery which would require the assistance of the obstetrical staff. Immediately after the words “Dr. Glynn informed” and “vacuum attempted” there are the words “Mr. Singh called. Difficult vacuum extraction of live male”. Thereafter there are the words “difficulty with shoulders” followed by the words “thick meconium”. “Episiotomy sutured. Third stage complete.” Continuing consideration of the Labour Record there is an entry at 1.40 under the heading “vacuum extraction”. To the right of that there is a signature “J. Singh and J. Glynn”. It records;

“Delayed second stage. High head. Trial of vacuum. 5cm cup applied over brim. Live male infant delivered over five contractions. Difficulty with shoulders. Thick meconium. Flat baby. Slow to resuscitate. See head (paediatric note). Placenta and membranes complete. Episiotomy repaired with Dexon. Narrow sub-pubic arch. Blood pressure recorded.”
A discharge record signed by Dr. Glynn reads:
“Difficult vacuum extraction of male infant. Baby flat on delivery. Comments: Incubated. Apgar: 3 at 1, 6 at 10 minutes. Started to twitch. Put on phenobarbitone and Apo-cloxi. Baby under care of paediatrician. Episiotomy sutured with Dexon. Post-natal haemoglobin 12.”
Counsel submits that Dr. Glynn’s involvement in Christopher’s birth was identifiable at the time of receipt of the discharge note. Therefore time should be counted from that point.
90. However, no evidence has been adduced, that Anna McBrearty, the plaintiff’s mother, in any way apprehended that there was an issue of negligence until this matter was drawn to her attention by Dr. Hegarty, the plaintiff’s G.P. in 1999.

91. With regard to the issue of prejudice, Mr. Gleeson S.C. submits, in common with the fourth named defendant, that his client has no recollection of events. He directed his submissions to the particulars of negligence and breach of duty set out in the statement of claim. He identifies in particular those which allege failure on the part of the defendants to take cognisance of the deceleration of the fetal heart rate, that the plaintiff sustained injuries through a long pull on his head combined with delay in releasing his shoulders; that there was a delay in extracting the plaintiff’s shoulders; a failure to ensure a consultant of sufficient expertise was present during labour and delivery and a failure on the part of the doctors on duty, including the fourth named defendant, to see the plaintiff regularly enough or to consult with the second named defendant and another senior consultant; and that the plaintiff’s mother was allowed to progress in labour for too long a period without considering or adopting other options. Counsel submits that it is unfair to Dr. Glynn to allow the trial to proceed in circumstances where he cannot now testify on the basis of recollection.

92. However, as in the case of Dr. Singh, the Health Board has also served notice of indemnity and contribution upon the third named defendant alleging negligence in that he:

“(f) attempted a ventouse delivery without consulting with other members of staff and in particular the consultant on duty;
(g) that he failed to discuss and/or seek the advice or expertise of the senior consultant in charge;

(h) attempted a vacuum delivery when it was not safe to do so;

(i) failed to consider a Caesarean section in all the circumstances.

93. The observations and findings which I have made in relation to the fourth named defendant on the issue of delay and general prejudice are applicable equally in relation to the third named defendant. To this I would add one further observation: it is that, in the course of two affidavits sworn for the purposes of bringing this motion, Dr. Glynn does not make any specific complaint in relation to the completeness of the records. Indeed, in his grounding affidavit he makes reference to the hospital records without any complaint as to their completeness or inadequacy although, quite properly, Mr. Gleeson S.C. adopted the submissions made on behalf of the fourth named defendant in this regard as being applicable to his client also.
94. The issues here, ultimately, are subject to the same observations as applied to the allegations of specific as opposed to generalised presumptive prejudice made as to the fourth defendant and I apply them here.

95. I accept the validity of the submissions made by counsel for the plaintiff as being the substantive reasons as to why service was not effected on Dr. Glynn.

96. What must now be weighed is the detriment to the plaintiff if this defendant’s application were acceded to. There is one insurmountable obstacle for the applicant in the balance of justice. Against either specific or generalised prejudice, nuanced by reference to the notes and records, there must be weighed one unavoidable element of detriment to the plaintiff were this application to succeed, that is that the plaintiff’s claim would now in all probability be rendered statute barred. I consider this factor outweighs any issue relied upon by the applicant.

97. I do not consider that substantive, specific prejudice has been established here from 1981 onwards. There is general presumptive prejudice as a result of the elapse of time an absence of memory. For the same reasons as identified with regard to Dr. Singh; I consider that what the third named defendant has established is ongoing general prejudice as opposed to specific, from the time of initiating proceedings on 27th November, 2001 to his joinder as a defendant (Johnson J.) April, 2005 to May, 2006 (Peart J.). However, the delays from the starting point have not been shown in any way to be an additional impairment of the defence of Dr. Glynn. He has not been deprived of any further benefit or been subject to any detriment in that time. The plaintiff, however, would suffer considerable detriment in the event that the summons was set aside and the Statute of Limitations would come into play. Insofar as this defendant relies on factors identified in the case of Dr. Singh I make similar findings as to their effect.

The application of the Health Board
98. By way of application dated the 31st day of May, 2007 the first named defendant seeks relief pursuant to the inherent jurisdiction of this Court dismissing the plaintiff’s claim on the ground of inordinate and inexcusable delay in the commencement and prosecution of the proceedings which delay has prejudiced the defendants such that the balance of justice requires that the claims be dismissed and alternative relief to the effect that to permit the trial to proceed would be unfair, unjust and contrary to the principles of natural and constitutional justice and to the first named defendant’s constitutional right as well as ancillary relief.

99. No other relief is sought by this defendant, represented by Mr. Richard T. Keane S.C. The chronology of events has already been outlined. It is unnecessary to reiterate the general course of proceedings or dates to which reference has already been made. There are a number of factors to which reference must specifically be made however. These include:

(a) that from September, 2003 to March, 2005 two motions for judgment were brought against the first named defendant;
(b) only in March, 2005 did the first named defendant file its defence;

(c) almost immediately thereafter the first named defendant issued a motion returnable for 23rd April, 2005 to join Dr. Singh and Dr. Glynn as third parties.

It is unnecessary to reiterate the detailed consideration which has been given in the chronology up to the present date, save insofar as any finding with regard to the third and fourth defendants up to July/August, 2006 when they were ultimately served. The court has concluded that this elapse of time constitutes inordinate and inexcusable delay on the part of the plaintiff’s solicitor with regard to the third and fourth named defendants. It so finds here.
100. With regard to the balance of justice –

(a) The plaintiff’s solicitors were informed by this applicants solicitors that Messrs. McCann Fitzgerald would probably accept service in this case, and that they as The Health Boards solicitors had been so advised.
(b) That the full identification of Dr. Singh as being an important actor in these proceedings took place only with the filing of the defendant’s defence on 7th March, 2005. Thus, to that degree, this applicant contributed to the delay which occurred after the institution of proceedings.

(c) The notice of motion brought by the defendant is dated 31st May, 2007. It is not disputed that by that time the plaintiff had expended very considerable sums of money upon the preparation of the defence and of the obtaining of witness reports.

(d) The substantial delay of two years which occurred in the filing of a defence by this applicant is stated to be partly attributable to the difficulty in obtaining a witness, such as Dr. Lenihan, competent to testify in relation to the state of medical knowledge in 1981.

(e) Far more fundamental is that this defendant had received the statement of claim on 10th September, 2003. Almost three and three-quarter years elapsed prior to initiating this notice of motion.

(f) At no time prior to bringing the motions by the third and fourth named defendants was there any intimation on the part of this defendant that it was prejudiced the preparation of its defence.

(g) No expert evidence has been adduced by this defendant as to such prejudice, despite the fact that the defendant has available to it the services of the expert consultant obstetrician gynaecologist, Dr. Peter Lenihan.

(h) In fact, as referred to this defendant was in a position to furnish detailed notices of indemnity and contribution against the third and fourth named defendants on 10th May, 2007, presumably on the basis of the expert testimony available to it.

(g) While some criticism has been made of the fullness of the medical and nursing notes and records, it has not been suggested that there is any matter or part of the medical records, nursing records or traces which previously existed and are now missing.

(h) In the course of the affidavit sworn on behalf of the defendant it is stated that interviews have been carried out with the midwives who were involved in the birth of the plaintiff. No affidavit has been sworn by any of these midwives. No evidence has been adduced that there is any dimming of recollection on their part despite the very considerable elapse of time involved. As indicated earlier, all but one of the midwives are still employed by Letterkenny General Hospital. It has not been indicated that any witness is unavailable. In such circumstances this defendant faces a particular difficulty in that its allegation of generalised prejudice is not supported by the main actors in the events in question so far as they are concerned, that is to say, the midwives and nursing staff. It is not contended that notes, records or traces have been rendered unavailable by loss or destruction or that they are so incomplete as that medical experts retained by them are unable to express any view in relation to liability as to what occurred. It is however, strongly submitted that they contain gaps which may be unreliable or are uninformative as outlined earlier. The plaintiff’s incapacity is a consideration as outlined earlier.

101. Again, it is a feature of the case relating to this applicant that none of the independent medical experts who have been retained for the plaintiff or by the Health Board have expressed the view that the notes and records, albeit in many ways imperfect, are such as to inhibit any view on liability being arrived at. No evidence has been adduced by this applicant on this point, although submissions were made as to deficiencies and gaps in the records as distinct from such material having been lost. In fact, as can be seen both from the reports and from the notice served by this defendant on the third and fourth named defendants, it would appear that the opposite is the case. The Health Board appears to assert no inhibition in preparing or pleading its case for indemnity.

Inordinate and inexcusable: the first defendant
102. In the course of this judgment reference has been made earlier to the authorities in the issue of dismissal for want of prosecution. It is unnecessary to reiterate these here. Suffice it to say that the court, in the consideration of this application, again concludes for the reasons outlined in relation to the fourth named defendant, that the delay here was inordinate and inexcusable.
Balance of justice: the first defendant
103. In the balance of justice, however, in the case of this defendant, there must be weighed additional features outlined earlier, including the four years delay on the part of this defendant in raising the issue of delay, the contribution, albeit bona fide, which this defendant added to in the misapprehensions on the part of the plaintiff’s solicitor as to service, and the fact that this delay undoubtedly allowed and permitted substantial expenditure to be incurred by the plaintiff’s legal advisers. In the balance of justice, the position of this defendant is, relatively speaking weaker than that of the third and fourth named defendants who at least were in a position to depose as to their absence of recollection that is general or presumptive prejudice. This was not the case in relation to the first named defendant which has had in its possession the medical and nursing records and traces. Additionally, this defendant has, according to evidence adduced and from submissions, interviewed the midwives. But no evidence from these midwives has been adduced. Instead, counsel on behalf of the first named defendant has sought largely to rely on the report of Mr. Roger Clements in order to demonstrate prejudice, and not any report of Dr. Lenihan, or affidavits from witnesses identified from the records.

104. The records are again referred to variously as being sparse, scanty and inadequate. They do not disclose what happened during a number of identified time intervals. But what is absent is any suggestion that the reports were in any way different in 1981 which would have raised specific prejudices.

105. The court therefore concludes that the delay in the case of this defendant has been shown to be inordinate and inexcusable, although, the latter, to a lesser degree, because of the conduct of this defendant as described. It is of particular relevance that in the instant case there has been delay or conduct on the part of this defendant which amounted to acquiescence in the plaintiff’s delay. This took the following form, first, the delay of the applicant in raising this point, second, the permitting of incurring of substantial additional costs by the plaintiff in the pursuit of the action. I consider that on these facts an estoppel has been established.

106. A further factor to be borne in mind is the submission made by counsel for this defendant to the effect that, in the event of the third or fourth named defendants being dismissed out of the proceedings, the first named defendant would propose to rely on the provisions of s. 35 of the Civil Liability Act, and would therefore contend that in the absence of any finding of primary liability against the first named defendant, that defendant would seek to impute negligence on the part of the third and fourth named defendants to the plaintiff as being headings of contributory negligence in circumstances where the claim against the third and fourth named defendants might be found as time barred. This too, however, must be weighed in the balance.

107. As can be seen, a number of the factors outlined under the heading “balance of justice” bear also on the question as to whether the plaintiff’s delay was inexcusable. While the evidence was sufficient to demonstrate the delay was inexcusable, though to a lesser degree than the other applicants, I am satisfied that the totality of issues now outlined are sufficient to show that this applicant has not discharged the onus of proof with regard to the balance of justice for the additional reasons outlined above, and in the earlier parts of this judgment which deal with this question in relation to the fourth, third and fist defendants.

108. The issue of dismissal on the basis of inherent jurisdiction also relied on by these applicants has been dealt with earlier in this judgment.

109. For these reasons, as outlined the court will therefore decline the reliefs sought in the notice of motion.

Mannion v Bergin

[2009] IEHC 165;

Judgment of Mr. Justice Hedigan delivered on the 13th day of March 2009.

1. This is an application brought by the defendants herein for the following relief:-

(1) An order dismissing the proceedings herein on the grounds of inordinate and inexcusable delay and for want of prosecution.
(2) Further or in the alternative, an order pursuant to Order 122, rule 11 of the Rules of the Superior Courts.

(3) Such further or other orders as to the Court may deem fit.

The application is grounded on the affidavit of Geraldine Clarke, solicitor. There is a replying affidavit of Thomas J. Colgan and a further affidavit on behalf of the defendants by Sarah Galligan.
2. The Background

The defendants acted for the plaintiff in family law proceedings culminating in a hearing in judicial separation proceedings on the 12th February, 1997. Arising from these proceedings the plaintiff herein issued a plenary summons against the defendants for negligence in their conduct of the proceedings on the 12th May, 1999. He further served a statement of claim on the 28th April, 2000. On the 20th June, 2000, a notice for particulars was served and on the 2nd February, 2001, replies were delivered thereto by the plaintiff. A defence was served on the 31st May, 2001. On the 16th July, 2001, the defendants brought a motion for discovery. The plaintiff swore an affidavit for discovery on the 11th December, 2001. Following correspondence from the defendant seeking further and better discovery, the plaintiff on the 9th May, 2003 promised a response. No further action occurred in the case until the 6th March, 2008, when the plaintiff sent a letter to the defendants seeking voluntary discovery.

3. This motion was issued by the defendants on the 7th July, 2008. On the 11th July, 2008 the plaintiff issued a motion for discovery.

4. The plaintiff has attempted to explain the delay by claiming that his family law proceedings did not terminate until 2004. His attention was, accordingly, focussed on those proceedings until then. Since then he had been trying to ascertain how to obtain evidence from a solicitor as to the extent of the duty of a solicitor conducting family law proceedings. He further argues that there is no prejudice, hardship or any unfairness due to the defendants.

5. The defendants argue the reasons given neither explain nor justify the delay that has occurred.

6. The test to be applied is the Primor test which was affirmed in the Supreme Court in Desmond v. M.G.N. Limited [2008] IESC 56, (15th October, 2008). This test is as follows:-

“The principles of law relevant to the consideration of the issues raised in 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 a 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 judgment 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 basis fairness of procedures.

(ii) Whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and 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 pursing 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 weight to be attached to such conduct depending upon all the circumstances of the particular case.

(vi) Whether the delay gives rise to a 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 of the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to the defendant’s reputation and business”.

7. The first half of this test deals with the determination of inordinate and inexcusable delay. The second deals with the determination of whether the balance of justice requires the dismissal or continuance of the action. In my view, to the factors set out for determining where the balance of justice lies must be added the requirement that the courts secure to the party claiming delay his right provided for in Article 6 of the European Convention on Human Rights to a trial within a reasonable time. It provides as follows:-

“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

8. As has been noted by the European Court of Human Rights, this duty applies in legal systems where the procedural initiative lies with the parties. In such systems, of which the Irish legal system is one, the courts must maintain a supervisory jurisdiction to ensure that justice is done as expeditiously as possible. In Price v. United Kingdom and Lowe v. United Kingdom (Case Number 43186/98, 29th July, 2003), the Court stated as follows:-

“23. The Court has held on a number of occasions that a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings, does not dispense the State from complying with the requirement to deal with cases in a reasonable time (see Buchholz v. Germany, judgment of 6th May, 1981, Series No. 42, page 16, para. 50; Guincho v. Portugal, judgment of 10th July, 1984, Series A, No. 81, page 14, para. 32; Capuano v. Italy, judgment of 25th June, 1987, Series A, No. 119, page 11, para. 25; Mitchell and Holloway v. The United Kingdom, No. 44808/98, judgment of 17th December, 2002). The manner in which a state provides for mechanisms to comply with this requirement – whether by way of increasing the number of judges, or by automatic time limits and directions, or by some other method – is for the state to decide. If a state lets the proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay.”

This obligation must be borne in mind by the Courts when considering as in this case where the balance of justice lies as to whether to dismiss for want of prosecution. The obligation is not merely to advance a case where necessary but may also be to prevent its continuance where, as here, it has lain dormant for a substantial period of time.
9. As to the first wing of the test, I am satisfied that the delay in question is inordinate and inexcusable. Nothing submitted on behalf of the plaintiff has convinced me that there were any defensible grounds for the plaintiff’s delay. He had solicitors on record in these proceedings to progress them whilst his family law proceedings came to conclusion. His claim of difficulty in obtaining a professional witness to prove the standards required of a solicitor in conducting family law proceedings seems to me to be quite hollow.

10. As to the second wing – the balance of justice, were the case to proceed, the defendants would have to remain awaiting the next move of a highly dilatory plaintiff in a case impugning their professional credibility. Whilst I do not attribute any greater weight to this aspect, because all cases are of great importance to the parties involved, the general stress caused thereby is nonetheless something to weigh in the balance. Added to this is the nature of the claim as set out in the particulars of negligence alleged. This seems likely to me to involve considerable dispute on what actually happened in terms of instructions and, to the extent it may be admissible, the actual conduct of proceedings. The difficulty of revisiting such issues more than twelve years after the date of the hearing must also weigh in the balance.

11. Finally, as noted above, were the case to proceed and conclude in its originating jurisdiction, i.e. the High Court, more than twelve years after the events giving rise to the case and more than ten years after the issue of the plenary summons, could the defendants possibly be said to have had a trial within a reasonable time in accordance with Article 6. I think not. Such a delay in proceedings would in my view amount undoubtedly to a violation of the defendant’s right under this article of the Convention. Such a consideration must weigh very heavily with the court in considering a motion of this nature. Whilst a violation of Article 6 does not ipso facto create a bar to continuing proceedings, nonetheless it would require strong countervailing factors to justify the court allowing the proceedings to continue.

12. For the reasons set out above, I will grant an order in terms of the notice of motion herein dismissing the proceedings on the grounds of inordinate and inexcusable delay and on the basis that the balance of justice including the right of the defendants’ to a trial of the case within a reasonable time requires it.

Killeen v Padraig Thornton Waste Disposal Ltd

[2009] IEHC 131

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 18th day of March, 2009
Notice of Motion
1. Pursuant to a Notice of Motion dated the 27th June, 2008, the defendant company, having secured permission to amend its Defence in this regard, sought an order, pursuant to the inherent jurisdiction of this Court, “dismissing the plaintiff’s claim… on the basis that the defendant is prejudiced and/or unable to properly and/or effectively defend the proceedings due to the death of Mr. Padraig Thornton (deceased)”. Having heard this Motion on the 2nd February, 2009, I reserved judgment on this relief because of the rather unusual basis upon which the motion was moved. I now give reasons in respect thereof.

Background
2. In early 2001, the defendant company was anxious to purchase certain lands in South Meath and North Kildare for the purposes of developing a motor recycling facility and landfill thereon. In the belief that the plaintiff could assist in this intended acquisition, the company acting at all times through its director, Mr. Padraig Thornton entered into an agreement with the plaintiff in or about that time. This agreement was entirely oral and was never either in full or in part committed to or recorded in writing. That an “oral agreement” existed between the parties is not in dispute but what is, are the terms thereof.

3. Mr. Killeen alleges that the agreement, concluded between himself and Mr. Padraig Thornton, who was vested with both apparent and actual authority from the defendant company, was as follows:-

(i) That the company would pay the plaintiff 50% of any savings which it made on acquiring the targeted lands below a price of IR£20,000 per acre,
(ii) That it would pay the plaintiff the sum of IR£100,000 plus VAT if one of the landowners, a Mr. Fergal Farrelly entered into a contract for the sale of his lands, and thirdly

(iii) That if another landowner, a Mrs. Delia Duggan, who had earlier withdrawn from her declared intention of entering into a contract, did in fact subsequently do so, then the plaintiff would be remunerated for his services although at the time no specified amount was agreed.

4. In the events which happened, all three aspects of this alleged agreement in fact occurred and consequently, the plaintiff now seeks in these proceedings payment by way of damages for breach of contract and/or misrepresentation and/or on a quantum meruit basis.

5. The defendant’s position, as outlined in its defence is that the only agreement which existed was one for the payment of a sum of €126,973.81 plus V.A.T.; this in respect of the plaintiff’s facilitating efforts as part of the acquisition process. These services, which were acknowledged to have been performed, were paid for in full by the company on receipt of an invoice dated 14th February, 2002. Save for this position all other aspects of the plaintiff’s claim were denied.

6. As appears clearly from the documentation in this case, including the affidavit evidence, it is common case that whatever agreement existed between the plaintiff and the defendant was one made solely between Mr. Killeen and Mr. Padraig Thornton and was entirely verbal. Neither it, nor any part of it was ever noted or attested. The agreement, it was therefore said, was strictly concluded on a one to one basis and was, for its entirety, processed orally.

7. Because of the personalised manner in which the agreement was concluded, and by reason of the unfortunate death of Mr. Padraig Thornton on the 29th March, 2005, it is now claimed on behalf of the company that since it has been deprived of the evidence of an essential, indeed, its only witness to this transaction, it is prejudiced and thus is unable to properly and/or effectively defend these proceedings. That being the situation, it now seeks to have the entire case dismissed. On the factual side the defendant does not allege delay or assert any additional matter, save to point out that the plaintiff must have known for some considerable time of the impending death of Mr. Thornton. In response, the plaintiff claims that he held off with the instant proceedings for that very reason, namely Mr. Thornton’s decaying health, and that at no stage did he seek to gain a tactical advantage in the circumstances which existed.

8. Without passing any comment whatsoever on the merits of this case or on what other legal or evidential defences might be available, I propose to assume that, for the purposes of this motion, Mr. Thornton was the most influential witness which the defendant company had at its disposal, and that in his absence no comparable or alternative source of evidence is now available to it.
The Law
9. Counsel on behalf of the defendant referred to many cases, and opened some, in which the court was called upon to exercise its inherent jurisdiction or apply O. 19, r. 28 of the Rules of the Superior Courts, so as to terminate proceedings on the ground of abuse or delay. There is no doubt but that the general principles of law applicable to such circumstances are well established with the only issue, in many of the cases, being how such principles are applied to the individual facts of each case. Recent cases such as Gilroy v. Flynn [2005] ILRM 290 and Desmond v. MGN Ltd. [2008] IESC 56, where some differences may be detected as to the impact of the European Convention of Human Rights Act 2003, on those principles, are not relevant to the instant case. Accordingly it is unnecessary to quote at any length from authorities, such as Rainsford v. Limerick Corporation [1995] 2 ILRM 561 or Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. A short passage however, from the judgment of Keane C.J., in Ewins v. Independent Newspapers (Ireland) Limited [2003] 1 I.R. 583 at 586 – 587 shows what the general position is. The learned Chief Justice said:-

“I am satisfied that the correct approach on an application of this nature as has been frequently made clear by many authorities, to all of which it is not necessary to refer, is for the court in the first instance to consider whether the actual delay in prosecuting the claim is inordinate. If it is not, then that is of course an end of the application. If it is, the court then has to go on to consider whether although inordinate, it is excusable and again if it is excusable that will be an end of the application. Then as has been again frequently said, even at that stage where the delay is both inordinate and inexcusable, the court must go on to consider whether the justice of the case, on balance, requires that the proceedings be either struck out or left to take their course. Undoubtedly, one of the matters to which the court has to have regard in deciding that third issue, is whether there is any prejudice resulting to the defendant as a result of the delay. That only comes into the equation of course if one has already come to the conclusion that the delay is both inordinate and inexcusable. If it is inordinate and inexcusable, then the court must consider all the circumstances including, as in this case, the non-availability of a particular witness…”

10. It is infinitely clear that this line of authority is based on a core allegation which must be established before the third tier of the criteria is even contemplated. That is “delay”. Without such a finding, it is entirely unnecessary to consider whether any passage of time is inordinate or inexcusable much less where the balance of justice lies. A qualifying pre-condition to these principles, is therefore the establishment by the moving party of a delay which is recognisable in law as at least potentially leading to the other findings contemplated by the aforesaid test. In this case there is no such allegation made and therefore in my view this line of authority is simply on principle not available to the defendant. It cannot assist it with regard to the relief sought.

11. Notwithstanding this clear cut position the defendant company still sought to rely on Hughes v. Moy Contractors Limited [1999] IEHC 244, in particular on a passage from the last page of that judgment where Carroll J. said:-

“While I take the point that other witnesses are available, it seems to me that Mr. Ledwidge was absolutely essential to the case being made by the Plaintiff. In being deprived of Mr. Ledwidge’s evidence I am satisfied that both the second and third Defendants are gravely prejudiced and that there is a substantial risk that it would not be possible to have a fair trial in the absence of his evidence.”

It is therefore claimed that this passage is supportive of the defendant’s motion.
12. In my view this cannot be so, as a reading of the entire judgment makes it clear that the facts of the case fell within, and its disposal was determined by, the ordinary principles above mentioned. In Hughes, the Plenary Summons issued in July, 1992, and was served on the defendants between March and April, 1993, a Notice of Intention to Proceed issued in March, 1995 and a second in September, 1997 with the Statement of Claim being delivered only 9th February, 1998. Notices for and Replies to Particulars were exchanged between the parties with the Motions, seeking to dismiss for want of prosecution on the grounds “of inordinate and inexcusable delay” being issued in March and April, 1999. At p. 6 of the judgment the learned judge specifically recites Primor Plc v. Stokes Kennedy, [1996] 2 I.R. 457 and having concluded that the delay was inordinate and inexcusable went on to consider the final question; namely, where the balance of justice lay. It was in that context that the above recited passage appears in her judgment. In these circumstances that case therefore clearly falls within the parameters of the general principles.

13. The proposition which is really being advanced is that, without the occurrence of some preceding event or circumstances, which is attributable to a party, and which is capable of being legally condemned, another party can have the proceedings against him dismissed, solely on the basis that some evidential material, either in person, written or object form, once available is now no longer: as a result that party’s prospects have been to a significant or material extent diminished: and so, through some process of equality of justice the proceedings should be terminated. Or viewing it from the other perspective, can a party’s right to litigate in such circumstances be ended?

14. Under Article 40.3 of the Constitution, a party has right of access to the courts, which phrase, before Tuohy v. Courtney [1994] 3 I.R. 1, was assigned to the same parameters as the right to litigate. See also the State (Quinn) v. Ryan [1965] I.R. 70. In Tuohy, where the constitutionality of s. 11 of the Statute of Limitations Act 1957, was in issue, a distinction was made between both, with the right to litigate being described as “the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law” (p. 45). That right, although subject to all these exceptions and restrictions (including the courts right to dismiss for abuse of process) is self evidently an essential right within our constitutional framework.

15. Supporting the value of this right is the necessary ancillary guarantee of fair procedures. In Re Haughey [1971] I.R. 217 at 264 it was put thus:

“Article 40, s. 3, of the Constitution is a guarantee to the citizen of basic fairness of procedures … in proceedings before any tribunal where a part to these proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may effect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights”.

Although said in the context of tribunals this passage from the judgment of O’Dhalaigh C.J. also clearly applies to courts established under the Constitution.
16. Either as part of, or as another supporting feature, is the concept of an equality between the parties. Hardiman J. quoted his judgment in O’Callaghan v. Mahon [2006] 2 IR 32 in J. F. v. D.P.P. [2005] 2 IR 174 at 182, where he had said:

“A major issue in civil and criminal procedural law is the extent of which either side must make disclosure to the other. This has led to the development of an impressive body of jurisprudence both in the United Kingdom and in Strasbourg. The latter has significantly influenced the former and will no doubt influence our jurisprudence too, in particular through the concept of ‘égalité des armes’, which might be regarded as the opposite of that state of imbalance and disadvantage described by Ó Dálaigh C.J. as clocha ceangailte agus madraí scaoilte.”

Following this quotation he continued:_

“The point here is that égalité des armes is not a new concept but rather a new and striking expression of a value which has long been routed in Irish procedural law. In Steel and Morris v. United Kingdom (Application 68146/01) (Unreported, European Court of Human Rights, 15th February, 2005) the European Courts of Human Rights said:-
‘50. The adversial system… is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality…

59. The Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey v. Ireland [1980] EHRR 305). It is central to the concept of fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side.’”

17. This right of access and that of fair procedures, to include this principle of opportunity and equality of arms, have from time to time been built upon to argue that in some particular circumstances the court should dismiss an action on the grounds of delay or on the other recognised grounds which loosely can be described as those constituting an “abuse of process”. That a court has an inherent jurisdiction to dismiss a claim in the interest of justice cannot be in doubt. This has been said in several cases such as O’Domhnaill v. Merrick [1984] I.R. 151, Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and Barry v. Buckley [1981] 1 I.R. 306 at 308 but always within context: delay, no cause of action, vexatious, bound to fail, res judicata, the rule in Henderson v. Henderson (1843) 3 Hare 100 etc. So always within rules, whether substantive or procedural, and whether designed to control the process, avoid oppression or regulate rights.

18. I have not however been able to unearth any rule or law, statute or judgment made, which, without more, would enable the non-moving party to erase pending litigation because evidence once available is no more. As with the cases referred to at para. 9 et seq. above, context is everything and in the instant case the tragic context is the unpredictable hazards of life. The death of Mr. Thornton can best, indeed only, be described as “pure misfortune”. Whilst the scales of justice are one thing, the mischance and tragedy of death is another. Therefore, where a statable cause of action is brought within time and where the plaintiff’s action and conduct are unaffected by any act or omission recognisable in law as giving rights with legal consequences, I cannot see how life’s chance can prevent a party from pursuing his litigation. In truth Mr. Thornton’s death has no relationship with any cognisable event in law.

If there should be an exception to this, it seems to me that such circumstances must truly be extraordinary before warranting such dismissal.

19. As is clear, this application deals with the unavailability, by reason of death, of an important witness. Even, however, if Mr. Thornton was a party, instead of being a witness, the relief sought would not be granted. Order 17, rule 1 of the Rules of the Superior Courts state:-

“A cause or matter shall not become abated by reason of the death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgement; but judgement may in such case be entered, notwithstanding the death.”

20. O’Floinn notes in Practice and Procedure in the Superior Courts (2nd Ed.) at p. 185 that:

“If the event terminates the cause of action, the proceedings are abated. However, inter alia, the terms of Part II of the Civil Liability Act 1961 provide that, on the death of any person, all causes of action vested in him or subsisting against him will survive for the benefit of the estate or against it, as the case may be, subject to a number of exceptions: ss. 6 – 10. Thus, an action commenced by an employee is not automatically abated by the death of his employer: Hutton v. Phillippi [1982] ILRM 578. See also Moynihan v. Greensmyth [1977] IR 55.”

21. Section 8(1) of the Civil Liability Act 1961, states:-

“On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.”

The accepted causes of action are found in s. 6 and are:-

“(a) a cause of action for breach of promise to marry or for defamation or for seduction or for inducing one spouse to leave or remain apart from the other or for criminal conversation, or
(b) any claim for compensation under the Workman’s Compensation Act, 1934.”

22. Thus, save in very limited circumstances, where there is in existence a cause of action, it is clear that a plaintiff may proceed despite the death of the defendant himself. Even where an action is not in being, the death of a potential party or of a valuable witness, even the only witness, will not prevent the issue of proceedings. That this is so can be seen from road traffic accidents (and other forms of proceedings, e.g. employer’s liability claims) where either one or other of those involved in the collision may be killed, but yet even if there were no other eye- witnesses to the accident, both parties’ estates can sue. Indeed this point has equal application, if, short of death, a witness is not available, for whatever reason; such as illness, memory loss, immigration, unknown whereabouts etc. That is not to say that any such action will be successful. The moving party would still have to prove on the balance of probability negligence, breach of duty, causation and damage. There is, therefore, in my view, nothing in Irish law which would prevent a plaintiff from bringing a cause of action within time against the estate of a deceased person.

It is therefore clear that even where the deceased person was a party to the action, that fact and no more does not, subject to statutory provisions, prevent an existing cause of action from continuing or the institution of new proceedings.

23. The situation in criminal law may not be quite the same. Under Article 38.1 of the Constitution, an accused person must be tried in due course of law. In several cases touching upon this Article, such persons have sought to prohibit the continuation of their trials on the basis of prejudice. One form of such prejudice, which has agitated the courts, is delay and its consequences. For example, an important witness may have died, or is untraceable or suffers from memory loss or, by reason of physical or mental health or otherwise, is unavailable. What thus is the position of the accused person?

24. The answer to that question is not called for in the present motion as the underlying proceedings are purely civil in nature. It is interesting to note, however, what the Supreme Court in PW v. Director of Prosecutions (Unreported, Supreme Court, 24th June, 1998) said on this point. Lynch J. stated that if the death of a witness could result in the prohibition of a criminal prosecution “the same would seem to apply in the case of the death or disappearance of a witness whom the defence wish to call or cross examine, no matter how promptly the case might have come to trial. This cannot be and is not the law.” (pp. 6-7) In other words in the context of the case, without some culpable delay the trial would proceed. In subsequent decisions that court has again engaged with this topic and has queried the logic of such an approach. If there was a real and substantial risk of an unfair trial then why should the trial not be prohibited, even without an attendant finding of delay? The jurisprudence in this area therefore remains open to further development. For the present it is sufficient to note the distinction between the principles as they apply in civil litigation, and in criminal proceedings, where of course the death of an accused ends the prosecution.

Miscellaneous Points:
25. There is no suggestion in this case that the plaintiff deliberately withheld the institution of proceedings so as to gain an advantage from the death of Mr. Thornton, and therefore it is not necessary to consider the legal consequences if he had. However, it must be doubted that even if he had, such fact would by itself be sufficient to enable a like application as the present to succeed.

26. There are two further matters that might quickly be dealt with. Firstly, the Plenary Summons in this case issued on 10th July, 2006, whereas the Notice of Motion was not issued for a further period of two years. This, though not argued, could in itself create a serious difficulty for the success of the motion. Secondly, Mr. Thornton’s date of death was 29th March, 2005, and thus preceded the institution of these proceedings by almost 18 months.

27. For these reasons I will dismiss the application.

De Braam Mineral Water Company Limited v BHP World Exploration Inc

[2011] IEHC 46

Judgment of Mr. Justice Hedigan delivered on the 15th day of February, 2011.

1. In these proceedings the defendants seek orders dismissing the plaintiff’s claim for want of prosecution.

2. The plaintiff herein is a limited liability company incorporated within the State and having its registered office at Fordestown, Rathmoylan, County Meath. It is in business as producers and bottlers of natural mineral water for sale. The plaintiff operated a factory located beside their two wells in County Meath and had been drawing water from that source since in or around 1983. They claim that their water was exceptionally pure and was bottled and sold without pre-treatment other than being carbonated and without additives. In or about the month of November 1998 (the plaintiff initially pleaded it was in January 2000) the second named defendant acting on the instructions of the first defendant and with the permission of the other defendants, drilled a deep mineral exploration borehole approximately thirty metres from the plaintiff’s wells. The drilling in question was carried out pursuant to a prospecting licence granted by the Minster to the first named defendant. It was for the purpose of ascertaining whether there were workable deposits of zinc ore below the surface of the ground at that location. It is alleged that as a result of the drilling the plaintiff’s well was contaminated.

3. Against the first and second named defendants the plaintiff alleges a failure to conduct the drilling in such a way as to avoid causing the damage that it alleges. It also alleges a failure to disinfect the said borehole prior to abandoning the same and generally failing to conduct the works in accordance with the guidelines for good environmental practice and mineral exploration published by the Department of Marine and Natural Resources. As against the State defendants the plaintiff alleges that the Minister as the body responsible for granting the prospecting licence was negligent in allowing such drilling so close to a commercial source of mineral water, failing to insert or append conditions with a view to protecting such a mineral water source, failing to warn the plaintiff of the impending work, failing to inspect or supervise the drilling works that were carried out and failing to disinfect and seal up the said deep mineral exploration borehole when the work was concluded.

4. The chronological order of events in this case is as follows:

(a) the plenary summons issued on the 18th June, 2000,
(b) the statement of claim was delivered on the first named defendant on the 20th October, 2000 and on the other defendants on the 14th March, 2001,

(c) notices for particulars were served by the solicitors for the first defendants on the 12th of September 2001, by the second defendants on the 25th of May 2001 and for the state defendants in September 2001.

(d) the second named defendant delivered its defence on the 23rd May, 2001,

(e) notice of intention to proceed was served by the first defendant on the 11th September, 2006,

(f) replies to particulars were furnished on the 22nd November, 2006,

(g) the defences of the remaining defendants were delivered in June 2007,

(h) a letter seeking voluntary discovery was sent to the solicitors for the second named defendant on the 11th March, 2010,

(i) on the 31st May, 2010 a notice of motion seeking an order for discovery was served on the second named defendant, and

(j) on the 15th November, 2010 the notice of motion in respect of this application was issued.

5. The defendants base their claim to dismiss on the length of delay and claim it is inordinate and inexcusable. They further claim that the balance of justice requires they should not, more than twelve years after the events, now be required to defend an action which they allege is in any event, on the only evidence provided to them, highly speculative. They point out that the second named defendant who actually did the drilling in fact did furnish a defence. Notwithstanding this, the plaintiff failed to progress their proceedings against those defendants to exactly the same measure as the others. They argue the claim set out in the statement of claim was so vague as to require replies to particulars in order to enable the first, third and fourth defendant properly defend the case. The first defendant required, inter alia, details of how it was alleged the contamination occurred, of the losses allegedly incurred, how the first defendant “knew or ought to have known” that the drilling would contaminate the plaintiff’s well. No objection was taken to the notice for particulars nor was a defence demanded. It was therefore legitimately expected that replies would be forthcoming. No steps whatever were taken to reply until October 2006, five years later, and just after the first defendant’s notice of intention to proceed was served on the plaintiff. Until then the defendants had every reason to believe that the plaintiffs were not proceeding with their case. No reason other than vague references to difficulties and lack of resources have been proffered to explain the delay of five years involving complete silence on the part of the plaintiff and ended only by the action of the first defendant in 2006. No disability has been alleged.
6. The second defendant’s notice for particulars sought fairly precise details of the plaintiff’s business activities and its ownership of the land at the locus in quo. It further sought details of loss. It received no replies until October 2006 despite the fact that it had filed a defence.

7. In September 2001, the third to fifth defendants served their notice for particulars on the plaintiff. The basis of the plaintiff’s claim against these defendants is that the Minister knew or ought to have known that drilling carried out on foot of the prospecting licences granted was likely to cause damage to the plaintiff’s mineral source. It is alleged against them that there was an absence of appropriate protective conditions in the licence, a failure to provide any warning to the plaintiff of the proposed drilling and an absence of any inspection of the site or supervision thereof. In their notice for particulars these defendants sought details as to how the contamination alleged had occurred. They further sought details as to how it was alleged the Minister knew or ought to have known such drilling would cause the damage alleged. The particulars sought were not provided for five years and then only in outline form, thereby greatly hampering the ability of these defendants to have experts on their behalf assess the case. The defendants claim that this delay also must result in grave difficulty in dealing with these issues especially those regarding to levels of knowledge and the extent of supervision or inspection.

8. To summarise the grounds for this application, the defendants argue that the delay in respect of all the defendants is clearly inordinate. No attempt is made to excuse the delay in relation to the second defendant who actually did furnish a defence in 2001. The only excuse offered in relation to the other defendants is that there were difficulties in relation to financial resources and in obtaining expert advice in relation to liability and quantum. They also blame the first and the state defendants for themselves delaying by not bringing motions to compel them to reply. The defendants accept they did not furnish their defences within the time provided by the rules. They reject however the argument that the delay was caused either substantially or completely by them. They also point out that although the second defendant’s defence was filed in 2001 there was no progress against that defendant either. They also point out that even after the proceedings were sparked back into life in September 2006, the plaintiff continued to delay. They waited for two and a half years more before moving again. The defendants argue the claim set out in the statement of claim is highly speculative as the K. T. Cullen expert report of the 31st May, 2000 clearly shows. That report indicates little more than the possibility the mineral exploration well drilled by the second defendant could have caused contamination of the plaintiff’s aquifer. The delay therefore is inordinate and inexcusable. The Court must therefore consider whether the balance of justice requires that the plaintiff’s case be dismissed because of this delay. It would not be in the interests of justice that they should be required to defend the case at this stage because the case alleged against them is dependent on evidence as to how the contamination occurred, what actually were the losses incurred, how they knew or “ought to have known” that damage would be caused to the plaintiff’s well. They note that the man who actually did the drilling has left the second defendant’s employment and now lives abroad. A great part of the case relies on oral evidence and memories are inevitably weakened by the time that has elapsed. No disability is claimed and by no stretch of the imagination could the case be said to have been heard within a reasonable time even were it to be heard this year.

9. The plaintiff defends itself firstly on the ground that the real delay was of five years initially and of two years of the two and a half years after the revival of the case in 2006. This delay it is denied is inordinate. If this is not accepted then addressing the issue of excusability, the plaintiff argues that the blame lies in the court of all defendants bar the second who did file a defence. Relying on the decision of Herbert J. in Bord Fáilte Éireann v. Castlefinn Multi-Activity Holiday Centre Ltd. and Ors. [2005] IEHC 387, it argues that the real cause for delay lies with the defendants because they did not bring motions to provide particulars nor did they, save for the second defendant, file defences. The ball, it argues, was in the defendants’ court and they did nothing. They claim they were overwhelmed by the circumstances in relation to the first period of delay and in relation to the two year delay period, they say they were consulting experts. As to the balance of justice, they argue that the plaintiff’s business was very seriously damaged and the claim is therefore a very large one. They claim there is no real evidence of prejudice, no reference to destruction of documents and save for Mr. Jardine (the man who actually did the drilling), no evidence of absence of witnesses. They concede the delay in relation to the second defendant is inordinate and inexcusable.
10. The decision
The principles applicable have been outlined in the Supreme Court in the case of Desmond v. MGN [2009] I.R. 737. The test is whether the delay was inordinate and inexcusable. Where this is established the Court must determine where the balance of justice lies having regard to the effect of the delay on and the likely prejudice to the defendants and the prejudice which would arise in precluding the plaintiff from proceeding further with his claim.

11. It is to be noted that Kearns J. stated in that case that the period of delay of approximately seven years since the institution of proceedings was unacceptable having regard to the requirements of the European Convention on Human Rights. It was further noted that there was an obligation on the parties, in particular on the plaintiff, to progress proceedings. The role of the Convention in this regard is stated by Kearns J. at paragraphs 24 and 25 i.e. it is one of the relevant factors to be considered in determining where the balance of justice lies.
12. The delay
In this case the plaintiff issued its proceedings on the 18th September, 2000. The events giving rise to these proceedings having occurred between November 1998 and January 1999. The possible link between the defendants drilling and the contamination of the plaintiff’s well was not discovered, they claim, until 2000. Accepting this as I must for the purposes of this motion, the only period of delay to be considered therefore is the post-commencement delay. The initial phase of activity in 2000/2001 concluded on the 12th September, 2001 when the first defendant delivered a notice for particulars. The second phase commenced on the 11th September, 2006 when notice of intention to proceed was served by the first defendant. This second period of activity ended with the delivery of defences in June 2007. The third period of activity commenced on the 26th January, 2010 with the request by the plaintiff for voluntary discovery. The first period of delay therefore was five years and the second period was two and a half years. It seems to me that by any measure both periods of delay are inordinate even if I accept that the plaintiff was responsible for only two years of the second period of delay. This is because although shorter, the second period is possibly equal to the first in regard to delay since one might have considered that having been sparked back into life in 2006 by one of the defendants, the plaintiff would have proceeded with particular expedition. Where considerable delay has already occurred there is a particularly heavy onus to proceed with expedition; see Stephens v Flynn [2005] IEHC 148. No sense of urgency however can be identified in the following two and a half years. In my judgment the two periods on their own may be considered separately and together as inordinate.
13. Excusability
The plaintiff lays the blame for the delay on the defendants’ failure to bring motions to force him to reply to particulars. This may well go some way toward excusing the delay in a very narrow sense. It does not however excuse the delay when one applies the tests outlined and explained in Desmond v. MGN [2009] I.R. 737. Whilst the onus lies on both parties to litigation to move the proceedings forward expeditiously, a particular onus lies on a plaintiff. This is because in the first place it is the moving party and secondly because, if the proceedings are ultimately dismissed for want of prosecution, it is the plaintiff who is ipso facto the most prejudiced. Moreover, were the Court to accept that the proceedings should proceed even after inordinate delay is found and where both parties were at fault this would render nugatory the supervisory jurisdiction of the Court to ensure the conduct of proceedings in an expeditious manner. Other than blaming the defendants, the plaintiff has been able to advance only the vaguest reasons to excuse the delay that has occurred. No disability is claimed only vague references to lack of resources and difficulty finding experts to report. I find that no satisfactory excuse has been furnished in this case for the inordinate delay that has occurred.
14. The balance of justice
In the above cited case of Desmond v. MGN Ltd. [2008] IESC 56, the Supreme Court affirmed the Primor test in relation to the ascertaining of the balance of justice. In considering this obligation the Court is entitled to take into consideration and have regard to the following factors:

“(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as make it unfair to the defendant to allow the action to proceed and 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,

(vi) whether the delay gives rise to a 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 of the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to the defendant’s reputation and business.”

15. Applying these principles to the present case the Court must first ask is it fair to dismiss the proceedings or to allow them to continue. Against the plaintiff’s right to have its case determined is both the defendants’ right to a trial within a reasonable time and the public interest in the expeditious conduct of legal proceedings. Included in the defendants’ right must be the second consideration, i.e. prejudice. In Stephens v. Flynn [2005] IEHC 148, Clarke J. dealt with prejudice alleged on the basis of a ten year delay between the events and any likely trial date. No absence of a witness was alleged. Credibility of available witnesses was considered to be difficult in the light of their trying to recollect events of ten years ago in that case. Taking account further of a lower level of prejudice in relation to quantum, Clarke J. assessed the degree of prejudice as moderate. Weighing the inaction of the defendant with the delay of the plaintiff in that case even in the context of the traditional test, such inaction may apply to “some extent” but in the current context should be given an even lower weighting. Clarke J ordered the dismissal of the proceedings. The Supreme Court upheld this decision and confirmed the test that had been applied was correct. In this case I would consider that the prejudice is of a somewhat higher order than moderate. The case revolves around the level of knowledge by the defendants of the nature of the plaintiff’s activities at the locus in quo. It will require evidence of appropriate investigations made and of what exactly happened during the drilling of the borehole by the second defendant. It seems clear that this is a case that will rely upon the evidence of certain of the defendants’ employees not the least of these being Mr. Jardine. He has left the employment of the second defendant and is now living abroad. I think a substantial risk does exist as to whether the defendants would be able at this juncture to defend the case as they would wish. Difficulties of recollection over a period of more than twelve years are self evident. As to delay on the part of the defendants and acquiescence on their part, I think my views expressed in relation to excusability overlap in this regard. There has been a measure of both in this case but not so as to restrain the Court from exercising its supervisory function. To these considerations must also be added the international obligations of the State to ensure the expeditious conduct of proceedings, see Stephens v Flynn (cited above) and Henry Mannion v. David Bergin and Ors. [2009] IEHC 165.
16. For all these reasons it seems to me that the delay involved herein has been inordinate and that no satisfactory excuse has been forthcoming. Moreover, the balance of justice in this case requires that the Court grant the order dismissing the plaintiff’s claim for want of prosecution. By reason of the fact that there has been delay on the part of the defendants herein and that they are at least in that regard in part responsible for the delay that has occurred, there will
be no order for costs in their favour either in respect of these motions or the action itself.

Fahy v Scanlon

[2011] IEHC 293

Judgment of Mr Justice Michael Peart delivered on the 14th day of July 2011:
By Notice of Motion issued on the 28th October 2010 the defendants seek an order striking out the within proceedings, which were commenced by Plenary summons on the 9th October 2001, on the ground that the plaintiffs have been guilty of inordinate and inexcusable delay in the prosecution of same, and/or because the proceedings fail to disclose a reasonable cause of action.

The proceedings arise from the fact that by Agreement in writing executed by the parties on the 5th November 1999 whereby the plaintiffs agreed to purchase a licensed premises from the defendants in consideration of the sum of €1,200,000. The purchase was not completed by the closing date provided for by the said Agreement, and in due course the defendants served a Completion Notice on the 10th December 1999, and when the purchase was still not completed within the period of 28 days specified in that Notice, the defendants forfeited the deposit which had been paid by the plaintiffs, and proceeded to resell the premises.

The plaintiffs’ claim is set forth in the General Indorsement of Claim on the Plenary Summons as follows:

“1. The Plaintiffs’ claim is for a declaration that an Agreement or Contract in writing made on 5th November 1999 between the defendants as Vendors and the plaintiffs as Purchasers for the sale by the defendants to the plaintiffs of the premises set forth in the said Agreement has been rescinded, or equitable rescission of the said Contract or Agreement by reason of the said fraudulent and/or negligent and/or reckless misrepresentation by the defendants, with repayment by the defendant to the plaintiff of the deposit of £120,000 and, in addition, damages for breach of contract.
2. In the alternative the plaintiffs claim the said £120,000 as money head and received by the defendants to the use of the plaintiffs and in respect of which consideration as wholly failed.”

Briefly stated, the basis on which the plaintiffs claim that the defendants are guilty of fraudulent, negligent, or reckless misrepresentation is that, with a view to introducing the plaintiffs to purchase the licensed premises in question, the defendants repeatedly represented to the plaintiffs that the annual turnover of the said premises was approximately £600,000 and that, in the event that they agreed to purchase the said premises, an Accountant or Auditor’s Certificate from the defendants’ accountant would be available to certify the said turnover, and that these representations were both false and were known by the defendants to be false in circumstances where the turnover of the premises, unknown to the plaintiffs, was in fact in the region of £300,000 per annum. On the latter basis, it is contended that the real market value of the licensed premises was in the order of £700,000.
The representations alleged to have been made by or on behalf of the defendants to the plaintiffs in respect of annual turnover are alleged to have been oral representations.

The defendants rely, inter alia, on Special Conditions 5 and 13 in the Agreement for Sale which provide respectively:

“5. Should there be any conflict between the terms hereof and the terms of any other agreement written or oral between the parties or their agents relating to the sale of the within mentioned described property, the terms of the within Agreement shall apply.”
“13. The Purchasers acknowledge by their execution hereof that they are not being induced to purchase this property by any statement, writing or representation of the Vendors or their agents unless the same is annexed hereto and signed by the parties.”

In relation to Special Condition 13 no such statement, writing or representation is annexed to the said Agreement.
In order to address the question of whether these proceedings ought to be struck out on the basis of inordinate and inexcusable delay by the plaintiffs, I will set out a chronology of events as far as the pleadings are concerned.

As already stated, the Vendors’ solicitors served a Completion Notice on 10th December 1999 requiring a sale to be completed within 28 days of service thereof. No request for any extension of time for completion was sought by the purchasers’ solicitors, and the purchase was not completed within the period specified. By letter dated 2nd March 2000 the Vendors’ solicitors wrote to the purchasers’ solicitors informing them that the deposit was being forfeited and that the Vendors would proceed to resell the premises, and putting the purchasers on notice that, in the event of any loss being incurred on such re-sale, the Vendors would seek an indemnity from the purchasers in respect of any such loss.

I note that the plaintiffs’ solicitors wrote to the defendants’ solicitors on the 5th July 2000 referring, inter alia, to the forfeiture of the deposit. They also raised the dispute about the amount of the turnover, and to an application for loan approval by the plaintiffs’ accountant to a Bank, which was promised subject to a certificate as to turnover being produced. The letter refers to efforts made by the accountant to get such a certificate from the second named defendant, and it is alleged in this letter that in fact the second named defendant stated that the accounts before him for the business disclosed a turnover of only €300,000 per annum. This letter sought a return of the deposit in these circumstances, and threatened these proceedings, as well as the registration of a lis pendens, as information had come to hand that the Vendors were reselling the premises by Public Auction on the following day. It would appear to be the case therefore that the first time that this claim was made to the Vendors was when they learned that the premises were about to be resold, rather than in the immediate aftermath of the forfeiture of the deposit some months previously.

I have not been provided with any response to this letter.

Nothing further appears to have happened until the 10th October 2001, some 19 months after the deposit was forfeited, when the plaintiffs’ solicitors wrote again to the defendants’ solicitors, this time enclosing a copy of the plenary summons, and called upon the Vendors’ solicitors to enter an appearance. The letter stated that this summons had been served on the defendants. That cannot have been correct as will become apparent from the narrative very shortly.

The Vendors’ solicitors responded by letter dated 15th October 2001 stating that the plenary summons enclosed had not properly issued as there was no record number shown thereon, and informed the purchasers’ solicitors that they could not therefore enter an appearance. By letter dated 26th October 2001 the purchasers solicitor’s enclosed the original plenary summons which had issued on the 9th October 2001 and called upon the Vendors’ solicitors to enter an appearance. This was responded to by letter dated 1st November 2001 wherein the vendors solicitor’s requested confirmation that the plenary summons had been served on the defendants and that, subject thereto, an appearance would be entered.

By letter dated 6th November 2001 the purchasers’ solicitor again confirmed that both defendants had been served with the plenary summons and indicated that on entry of appearance, a Statement of Claim would be delivered. It is unclear to me how that letter came to be written since it is a fact that the first named defendant was not personally served with the plenary summons until 14th May 2002, as appears from the endorsement of service in that regard upon the plenary summons, and the second named defendant was not served until 28th July 2004 following a renewal of the plenary summons and an order for substituted service by ordinary post. An appearance was entered on behalf of the first named defendant on the 21st May 2002, and on behalf of the second named defendant on the 23rd August 2004. The plaintiffs contend that each defendant, but particularly the second named defendant, evaded service, and caused delay themselves thereby in the progress of these proceedings.

Nevertheless, by the 23rd August 2004 an appearance had been entered on behalf of both defendants,

The defendants’ solicitor’s grounding affidavit states at paragraph 4 (iii) that a Statement of Claim was not delivered until 12th January 2005. This date was confirmed also by Counsel during the course of argument. No date for delivery thereof is contained on the copy Statement of Claim contained in the Book of Pleadings produced; but I think the 12th January 2005 may not be the correct date of delivery as, first of all, there is in a booklet of correspondence a letter dated 10th November 2004 sent by registered post by the plaintiffs’ solicitor to the defendants’ solicitor enclosing a Statement of Claim; and secondly, this was followed on the 16th November 2004 by a Notice for Particulars from the defendants’ solicitors. It must be the case that the correct date of delivery of the Statement of Claim is the 10th November 2004.

That Notice for Particulars was not responded to until some 6 years later on the 10th November 2010 – some two weeks after the present Notice of motion was issued.

The only step taken by the plaintiff following the receipt of the defendants’ Notice for Particulars in November 2004 was the service of a Notice of Intention to Proceed on the 29th May 2008. There is nothing before me to indicate that any correspondence passed between the two forms of solicitors in the meantime. The plaintiffs appear to have taken no step whatsoever for a period of some three and a half years.

One would have thought that the service of that Notice to Proceed indicated some intent that the proceedings would be further prosecuted by the plaintiffs. Subject to their own need to reply to the Notice for Particulars received in November 2004, the next step which the plaintiffs could have considered was to call upon the defendants to deliver a Defence, and if necessary proceed to issue a Notice of Motion seeking judgment in default of defence. These are not difficult steps to take if the plaintiffs were intent on proceeding, yet the fact is that nothing happened at all for almost another two years when once again the plaintiffs served a Notice of Intention to Proceed on the 23rd February 2010. By letter of the same date, the plaintiffs’ solicitor wrote to the defendants’ solicitors noting that they had not yet received the defendants’ Defence, and warning that if same was not delivered within 21 days, a motion for judgment would be issued.

On the 1st March 2010, not surprisingly, the defendants’ solicitor responded stating firstly that they had assumed that the plaintiffs had abandoned their claim “bearing in mind the fact that there was no substance therein”. Secondly, they informed the plaintiffs’ solicitor that they were required to wait for one month to elapse following service of the Notice of Intention to Proceed before proceeding, and that a further letter of consent to late delivery of Defence should issue after that time, and that the defendants would then deliver their Defence and serve Notice of Trial. But this letter also indicated that in view of the delays by the plaintiffs the costs of defending the proceedings would be sought, and that Counsel would be consulted in relation to the possibility of obtaining an order for security for costs.

On the 24th March 2010 a further letter of consent to late delivery of Defence was sent.

In due course, the plaintiffs’ Notice of Motion seeking judgment in default of defence was issued on the 6th August 2010, and the defendants’ motion to strike out these proceedings was issued on the 28th October 2010. Both motions are before this Court. For obvious reasons the defendants’ motion should be determined first.
Explanations for delay:
Before setting out how the extraordinary delays in this case since the delivery of the plaintiffs’ Statement of Claim on the 10th November 2004 are sought to be explained and excused in the replying affidavits, I want to deal firstly and briefly with the plaintiffs’ contention that the defendants’ own behaviour by evading service of the plenary summons, and that this should be taken into account by the Court when weighing the balance of justice between the parties. Simply put, I am not going to take account of any delay which occurred or may have been caused by any evasive action by the defendants. Even if it be so that either defendant, and particularly the second named defendant, made life difficult for the plaintiffs in that regard, and I am reaching no firm conclusion in that regard, the overwhelming delay in this case is that which has taken place after November 2004, and if the defendants are entitled to their order striking out these proceedings for delay, there is nothing of any or sufficient weight to be attached to pre-service delay which could possibly act as a counterweight.

The first replying affidavit of Josepha Madigan, solicitor, is lengthy but the greater part of the affidavit deals with the nature and merits of the plaintiffs’ claim and the difficulties which were experienced in relation to effecting service of the proceedings on the defendants. In fact paragraph 19 is the only paragraph which seeks to explain the delays subsequent to service. The relevant portion of that affidavit states:

“19. I say further that the prosecution of this claim has been made difficult by a number of failures … including the fact that the solicitor originally dealing with this matter, Patrick Madigan senior, became seriously ill with cancer and other ailments and this led to a further delay the progression of the case.
In 2004 another solicitor Stefan O’Connor took over the management of the plaintiffs’ file.

Unfortunately this solicitor, Stefan O’Connor, left the firm in late 2005 contributing to a further delay in presentation of the claim.

Patrick Madigan senior took over the case again in late 2005. However Patrick Madigan senior suffered many illnesses during 2005, 2006 and 2007 and was out of the office for considerable periods.

In 2007 he was diagnosed with two separate cancers, namely breast cancer and Hodgkin’s disease. He also had a heart condition and diabetes.
He was on chemotherapy and other cancer treatments through all of 2007 up to now and is still undergoing cancer treatment which has forced him to retire as a practising solicitor.”

A further lengthy replying affidavit was sworn by Josepha Madigan, solicitor. That affidavit runs to some 16 pages but, as with the first replying affidavit, deals principally with the nature of the plaintiffs claim, how it arises and aspects of the evidence which would be given by the plaintiffs. It makes the point that the defendants never issued any motion to dismiss the proceedings for want of prosecution until 2010 and submits also that it is significant that the defendants did not seek specific performance of the contract, and that they failed to deliver a Defence. It deals also at great length again with the difficulties encountered in effecting service of the proceedings on each of the defendants. Paragraph 16 and paragraph 19 are the only paragraphs which seek to address the reasons for the delay following the delivery of the Statement of Claim. In truth, these paragraphs state nothing which is not referred to in paragraph 19 of the first affidavit. It adds nothing to the explanations already offered.
Alison Enright BL for the defendants has referred at the outset to the judgment of Finlay P. (as he then was) in Rainsford v. Limerick Corporation [1995] 2 ILRM. 561. That was a case where the reason for delay was sought to be excused by reason of the fact that a solicitor dealing with the plaintiff’s file left the firm, and further by reason of the fact that the senior partner in the firm who took over the file thereafter was periodically ill for a considerable period of time and attending his office only to a limited extent until his death. While Finlay P. stated that this feature made the delay understandable he did not consider that it made it excusable. Having concluded that is the delay in that case was inordinate and inexcusable, he went on to say that he was not, however, satisfied on the evidence before him that the plaintiff himself could fairly be blamed for the inordinate and inexcusable delay since, as a result of the injuries which he sustained in the accident which gave rise to the proceedings, he had been severely handicapped and had been involved in long and protracted medical treatment involving considerable difficulties for him in the carrying on of his ordinary life and a considerable degree of immobility. He felt that this of itself would be to some extent an excusing circumstance, and it was understandable in those circumstances that the plaintiff would not have been in a position to press his solicitor, who was ill, more strenuously in relation to the prosecution of the claim. In that regard he stated:

“I would I think be departing from common sense if I were not aware of the sort of reluctance which an ordinary citizen living in the city of Limerick would be likely to show towards asserting with the strength and militancy his rights against an ailing solicitor who had long been established in practice and who was manifestly in ill health. Therefore, while it cannot be said that the plaintiff is entirely blameless for the inordinate and inexcusable delay that has occurred, he does not in my view share the full blame for it and there is no evidence before me that he was particularly dilatory in his personal approach to the problems with which he was faced.”
Having reached the conclusion that the delay was both inordinate and inexcusable, the learned judge, nevertheless, concluded that it was necessary “to try and ascertain where the justice of the case lies in the balance between dismissal and its continuance”.
The first matter that he took into account was the very severe injuries which the plaintiff suffered in his accident and for which he was seeking to be compensated. In that regard he stated:

“What the defendants seek to have dismissed is no mere trivial or ordinary action but one which is probably vital to the future material prospects of the plaintiff. No action brought by a litigant to the courts should be considered unimportant or trivial if a bona fide cause of action exists. In relation, however, to the exercise of a discretion as to where the balance of justice may lie it seems to me that a material consideration must be the gravity of the claim concerned and the consequences of its dismissal upon the injured claimant. In this case it seems to me that the consequences would be dire. The second material consideration is the type of claim on the issue of liability which arises in this case”.
He then went on to consider whether any real prejudice was suffered by the defendant by reason of the delay. While he was satisfied that there was some possibility of prejudice, including in relation to the recollection of witnesses so long after the material events, he nevertheless concluded that there did not appear to be any real prejudice, and decided that the balance of justice was in favour of permitting the action to proceed, and that the chances of a major injustice to the plaintiff were the action to be dismissed was significantly greater than the chance that a major injustice would be done to the defendants by allowing it to proceed.
At this point, I should say that apart from the plaintiff’s solicitor’s assertion that the plaintiffs were at all times anxious to proceed with their claim, there is no evidence that any efforts were made by them in that regard. Neither plaintiff has filed an affidavit and there is no evidence whatsoever that they were concerned about the delay, and made any complaints or otherwise urged their solicitors for progress. I have already referred to the fact that even after the deposit was forfeited, several months passed before any issue was raised with the defendant’s solicitors in relation to the turnover figure for the licensed premises upon which the sale price was predicated. It was only on the eve of a public auction for the resale of the premises that a letter was written. This is not a case in which there is any evidence that the consequences of a dismissal of these proceedings would have the sort of dire consequences for the plaintiffs which Finlay P. was satisfied would be faced by Mr Rainsford. It was a commercial transaction on foot of which both the plaintiffs seek to recover their deposit, over eleven years ago.

In addition, the defendants assert prejudice based firstly on the obvious effect that the extreme delay in this case must be assumed to have on the recollection of parties as to what was or was not stated to the plaintiffs in relation to the amount of the annual turnover of the licensed premises prior to the Agreement for Sale bing executed or thereafter. One of the persons involved in that issue, Frank Fahy, and who, according to an affidavit which he swore in 2001 (not in the context of these proceedings) indicates that he would support the plaintiff’s case. Obviously his death in 2010 has deprived the plaintiffs of the benefit of that evidence. But in so far as the defendants are deprived of an opportunity to cross-examined him in relation to whatever evidence he would give in support of the plaintiffs, they may also be prejudiced by his absence, and have stated that they are so prejudiced. But they are also clearly prejudiced because of the effect of this length of delay on the recollection of relevant witnesses, and, in a case of this kind, that prejudice can be presumed to be real. It must be borne in mind at all times that more than 11 years has already passed since these events, and further time will inevitably pass before this case is ultimately heard, if the case is allowed to proceed.

Ms. Enright has referred to the principles of law relevant to the consideration of the issues raised in an application to dismiss proceedings for want of prosecution, as summarised by Hamilton C. J. in Primor v. Stokes Kennedy Crowley [1996] 2 I.R.459. Those are set forth at page 475 of his judgment as follows:

“The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows: —
(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss the claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a 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 of judgement on whether, in its discretion, on the facts is 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

(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 and months to Acquiescence on the part of the defendant in the plaintiff’s delay,

(vi) whether the delay gives rise to a 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 the other than that merely caused by the delay, including damage to a defendant’s reputation and business.”

In my view a significant prejudice arises not only for the plaintiffs, but significantly as far as this issue is concerned for the defendants, by reason of the death of Frank Fahy. Prior to the plaintiffs entering into a contract for the purchase of the licensed premises, Mr Fahy was in occupation of the licensed premises and running the business under a lease from the vendors. As deposed by the defendant’s solicitor, the defendants were not therefore involved in running the licensed premises and, accordingly, neither knew or had access to the turnover figures themselves, and the only person who could have had access to any audited accounts relating to the public house was Mr Fahy who was operating the business. Had this action proceeded with any sort of normal dispatch, he would have been available to the defendants in order to be either called by or cross-examined in relation to the turnover of the business and would have been able to produce any accounts which may have assisted in establishing the true turnover. He would also have been cross-examined in relation to any conversation he may have had with the plaintiffs either before or after the Agreement for Sale was executed, and upon which the plaintiffs seek to rely. He was not the only person upon whose evidence the plaintiffs seek to rely, but his evidence would of course have been very important, albeit that the plaintiffs would have sought to rely on his evidence as well, and are themselves prejudiced by his unavailability.
It has to be said also that, on the basis of the evidence available at this point in time, particularly the existence of the two special conditions to which I have already referred, the mountain which the plaintiffs would need to climb in order to succeed in these proceedings is a high one, and there must be a considerable doubt as to whether they would ultimately achieve a summit.

Given the extreme delay in this case, the effect of that delay on the recollection of witnesses, the death in 2010 of Frank Fahy, the nature of the case itself and the necessary reliance by the plaintiffs upon the recollection of oral statements made at the relevant time, now some 11 years or more ago, I have no difficulty in concluding that the balance of justice lies in favour of striking out these proceedings.

While the plaintiffs were of course entitled, pursuant to their constitutional right of access to the Courts, to commence proceedings in order to try and redress a wrong which they allege has occurred, it is a right which is accompanied by an obligation upon them to prosecute those proceedings with reasonable expedition. They have failed to do that.

The right to a fair hearing and one within a reasonable time is a right which both parties to the proceedings enjoy, and are entitled to have vindicated by the Courts. The Courts have in more recent times adopted a more stringent attitude to the question of delay. This change has resulted in part at least from the provisions of Article 6 of the European Convention on Human Rights following the coming into law of the European Convention on Human Rights Act, 2003 and by reference to decisions of the European Court of Human Rights to which the Courts here are obliged to have regard. In my judgment delivered recently in Mulcahy v. Iarnrod Eireann/Irish Rail, unreported, High Court, July 2011 I dealt with similar issues, albeit in the context of an application to renew a Plenary Summons, and in particular I referred to the comments of Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290, as well as those of Clarke J. in Stephens v. Paul Flynn Ltd [2005] IEHC 148. I refer to these comments again for the purpose of the present decision, and I believe that they support strongly my view in the present case that the proceedings should be struck out on the grounds of inordinate and inexcusable delay, and I will so order.

In these circumstances, it is unnecessary to reach any conclusion in relation to the alternative ground put forward by the defendants, namely that the proceedings do not disclose a reasonable cause of action.

Donnellan v Westport Textiles Limited

[2011] IEHC 11

JUDGMENT of Mr. Justice Hogan delivered on the 18th January, 2011
1. It may seem remarkable that negligence proceedings involving an adult plaintiff arising from events which took place almost thirty eight years ago are still outstanding before the courts. That, however, is the backdrop to the present case where the plaintiff has sued both a limited company and the State in respect of a hearing loss claim.

2. The plaintiff is a former member of the Defence Forces who was discharged on the 28th June, 1974. He had in fact enlisted on 4th September, 1973, when he was almost 20 years of age, so that his period of service in the Defence Forces was a little short of ten months. He was later employed as a cone winder between 1978 and 1979 with the first defendant, Westport Textiles Ltd. That company went into liquidation in 1981, albeit that the liquidation itself was not completed until June, 2000. For reasons which I will later recount, the action is now proceeding against the State defendants only. These defendants have, however, brought a motion seeking to have the proceedings struck out on the grounds of inordinate and inexcusable delay. The present case is one of approximately 29 such claims in which proceedings as against both Westport Textiles and the State were originally issued. The plaintiff’s solicitor was also acting in a very large number of other hearing loss claims against the State.

3. In the present proceedings the plaintiff claims damages for personal injuries caused by the alleged negligence and breach of duty on the part of the defendants, whom I shall describe as Westport Textiles and the State. The gist of the claim is that the plaintiff was exposed to excessive noise during these two separate periods of employment and that he had sustained loss of hearing and tinnitus as a result.

4. These proceedings were commenced on 14th September, 2000. Given the lapse of time, it might be thought that the claim was prima facie statute-barred. At the hearing of this motion, however, Mr. Kennedy S.C. informed me that the plaintiff will at trial contend that he commenced proceedings against the defendants within the period of three years from his “date of knowledge” within the meaning of s. 2 of the Statute of Limitations (Amendment) Act 1991. For the purposes of this motion, I will assume that this is so and I will therefore proceed on the assumption that the action is not, in fact, statute-barred.

5. But even if these proceedings are not statute-barred, the critical point here, surely, is that the proceedings were issued in 2000 in respect of events which took place some twenty six years previously. In those circumstances, it behoved the plaintiff to move with very considerable expedition.

6. The State was first notified of the existence of the proceedings on 26th November, 2001, following a letter from the plaintiff’s solicitors. The proceedings were not, however, served on the State until 29th May, 2002, the time for service having been extended by this Court on 3rd December, 2001. While the delay in effecting service is in itself striking, the explanation proffered by the plaintiff’s solicitor was that this delay “was simply due to the logistics of obtaining formal instructions from in or about 140 clients and issuing plenary summonses for all of them.” While it is, perhaps, easy to be wise after the event and while I am not unmindful of these logistical difficulties, I cannot say that I find this explanation compelling. The very long interval between the events complained of and the commencement of the proceedings meant that the plaintiff was under a particular duty to move with expedition.

7. The plaintiff had, in fact, delivered a statement of claim along with the plenary summons. The State entered an appearance and the Chief State Solicitor’s Office wrote on the 25th June, 2002, inviting the plaintiff to participate in an early settlement scheme. The plaintiff was subsequently examined by a consultant in September, 2002. The claim as against the State then entered another period of inactivity and nothing further appears to have happened until the State served a notice for particulars in September, 2005. Of course, it should be recalled in fairness that during this period the principal onus with regard to taking action vis-à-vis the litigation rested with the State, but the failure of the plaintiff to press the State for a defence is, perhaps, in its own way telling.

8. As the plaintiff’s solicitors had not replied to the notice for particulars, the private firm of solicitors who had taken over the defence of the proceedings on behalf of the State wrote in March, 2006 to the plaintiff’s solicitors asking for a response to previous correspondence. As it happens, the replies to particulars were apparently prepared on 15th November, 2005, and were only served on 17th August, 2010, almost five years later. In that letter the plaintiff’s solicitors explained due to the fact that they were dealing with issue regarding Westport Textiles, they “inadvertently forgot to send same onto yourselves.”

9. Parallel to these developments, the plaintiff’s solicitor was endeavouring to resolve a difficult situation with regard to the insurers of Westport Textiles. The liquidator of the company was at the time extremely elderly and there was an understandable reluctance to serve proceedings on him directly. In the end, a solicitor in Co. Cork was nominated to accept service and the proceedings were ultimately served on that solicitor on behalf of the company in March 2002.

10. This was not the end of the solicitor’s difficulties. An application had to be made to this Court pursuant to s. 310 of the Companies Act 1963 to have the company restored to the register and this was achieved on 15th July 2002. The issue of the ascertaining the identity of the Westport Textiles’ insurer proved even more problematic. It is clear that the plaintiff’s solicitor made many diligent inquiries in relation to this matter. Indeed, these inquiries extended to ascertaining the identity of a quite separate plaintiff who had taken action against the company in 1979. The solicitors for this litigant then informed the plaintiff’s solicitor of the identity of the insurer – now known as Royal Sun Alliance (“RSA”) – and provided some details of the policy.

11. This new information notwithstanding, the insurance company refused to provide indemnity cover. At some stage in early 2004 the plaintiff’s solicitor appears to have obtained advice from counsel to the effect that the plaintiff was entitled to join the insurance company as a co-defendant to the proceedings in accordance with s.62 of the Civil Liability Act 1961.

12. In April 2004 the plaintiff’s solicitor then wrote to RSA seeking to have them joined in the proceedings, but no reply was forthcoming. In early January 2005 the Master of the High Court made an order ex parte joining RSA to the proceedings. An amended statement of claim was then served on these defendants (but not the State defendants) in March 2005. RSA then successfully appealed this order to this Court: see the judgment of Finnegan P. in case of Kilcoyne v. Westport Textiles Ltd. [2006] IEHC 256, a case involving the claim of a plaintiff with very similar facts to the present one.

13. Judged from the comments of Finnegan P. in Kilcoyne, it would appear that the amended statement of claim contained only perfunctory changes from the original. Specifically, it did not properly plead the true nature of the case against RSA, i.e., the reliance on the provisions of s. 62 of the 1961 Act as interpreted by the Supreme Court in Dunne v. PJ Whyte Construction Ltd. [1989] ILRM 803. It was on this basis that Finnegan P. accordingly struck out the proceedings as disclosing no reasonable cause of action against RSA.

14. Finnegan P. also rejected an application that the plaintiff should be allowed further to amend his proceedings to reflect the true cause of action against RSA:

“…..I have determined that I should deal with the matter solely on the basis of the pleadings as they stand at present. On the information before me it seems almost inevitable that the plaintiff will obtain judgment in default of pleading against the first named defendant. He can then, if so advised, institute proceedings against the second named defendant as the indemnifier of the first named defendant. In those proceedings the defendant (the second named defendant in these proceedings) can raise the issue of delay and seek to have the proceedings struck out. Rather than proceed on the basis of a notional further amended statement of claim I am satisfied that it is preferable that I should allow the matter to proceed on the basis of the proceedings as they stand.
In deciding to strike out the plaintiff’s claim I am influenced by the circumstance that the plaintiff has had from the 11th January 2005 to date to deliver an appropriate amended statement of claim setting out in appropriate terms his claim against the second named defendant but has failed to do so: the amended statement of claim delivered is totally defective in that it fails to disclose the true basis of the claim against the second named defendant. The defendant in this case has to meet a claim which arose more than 25 years ago and in these circumstances the onus on the plaintiff having joined the second named defendant was to proceed promptly and he has not done so.”

15. In the wake of this, RSA then brought a motion seeking to have all of these other cases dismissed. The matter was listed for hearing in March 2008 and was then compromised by agreement.
16. Even then, no further action was taken in respect of the proceedings against the State defendants. It is only fair to record that the plaintiff’s solicitor did inform the solicitors for the defendants of developments in respect of RSA. It is equally appropriate to note that a copy of the plaintiff’s audiogram was sent to the defendants’ solicitors in June 2008. There was no response to this and a follow-up letter was apparently sent in March 2009 in another companion case advising the solicitors for the State that the newly retained counsel had suggested that “it would be advisable to set up some form of meeting to discuss how the case is to be progressed.” It would appear that the solicitor for the State defendants never received this latter. At all events, completing the narrative, the present motion whereby the State defendants seek to have the proceedings struck out on grounds of undue delay was issued in June 2010. The replies to the notice for particulars (which, as we have noted, lay on file since November 2005) were served only in August 2010, apparently in response to this motion.
Whether there has been Inordinate and Inexcusable Delay
17. In motions of this kind, the conventional starting place is the three-prong test articulated by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, namely,

(i) whether the delay has been inordinate;
(ii) if so, whether such delay is excusable; and

(iii) even if the delay has been inordinate and inexcusable, the court must nonetheless consider the balance of justice.

18. I will presently examine the question of whether Primor represents an exclusive test. But we may start by considering the first two limbs of Primor.
19. There is absolutely no question but that the delay in the present proceedings is inordinate and this was not disputed by Mr. Kennedy S.C. for the plaintiff. Nor can there be any question but that the delay is inexcusable. While I accept that at times there may perhaps have been some delay on the part of the State defendants, this was marginal in the overall scheme of things and it is totally outweighed by the gross and manifest delay on the part of the plaintiff. Even assuming that the plaintiff was not statute-barred at the time the proceedings were issued, the fact that some twenty-six years had elapsed since the plaintiff had left the Defence Forces was in itself a factor which behoved him to move with considerable dispatch: see, e.g., the comments of Geoghegan J. in McBrearty v. North Western Health Board [2010] IESC 27 and those of Henchy J. in Sheehan v. Amond [1982] I.R. 235 at 237.

20. In saying this I do not overlook the fact that the plaintiff’s solicitor had received advice from a different senior counsel at a much earlier stage of the proceedings to the effect that the plaintiff’s claim as against the State defendants should not be progressed “until such time as the issue of the circumstances surrounding [Westport Textiles] and its insurers were determined.” It may possibly be that the plaintiff could not actually have set down the case for hearing until that issue had been resolved, but even if this were so, given the enormous time lag between the events complained of and the commencement of the proceedings, elementary justice required and compelled the plaintiff to move with speed. No matter what the logistical difficulties were, one cannot objectively excuse the further delay of some twenty months between the issuing of the proceedings in September, 2000 and the service of the proceedings in May, 2002. Nor, by the same token, can a delay of some five years in replying to a notice for particulars be excused either.

The Balance of Justice
21. In cases of this kind, the question of the balance of justice generally involves an examination of issues of prejudice, both to the plaintiff and to the defendant.

22. Surprising at it may seem, the State defendants have not specifically identified any particular prejudice which they will suffer as a result of these delays. They contend, however, that the court retains an inherent discretion to strike out proceedings for gross delay, even in the absence of specific prejudice to the defendants.

23. It appears to be accepted on all sides that the audiograms show that the plaintiff has suffered some appreciable hearing loss, so that he will suffer prejudice if he is deprived of his remedy to sue in negligence and for breach of duty. Mr. Kennedy SC contended in argument – although the matter was not put on affidavit – that there were no real difficulties with causation, on the basis that the relevant specialists can ascertain from the audiogram whether the injury was caused by noise from the industrial process on the one hand or from being exposed to rifle and cannon shot in a military setting on the other. I will assume for present purposes that this is so and that no specific prejudice of the conventional kind particular to the defendants – such as missing witnesses or difficulties in causation – has been identified in this case. The fact that no prejudice to the defendants has been identified does not, however, mean that there is not prejudice of another kind, a point to which I will presently return.

24. This immediately raises the question of whether there are really two strands to the jurisprudence dealing with undue delay in civil litigation, as indeed Mr. Banim argued. There is, on the one hand, the line of case-law deriving from the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151. This line of case-law stresses the inherent duty of the courts arising from the Constitution to put an end to stale claims in order to ensure the effective administration of justice and basic fairness of procedures and in order to secure compliance with the requirements of Article 6 ECHR.

25. The other line of authority derives originally from the judgment of Finlay P. in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, but finds its full exposition in the seminal judgment of the Supreme Court in Primor plc.

26. While McBrearty confirms the primacy of the Primor test, the judgment of Geoghegan J. also makes it plain that there are, in fact, two separate – albeit overlapping – strands of jurisprudence in this area. As Geoghegan J. observed with particular reference to O’Domhnaill v. Merrick:

“I now turn to the other line of authorities to which I have referred starting with O’Domhnaill v. Merrick ….. The first observation I would make is that it is clear from this line of authorities and indeed from other cases that the inherent jurisdiction to strike out a case for delay in certain circumstances in the interests of a defendant may be exercised taking into account delay in the institution of proceedings. Notwithstanding that that is not a particular issue in this case, I mention it to emphasise the paramount inherent jurisdiction derived from the Constitution. ….Later cases would seem to indicate that even though it can form part of an application to dismiss for want of prosecution as indicated by Hamilton C.J. in Primor, the inherent jurisdiction can be exercised independently of the Rainsford principles.” (emphasis supplied)
27. Having examined the Supreme Court judgments in Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v. Duignan (No.2) [1991] ILRM 140, Geoghegan J. concluded:
“If I am right in my view that there was not inordinate and inexcusable delay then the action must be allowed to proceed unless it would be fundamentally unfair to any particular defendant because of his special circumstances to have to defend the action thereby legitimately invoking the inherent jurisdiction of the court which can be exercised even in the absence of fault on the part of the plaintiff.”
28. In McBrearty the plaintiff (who was severely disabled) instituted proceedings against a health board and two clinicians arising from the circumstances of his birth some twenty one years previously. It was contended that these very disabilities had come about by reason of the negligence of the clinicians which were attending the plaintiff’s mother when she giving birth. Geoghegan J. held that it would be fundamentally unfair to permit an action against the two individual clinicians in circumstances where it was not clear that they would be indemnified against any potential liability, even though there was no finding of inordinate and inexcusable delay. This was a critical factor which differentiated their circumstances from that of the defendant health board, as the Supreme Court found that the balance of justice should enable the action to proceed against that particular defendant.

29. The significance of this so far as the present case is two fold. First, Geoghegan J. expressly confirmed that the Primor principles were not to be regarded as exclusive or all-encompassing and, second, that the Court’s constitutionally derived inherent jurisdiction could be exercised even though some elements of the Primor test had not been established.

30. If this is correct, then it follows that in an appropriate case this Court can strike out proceedings, even though the third limb of the Primor test might not have been established, where, for example, no specific prejudice to the defendants has been established. This point was also made by Peart J. in Byrne v. Minister for Defence [2005] IEHC 147, [2005] 1 IR 577, a case to which I will presently refer in more detail. Of course, such cases would have to be exceptional. But this is surely an exceptional case where the delay between the events complained of in 1973-1974 and (even assuming that the case could come to trial in this calendar year) a hearing date in 2011 is simply so great that this court can no longer fulfil its own constitutional mandate contained in Article 34.1, namely to administer justice. Even if every allowance is made in favour of the plaintiff and one assumes (and I suspect that it is a large assumption) that there will be no real issues of either causation or ascertainment of loss, the fact remains that the very antiquity of the events in dispute prevents the court embarking in the striking words of Kelly J. in Kelly v. O’Leary [2001] 2 I.R. 526 at 544 in “the form of forensic inquiry which is envisaged in the notion of a fair trial in accordance with the law of this State.” The claim thus has, in the equally powerful language of Henchy J. in Sheehan v. Amand [1982] I.R. 235 at 239, been allowed “to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation.”

31. Moreover, quite apart from any considerations of the personal rights contained in Article 40 and Re Haughey-style basic fairness of procedures, the speedy and efficient dispatch of civil litigation is of necessity an inherent feature of the court’s jurisdiction under Article 34.1. As I ventured to suggest in my own judgment in O’Connor v. Neurendale Ltd. [2010] IEHC 387, this constitutional imperative means that the courts have a jurisdiction (and, in an appropriate cases, a duty) to exercise their powers in a way which will best ensure that a litigant’s right to a hearing within a reasonable time is best vouchsafed. In any event, and for good measure, the same right is guaranteed by Article 6 ECHR: see Gilroy v. Flynn [2005] 1 ILRM 290 and McFarlane v. Ireland [2010] ECHR 1272. One might add that this duty also extends to protecting the public interest in ensuring the timely and effective administration of justice, a consideration to which we may now turn.

The Question of Prejudice to the Public Interest
32. Thus far I have assumed that there is no question of prejudice to the parties. But there is, in fact, clear prejudice to the public interest. This point was graphically made by Peart J. in another hearing loss case, Byrne v. Minister for Defence.

33. Here the plaintiff had been a member of the Defence Forces between 1974 to 1997. He commenced proceedings in 1998 claiming damages for hearing loss, but while Peart J. did not accept that this delay was excusable, he noted that no specific prejudice had been caused to the defendants. Peart J. then put the specific question which also arises in this case:

“The question which arises in those circumstances is whether that lack of adequate excuse is sufficient to justify this Court in dismissing the plaintiff’s claim on grounds of the delay, even where the Court is not satisfied that the defendants are prejudiced. Put slightly differently, the question is whether, in a case where there both inordinate and inexcusable delay in the commencement of proceedings, the Court may nevertheless refuse to dismiss the case where it is satisfied that no prejudice has resulted to the defendant.”
34. Peart J. then went to observed that he had considered this very question in MacH v. M. [2004] IEHC 112:
“In that case I decided that what I will call the Primor principles were applicable in cases of post-commencement delay by a plaintiff, and where a defendant sought to dismiss the plaintiff’s case for want of prosecution, and the principles arising from the judgments in O’Domhnaill v. Merrick and Toal v. Duignan were more applicable to cases of pre-commencement delay, which is what the present case involves. In so finding, I stated:

‘I am of the view that there are two separate and distinct tests, one, the Primor test in respect of post-commencement delay, and the other, the Toal v. Duignan test, if I can so describe it, in respect of pre-commencement delay. First of all, the distinction reflects the different and respective contexts in which the delay took place in each case. But besides that, I am of the view that there are sound and logical reasons why the test in each instance ought to be different.
In the case of post-commencement delay, it is usually the case that the proceedings have been commenced within the period permitted by the Statutes of Limitations, although that fact of itself does not preclude a court from regarding the delay as inordinate. That would be the case, most often, with a case commenced by a plaintiff who has reached his or her majority, and within three years thereof, institutes proceedings in respect of a claim which arose sometime during his or her minority. But in most cases, the proceedings would be commenced within three years of the event giving rise to the claim, and again in most cases, a defendant would have notice of the likelihood that proceedings will be commenced before commencement. The delay giving rise to a motion to dismiss arises only out of delay in the actual prosecution of the case to trial. In the case of inordinate delay, there can be some reasons which are regarded as excusable, and others which are not. Even in the case of reasons which do not excuse or justify the delay, there will in many cases be no real or significant prejudice to the defendant. For example, in a claim for damages for personal injuries arising out of a traffic accident, there could easily, and probably often is, a delay of six months since the entry of an appearance by the defendant and the delivery of the plaintiff’s statement of claim. The reason for that delay might be simply be that the plaintiff’s solicitor never got round to doing it. That is an inordinate and inexcusable delay, but the court would go on and consider the balance of justice issue, and might well decide that to dismiss the plaintiff’s claim would be an unnecessarily draconian consequence of that type of delay. If, on the other hand, there was a justifiable excuse for not delivering the statement of claim, it would make no sense if the court could nevertheless consider the balance of justice and perhaps dismiss the claim, in circumstances where (1) the delay was inordinate in the sense of abnormal or out of the ordinary, and (2) was excusable.

Different considerations, I suggest, arise in relation to pre-commencement delay which is inordinate and yet excusable. There can easily be circumstances in which, in such a case, the balance of justice would be in favour of dismissing the claim. For example, even if Kelly J. had in Kelly v. O’Leary, found that the delay of 50 years was excusable, he could well have reached the conclusion based on the facts and circumstances of that case, that the defendant was so prejudiced as to her ability to defend the proceedings after such a passage of time, that the claim ought not to be allowed to proceed. That inordinate and excusable delay is of such a completely different category to the Primor-type delay, that it is perfectly understandable that a different rule should apply as to how the courts should assess the significance of the delay. In my view it must follow that the Primor principles must be confined to post-commencement delay, and that the wider discretion based on general fairness regardless of whether the delay is excusable or not, should be confined to pre-commencement delay.’”

35. Pausing at this point, it is probably unnecessary to express any view as to whether there is such an a priori distinction between pre-commencement and post-commencement delays so far as the Primor principles are concerned. What is critical, however, is that Peart J. was of the view that this test was not an all encompassing one, a view which, as we have already seen has, in any event, been confirmed by the subsequent judgment of Geoghegan J. in McBrearty. Most pertinently so far as the present case is concerned, Peart J. then went on to hold that the court could strike out the proceedings on the grounds of inordinate and inexcusable delay, even in the absence of established prejudice so far as the defendants were concerned, because of the prejudice to the public interest:

“Finally, there is a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up the valuable and important time of the Courts, and thereby reduce the availability of that much used and needed resource to plaintiffs and defendants who have acted promptly in the conduct of their litigation, as well as increase the cost to the Courts Service, and through that body to the taxpayers, of providing a service of access to the Courts which serves best the public interest.
It is really the final interest which is relevant to consider in the present case since I have already found that the defendant has not been prejudiced by the plaintiff’s delay. The question is whether the public interest which I have identified trump the plaintiff’s right of reasonable access to the Courts in the present case.

In the unusual circumstances of the present case, I believe that it does. I say that, because a feature of this case is that the major portion of the plaintiff’s claim has fallen away, namely the claim related to tinnitus which emerged in about 1998. Prior to that the plaintiff had some difficulty with hearing loss, but it was not significant, and certainly not sufficiently significant to drive him to consult either a solicitor or a doctor. Mr Dougan has described his loss of hearing as mild to moderate and that it ought not to impact greatly. …..The Court has therefore had to hear a claim whose only real justification was on the basis of tinnitus, rather than hearing loss. That claim for hearing loss, if it were to stand alone, could have been and should have been commenced much earlier than 1998, and certainly not in the High Court. By 1998 it was a stale claim in my view. The Court’s jurisdiction to dismiss such an old claim is an important power in the public interest, regardless of prejudice to the defendant, yet one which must be used sparingly lest a plaintiff might unreasonably be deprived of a remedy to which he is entitled. If the Court were never to invoke that power it would send the wrong message, namely that the Courts will tolerate and indulge unreasonable delay in the bringing of claims where a defendant cannot show prejudice. That consideration must exist regardless of the existence of a defendant’s right to plead the Statute of Limitations by way of defence pleading. That Statute has the capacity to protect the defendant’s rights which I have identified, but it serves no purpose in the protection of the public interest to which I have referred.”

36. I respectfully agree with this analysis. If the courts were compelled to entertain claims of this antiquity in the absence of clear prejudice to the private interests of other litigants, it would not only set at naught the constitutional and ECHR considerations to which I have referred, but the courts would be failing in their duty to protect the public interest in the manner outlined by Peart J.
Conclusions
37. In conclusion, therefore, I am of the view that:

A. The delay here was manifestly inordinate and inexcusable.
B. The Supreme Court’s decision in McBrearty confirms that the Primor rules are not exhaustive and all-encompassing, but that the courts enjoy a separate and distinct constitutionally derived inherent jurisdiction to protect the proper administration of justice.

C. Even if one assumes in the plaintiff’s favour that no specific prejudice has been caused to the State defendants by this delay, the lapse of time between the events complained of and the present day is so enormous that the courts simply cannot fulfill their constitutional mandate of administering justice in a case such as this.

D. The judicial duty to ensure the timely administration of justice which is derived from Article 34.1 and Re Haughey-style basic fairness of procedures (which is in turn derived from Article 40.3.1) extends to protecting the public interest. The delay in the present is prejudicial to that public interest for all the reasons set out by Peart J. in Byrne v. Minister for Defence.

E. While not unmindful of the valiant efforts made by the plaintiff’s solicitor on behalf of the plaintiff and while I am conscious that the plaintiff has, in fact, suffered some appreciable hearing loss, the post-commencement delays simply compounded a problem which was inherent from the start, namely, that the 26 year delay involved in commencing the litigation in the first place was simply too long for the administration of justice to tolerate, even if the proceedings were technically within the Statute of Limitations.

F. For all these reasons I fear that I must accede to the relief sought in the State defendant’s motion and strike out the proceedings on the grounds of inordinate and inexcusable delay.

Hayes v McDonnell

[2011] IEHC 530

JUDGMENT of Mr. Justice Hanna delivered the 15th day of December, 2011
This application is moved by the defendants by way of notice of motion. They seek the following reliefs by way of preliminary application:-

1. An Order pursuant to the inherent jurisdiction of the Court striking out or otherwise dismissing the plaintiff’s claim wherein it is claimed that there has been inordinate and inexcusable delay on his part in prosecuting the claim, which delay has prejudiced the defendants and where the balance of justice is against allowing the claim to proceed.
2. An Order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim due to the lapse of time, in the interests of justice and / or otherwise dismissing the claim of the plaintiff in accordance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and the European Convention on Human Rights Act, 2003.

3. Such further and other relief as is deemed just and appropriate on foot of the delay and want of prosecution on the part of the plaintiff, including in circumstances where the plenary summons is dated the 9th September, 1999, and the statement of claim was purported to be delivered on the 20th April, 2009, and/or where the matters in respect of which the plaintiff makes complaint are alleged to have occurred between in or about 1949 and 1962.

The application is grounded on the affidavit of […], who is assistant principal legal executive in the Chief State Solicitor’s Office.
The Parties
The plaintiff is a retired civil servant and was born in 1946, and now resides in Northern Ireland.

The first named defendant is sued in his capacity as representative of a religious order. It is alleged that the first named defendant, his predecessors in title, their servants or agents, were the owners, occupiers and in control of an industrial school for boys in the southwest of the country and as such they owed a duty of care to the plaintiff whilst resident there from 1954 to 1962.

The second named defendant is sued in her capacity as representative of another religious order. It is alleged that the second named defendant, her predecessors in title, their servants or agents, were the owners, occupiers and in control of a convent in the southwest and as such they owed a duty of care to the plaintiff whilst resident there from 13th May, 1949, to 1st September, 1954.

The third, fourth, fifth and sixth named defendants join in this application. Paragraph 7 of the statement of claim sets the context of their purported liability to the plaintiff. It alleges that “…the second, third, fourth, and fifth, named defendants and each or either of them, their respective servants or agents, had statutory responsibility for the management, inspection, and certification of schools (including industrial schools) and orphanages and the plaintiff was in the care, custody and control of them at all material times hereto and as such they owed him a duty of care.”
Background Facts
It is important, given the nature of this application, that I preface the outline of the facts alleged, both on affidavit and in the statement of claim. The proceedings before this Court are not a trial of the substantive issues in contest between the parties. No case is made on behalf of the defence of vexatiousness or scandalousness or frivolousness on the plaintiff’s part. This application centres on the issue of delay by the plaintiff. He admits that that delay is inordinate. The impact and the consequences of that delay is what concerns us.

Thus, any recitation of facts alleged by either party or any observation therein is not intended to offer a definitive view of the substantive issues between the parties. It was agreed by counsel at the hearing that the applicant must take the applicant’s case as set forth in the statement of claim and replying affidavits at its’ height. Cross-examination at the substantive hearing, if such might materialise, would, in ordinary circumstances, provide the appropriate anvil upon which to forge the sword of probability.

At a tender age- two or three and a half years- it is not entirely clear – the plaintiff was placed into care at the convent school in 1949. At that time it was under the control and management of a religious order of nuns. The plaintiff alleges that on numerous dates between 1949 and 1954 whilst he was a resident at the convent school, he was subjected to severe physical and psychological abuse by the second named defendant, her servants and agents. Particulars of the alleged physical and mental abuse, negligence and breach of duty (including statutory duty) in that regard are set out in the statement of claim.

In 1954, the plaintiff was transferred at the age of eight years to the industrial school, which at that time was under the control and management of another religious order of brothers. The plaintiff alleges that on numerous dates during 1954 and 1962 whilst he was a resident at the industrial school, the defendants, their servants or agents subjected him to sexual, physical and psychological abuse. Particulars of this abuse, torture, negligence and breach of duty (including statutory duty) in that regard are set out in the statement of claim. The particulars of personal injuries are also detailed in the statement of claim. A Consultant Psychiatrist examined the plaintiff and submitted three reports dated 12th February, 2003, 18th August, 2004, and 18th March, 2009 which were exhibited in the plaintiff’s replying affidavit sworn on 3rd March, 2010. She has diagnosed the plaintiff with post traumatic stress disorder as a result of the alleged abuse. She reported also that he experiences depression and anxiety and finds it very distressing to recall the alleged events.

When the plaintiff left the industrial school, the religious order secured work for him as a farm labourer. He was extremely unhappy in this placement. He then secured work for himself in a hotel in the south of Ireland. After this he worked with a family in a neighbouring county. During this time he had all of his teeth removed because they were decayed which he alleges was due to malnutrition and poor dental hygiene over many years while at the convent and in the industrial school. The plaintiff then spent some time homeless. In 1964, he joined the British Army, serving for 22 years. He married in his late twenties. He enjoyed being in the army because he served overseas on many occasions and was able to maintain emotional distance from his wife and children. He left the British Army in 1986. He obtained work in Northern Ireland as a civil servant and is now retired. He is a founding member of a victim support group organised for and on behalf of survivors of institutional abuse and he was involved in the consultation process with respect to the setting up of the Residential Institutions Redress Board (“the Board”) and also the Commission to Inquire into Child Abuse (“the Commission”).
Pleadings and Proceedings
Given the nature of this application, it is important to set out a chronology of the pleadings. The plaintiff’s intention to initiate proceedings was communicated by way of letter from the plaintiff’s former solicitors to the Chief State Solicitor’s Office and the Department of Health and Children on 6th August, 1999. A plenary summons issued on the 9th September, 1999, and served on the defendants on or about 16th September, 1999, which is, as the defendants point out, fifty years after the acts alleged to constitute the wrongdoing began and thirty seven years after they ceased. The general endorsement of claim states that the plaintiff’s claim is for damages, including aggravated, exemplary and punitive damages for personal injuries, mental distress, nervous shock, anguish, physical illness, loss, damage, inconvenience and expense suffered and sustained by the plaintiff by reason of wilful assault and battery, trespass to the person, negligence and breach of duty including statutory duty, breach of fiduciary duty, breach of the plaintiff’s constitutional rights to bodily integrity, breach of the plaintiff’s constitutional right to education, breach of a dominant position, breach of trust, breach of the defendants’ obligations and duties as being in loco parentis of the plaintiff on their part and each or any of them, their servants or agents.

Initially three separate appearances were entered. On 29th September, 1999, the Chief State Solicitor’s Office entered an appearance on behalf of the third, fourth, fifth and sixth named defendants. On 16th December, 1999, a solicitors firm entered an appearance on behalf of the second named defendant. On 22nd December, 1999, a solicitors firm entered an appearance on behalf of the first named defendant. On 4th April, 2007, the Chief State Solicitor’s Office filed a notice of change of solicitor on behalf of the first named defendant. On 13th July, 2009, another solicitors firm filed a notice of change of solicitors on behalf of the second named defendant. On the 24th July, 2009, the Chief State Solicitor’s Office filed a notice of change of solicitors on behalf of the second named defendant. Consequently, the Chief State Solicitor’s Office is now on record for all of the defendants.

Initially, a named Solicitors were on record for the plaintiff. A notice of change of solicitor was filed on 30th April, 2007 and a further notice of change of solicitor was filed on 22nd July, 2009.

Following the enactment of the Residential Institutions Redress Act, 2002, the plaintiff submitted an application to the Board in 2005 but subsequently withdrew his application in November, 2008. He averred in his replying affidavit of 3rd March, 2010, that he submitted his application in 2005 when all of his proofs were available and had an opportunity to finalise his application with his solicitor. His application was pending before the Board between 17th November, 2005, and 3rd November, 2008, and he states that he was proceeding with his claim in an expeditious manner during this period. On 27th October, 2008, he signed a consent authorising his solicitors to notify the Board of his intention to withdraw his application as he did not feel that the Board provided him with a remedy in respect of his detention at the industrial school. This consent was posted to the Board on the 3rd November, 2008, as exhibited in the plaintiff’s replying affidavit. The plaintiff explains that he had lost faith in the “non court jurisdictions” and he became disillusioned and disenchanted with the manner in which the Board operated and the awards that were being made. He states that the main reason for his decision to proceed by way of court proceedings as opposed to continuing with his application with the Board was to have a “public airing of the systematic abuse and neglect that occurred” to him at the industrial school. He was also dissatisfied with the fact that the Commission did not invite any former resident of the industrial school to appear before it and he said that the evidence given by the religious order of brothers was very much at variance with his own experience at the industrial school. The plaintiff refers to correspondence in his replying affidavit which he submits shows that his solicitors kept the Chief State Solicitor’s Office and the State Claims Agency informed of the status of his application before the Board.

A notice of intention to proceed was filed by the plaintiff’s solicitors on 19th September, 2008. A statement of claim was delivered on the 20th April, 2009, along with further particulars of personal injury. On this application, the defendants have highlighted the fact that the statement of claim was delivered outside the time provided for by the Rules of the Superior Courts 1986 in accordance with Order 20, r.2 which provides that: –

“Where the procedure is by plenary summons, the plaintiff may deliver a statement of claim with the plenary summons or notice in lieu thereof, or at any time within twenty-one days from the service thereof.”
The plaintiff did not seek consent to the late delivery, nor did he apply to court for an extension of time for late delivery pursuant to Order 122, r.7, as substituted by r. 11 of the Rules of the Superior Courts (Personal Injuries) 2005, S.I. No. 248 of 2005, which provides that: –
“(t)he 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.”
The defendants did not consent to the late delivery. The plaintiff in his replying affidavit states that at no stage in the correspondence at that time was there any mention of the Chief State Solicitor’s Office objecting to the service of the statement of claim or that they were not consenting to the late delivery of the statement of claim. He now argues that the defendants should be estopped from taking issue with the service of the statement of claim because they did not take issue with it in April, 2009, when it was served. The defendants argue in response that it is not for the defendants to draw procedural inadequacies to the plaintiff’s attention, in circumstances where the plaintiff purported to reactivate proceedings over nine years and six months from the initial commencement. Consequently, the defendants should not be estopped from taking issue with the purported service of the statement of claim. I would agree. While the plaintiffs should have filed the statement of claim with the plenary summons or within 21 days from the date of service of same’ or alternatively have brought an application under Order 122, r.7, this did not happen and I consider this as something to be added to the balance as a part of the inordinate delay. The defendants are not estopped from taking issue with this matter, in the same way they are not estopped from taking issue with the delay as a whole.
No defence has been delivered on behalf of the defendants to date and a motion seeking judgment in default of defence was issued on the 4th of November, 2009 returnable for 18th January, 2010. That motion was adjourned generally.

This application was initiated by way of notice of motion dated the 22nd December, 2009. It is grounded on the affidavit of a legal executive from the Chief State Solicitors’ Office, which sets out the defendants’ reasons as to why they believe the delay is inordinate, inexcusable and would justify a dismissal of the action at this juncture. The affidavit states that there are persons who are untraced or deceased who would have been potential witnesses for the defendants. Among the deceased is the school inspector for both schools during the relevant period. Memories of people that are still alive will have dimmed since the period between 1949 and 1962. The defendants submit that they will suffer a prejudice if this case is allowed to proceed.

The plaintiff’s replying affidavit refers to the fact that he has been diagnosed with psychological and psychiatric problems including post traumatic stress disorder, which he states is an excusable explanation for the delay. He addresses other matters raised by the grounding affidavit, including his involvement with the victim support group and consultation processes.

A supplemental affidavit was sworn on the 23rd April, 2010, in response to the plaintiff’s replying affidavit. In it she argues that the plaintiff’s asserted psychological and psychiatric problems do not excuse his delay given his involvement with the consultation processes and his campaigning and that having application which was pending with the Board does not excuse the delay either.

The plaintiff’s solicitors served a notice to cross examine on the 18th January, 2011, in relation to the two affidavits (dated the 22nd December, 2009, and 23rd April, 2010) but this was not pursued.

A second supplementary affidavit was sworn on 22nd March, 2011. In it, the deponent states that a former cook at the industrial school was located and if she is the individual against whom the plaintiff makes a complaint, she is suffering from Alzheimer’s disease. The deponent exhibited a report from a private investigator stating that the cook suffers from Alzheimer’s disease. The deponent concludes that it therefore seems that she will not be in a position to give evidence at the trial of this action. The deponent respectfully concludes in her affidavit that this Court “cannot fulfil its constitutional mandate of administering justice in this case particularly, in light of the insurmountable prejudice faced by the defendants at this juncture.” I take the view that such an assertion in an affidavit is inappropriate. While evidence provided by the defendants as to the availability, or otherwise, of relevant witnesses for them in order to defend the claim and not be prejudiced is important, the Court will draw its own conclusion on whether or not it can fulfil its mandate based on this and other factors.

Further affidavits were sworn on behalf of the defendants as follows:

An affidavit of an individual from the Department of Education and Skills, sworn on the 21st March, 2011, gives an account of people who may still be alive who worked at the Department at the time. Only two people who worked in the Department are confirmed as still alive from that time and they are aged 87 and 97 years, others are deceased or were not traced. He also refers to the inspector of both schools at the relevant time who is now deceased.

An affidavit of an individual from the Department of Health and Children, sworn on the 23rd March, 2011, confirms that to the best of his knowledge a file relating to the plaintiff was opened in the context of the provision by the Department of personal counselling services to victims of abuse but the file has been mislaid. However, the deponent states that to the best of his belief the file does not contain any record of any contemporaneous complaint from the plaintiff or his family relating to the matters at issue in these proceedings. Counsel for the defendants told the Court that he understood that the file would not contain any investigative material in terms of either statements or any attempts or inquiries in relation to the truth or accuracy of any of the complaints that the plaintiff makes.

The affidavit of a convent nun on behalf of the second defendants confirms that some potential relevant witnesses are now deceased (death certificates were exhibited), and confirms that others are unwell due to old age.

The affidavit on behalf of the first defendant states that the three Brothers who the plaintiff has made allegations against are now deceased. It is claimed by the plaintiff that after he complained to the local priest he was ostracised and lost all of his privileges. No allegation is made against the priest but his traceability was at issue. The deponent states that the priest could not be traced and he would now be in his nineties. As regards the assertion in affidavits of the 19th January, 2011, and 9th February, 2011, that the Brothers have access to significant evidence, both oral and documentary, the deponent states that the Brothers do not have access to any documentary evidence nor do they have access to any material witnesses as to fact which would enable them to mount any type of meaningful defence to the allegations being made by the plaintiff at this remove.

The plaintiff swore a further affidavit on the 8th April, 2011, in reply to all of the issues raised in the above affidavits.

The plaintiff’s solicitor swore an affidavit on the 18th April, 2011, and this responds to the averment that the Brothers do not have any documentary evidence nor access to any material witness as to fact regarding the plaintiff’s experience, by stating that the congregation of the Brothers was given information about complaints since the establishment of the Commission and the Board.
The Relevant Law
The onus of establishing that a delay has been inordinate and inexcusable rests upon the applicants/defendants. At the beginning of the two-day hearing of this application, counsel for the plaintiff, very properly but not surprisingly, conceded that the delay has been inordinate, both in relation to the commencement of the proceedings and subsequently. It is noted that proceedings were issued by plenary summons issued on the 9th September, 1999, and served on the defendants in or about the 16th September, 1999, fifty years after the acts alleged to constitute the wrongdoing began and thirty seven years after they ceased. After the plenary summons issued, it took almost ten years for the statement of claim to be served.

I now must decide whether or not this inordinate delay has been proven by the defendants to be inexcusable, and if so, whether nevertheless the balance of justice should allow the claim to go to hearing or be dismissed. The balance of justice involves generally an examination of issues of prejudice, both to the plaintiff and to the defendant.

The principles of Rainsford v. Limerick Corporation [1995] 2 ILRM 561 (Finlay P.) were upheld and applied by Hamilton C.J. in the Supreme Court in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 who set out a number of principles as follows, at p. 475: –

“The principles of law relevant to the consideration of the issues raised in 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;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment 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

(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,

(vi) whether the delay gives rise to a 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,

These principles were followed by Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 and more recently in Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) & Ors [2011] IEHC 11 (Unreported, High Court, Hogan J., 18th January, 2011), among many other recent decisions. Delany & McGrath, Civil Procedure in the Superior Courts, (Thomson Round Hall, Second Ed., 2005) comment at para. 13.08 as follows:
“These principles have been approved in numerous decisions and it is interesting to note that, despite recent developments including the enactment of the European Convention on Human Rights Act 2003, it has been acknowledged by Clarke J. in both Stephens v Paul Flynn Ltd and Rodgers v Michelin Tyre plc that the basic questions which the court has to address in such cases remain the same, i.e. whether there has been inordinate and inexcusable delay and if so, where does the balance of justice lie.”

Inherent Jurisdiction in the Interests of Justice
The defendants submit that the test set down by Henchy J. in O’Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No. 1) [1991] ILRM 135 and Toal v Duignan (No. 2) [1991] ILRM 140 represents a “second strand” of jurisprudence in relation to such applications, this being that even where there has been no inexcusable delay on the part of the plaintiff, the court has an inherent jurisdiction to hold that in certain cases it would be unfair in all the circumstances to force a defendant to defend a case where there is prejudice by reason of the lapse of time. In Toal v Duignan (No. 2) it was held by Finlay P. that the Courts have an inherent jurisdiction to dismiss a claim in the interests of justice where the length of time which has elapsed between the events out of which it arises and the time when it comes on for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself.
Geoghegan J. in McBrearty v North Western Health Board [2010] IESC 27, (Unreported, Supreme Court, 10th May, 2010) noted there to be an “important and partly overlapping jurisprudence deriving, in the main, from decisions” in those cases and said that the importance of this jurisprudence is that “even in a case where there has been no fault on the part of the plaintiff, the court, in certain circumstances, in the interest of justice may accede to a defendants’ application to have the proceedings struck out.”

Hogan J. in Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) & Ors stated: –

“This line of case-law stresses the inherent duty of the courts arising from the Constitution to put an end to stale claims in order to ensure the effective administration of justice and basis fairness of procedures and in order to secure compliance with the requirements of Article 6 ECHR.”
Hogan J. in Donnellan quoted Geoghegan J. in McBrearty as follows:
“While McBrearty confirms the primacy of the Primor test, the judgment of Geoghegan J. also makes it plain that there are, in fact, two separate – albeit overlapping – strands of jurisprudence in this area. As Geoghegan J. observed with particular reference to O’Domhnaill v. Merrick:
‘I now turn to the other line of authorities to which I have referred starting with O’Domhnaill v. Merrick ….. The first observation I would make is that it is clear from this line of authorities and indeed from other cases that the inherent jurisdiction to strike out a case for delay in certain circumstances in the interests of a defendant may be exercised taking into account delay in the institution of proceedings. Notwithstanding that that is not a particular issue in this case, I mention it to emphasise the paramount inherent jurisdiction derived from the Constitution. ….Later cases would seem to indicate that even though it can form part of an application to dismiss for want of prosecution as indicated by Hamilton C.J. in Primor, the inherent jurisdiction can be exercised independently of the Rainsford principles.’ (emphasis applied)

Having examined the Supreme Court judgments in Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v. Duignan (No.2) [1991] ILRM 140, Geoghegan J. concluded:
‘If I am right in my view that there was not inordinate and inexcusable delay then the action must be allowed to proceed unless it would be fundamentally unfair to any particular defendant because of his special circumstances to have to defend the action thereby legitimately invoking the inherent jurisdiction of the court which can be exercised even in the absence of fault on the part of the plaintiff.’”
Hogan J. concluded that:
“The Supreme Court’s decision in McBrearty confirms that the Primor rules are not exhaustive and all-encompassing, but that the courts enjoy a separate and distinct constitutionally derived inherent jurisdiction to protect the proper administration of justice.
Even if one assumes in the plaintiff’s favour that no specific prejudice has been caused to the State defendants by this delay, the lapse of time between the events complained of and the present day is so enormous that the courts simply cannot fulfil their constitutional mandate of administering justice in a case such as this.”

This point in relation to the Primor principles was reiterated by Hogan J. in Quinn -v- Faulkner t/a Faulkner’s Garage & Anor [2011] IEHC 103 (Unreported, High Court, Hogan J., 14th March, 2011). Counsel for the defendants urged upon the Court that if the defendants had not satisfied all of the principles covered in the Primor test, to consider still the McBrearty decision. It is clear that the inherent jurisdiction of the Court may be exercised, even if the circumstances do not wholly accord with what is set down in Primor. The balance of justice is always to be the main concern. In Hogan v Jones [1994] 1 ILRM 512, Murphy J. cited a passage from an Australian case of Calvart v. Stollznow [1982] N.S.W.L.R. 749 as follows (also quoted by Geoghegan J. in McBrearty:
“Considerations of justice transcend all other considerations in these matters. Of course justice is best done if an action is brought on while the memory of the witnesses is fresh. But surely imperfect justice is better than no justice.”
In K. v Deignan [2008] IEHC 407, (Unreported, High Court, Dunne J., 2nd December, 2008), Dunne J. having reviewed the authorities, stated:
“It therefore seems to me, to be essential to consider on the facts of this case whether in all the circumstances it would be unjust to call upon the first named defendant to defend himself against the claim made.”
In that case, the Court decided that the prejudice to the defendant outweighed the undeniable prejudice to the plaintiff in the case in the circumstances and the plaintiff’s claim was dismissed.
Recent Developments
The defendants, citing Hardiman J. in Gilroy v Flynn, argue that in relation to an application for dismissal for want of prosecution, the courts have become more conscious of unfairness and the increased possibility of injustice in allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued.

Kearns J. in the Supreme Court in Stephens v Paul Flynn Ltd. [2008] 4 IR 31 referred to the significant amendments to the Rules of the Superior Courts (i.e. the amendment to Order 27 by the Rules of the Superior Courts (Order 27 (Amendment) Rules), 2004 S.I. No. 63 of 2004). In addition, Hardiman J. in Gilroy v Flynn made reference to European Convention on Human Rights Act, 2003, stating that 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.

Counsel for the plaintiff agreed that the Supreme Court has made it clear in a number of recent cases that delays in procedural matters which may have been tolerable in previous times may no longer be tolerated, referring to the cases of Gilroy v Flynn, Stephens v Paul Flynn Ltd. and Desmond v MGN Limited [2009] 1 IR 737 all of which demonstrate an ever increasing reluctance on the part of the courts to condone delays in procedural matters. As Hogan J. in Quinn -v- Faulkner t/a Faulkner’s Garage & Anor [2011] IEHC 103, (Unreported, High Court, Hogan J., 14th March, 2011) stated: –

“While as Charleton 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 Ltd. [2010] IEHC 465.”

Pre-Commencement and Post-Commencement Delay
The defendants submitted that there is a heavy onus on the plaintiff to proceed with extra diligence in progressing proceedings having regard to the delay prior to the issuing of the proceedings. While delay prior to the commencement of proceedings will not of itself be considered inordinate delay in the context of an application to dismiss for want of prosecution, may be a factor to be taken into account when considering where the balance of justice lies.
In Stephens v Paul Flynn Ltd [2005] 1.E.H.C. 148, (Unreported, High Court, Clarke J., 28th April, 2005) Clarke J. quoted Murphy J. in Hogan v Jones, who referred to Rainsford and quoted Lord Diplock in Birkett v James [1977] 2 All E.R. 801 as follows: –

“It follows a fortiori from what I have already said in relation to the effect of statutes of limitation on the power of the court to dismiss actions for want of prosecution that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced by the consequent lack of early notice of the claim against him, the fading recollections of his potential witnesses, their death or their untraceability. To justify dismissal of an action for want of prosecution the delay relied upon must relate to time which the Plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent upon the Plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.”
Kearns J. in the Supreme Court appeal of Stephens v. Paul Flynn Ltd. [2008] 4 IR 31 upheld the decision of Clarke J. in the High Court and reiterated what was recognised in that decision: –
“…I believe for the purpose of the present application I need go no further than to refer to that passage in Gilroy v. Flynn in which Hardiman J., having identified the traditional jurisprudence in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459, referred to the significant development represented by the change effected by the Rules of the Superior Courts (Order 27 Amendment) Rules 2004 to O. 27 of the Rules of the Superior Courts 1986, which provides that on the hearing of a second application to dismiss, the court “shall” order the action to be dismissed unless satisfied that “special circumstances” exist which explain and justify the failure. He then continued at p. 293:-
‘Secondly, the 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. Thirdly, following such cases as McMullen v. Ireland (ECHR 42297/98, 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.’

These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope.”

Medical Diagnosis: Post Traumatic Stress Disorder
The defendants submit that the replying affidavits of the plaintiff of 3rd March, 2010, and 8th April, 2011, do not establish facts that excuse the extent of the delay in or about the commencement of the proceedings and the further inexcusable delay and/or want of prosecution in or about the prosecution of the case. They submit that the contents of the medical reports do not display evidence of the plaintiff being medically unfit to bring the proceedings or pursue the proceedings. Counsel for the defendant urged the Court to consider “what [the psychiatrist] doesn’t say”, and said that the psychiatrist does not say that the plaintiff is incapable of dealing with his affairs.
The plaintiff argues that the failure on his part to bring proceedings against the defendants at a much earlier point in time is directly related to the abuse perpetrated by the defendants and the effects of that abuse on him and that the delay is excusable having regard to the medical evidence adduced on behalf of the plaintiff. The alleged effects of this abuse on the plaintiff are set out in the reports of the consultant psychiatrist’s medical dated respectively the 12th February, 2003, 18th August, 2004, and 18th March, 2009. The reports state, inter alia, that he suffers from post traumatic stress disorder, depression and that he is traumatised by his experiences. He dislikes discussing his own abuse and gets extremely upset when he does.

Albeit untempered by the fire of cross-examination, there is substance in the plaintiff’s assertion of impairment of his faculties to the extent of of shying confrontation with his alleged abusers in the white heat of litigious conflict. A monstrous injustice could ensue were an alleged wrongdoer to find shelter and succour in the impediment spawned by its’ alleged malefaction in order to ward off consequential proceedings.

I find sufficient material, gleaned from the plaintiff’s evidence, including the plaintiff’s medical reports, to excuse the inordinate delay in relation to the period of time pre-commencement and post-commencement of the proceedings. Given the particular nature of the claim in this case, and the plaintiff’s disillusionment with the Board and subsequent withdrawal of his application from the Board, I find that the delay has been explained and is excused. It is unfortunate that the plaintiff became disillusioned with the Board, but I have no reason to believe, given the exercise in which I am presently engaged, that this disillusionment is anything other than genuine.

If I am wrong on my finding that the delay is excusable, in any event I find later that the balance of justice favours the trial of the action proceeding based on an evaluation of any prejudices faced by both parties on the balance of justice test.
Campaigning / Engaging in Consultation Processes
The defendants submitted that the reliance on the contents of the plaintiff’s medical reports to explain the delay is at odds with his averment that the plaintiff was in a position actively to campaign for the rights of others during that period of delay. In a supplemental affidavit submitted on behalf of the defendant dated 23rd April, 2010, she submits that in circumstances where the plaintiff has averred that he actively campaigned for his own rights and the rights of others throughout the period post commencement of the within proceedings, the asserted psychological and psychiatric problems referred to do not excuse the delay.

The plaintiff submitted that the delay is excusable in the circumstances as he was a founding member of a group which campaigns on behalf of victims of institutional abuse. The plaintiff was also involved in the consultation process surrounding the Board and also the Commission and met with various ministers for Education and Science and civil servants between 1999 and 2010 to discuss the rights and needs of survivors of institutional child abuse. Letters were exhibited in his replying affidavit which clearly show that he took an active role in the consultation processes and was well respected because of his significant input. Counsel for the plaintiff submitted that the plaintiff distracted himself by immersing himself in this work, and this is referred to by the psychiatrist in her reports. It is understandable that a person who is suffering from what the plaintiff is diagnosed of might be capable of taking care of certain affairs in their life but not of others for whatever reason. Therefore, the plaintiff’s activities outlined above have no bearing, in my view, on how he proceeded or failed to proceed expeditiously with his High Court action, but what is reported by the psychiatrist that the plaintiff immersed himself in other work to avoid dealing with the past would appear to explain the plaintiff engaging in these activities yet neglecting his own action.
Withdrawal from the Board and s. 13(10) of the Residential Institutions Redress Act, 2002
The plaintiff chose to withdraw his application from the Board in 2008. In his replying affidavit sworn on the 3rd March, 2010, he states that the main reason for his decision to proceed by way of court proceedings as opposed to the Board was to have a public airing of the systematic abuse and neglect that occurred to him at the industrial school. The courts are primarily a forum, inter alia, for the identification of and, where appropriate, the vindication of the rights of the citizen. Other forae exist for the airing of views. Nonetheless, for the purposes of this application I will assume that the plaintiff decided to withdraw from the Board based on his strongly and genuinely held views. After this withdrawal was made, after proceeding with his High Court claim, he was unfortunately, for him, faced with this application.

The plaintiff submits that pursuant to the provisions of s. 13(10) of the Residential Institutions Redress Act, 2002, the court is obliged to disregard the period of time that the application of the plaintiff was before the Board for the purposes of the Statute of Limitations. In light of the wording of that subsection, the plaintiff submitted that it is appropriate in the circumstances for the Court to disregard the period during which the plaintiff’s application was pending before the Board when considering whether the post commencement delay of the plaintiff is inexcusable in all the circumstances of the case. Section 13(10) states: –

“Where an applicant does not accept an award within the time and in the manner provided for in this section and proceeds with any right of action that he or she may have arising out of the same, or substantially the same, acts complained of in an application, the Minister, a public body or any other person, will not in such proceedings to which it is a party rely for the purposes of the Statutes of Limitations, on the period between –
(a) the date of the application to the Board by that applicant, and

(b) the date on which the applicant—

(i) abandoned his or her application,
(ii) was adjudged not entitled to an award under this Act,

(iii) rejected an award in accordance with subsection (4)(a) or subsection (5), or

(iv) rejected a decision of the Review Committee in accordance with section 15 (7) or section 15 (8),

whichever of such dates is the later, in bar of any right of recovery under such proceedings.”
The defendants submit that the plaintiff should not be able to rely on the withdrawal of his application or the alleged basis of the withdrawal of his application as grounds for not dismissing his claim, particularly in light of the very real and specific prejudice they will suffer. The defendants submit that given that the alleged wrongful acts occurred so long ago, the plaintiff was obliged to have addressed the proceedings with expedition regardless of alternative means of redress which the plaintiff elected to pursue. The defendants, in a supplementary affidavit, submit that dissatisfaction with the Board or the Commission should not be used to excuse the delay and should not be used to weigh against the real, significant and specific prejudice that the defendants face at this stage in defending the action.
The defendants further argue that the plaintiff’s reliance on s. 13(10) of the Residential Institutions Redress Act, 2002 to excuse the delay relating to the period of time between 2005 and 2008 is misguided because this provision relates to any plea under the Statutes of Limitations and it therefore does not provide any protection in the context of the application before this Court. In a supplemental affidavit sworn on the 23rd April, 2010, it is stated that this application is in respect of the delay and want of prosecution and is not pursuant to the Statutes of Limitations. She also says that, in any event, s. 13(10) is not a bar to the defence raising the statute of limitations or more particularly, pleading (inordinate and) inexcusable delay and the resultant prejudice suffered as a result thereof.

The defendants further submit that the limited amount of time, between 2005 and 2008, when the plaintiff had his application pending before the Board does not excuse the extent of the delay particularly where the actions complained of date back to the period from 1949 to 1962. Counsel for the defendant in his submissions stated that the only explanation the plaintiff gives at its height from the plenary summons in 1999 to 2005 is just a statement that he was waiting on all of his proofs until 2005. Counsel submitted that the Court should have regard to the obligation on a plaintiff to prosecute proceedings with expedition where there has already been a long delay prior to the inception of proceedings.

S. 13(10) applies to a claim that might be barred under the Statutes of Limitations. It therefore does not provide for the disregarding of the period between 2005 and 2008 when assessing the delay and whether or not it is inexcusable. I therefore look at the time post-commencement of the proceedings as a whole, and as stated above, I find that the contents of the medical reports excuse the delay.
Prejudice suffered by the defendants
The defendants argue that the balance of justice lies in favour of dismissing the plaintiff’s claim and that therefore if the Court finds the plaintiff’s delay excusable (not inexcusable), the Court has a separate and distinct inherent jurisdiction to dismiss the claim by reason of the lapse of time in the interests of justice due to the prejudice suffered by the defendants. The defendants state that they suffer a presumed prejudice by reason of lapse of time as well as a specific and real (actual) prejudice by reason of the death and untraceability of witnesses and the old age of any witnesses that may be available.

A presumed prejudice exists, it is argued, because of the nature of the allegations made out in the statement of claim and the alleged vicarious liability and particularly because the nature of the claims made mean that the case will be presented on the basis of oral testimony and would be defended on the basis of oral testimony if it were available. Counsel for the defendants submitted that being sued under the doctrine of vicarious liability rather than in terms of a specific act of an inappropriate kind or an inappropriate omission on their part is significant in terms of assessing the delay that has occurred in this case. He said that it would be different if the specific allegations were made against specific defendants cited in the proceedings and they were still alive.

The relevant Department of Education inspector for both the industrial school and the convent during the relevant period of time is deceased and counsel for the defendant called this a “joint prejudice.” Only two people who worked in the Department are still alive from that time and they are aged 87 and 97. The defendants state that because of this they face a significant level of specific prejudice in defending the within proceedings and that this prejudice is of the kind that establishes a clear and patent unfairness in expecting the defendants to defend the claim after such a substantial time lapse. They therefore submit that the court should exercise its inherent jurisdiction to dismiss the proceedings herein by reason of the want of prosecution on the part of the plaintiff and or alternatively in the interests of justice by reason of the lapse of time and the resultant insurmountable prejudice suffered by the defendants.
Prejudice: The Industrial School, 1949 – 1954
In relation to the industrial school, the defendants state that they are prejudiced by the death of potential relevant witnesses named on affidavit. Also listed on the grounding affidavit are names of potentially relevant persons who have not been traced. The defendants submit that because the industrial school closed in 1967 and was demolished in 1984, written records have been difficult and/or impossible to identify and trace and that limited records have been identified but these do not shed any light on the allegations made by the plaintiff. Other named individuals in the medical reports have been found to be either deceased or suffering from ill health and in any case it is argued that memories will have inevitably dimmed over the period of time that elapsed since 1949. The defendants submit that regardless of whether the traced people could give evidence at the hearing of the action their presence alone could not cure the prejudice that the congregation would face if the proceedings are allowed to proceed.
Prejudice: The Convent School, 1954 – 1962
The plaintiff makes allegations against three Brothers who are now deceased. Counsel also submitted that the Court has essentially, before it, a statement of claim that makes no specific allegations in relation to the time in the convent school and then confines to the industrial school in respect of three Brothers that have been identified, all deceased. However, a specific complaint is made against the cook at the industrial school. The cook, it appears, has been traced but the defendants report that she suffers from Alzheimer’s. It is claimed, also, in the statement of claim that after the plaintiff complained to the local priest, he was ostracised and lost all of his privileges. The defendants state that this person could not be traced and he would be now in his nineties. No allegation is made against the priest but his traceability was at issue. As regards the generality of allegations in the statement of claim in relation to the industrial school, counsel for the plaintiff submitted that the defendants could have served a notice for particulars in that regard.

The resident managers and superiors of the industrial school during the period 1954 – 1962 are deceased. There are two brothers who are alive from that time. They are both now elderly, one resides in a nursing home and the other in a care facility. The defendants submit that their relevance to the proceedings is questionable in circumstances where no allegations are made against them.

The plaintiff addressed the issue of prejudice to the defendants caused by the alleged delays. The plaintiff submits that the defendants bear the onus of proof in establishing that there is a “clear and patent unfairness” in asking them to defend the action at this point. As outlined above, the defendants filed numerous affidavits referring to the lack of relevant witnesses due to death, illness or infirmity, stating that they do not have access to sufficient or any documentation and/ or any material witnesses as to fact which would enable them to deal with the allegations made. In response to this, the plaintiff submits that there are some witnesses available. He states that there are a number of witnesses, albeit in poor health, who can confirm his experiences in the convent. He is also of the view that individuals who were working in the industrial school, while he was there are alive and would be of assistance to the defendants in defending the plaintiff’s claim. The plaintiff further submits that former pupils and residents could be traced from school records and from documentary evidence disclosed to the congregation by the Board as outlined above. Counsel for the plaintiff submitted that the complaint in relation to sexual abuse at the industrial school in the main, relates to older boys who abused younger boys and the failure of the relevant defendants to stop this – the argument being that former residents who were witnesses to this abuse may still be available.
Prejudice to the defendants – the availability of documents
In an affidavit sworn on the 9th February, 2011, it is asserted that given chapter 11 of the Report of the Commission, there is a significant amount of evidence (oral and documentary) available to the Brothers in respect of the relevant time frame of the within proceedings. In a subsequent affidavit dated 18th April, 2011, he again asserts that it is clear from the Report of the Commission that significant documentary evidence was disclosed to the Commission. He states that it is extraordinary for the Brother to indicate that the congregation does not have access to any documentary evidence or access to any material witness as to fact regarding the plaintiff’s experience. In his affidavit of the 19th January, 2011, he refers to the Commission’s Final Report, particularly chapters which deal with the Brothers’ congregation and the industrial school, which show that there is a significant amount of evidence (oral and documentary) available to the Brothers’ congregation in respect of the time frame relevant to the proceedings. Further, the Dunleavy Report and the McCormack report which were referred to in the Commission’s Report (Vol I) were made available to the Brothers’ congregation.

In a supplemental affidavit filed on behalf of the defendants by the Chief State Solicitor’s Office, the deponent states she is unclear what the plaintiff means in his replying affidavit when he states that the State Claims Agency have access to copious amounts of material. She states that certain records and documentation were obtained on foot of investigations undertaken by the Department of Education and Science and the Department of Health and Children in the context of the within proceedings, but this material does not alter the defendants’ position in terms of the very real and significant prejudice faced by the defendants in dealing with the within proceedings. Counsel for the defendants reiterated this point in submissions, saying that it is still not clear, notwithstanding the exchange of affidavits, what the “copious material” referred to by the plaintiff is. Counsel for the defendants submitted that the plaintiff has not said that there is anything in chapter 11 of the Commission’s report referable to his case.

The defendants state that a number of written records from the industrial school have not survived. The register for the industrial school is the only document that the first named defendant has in its possession. The only document that the first named defendant has is an entry on the register dated 14th May, 1961, stating that the plaintiff received a very good primary certificate in 1960. Therefore, the defendants submit that they do not have access to any documentary evidence or material witnesses that would enable them to mount any type of meaningful defence to the allegations.

It is a fact that some potential witnesses for the defendants are deceased or are elderly. However, as the plaintiff submits, there are some witnesses available. The plaintiff also submits that the nature of the abuse that he suffered generally did not take place behind “closed doors”, and former residents could give evidence on this. I find that given the circumstances of the case, the nature of prejudice suffered by the defendants does not outweigh the prejudice that might be suffered by the plaintiff if this claim were not allowed to proceed at this juncture.

The question of public interest

The defendants submit that the Court can strike out a claim on the grounds of inordinate and inexcusable delay in the absence of established prejudice so far as the defendants are concerned, because of the prejudice to the public interest. They cited the cases of Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) & Ors [2011] IEHC 11, (Unreported, High Court, Hogan J., 18th January, 2011) and Byrne v Minister for Defence [2005] 1 IR 577 (Peart J.). The defendants state that in this case the Court should have regard to the plaintiff’s unilateral decision to withdraw his application from the Board.

The plaintiff submits that the court may take into account the particular circumstances of the case when considering whether there has been inexcusable delay coupled with the balance of justice test to find that if the delay was excusable and that it may be in the public interest to permit such a case to hearing, given that it relates to a plaintiff’s right to bodily integrity as a child.

In Donnellan, Hogan J. stated:

“Moreover, quite apart from any considerations of the personal rights contained in Article 40 and Re Haughey-style basic fairness of procedures, the speedy and efficient dispatch of civil litigation is of necessity an inherent feature of the court’s jurisdiction under Article 34.1. As I ventured to suggest in my own judgment in O’Connor v. Neurendale Ltd. [2010] IEHC 387, this constitutional imperative means that the courts have a jurisdiction (and, in (sic) appropriate cases, a duty) to exercise their powers in a way which will best ensure that a litigant’s right to a hearing within a reasonable time is best vouchsafed. In any event, and for good measure, the same right is guaranteed by Article 6 ECHR: see Gilroy v. Flynn [2005] 1 ILRM 290 and McFarlane v. Ireland [2010] ECHR 1272. One might add that this duty also extends to protecting the public interest in ensuring the timely and effective administration of justice, a consideration to which we may now turn.”
Hogan J. then quoted Peart J. in Byrne inter alia as follows:
“The Court’s jurisdiction to dismiss such an old claim is an important power in the public interest, regardless of prejudice to the defendant, yet one which must be used sparingly lest a plaintiff might unreasonably be deprived of a remedy to which he is entitled. If the Court were never to invoke that power it would send the wrong message, namely that the Courts will tolerate and indulge unreasonable delay in the bringing of claims where a defendant cannot show prejudice. That consideration must exist regardless of the existence of a defendant’s right to plead the Statute of Limitations by way of defence pleading. That Statute has the capacity to protect the defendant’s rights which I have identified, but it serves no purpose in the protection of the public interest to which I have referred.”
Hogan J. concluded:
“I respectfully agree with this analysis. If the courts were compelled to entertain claims of this antiquity in the absence of clear prejudice to the private interests of other litigants, it would not only set at naught the constitutional and ECHR considerations to which I have referred, but the courts would be failing in their duty to protect the public interest in the manner outlined by Peart J.”
Different considerations arise here than arose in Donnellan and Byrne. This is because the allegations made are said to have caused the plaintiff’s medical condition which resulted in the delay. Considerations of public interest of course still apply, and given my findings above on the prejudice suffered by the defendants, I am satisfied that it is in the public interest that the plaintiff’s claim proceeds to hearing.
Alleged delay on the part of the defendants
It was stated in Rainsford by Finlay P. at p. 567 that:

“Delay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss(al) of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion.”
The plaintiff submits in his replying affidavit that the defendants are guilty of delay in bringing this application. During the hearing of the application, counsel for the plaintiff submitted that there is an element of acquiescence on the part of the State in the delay, because of the correspondence between the plaintiff’s solicitor and the State Claims Agency, and the State Claims Agency was being updated on the status of the application with the Board.
This application was brought on the 22nd of December, 2009. However, given that the plenary summons was delivered on the 9th September, 1999, but the statement of claim was purportedly delivered on the 20th April, 2009, (and the Chief State Solicitor’s Office came on record for the second named defendant in July, 2009), it was only then that the defendants were possessed of information they needed in order to investigate how to defend the action. A second affidavit at para. 10 states that certain investigations were undertaken on behalf of the defendants prior to issuing the within application and that the defendants cannot be criticised for taking a relatively short period of time to do this. It is stated in a supplemental affidavit at para. 18 that “it was not until receipt of the statement of claim that the defendants could undertake any meaningful enquiry in respect of the allegations being made by the plaintiff”, and that the lack of detail contained in the plenary summons precluded any meaningful enquiries. Enquiries after service of the statement of claim and after the plaintiff’s replying affidavit were conducted and persons mentioned in the medical reports have been identified as being alive.

The period of eight months between the service of the statement of claim and the making of this application should not be seen as excessive. I accept that the investigations which had to be undertaken by the defendants took some months and this was not a delay on their part.
Summary of various findings
I find that the delay has been excused. Many unfortunate factors led to the High Court proceedings being delayed in both their commencement and their conduct post-commencement. These factors, the medical reports submitted on behalf of the plaintiff and the circumstances surrounding his disillusionment with and subsequent withdrawal from the Board process, excuse the delay in this case. As regards the public interest, I find no reason why the public interest would be served in striking out the proceedings at this stage. The prejudice which the defendants assert that they suffer can be dealt with again by the trial judge if and as appropriate.
Conclusion
In all of the circumstances of the case I am satisfied that this is a case where the Court should not exercise its inherent jurisdiction to dismiss the proceedings on the grounds of inexcusable delay, the inordinate delay having been conceded. The onus is still on the plaintiff to prove his case at the hearing of the action and given the particular circumstances of this case, the balance of justice lies in favour of allowing the matter to proceed and proceed expeditiously.

Dismissal for Delay

Cases

Irish Family Planning Association v Youth Defence

Stephens v Paul Flynn Ltd

Crowley v Roche Products (Ireland) Ltd

Kearney v McQuillan and the North Eastern Health Board

Padraic Keane v Western Health Board and Mrs Ann Meehan

McGarry v Minister for Defence

Farrell v Arborlane

Millerick v Minister for Finance

Mannion v Brennan

Primor plc v. Stokes Kennedy Crowley

Cullinane v Eustace

Shanahan v PJ Carroll and Co Ltd

Comcast International Holdings Inc v Minister for Public Enterprise

McBrearty v North Western Health Board

Mannion v Bergin

Killeen v Padraig Thornton Waste Disposal Ltd

De Braam Mineral Water Company Limited v BHP World Exploration Inc

Fahy v Scanlon

Donnellan v Westport Textiles Limited

Hayes v McDonnell

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